United States v. Johnson

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Johnson No. 02-5540 ELECTRONIC CITATION: 2003 FED App. 0406P (6th Cir.) File Name: 03a0406p.06 Hamilton III, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee. ON BRIEF: Paula R. Voss, FEDERAL DEFENDER SERVICES, Knoxville, UNITED STATES COURT OF APPEALS Tennessee, for Appellant. David C. Jennings, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for FOR THE SIXTH CIRCUIT Appellee. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellee, - OPINION - _________________ - No. 02-5540 v. - BOGGS, Chief Judge. Maurice Johnson appeals the district > court’s denial of his motion to suppress drugs found at one of , his temporary places of abode and his confession to being the MAURICE A. JOHNSON, - Defendant-Appellant. - owner of these drugs. The state police had obtained a search warrant for the residence of Hennis Tracy, Johnson’s half- N sister, based upon surveillance of that residence and the Appeal from the United States District Court statements of a confidential informant. Upon execution of the for the Eastern District of Tennessee at Knoxville. warrant, the police had discovered drugs at the residence, but No. 01-00117—R. Leon Jordan, District Judge. not Johnson. The police coaxed Johnson back to the premises of the search by threatening to arrest Tracy if he did not Argued: August 7, 2003 confess to owning the drugs. Johnson did so and eventually pleaded guilty to possession with intent to distribute. On Decided and Filed: November 14, 2003 appeal, he challenges the validity of search warrant and the voluntariness of his confession. We affirm. Before: BOGGS, Chief Judge; SILER, Circuit Judge; and RICE, District Judge.* I

_________________ On or about January 7, 2001, the Monroe County, Tennessee, police department began a surveillance of Tracy’s COUNSEL residence. The primary target of the surveillance was Johnson, Tracy’s half-brother. Johnson himself had no ARGUED: Paula R. Voss, FEDERAL DEFENDER permanent residence but rather stayed for periods of days at SERVICES, Knoxville, Tennessee, for Appellant. F. M. the homes of friends and family members, including Tracy, and the police suspected that he dealt drugs out of his hosts’ homes. During the surveillance of Johnson’s visit to the * Tracy residence, numerous short-term visitors, parking up to The Honorable Walter Herbert Rice, United States District Judge for six or eight cars at a time, were observed. Some of these the Southern District of Ohio, sitting by designation.

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visitors were known to the police as having records of drug Fourth Amendment guarantee against unreasonable searches offenses. One visitor was also a confidential informant for and seizures and the Fifth Amendment privilege against self- the police department, who had previously provided incrimination and guarantee of due process. The magistrate information helpful to the prosecution of other drug offenses. judge recommended a denial of the suppression motion and On January 9, he informed the police that within the previous the district court adopted this recommendation over Johnson’s three days he had been present in the Tracy residence and had objection. In response, Johnson entered a conditional guilty seen cocaine being sold there. The police subsequently plea subject to a reservation of the right to appeal the denial sought a search warrant for the Tracy residence based on an of his suppression motion and was sentenced to sixty months officer’s affidavit restating the information provided by the of incarceration and an equal period of supervised release. confidential informant. A magistrate judge issued such a This timely appeal of the denial of the suppression motion warrant shortly after midnight on January 10. ensued. At about 1:30 A.M. on January 10, the police executed the II warrant on the Tracy residence. While Johnson was not found on the premises, the police did discover more than nine “In reviewing the district court’s denial of a defendant's grams of crack cocaine hidden in the headboard of Tracy’s motion to suppress, this Court reviews the district court’s bed. At this point Tracy disclaimed ownership of the drugs findings of fact for clear error and its conclusions of law de and placed the blame on Johnson. The police responded that novo.” United States v. Miggins, 302 F.3d 384, 397 (6th Cir. they would not arrest Tracy if Johnson turned himself in and 2002) (citing United States v. Bradshaw, 102 F.3d 204, 209 accepted responsibility for the drugs. Eventually, Tracy was (6th Cir. 1996)). able to track down Johnson via phone calls and an intermediary and asked him to return to the residence. At Johnson argues that the search warrant on the Tracy home about 4 A.M., Johnson arrived at the Tracy residence, which was defective because the affidavit on which it was based was was still occupied by about a dozen armed police officers. insufficient. “The standard of review for the sufficiency of an Johnson asked to speak with an investigating officer and the affidavit ‘is whether the magistrate had a substantial basis for officer and Johnson retreated to the residence’s back finding that the affidavit established probable cause to believe bedroom, leaving the door slightly ajar. Johnson immediately that the evidence would be found at the place cited.’” United confessed to owning the drugs found in Tracy’s bedroom. States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001) (quoting After reading Johnson his Miranda rights, he iterated this United States v. Davidson, 936 F.2d 856, 859 (6th Cir. confession and was arrested. In the search incident to arrest, 1991)). “A magistrate’s determination of probable cause is another gram of crack cocaine was found in Johnson’s pocket. afforded great deference by the reviewing court” and should only be reversed if arbitrarily made. Greene, 250 F.3d at 478 On August 7, 2001, a grand jury in the United States (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir. District Court for the Eastern District of Tennessee indicted 2000) (en banc); United States v. Finch, 998 F.2d 349, 352 Johnson on one count of possession with intent to distribute (6th Cir. 1993); and Davidson, 936 F.2d at 859). “[R]eview more than five grams of crack cocaine, in violation of 21 of an affidavit and search warrant should rely on a ‘totality of U.S.C. § 841(a)(1), (b)(1)(B). The magistrate judge assigned the circumstances’ determination, rather than a line-by-line to the matter held hearings on Johnson’s motion to suppress scrutiny.” Greene, 250 F.3d at 479 (citing Allen, 211 F.3d at the drugs and his confession as obtained in violation of the 973). “Courts should review the sufficiency of the affidavit No. 02-5540 United States v. Johnson 5 6 United States v. Johnson No. 02-5540

in a commonsense, rather than hypertechnical manner.” This statement of facts was followed by a listing of evidence Greene, 250 F.3d at 479 (citing Allen, 211 F.3d at 973; and to be seized, including drugs. Davidson, 936 F.2d at 859). “Probable cause exists ‘when there is a ‘fair probability,’ given the totality of the Against the district court’s conclusion that this affidavit circumstances, that contraband or evidence of a crime will be was sufficient to support a search warrant, Johnson here raises found in a particular place.” Greene, 250 F.3d at 479 (citing a long series of meritless objections. Johnson complains that Davidson, 936 F.2d at 859). “Probable cause is defined as the warrant did not name the confidential informant. reasonable grounds for belief, supported by less than prima However, a warrant need not name a confidential informant, facie proof but more than mere suspicion.” United States v. but merely provide indicia of reliability. This the affidavit Bennett, 905 F.2d 931, 934 (6th Cir. 1990). does by stating that the confidential informant had previously provided information leading to successful discovery. The affidavit in the present case was given by one of the Johnson objects that the affidavit merely claims “successful investigating officers. After recounting the averring officer’s discovery,” not resulting arrest and conviction. This professional history, the affidavit summarizes the facts on objection misses the point of the claim which is to indicate which to base the search warrant as follows: reliability or truthfulness and not usefulness. Even if, through reasons that may not have been related to the informant, all On Tuesday, January 9, 2001, your affiant met with the previous successful searches based on his statements had not proven credible and reliable source of information who led to successful prosecutions, this would by itself not have within the past 72 hours has observed a quantity of crack thrown any doubt on the reliability or truthfulness of the cocaine stored inside [the Tracy residence]. The informant. The mere fact that contraband was discovered informant overheard conversations about crack cocaine, where he claimed it was going to be discovered is sufficient weights, and prices and was present when crack cocaine indicia of his reliability. Johnson claims that the police was purchased at the residence. The crack cocaine is surveillance of the residence could not have confirmed the being sold from the residence by Maurice Johnson, who reliability of the informant because the surveillance had does not reside at this residence, but frequents this started before the informant gave his statements. However, residence with friends and relatives. Your affiant and there is no logical reason why observations made prior to the other agents have conducted surveillance on this statement should not be able to support the reliability of a residence and have observed numerous vehicles, as many statement made after the observations. Moreover, we note as six or eight at a time at the residence, some of which that the surveillance continued after the informant made his would stay for only short periods of time. Some of the statements. vehicles which were observed by your affiant to come and go from the residence are known to your affiant to Johnson also criticizes the form of the affidavit on various have a history of drug charges. . . . This confidential technical grounds. The affidavit does not quote the informant reliable informant is a creditable source of information directly and hence does not indicate exactly what the who has proven reliable in the past and by facts informant said. The affidavit did not state what quantities of contained in this affidavit. This informant has conducted drugs were observed and therefore leaves open the possibility at least four (4) controlled purchases of narcotics for your that merely non-prosecutable trace amounts were present. affiant which all have led to successful discovery. The affidavit does not make clear the source of the statement that Johnson was a drug dealer. The informant merely claims No. 02-5540 United States v. Johnson 7 8 United States v. Johnson No. 02-5540

to have been present during the drug transactions and does not (holding that “infirmity of part of a warrant requires the state that he actually witnessed the transactions or had suppression of evidence seized pursuant to that part of the witnessed Johnson buying or selling drugs. However, all of warrant . . . , but does not require the suppression of anything these objections are most charitably described as described in the valid portions of the warrant.” (quoting hypertechnical. The affidavit clearly implies what United States v. LeBron, 729 F.2d 537 n.2 (8th Cir. 1984))). information was received from the informant by reciting facts, which could not have been known directly to the averring The United States argues that even if the warrant was officer, immediately following the mention of the informant. defective, Johnson lacks standing to challenge its validity, an If an informant claims to be present during a drug sale, the issue not reached by the district court. However, as we common-sense interpretation of that claim is that the conclude that the search was made pursuant to a valid informant witnessed the transaction and that the transaction warrant, and therefore constitutional, regardless of whether involved quantities of drugs larger than trace amounts. Johnson had standing to challenge it, we need not and do not Johnson’s objection to the lack of more explicit identification here resolve the much closer question of whether Johnson had of his person in the affidavit also misses the mark. The a legitimate expectation of privacy in the Tracy residence. affidavit merely needed to support the conclusion that contraband or evidence could be found at the Tracy residence. III That it did. Even if there had been no mention of Johnson in the affidavit at all, it would still have been sufficient for that Johnson challenges the admissibility of his confession on purpose. the grounds that it was not voluntarily made and hence obtained in violation of the Due Process Clause. “In Johnson raises two more spurious objections. He claims determining whether a confession has been elicited by means that because the informant claimed to have observed that are unconstitutional, this court looks to the totality of the contraband only within three days of his statement and the circumstances concerning whether a defendant’s will was search warrant itself was only issued the day after the overborne in a particular case.” United States v. Mahan, 190 statement, the information was stale. For this proposition, F.3d 416, 422 (6th Cir. 1999) (quoting Ledbetter v. Edwards, Johnson cites United States v. Spikes, 158 F.3d 913, 923 (6th 35 F.3d 1062, 1067 (6th Cir. 1994)) (internal quotation marks Cir. 1998)). However, in Spikes this court upheld a search of omitted). “In determining the voluntariness of a confession, a drug distribution facility based on information ranging in a reviewing court will not disturb the trial court’s findings age between four years and ten days. Id. at 924. In our case, concerning specific events surrounding the confession unless the information was at most four days old at the time of the clear error appears on the record.” United States v. Wrice, search, so there is no grounds for a staleness challenge. 954 F.2d 406, 410-11 (6th Cir. 1992). “When a defendant Johnson also claims that the affidavit was overbroad in claims that a confession was coerced, the government bears requesting authorization to search “all individuals and the burden of proving by a preponderance of the evidence that vehicles . . . present at the execution of the search warrant.” the confession was in fact voluntary. This Court has However, the contraband here was not found pursuant to established three requirements for a finding that a confession these possibly overbroad specifications, but within the was involuntary due to police coercion: (i) the police activity confines of the house. As Johnson does not allege that this was objectively coercive; (ii) the coercion in question was part of the warrant was overbroad, the issue is moot. See sufficient to overbear the defendant’s will; and (iii) the United States v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993) alleged police misconduct was the crucial motivating factor No. 02-5540 United States v. Johnson 9 10 United States v. Johnson No. 02-5540

in the defendant’s decision to offer the statement.” Mahan, convict Williams of two counts of first-degree murder. Id. at 190 F.3d at 422 ( internal citations omitted). 287. On federal habeas review, we examined Williams’s claim that the promise of leniency was unconstitutionally Here the question of the voluntariness of Johnson’s coercive: statements reduces to the first factor, whether the threat to charge Tracy if Johnson did not confess and the promise not We recognize that the success of a criminal investigation to charge her if Johnson confessed were objectively coercive. often hinges on obtaining information from The proposition that Johnson decided for internal reasons uncooperative individuals. Indeed, many otherwise after an alleged long career in the drug business to unburden unobtainable convictions are secured through extending his soul of his criminal conduct at 4 A.M. in his half-sister’s immunity in exchange for a defendant’s testimony house to a group of police officers can be discounted. Hence against more culpable co-defendants. The necessity of it must have been police conduct that caused him to confess. foregoing the prosecution of an informant in order to Equally implausible is the suggestion that it was anything convict the ringleaders is an altogether different situation other than this threat that caused Johnson to confess his guilt from the deliberate inducement of inculpatory statements as soon as he entered the premises. Hence the threat was a through illusory promises of leniency. Even in situations crucial motivating factor in Johnson’s decision to confess. As where immunity is not envisaged, we have no doubt that for the question of whether the threat was objectively effective interrogation techniques require, to some extent, coercive, two lines of cases in this court are instructive, one a carrot-and-stick approach to eliciting information from concerning threats and promises with respect to the defendant an uncooperative suspect. However, when promises of and one concerning threats and promises with respect to third leniency, coupled with threats of immediate parties. imprisonment, have a coercive effect on a suspect, we are obliged to inquire whether the coercion in question was Police promises of leniency and threats of prosecution can sufficient to overbear the will of the accused. be objectively coercive. In Wrice, we conceded “that a promise of lenient treatment or of immediate release may be Id. at 289 (emphasis added). We then proceeded to the other so attractive as to render a confession involuntary.” 954 F.2d parts of the Mahan test and ultimately concluded that at 411 (citing Streetman v. Lynaugh, 812 F.2d 950, 957 (5th Williams’s confession had been involuntary and therefore Cir. 1987)). We first applied this principle in Williams v. affirmed the district court’s grant of a writ of habeas corpus. Withrow, 944 F.2d 284 (6th Cir. 1991), modified on other Id. at 290. grounds, 507 U.S. 680 (1993). Williams was a suspect in a double homicide. Id. at 286. Williams admitted to having Unsurprisingly, Williams has led to a substantial number of provided and disposed of the gun, but the investigating federal habeas claims. However, almost all of these claims officers accused him of lying to cover up deeper involvement. have been rejected. See, e.g., United States v. (Lawrence Ibid. At this point an interrogating officer stated that if Ozel) Little, 9 F.3d 110, 1993 WL 453396, at*9-10 (6th Cir. Williams “was a witness, and he had no active part in the 1993) (table) (distinguishing Williams on the grounds that crime, and that could be confirmed by polygraph, that he promises of leniency were, in contrast to Williams, not would not be charged.” Id. at 289. In response, Williams illusory);United States v. Redditt, 2003 WL 21212672, at *3 admitted that he had also driven the shooter to and from the (6th Cir. 2003) (table) (distinguishing Williams because scene of the crime. Id. at 286. This admission was used to federal investigators offered Redditt merely the elimination of No. 02-5540 United States v. Johnson 11 12 United States v. Johnson No. 02-5540

his federal charges, carrying sentences of up to forty years in one person admitted sole ownership. The defendant then prison, while state charges were not discussed); United States directed the officers to the garage, where he showed them v. (Hazel) Little, 12 F.3d 215, 1993 WL 501570, at *5 (6th a quantity of crack cocaine hidden on top of a beam. . . . Cir. 1993) (table) (distinguishing Williams on the grounds [T]he defendant was placed under arrest and advised of that promises of leniency made during plea negotiations in the his rights. The other occupants of the house were not presence of counsel were not coercive, even if they might arrested. have been if made by police officers during the investigation). 998 F.2d at 355. We reasoned that “[c]oercion may involve From these cases we deduce the rule that promises of psychological threats as well as physical threats. Specifically, leniency may be coercive if they are broken or illusory.1 threats to arrest members of a suspect’s family may cause a Here, the promise was not to prosecute Tracy if Johnson confession to be involuntary.” Id. at 356 (citing Rogers v. turned himself in. This was not an illusory promise as it Richmond, 365 U.S. 534 (1961) (finding coercion where actually committed the police to undertake a specific course prisoner confessed under threat that his wife would otherwise of action in return for Johnson’s cooperation, as surely be taken in for questioning)). Johnson would be arguing here if the police had prosecuted Tracy. Moreover, the promise was not broken because the At the time the threat was made, the police had no basis police in fact did not prosecute Tracy. Therefore the promise for concluding (1) that either [mother or girlfriend] had of leniency for Tracy was not coercive under the knowledge of the existence of cocaine in the house; Williams line of cases. (2) that either woman had knowledge that Finch was involved in the distribution of cocaine; (3) that a A second line of cases concerns promises of leniency and conspiracy existed; (4) that either woman was in threats of prosecution to third parties. The factual situation in constructive possession of the cocaine for which the Finch was as follows: police were searching; or (5) that either woman was an aider or abettor. Furthermore, the context of the threat is Upon entering the [defendant’s residence], the officers not such that it may be found to have been conditioned discovered the defendant’s mother . . . close enough to upon any fact except finding cocaine. the door to hear the officers knock and yell. The defendant was discovered, along with a female Finch, 998 F.2d at 356. From these facts we concluded that companion, in a bedroom at the rear of the house. The “there was no probable cause to arrest the women and defendant was told that the officers had a warrant to therefore, no legal basis existed for threatening to do so.” search for cocaine. All three of the occupants denied that Ibid. On this basis we concluded that Finch’s confession was there was any cocaine in the house. Whereupon, involuntary and had to be suppressed.2 defendant was told that if any cocaine were discovered, all three persons in the house could be arrested unless 2 That it is this determination–whether the execution of the threat would have been lawful–which is dispositive, we find confirmed in one 1 of our unpublished o pinions. United States v. Dillard, 983 F.2d 1069, In this context, an illusory promise is a statem ent in the fo rm of a 1992 WL 3 61373, at *3 (6th C ir. 199 2) (tab le) (concluding that thre at to promise, but lacking its substance in that it does not actually commit the arrest defendant’s mother was not coercive because the police had police to undertake or refrain from any particular course of action. probable cause to arrest mother). No. 02-5540 United States v. Johnson 13 14 United States v. Johnson No. 02-5540

Therefore the question whether the threat to prosecute former statement were inadmissible, as obtained outside the Tracy was coercive turns on the issue of whether the threat strictures that the rule of Miranda places on custodial could have been lawfully executed. Whether the police could interrogations, the latter statement would still be admissible. have lawfully arrested Tracy in turn depends on whether the See Oregon v. Elstad, 470 U.S. 298, 318 (1985). investigating officers had probable cause to suspect Tracy of criminal involvement. Johnson, citing the superficial IV similarities between his circumstances and the circumstances in Finch, urges us to reach the same conclusion as we did For the foregoing reasons, we AFFIRM the denial of there. However, in contrast to Finch, here there existed a Johnson’s suppression motion. sufficient factual basis for the police officers to have probable cause to arrest Tracy. Johnson ran a drug distribution business out of Tracy’s residence, involving frequent visits by a large number of customers. Tracy must at least have had very strong suspicions about her half-brother’s activities and the presence of the product traded at her home. While Tracy was not charged in a drug distribution conspiracy or as an aider or abettor, the investigating officers could have reasonably suspected that her involvement rose to such levels. Moreover, the drugs here were found in the bed occupied by Tracy. These facts were sufficient to create probable cause to arrest. Therefore, the police would not have acted wrongfully had they arrested Tracy and were not coercive in threatening to do so. Johnson also raises the issue of whether his confession was obtained in violation of his Miranda rights. As Johnson made substantively identical statements both upon entering the Tracy residence, before he was mirandized, and later during the interrogation in the back bedroom, after he was mirandized,3 we need resolve this issue here. Even if the

3 Johnson attempts to raise the issue that he was not mirand ized a t all. However, the officers testified that he was and he did not testify to the contrary, nor d oes his counsel here make the factua l that claim that he had not been mirandized. In such circumstances, the mere absence of a written waiver will not support the conclusion that there was no waiver. Miggins, 302 F.2d at 397 (“Although [the defendant] suggests that his none can be found, for the proposition that a written waiver is necessary waiver was not knowingly, voluntarily and intelligently made beca use he to establish a knowing, intellige nt and voluntary waiver of Miranda did not sign a waiver form listing his rights, he offers no authority, and rights.”)