United States v. Duane Peterson

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 30, 2024
• Docket: 23-1413
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0436n.06

Case No. 23-1413

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 30, 2024 ) UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN DUANE PETERSON, ) DISTRICT OF MICHIGAN Defendant-Appellant. ) ) OPINION

Before: MOORE, COLE, and LARSEN, Circuit Judges.

COLE, Circuit Judge. Duane Peterson was indicted on various gang-related charges.

Peterson twice unsuccessfully moved to suppress evidence against him. First, he moved to

suppress a firearm recovered from a search of his motel room. Next, he moved to suppress cell

phone data obtained from cell phones seized incident to his arrest. Peterson also twice moved to

adjourn his trial date. The district court denied his first motion to adjourn but partially granted his

second, adjourning trial for 13 days. The jury ultimately convicted Peterson on all counts.

Peterson now appeals, claiming the district court erred in denying his motions to suppress and his

motions for adjournment. For the reasons stated below, we affirm.

I.

Beginning around 2014, Peterson helped lead a drug trafficking group, It’s Just Us (“IJU”).

In May 2017, Peterson and other IJU members gathered to celebrate the birthday of a deceased

member. When Peterson arrived at a bar for the IJU gathering, Christopher Marcilis, who had No. 23-1413, United States v. Peterson

arrived before Peterson, exited his vehicle, pulled out a firearm, and began disparaging the

deceased IJU member and IJU. Multiple IJU members shot at Marcilis, prompting Marcilis to flee

through an alley. Peterson and another IJU member pursued Marcilis. When Marcilis fell face

first on the ground, Peterson shot Marcilis in the back of the head, killing him. Peterson and his

fellow IJU member quickly disposed of their firearms by throwing them onto the roof of a

neighboring building and fled the scene together.

Officers recovered the firearms from the roof. Forensic analysis confirmed that the bullet

casings recovered from the scene were fired from those two firearms and that the bullets found

under Marcilis’s body and embedded in his chest, abdomen, and hip were fired from Peterson’s

firearm. Approximately two months after the murder, officers arrested Peterson. He possessed

two cell phones on his person, which law enforcement seized during his arrest.

The following day, a Detroit police detective provided an affidavit to a state court judge.

Finding that the affidavit provided probable cause that evidence of Marcilis’s murder could be

discovered in the cell phones’ data, a state court judge issued a warrant authorizing officers to

search the phones’ electronic data for evidence of the murder. The search led to the discovery of

communications between and photos of Peterson and other members of IJU.

In March 2018, Peterson and other IJU members patronized a liquor store. Peterson’s

girlfriend entered the store, and she and Peterson began fighting. Peterson threw her to the ground,

choked her, and held her against the door by her throat. The parties eventually relocated to the

parking lot where the assault continued with Peterson choking his girlfriend as other IJU members

watched.

Eventually, a vehicle with its windows down stopped at a nearby traffic light, and the

vehicle’s occupants observed the assault. In response, an IJU member reached into the vehicle

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and struck the front seat passenger in the face with his firearm. Peterson then shot at the vehicle.

Another IJU member also shot at the vehicle as it fled. One of the bullets pierced the liver and

lung of the backseat passenger.

After an IJU member involved in the shooting positively identified Peterson as one of the

two shooters, law enforcement charged Peterson with assault with attempt to murder but struggled

to locate him. Eventually, officers located Peterson at a motel in Detroit. The FBI’s Violent Gang

Task Force set up surveillance and confirmed that Peterson was staying in a particular room. A

Detroit police detective promptly provided an affidavit to a state court judge. Finding that the

affidavit provided probable cause that evidence of the shooting could be found in the motel room,

a state court judge issued a warrant, authorizing officers to search the room for evidence of the

attempted murder. The officers discovered a loaded firearm and extended magazine in the toilet

tank.

In September 2020, law enforcement charged Peterson and seven other IJU members with

gang-related crimes. Initially, Peterson was indicted for racketeering conspiracy, in violation of

18 U.S.C. § 1962(d), and conspiracy to distribute and to possess with intent to distribute controlled

substances, in violation of 21 U.S.C. § 846. But in a second superseding indictment, a grand jury

added charges for murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and (2),

using and carrying a firearm during and in relation to a crime of violence causing death, in violation

of 18 U.S.C. §§ 924(j) and 2, and felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). The first two additional charges stemmed from Marcilis’s murder, and the firearm

recovered from the motel provided the basis for the later charge. Following the second superseding

indictment, in June 2022, the parties agreed to adjourn the trial to November 2022.

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Peterson separately moved to suppress the firearm recovered from his motel room and the

evidence recovered from the cell phones seized during his arrest. The district court denied both

motions, concluding the warrants were supported by probable cause and, regardless, the officers

relied on both warrants in good faith.

Six weeks before trial, Peterson moved to adjourn his trial for at least five months. The

government opposed the motion, and following a hearing, the district court denied relief. Less

than three weeks before trial, Peterson renewed his motion. This time, he sought at least a two

month adjournment. Again, the government opposed the motion. Following another hearing, the

district court granted the motion in part and denied the motion in part, adjourning the trial for 13

days to give Peterson’s counsel more time to prepare.

Ultimately, the jury convicted Peterson of all five counts, and the district court sentenced

him to 120 months on the felon in possession charge and life in prison on the four remaining counts

to be served concurrently. Peterson now timely appeals.

II.

Peterson first contends that the district court erred when it denied his motions to suppress

(1) the firearm seized via the search of his motel room and (2) the data retrieved from cell phones

seized from his person incident to his arrest. Because the good faith-exception applies to both

search warrants, we need not determine whether the warrants were supported by probable cause.

For the reasons discussed below, we affirm the district court’s determination that the good-faith

exception applies as to both the firearm and the cell phone data.

In an appeal from a denial of a motion to suppress evidence, we review the district court’s

factual findings for clear error and its legal conclusions de novo, United States v. Waide, 60 F.4th

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327, 335 (6th Cir. 2023), but give “great deference” to the issuing magistrate’s initial finding of

probable cause. United States v. Johnson, 351 F.3d 254, 258 (6th Cir. 2003).

A.

First, Peterson argues that the district court erred in denying his motion to suppress the

firearm seized during the search of his motel room. Specifically, he asserts that the search warrant

lacked probable cause because there was an insufficient nexus between his motel room and the

firearm used in the liquor store shooting, the affidavit contained stale information, and the good-

faith exception to the warrant requirement did not justify the search.

Where, as here, officers obtained evidence pursuant to a search warrant, even if the

affidavit failed to establish probable cause, the good faith-exception may nonetheless preclude

suppression. This court will not exclude evidence where police relied in good faith on a search

warrant that was not supported by probable cause so long as their reliance was objectively

reasonable. United States v. Leon, 468 U.S. 897, 922–24 (1984). Where officers discovered

evidence after obtaining a warrant, the good-faith exception precludes suppression unless: (1) the

warrant affidavit includes statements that the affiant knew or should have known were untrue;

(2) “the issuing magistrate wholly abandoned his or her judicial role;” (3) the warrant affidavit is

“bare bones” or lacks any indicia of probable cause; or (4) “the warrant is so facially deficient”

that it would be unreasonable for the executing officers to think it was valid. United States v.

Washington, 380 F.3d 236, 241 (6th Cir. 2004). Peterson asserts that the good-faith exception

should not apply to the motel search because the underlying warrant was bare bones, and the

warrant affidavit included statements that the affiant knew or should have known were untrue.

An affidavit is bare bones if it is “conclusory” and contains only a guess that evidence of a

crime would be found. United States v. White, 874 F.3d 490, 496 (6th Cir. 2017). On the other

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hand, an affidavit is not bare bones when it falls short of probable cause but contains a “minimally

sufficient nexus” between the evidence and the place to be searched. See United States v.

Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc).

Here, the search warrant affidavit is not bare bones. The affidavit contained the following

information: the victim stated that he was in a vehicle stopped at a red light when he and the

vehicle’s other passengers observed a man (later identified as Peterson) and a woman fighting in

a parking lot, another IJU member approached the stopped vehicle and struck the front passenger

in the face with his firearm, and Peterson removed a firearm from his waistband and shot at the

vehicle, striking the victim; the other IJU member involved in the shooting identified Peterson as

the person who shot at the vehicle; law enforcement positively identified Peterson based on

surveillance footage of the events surrounding the shooting; law enforcement indicted Peterson for

assault with intent to murder; law enforcement surveilled the motel and observed Peterson check

in and remain in a motel room; and the affiant stated that based on his experience, firearms are

durable goods maintained for extended periods of time and kept in locations familiar and

accessible to the possessor.

Peterson contends the affidavit contained no evidence that he had a firearm in the motel

room. But this argument overlooks information contained within the four corners of the affidavit.

The affidavit described the victim’s account of the shooting and how Peterson pulled a firearm

from his waistband, indicating that he carried the firearm on his person. It detailed how, based on

the affiant’s experience and training, shooters keep their firearms in accessible locations. And

finally, it explained the affiant had reason to believe that Peterson was currently in the motel room

in question; the affiant reviewed video surveillance of lobby and check in counter and set up

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surveillance of the location, monitoring all entrances and exits. The affidavit contained more than

a mere guess that evidence of the shooting would be found in Peterson’s motel room.

Peterson’s second argument—that the good-faith exception does not apply because the

underlying affidavit contained an untruth—also fails. On appeal, he specifically asserts that the

affidavit “contained a false statement that there was ‘surveillance footage recovered from the scene

of the incident’ that showed [Peterson] as the other shooter in the video.” But as discussed by the

district court, “the affidavit did not allege the existence of a video showing [Peterson] as the

shooter.” (Op. and Order Denying Mot. to Suppress, R. 272, PageID 2070.) The affidavit stated

only that after reviewing the surveillance footage, law enforcement positively identified Peterson

as the other shooter in the video.

The surveillance cameras did not record the shooting itself, but the footage showed the

events leading up to the shooting, Peterson and the other IJU member involved in the shooting

inside the store, Peterson’s physical altercation with his girlfriend, and Peterson returning to his

vehicle after the shooting. And because the other IJU member involved had already identified

Peterson as the other shooter, law enforcement’s review of the footage verified Peterson’s identity,

not his participation in the shooting. Therefore, the affidavit did not contain a false statement

regarding the surveillance footage.

Peterson also claims that the affiant knew or should have known that the other IJU member

involved in the shooting lied about his involvement in other crimes before he identified Peterson

as the second shooter. As Peterson failed to raise this issue below, he forfeited the argument. See

Bannister v. Knox Cty. Bd. of Educ., 49 F.4th 1000, 1011 (6th Cir. 2022) (“[A]ppellate courts hold

that a party has forfeited an argument when the party belatedly asserts it on appeal after having

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failed to raise it in the district court.”). Therefore, we apply the plain-error standard to this claim.

See United States v. Burrell, 114 F.4th 537, 549 (6th Cir. 2024).

To reverse under the plain error standard, this court must find: (1) an error, (2) that error

was plain, and (3) that error affected substantial rights. United States v. Kuehne, 547 F.3d 667,

687 (6th Cir. 2008). Only if all three requirements are met and “the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings[,]” may this court “exercise its

discretion to notice [the] error.” Johnson v. United States, 520 U.S. 461, 467 (1997) (cleaned up).

Peterson’s argument fails at the first prong. Peterson does not detail the other IJU member’s

alleged prior lies, nor does he point to anywhere in the record where we can find evidence of the

alleged lies. And if anything, the affidavit contains additional information that would bolster the

other member’s credibility. Officers corroborated the tip with both the victim’s statements and

video surveillance showing Peterson’s presence at the time of the shooting. Thus, because the

district court did not commit error, Peterson’s claim regarding the falsity of the other member’s

statements fails.

B.

Next, Peterson contends that the district court erred in denying his motion to suppress the

data retrieved from cell phones seized from his person incident to his arrest. He argues that the

district court erred because the affidavit supporting the warrant fails to state sufficient facts to

establish that evidence of the alleged murder would be found on the cell phones.

The district court held that the cell phone search warrant was supported by probable cause

and found that “even if the warrant [] lacked probable cause, the good faith exception would apply,

making exclusion an inappropriate remedy.” (Op. and Order Denying Second Mot. to Suppress,

R. 332, PageID 2857.) We understand Peterson to be challenging the district court’s good-faith

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determination on the ground that the affidavit is bare bones because it is too conclusory and lacks

a minimally sufficient nexus between the evidence sought and the cell phones to be searched.

Peterson contends the affidavit fails to establish anything more than that Peterson was accused of

murder, and that he had cell phones on his person when he was arrested two months later.

Here, the search warrant affidavit is not bare bones. The affidavit contained the following

information: the affiant’s law enforcement experience; the details of the fatal shooting; description

of surveillance footage of the events before and after the shooting, showing Peterson and another

IJU member chase Marcilis together, discard their firearms on the roof, and flee together in the

same vehicle; the statement by the victim’s family that a man belonging to the IJU Facebook page

(that was deactivated at the time) was involved in the shooting; Peterson’s arrest and self-

identification; and Peterson’s possession of the cell phones at the time of his arrest.

The affidavit supports at least two possible inferences that suggest evidence of the crime

could be found on his cell phones. First, the affidavit describes the coordination of multiple people

and vehicles during and after the shooting. From this, it might be inferred that those individuals,

including Peterson, used cell phones to coordinate their illegal conduct that night. Second, the

affidavit describes an allegation of the victim’s family that the shooter, identified as Peterson,

belonged to a no-longer-available Facebook page called “IJU Winning.” This might suggest that

Peterson used his cell phone to post about his involvement in the shooting, and that evidence could

still be on his cell phone. Pulling together these pieces of information and the inferences that can

be drawn from them, we are satisfied that the affidavit established at least a “minimally sufficient

nexus” between the evidence sought and the cell phones to be searched. Carpenter, 360 F.3d at

596. We cannot say that the affidavit was “so lacking in indicia of probable cause that no

reasonable officer would rely on the warrant.” White, 874 F.3d at 496. Thus, the district court did

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not err by concluding that officers relied in good faith on the warrant. In reaching this conclusion,

we express no opinion on whether the affidavit would satisfy the nexus requirement of probable

cause.

III.

Peterson also challenges the district court’s denial of his motions to adjourn, arguing the

denials infringed upon his constitutional rights to due process and the effective assistance of

counsel. We review a district court’s decision to deny a motion to continue a trial for abuse of

discretion. See United States v. Amawi, 695 F.3d 457, 480 (6th Cir. 2012).

A denial of a continuance violates the Constitution only if the district court unreasonably

and arbitrarily “insist[s] upon expeditiousness in the face of a justifiable request for a delay.”

United States v. Gallo, 763 F.2d 1504, 1523 (6th Cir. 1985). And we will not reverse a denial

unless the defendant demonstrates that the denial actually prejudiced his defense such that his

defense could have produced “relevant witnesses” or added something to his defense had the

continuance been granted.1 Franklin v. Bradshaw, 695 F.3d 439, 453 (6th Cir. 2012).

Here, Peterson fails to establish that the denial resulted in actual prejudice. Although he

broadly contends the voluminous and “untimely” discovery, the serious nature of the charges

against him, and the additional charges filed in May 2022 made it “professionally impossible” for

counsel to render effective assistance, he does not suggest what his counsel would have done

differently had the district court granted the continuance. Peterson also claims that the denials

deprived him of his rights to due process and confrontation. But the general declaration that a

1 A defendant may—in extreme cases—establish actual prejudice based on an “unreasonably short time to prepare.” Gallo, 763 F.2d at 1524 (reversing conviction when the district court allotted counsel only ten days to prepare for trial on a complex RICO charge). The length of time counsel had to prepare in this case, however, was not nearly so unreasonable as to independently establish prejudice.

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constitutional right was denied, with nothing more, does not establish actual prejudice. Therefore,

the district court did not abuse its discretion when it denied his motions for adjournment, and we

affirm the district court’s denial of his motions to adjourn.

IV.

For the foregoing reasons, we affirm.

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