351 F.3d 254
6th Cir.
2003

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAURICE A. JOHNSON, Defendant-Appellant.

No. 02-5540

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

November 14, 2003

2003 FED App. 0406P (6th Cir.)

BOGGS, Chief Judge; SILER, Circuit Judge; and RICE, District Judge.

Argued: August 7, 2003; RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206; File Name: 03a0406p.06; Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 01-00117—R. Leon Jordan, District Judge.

COUNSEL

ARGUED: Paula R. Voss, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for Appellant. F. M. Hamilton III, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee. ON BRIEF: Paula R. Voss, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for Appellant. David C. Jennings, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.

OPINION

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 owner of these drugs. The state police had obtained a search warrant for the residence of Hennis Tracy, Johnson‘s half-sister, based upon surveillance of that residence and the statements of a confidential informant. Upon execution of the warrant, the police had discovered drugs at the residence, but not Johnson. The police coaxed Johnson back to the premises of the search by threatening to arrest Tracy if he did not confess to owning the drugs. Johnson did so and eventually pleaded guilty to possession with intent to distribute. On appeal, he challenges the validity of search warrant and the voluntariness of his confession. We affirm.

I

On or about January 7, 2001, the Monroe County, Tennessee, police department began a surveillance of Tracy‘s residence. The рrimary target of the surveillance was Johnson, Tracy‘s half-brother. Johnson himself had no permanent residence but rather stayed for periods of days at 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 six or eight cars at a time, were observed. Some of these visitors were known to the police as having reсords of drug offenses. One visitor was also a confidential informant for the police department, who had previously provided information helpful to the prosecution of other drug offenses. On January 9, he informed the police that within the previous three days he had been present in the Tracy residence and had seen cocaine being sold there. The police subsequently sought a search warrant for the Tracy residence based on an officer‘s affidavit restating the information provided by the confidential informant. A magistrate judge issued such a warrant shortly after midnight on January 10.

At about 1:30 A.M. on January 10, the police executed the warrant on the Tracy residence. While Johnson was not found on the premises, the police did discover more than nine grams of crack cocaine hidden in the headboard of Tracy‘s bed. At this point Tracy disclaimed ownership of the drugs and placed the blame on Johnson. The police responded that they would not arrest Tracy if Johnson turned himself in and accepted responsibility for the drugs. Eventually, Tracy was able to track down Johnson via phone calls and an intermediary and asked him to return to the residence. At about 4 A.M., Johnson arrived at the Tracy residence, which was still occupied by about a dozen armed police officers. Johnson asked to speak with an investigating officer and the officer and Johnson retreated to the residеnce‘s back bedroom, leaving the door slightly ajar. Johnson immediately confessed to owning the drugs found in Tracy‘s bedroom. After reading Johnson his Miranda rights, he iterated this confession and was arrested. In the search incident to arrest, another gram of crack cocaine was found in Johnson‘s pocket.

On August 7, 2001, a grand jury in the United States District Court for the Eastern District of Tennessee indicted Johnson on one count of possession with intent to distribute more than five grams of crack cоcaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The magistrate judge assigned to the matter held hearings on Johnson‘s motion to suppress the drugs and his confession as obtained in violation of the Fourth Amendment guarantee against unreasonable searches and seizures and the Fifth Amendment privilege against self-incrimination and guarantee of due process. The magistrate judge recommended a denial of the suppression motion and the district court adopted this recommendation over Johnson‘s objection. In response, Johnson entered a conditional guilty plea subject to a reservation of the right to appeal the denial of his suppression motion and was sentenced to sixty months of incarceration and an equal period of supervised release. This timely appeal of the denial of the suppression motion ensued.

II

“In reviewing the district court‘s denial of a defendant‘s motion to suppress, this Court reviews the district court‘s findings of faсt for clear error and its conclusions of law de novo.” (citing ).

Johnson argues that the search warrant on the Tracy home was defective because the affidavit on which it was based was insufficient. “The standard of review for the sufficiency of an affidavit ‍​​​‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​​​‌​‌‌​‌‌‍‘is whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited.‘” (quoting ). “A magistrate‘s determination of probable cause is afforded great deference by the reviewing court” and should only be reversed if arbitrarily made. (citing (en banc); ; and ). “[R]eview of an affidavit and search warrant should rely on a ‘totality of the circumstances’ determination, rather than a line-by-line scrutiny.” (citing ). “Courts should review the sufficiency of the affidavit in a commonsense, rather than hypertechnical manner.” (citing ; and ). “Probable cause exists ‘when there is a ‘fair probability,’ given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place.” (citing ). “Probable cause is defined as reasonаble grounds for belief, supported by less than prima facie proof but more than mere suspicion.” .

The affidavit in the present case was given by one of the investigating officers. After recounting the averring officer‘s professional history, the affidavit summarizes the facts on which to base the search warrant as follows:

On Tuesday, January 9, 2001, your affiant met with the proven credible and reliable source of information who within the past 72 hours has observed a quantity of crack сocaine stored inside [the Tracy residence]. The informant overheard conversations about crack cocaine, weights, and prices and was present when crack cocaine was purchased at the residence. The crack cocaine is being sold from the residence by Maurice Johnson, who does not reside at this residence, but frequents this residence with friends and relatives. Your affiant and other agents have conducted surveillancе on this residence and have observed numerous vehicles, as many as six or eight at a time at the residence, some of which would stay for only short periods of time. Some of the vehicles which were observed by your affiant to come and go from the residence are known to your affiant to have a history of drug charges. . . . This confidential reliable informant is a creditable source of information who has proven reliable in the past and by facts contained in this аffidavit. This informant has conducted at least four (4) controlled purchases of narcotics for your affiant which all have led to successful discovery.

This statement of facts was followed by a listing of evidence to be seized, including drugs.

Against the district court‘s conclusion that this affidavit was sufficient to support a search warrant, Johnson here raises a long series of meritless objections. Johnson complains that the warrant did not name the confidential informant. However, a warrant need not name a confidential informant, but merely provide indicia of reliability. This the affidavit does by stating that the confidential informant had previously provided information leading to successful discovery. Johnson objects that the affidavit merely claims “successful discovery,” not resulting arrest and conviction. This objection misses the point of the claim which is to indicate reliability or truthfulness and not usefulness. Even if, through reasons that may not have been related to the informant, all previous successful searches based on his statements had not led to successful prosecutions, this would by itself not have thrown any doubt on the reliability or truthfulness of the informant. The mere fact that contraband was discovered where he claimed it was going to be discovered is sufficient indicia of his reliability. Johnson claims that the police surveillance of the residence could not have confirmed the reliability of the informant because the surveillancе had started before the informant gave his statements. However, there is no logical reason why observations made prior to the statement should not be able to support the reliability of a statement made after the observations. Moreover, we note that the surveillance continued after the informant made his statements.

Johnson also criticizes the form of the affidavit on various technical grounds. The affidavit does not quote the informant directly and henсe does not indicate exactly what the informant said. The affidavit did not state what quantities of drugs were observed and therefore leaves open the possibility that merely non-prosecutable trace amounts were present. The affidavit does not make clear the source of the statement that Johnson was a drug dealer. The informant merely claims to have been present during the drug transactions and does not state that he actually witnessed the transаctions or had witnessed Johnson buying or selling drugs. However, all of these objections are most charitably described as hypertechnical. The affidavit clearly implies what information was received from the informant by reciting facts, which could not have been known directly to the averring officer, immediately following the mention of the informant. If an informant claims to be present during a drug sale, the common-sense interpretation of that claim is that the informant witnessed the transaction and that the transaction involved quantities of drugs larger than trace amounts. Johnson‘s objection to the lack of more explicit identification of his person in the affidavit also misses the mark. The affidavit merely needed to support the conclusion that contraband or evidence could be found at the Tracy residence. 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 purpose.

Johnson rаises two more spurious objections. He claims that because the informant claimed to have observed contraband only within three days of his statement and the search warrant itself was only issued the day after the statement, the information was stale. For this proposition, Johnson cites . However, in this court upheld a search of a drug distribution facility based on information ranging in age between four years and ten days. . In our case, the information was at most four days old at the time of the search, so there is no grounds for a staleness challenge. Johnson also claims that the affidavit was overbroad in requesting authorization to search “all individuals and vehicles . . . present at ‍​​​‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​​​‌​‌‌​‌‌‍the execution of the search warrant.” However, the contraband here was not found pursuant to these possibly overbroad specifications, but within the confines of the house. As Johnson does not allege that this part of the warrant was overbroad, the issue is moot. Seе (holding that “infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant . . . , but does not require the suppression of anything described in the valid portions of the warrant.” (quoting )).

The United States argues that even if the warrant was defective, Johnson lacks standing to challenge its validity, an issue not reached by the district court. However, as we conclude that the search was made pursuant to a valid warrant, and therefore cоnstitutional, regardless of whether Johnson had standing to challenge it, we need not and do not here resolve the much closer question of whether Johnson had a legitimate expectation of privacy in the Tracy residence.

III

Johnson challenges the admissibility of his confession on the grounds that it was not voluntarily made and hence obtained in violation of the Due Process Clause. “In determining whether a confession has been elicited by means that are unconstitutional, this court looks to the totality of the circumstances concerning whether a defendant‘s will was overborne in a particular case.” (quoting ) (internal quotation marks omitted). “In determining the voluntariness of a confession, a reviewing court will not disturb the trial court‘s findings concerning specific events surrounding the confession unless clear error appears on the record.” . “When a defendant claims that a confession was coerced, the government bears the burden оf proving by a preponderance of the evidence that the confession was in fact voluntary. This Court has established three requirements for a finding that a confession was involuntary due to police coercion: (i) the police activity was objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant‘s will; and (iii) the alleged police misconduct was the crucial motivating factor in the defendant‘s decision to offer the statement.” (internal citations omitted).

Here the question of the voluntariness of Johnson‘s statements reduces to the first factor, whether the threat to charge Tracy if Johnson did not confess and the promise not to charge her if Johnson confessed were objectively coercive. The proposition that Johnson decided for internal reasons after an alleged long career in the drug business to unburden his soul of his criminal conduct at 4 A.M. in his half-sister‘s house to a group of police officers can be discounted. Hence it must havе been police conduct that caused him to confess. Equally implausible is the suggestion that it was anything other than this threat that caused Johnson to confess his guilt as soon as he entered the premises. Hence the threat was a crucial motivating factor in Johnson‘s decision to confess. As for the question of whether the threat was objectively coercive, two lines of cases in this court are instructive, one concerning threats and promises with respect tо the defendant and one concerning threats and promises with respect to third parties.

Police promises of leniency and threats of prosecution can be objectively coercive. In , we conceded “that a promise of lenient treatment or of immediate release may be so attractive as to render a confession involuntary.” (citing ). We first applied this principle in , modified on other grounds, . Williams was a suspect in a double homicide. . Williams admitted to having provided and disposed of the gun, but the investigating officers accused him of lying to cover up deeper involvement. Ibid. At this point an interrogating officer stated that if Williams “was a witness, and he had no active part in the crime, and that could be confirmed by polygraph, that he would not be charged.” . In response, Williams admitted that he had also driven the shooter to and from the scene of the crime. . This admission was used to convict Williams of two counts of first-degree murder. . On federal habeas review, we examined Williams‘s claim that the promise of leniency was unconstitutionally coercive:

We recognize that the success of a criminal investigation often hinges on obtaining information from uncooperative individuals. Indeed, many otherwise unobtainable convictions are secured through extending immunity in exchange for a defendant‘s testimony against more culpable co-defendants. The necessity of foregoing the prosecution of an informant in order to convict the ringleaders is an altogether different situation from the deliberate inducement of inculpatory statements through ‍​​​‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​​​‌​‌‌​‌‌‍illusory promises of leniency. Even in situations where immunity is not envisaged, we have no doubt that effective interrogation techniques require, to some extent, a carrot-and-stick approach to eliciting information from an uncooperative suspect. However, when promises of leniency, coupled with threats of immediate imprisonment, have a coercive effect on a suspect, we are obliged to inquire whether the coercion in question wаs sufficient to overbear the will of the accused.

(emphasis added). We then proceeded to the other parts of the test and ultimately concluded that Williams‘s confession had been involuntary and therefore affirmed the district court‘s grant of a writ of habeas corpus. .

Unsurprisingly, has led to a substantial number of federal habeas claims. However, almost all of these claims have been rejected. See, e.g., (table) (distinguishing on the grounds that promises of leniency were, in cоntrast to , not illusory); (table) (distinguishing because federal investigators offered Redditt merely the elimination of his federal charges, carrying sentences of up to forty years in prison, while state charges were not discussed); (table) (distinguishing on the grounds that promises of leniency made during plea negotiations in the presence of counsel were not coercive, even if they might have been if made by police officers during the investigation).

From these cases we deduce the rule that promisеs of leniency may be coercive if they are broken or illusory.1 Here, the promise was not to prosecute Tracy if Johnson turned himself in. This was not an illusory promise as it actually committed the police to undertake a specific course of action in return for Johnson‘s cooperation, as surely Johnson would be arguing here if the police had prosecuted Tracy. Moreover, the promise was not broken because the police in fact did not prosecute Tracy. Therefore the promise of leniency for Tracy was not coercive under the line of cases.

A second line of cases concerns promises of leniency and threats of prosecution to third parties. The factual situation in was as follows:

Upon entering the [defendant‘s residence], the officers discovered the defendant‘s mother . . . close enough to the door to hear the officers knock and yell. The defendant was discovered, along with a female companion, in a bedroom at the rear of the house. The defendant was told that the officers had a warrant to search for cocaine. All three of the occupants denied that there was any cocaine in the house. Whereupon, defendant was told that if any cocaine were discovered, all three persons in the house could be arrested unless one person admitted sole ownership. The defendant then directed the officers to the garage, where he showed them a quantity of crack cocaine hidden on top of a beam. . . . [T]he defendant was placed under arrest and advised of his rights. The other occupants of the house were not arrested.

. We reasoned that “[c]oercion may involve psychological threats as well as physical threats. Specifically, ‍​​​‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​​​‌​‌‌​‌‌‍threats to arrest members of a suspect‘s family may cause a confession to be involuntary.” (citing (finding coercion where prisoner confessed under threat that his wife would otherwise be taken in for questioning)).

At the time the threat was made, the police had no basis for concluding (1) that either [mother or girlfriend] had knowledge of the existence of cocaine in the house; (2) that either woman had knowledge that Finch was involved in the distribution of cocaine; (3) that a conspiracy existed; (4) that either woman was in constructive possession of the cocainе for which the police were searching; or (5) that either woman was an aider or abettor. Furthermore, the context of the threat is not such that it may be found to have been conditioned upon any fact except finding cocaine.

. From these facts we concluded that “there was no probable cause to arrest the women and therefore, no legal basis existed for threatening to do so.” Ibid. On this basis we concluded that Finch‘s confession was involuntary and had to be suppressed.2

Therefore the question whether the threat to prosecute Tracy was coercive turns on the issue of whether the threat could have been lawfully executed. Whether the police could have lawfully arrested Tracy in turn depends on whether the investigating officers had probable cause to suspect Tracy of criminal involvement. Johnson, citing the superficial similarities between his circumstances and the circumstances in , urgеs us to reach the same conclusion as we did there. However, in contrast to , here there existed a 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 wаs 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 former statement were inadmissible, as obtained outside the strictures that the rule of places on custodial interrogations, the latter statement would still be admissible. See .

IV

For the foregoing reasons, we AFFIRM the denial of Johnson‘s suppression motion.

Notes

1
In this context, an illusory promise is a statemеnt in the form of a promise, but lacking its substance in that it does not actually commit the police to undertake or refrain from any particular course of action.
2
That it is this determination—whether the execution of the threat would have been lawful—which ‍​​​‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​​​‌​‌‌​‌‌‍is dispositive, we find confirmed in one of our unpublished opinions. (table) (concluding that threat to arrest defendant‘s mother was not coercive because the police had probable cause to arrеst mother).
3
Johnson attempts to raise the issue that he was not mirandized at all. However, the officers testified that he was and he did not testify to the contrary, nor does his counsel here make the factual 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. (“Although [the defendant] suggests that his waiver was not knowingly, voluntarily and intelligently made because he did not sign a waiver form listing his rights, he offers no authority, and none can be found, for the proposition that a written waiver is necessary to establish a knowing, intelligent and voluntary waiver of Miranda rights.“)