U.S. v. Gray

Citation137 F.3d 765
Decision Date25 February 1998
Docket NumberNo. 96-4617,96-4617
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David Furtado GRAY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Joseph A. Balter, Supervisory Assistant Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Harvey Ellis Eisenberg, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James K. Bredar, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Gregory Welsh, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge WILKINSON and Judges WIDENER, ERVIN, WILKINS, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

For the gangland-style killing of Jessie Waller, a jury convicted David F. Gray of murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(1) and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The district court sentenced him to life imprisonment. As Gray's principal argument on appeal, he contends that the district court improperly admitted confessions obtained from him while he was in custody without probable cause. Rejecting this argument, as well as the others made by Gray, we affirm.

I

On October 19, 1993, while Jessie Waller, Tracy Ward, and Antoine Little were walking in an alley off East Preston Street in Baltimore, three men ambushed them, firing 9mm automatic pistols. As Little attempted to escape, the men chased and also fired at him. As a result of the ambush, Waller was killed and Little and Ward wounded. Police investigators recovered 29 bullet casings and 9 bullet fragments from the scene of the murder and the adjacent street where Little had fled, and forensic analysis confirmed that three 9mm firearms had been used in the attack, with 14 bullets fired from one of the weapons.

Several months later, when FBI agents and state law enforcement officers were reviewing tapes of wiretaps conducted in connection with an unrelated drug trafficking investigation, they were able, based on information from the tapes, to connect someone with the street name of "David" or "Fat David" with the killing of "Black Jessie." They believed that "Black Jessie" was Jessie Waller. When a state officer suggested that "Fat David" might be David Gray, who was known to the state officers, the investigators conducted a police record check of Gray and discovered that he had been arrested in March 1994 for possession of a 9mm pistol. They subjected the pistol seized from Gray in connection with that arrest to forensic tests, and the tests disclosed that the pistol seized from Gray in March 1994 was the same pistol that fired 14 of the bullets recovered from the October 1993 murder scene.

The agents then placed Gray's photo in a six-photo array and showed the array to Ward and Little, the two survivors of the attack. Little, who had fled the scene, was unable to identify anyone. Ward, however, stated that the photo of Gray "resembled" one of his attackers.

Following this identification, FBI agents and Maryland state law enforcement officers decided to bring Gray in for questioning. After looking for him unsuccessfully for weeks, they located him on August 1, 1994, at his probation officer's office. They handcuffed him and took him from that office to the state's attorney's office in Baltimore City, where, at 11:20 a.m., they placed him in a room alone. Shortly after 1 p.m., after Gray had been waiting in the room for about one hour and forty-five minutes, the officers began questioning Gray about other crimes and making small talk. At that time, state homicide detective Marvin Sydnor, who was in charge of the Waller murder investigation, had not yet arrived at the office. When Detective Sydnor arrived at 1:40 p.m., he read Gray his Miranda rights, and Gray initialed a form which stated he understood those rights and waived them. Thereafter, over the course of the next five hours, Gray admitted to involvement in the murder of Waller and provided a number of incriminating details about the crime. He admitted that he had been approached by a drug lord, Ronald Whitener, with an offer of $5,000 for Waller's life. Gray also admitted to gathering two other people to accompany him in hunting down and killing Waller. When Gray requested an attorney, at about 6:30 p.m., the interview ended and Gray was formally arrested.

At a pretrial hearing on Gray's motion to suppress the confession because he had been arrested without probable cause and had been manipulated into making inculpatory statements, the district court granted the motion to suppress as to statements made by Gray before he was read his Miranda rights because the court found those statements incident to an illegal arrest. The court found, however, that the statements made after Gray had been read his rights were admissible because the confessions were not coerced and were too causally attenuated from the initial illegal arrest to have been tainted by the arrest.

After the jury convicted Gray of murder in aid of racketeering activity and illegal use of a firearm, the district court sentenced Gray to life in prison under U.S.S.G. §§ 2E1.3(a)(2) & 2A1.1 (establishing base offense level of 43 for first-degree murder in aid of racketeering activity).

This appeal followed.

II

Gray contends that when he was handcuffed and brought in for questioning on August 1, 1994, he was arrested without probable cause and that the statements he made while in police custody were the direct product of that illegal arrest. Accordingly, he argues that the district court erred in not suppressing the statements that he made on August 1 after receiving Miranda warnings and in admitting them at trial. Gray also argues, alternatively, that the statements he gave on August 1 were not voluntary and should be suppressed on that ground.

The district court agreed with Gray that when the officers took him in on August 1 for questioning, they in fact arrested him since he was "compelled to accompany the officers and agents to the office." The court also agreed that the law enforcement officers did not, at that time, have probable cause to arrest Gray. The court concluded:

The temporal nexus between the October shooting and the March 8th seizure of the gun from Mr. Gray is simply not sufficient, in the judgment of this Court, to support the inference that Mr. Gray was in continuous possession of that handgun for a period exceeding six months when it was seized from him on March 8, 1994.

The real world simply tells us, and all you have to do is read the newspaper every day to know, that handguns, unfortunately, change hands quite rapidly, particularly in the inner city.

Addressing Ward's identification of Gray as resembling one of his attackers, the district court stated, "to say that a young African American male in Baltimore City in 1993 and 1994 resembles another African-American male simply adds nothing in any rational way." The court, however, went on to conclude that the questioning of Gray on August 1 continued for some time, and "by the time [Gray] made the inculpatory statements, ... [there was] a thorough dissipation of any taint arising from the unlawful seizure of Mr. Gray." As the court summarized:

The Court is satisfied ... that once there, with the combination of the Miranda warnings that were given to Mr. Gray, the absence of any showing of actual coercion practiced against or on Mr. Gray, the absence of any evidence of promises, threats or inducements to Mr. Gray, by the time he made the inculpatory statements concerning the Jessie Waller shooting, Mr. Gray's statements were free of any taint otherwise arising as a result of his detention and transportation.

The court also found that Gray "clearly understood" his Miranda rights and "knowingly and intelligently and voluntarily" waived them.

While the government continues to maintain on appeal that the officers had probable cause to arrest Gray on August 1, it argues that even if the arrest was unlawful, the statements that Gray made several hours later in a voluntary, non-coercive setting, following a waiver of his Miranda rights, were so causally attenuated from any coercion of the illegal arrest as not to have been tainted by it.

We begin our analysis by determining first whether the government had probable cause to arrest Gray on August 1, 1994, because, if the arrest was supported by probable cause, we need not address the issue of attenuation.

" 'Probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979); see also Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1971). While probable cause requires more than "bare suspicion," it requires less than that evidence necessary to convict. See Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). It is an objective standard of probability that reasonable and prudent persons apply in everyday life. As the Court in Brinegar explained:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which...

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