U.S. v. Johnson

• Decision Date: 25 May 2007
• Docket Number: No. 05-4277.,05-4277.
• Citation: 488 F.3d 690
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael D. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.3d 690

UNITED STATES of America, Plaintiff-Appellee, v. Michael D. JOHNSON, Defendant-Appellant.

No. 05-4277.

United States Court of Appeals, Sixth Circuit.

Submitted: April 17, 2007.

Decided and Filed: May 25, 2007.

ON BRIEF:

Thomas P. Kurt, Toledo, Ohio, for Appellant. Timothy D. Oakley, United States Attorney, Cincinnati, Ohio, for Appellee.

Before: MERRITT and GRIFFIN, Circuit Judges; LAWSON, District Judge.^*

OPINION

DAVID M. LAWSON, District Judge.

Defendant Michael D. Johnson appeals his convictions and sentences for distributing cocaine and possession of ammunition by a convicted felon on the following grounds: the fruits of a warrantless search should have been suppressed because the officers violated the knock-and-announce rule; the district court erred in admitting opinion testimony by a police officer that the defendant was engaged in drug trafficking; and the district court failed to provide any explanation for the defendant's sentence. We conclude that the search of Johnson's home and seizure of evidence were not illegal; the admission of the police officer's expert opinion testimony does not amount to plain error; and the district court failed to provide an explanation on the record for its sentence. Therefore, we will affirm the defendant's convictions, vacate the sentences, and remand for resentencing.

I.

On July 22, 2003, officers from the Cincinnati Police Violent Crime Squad (VCS) were investigating narcotics complaints at a house located at 4704 Peabody Avenue in Cincinnati, Ohio. Police Officer Richard Dews was in a building across the street, watching the house from a window. The house is owned by the defendant's great-grandmother.

Officer Dews observed a number of people in front of the house. Defendant Johnson, Lawrence Sims, Michael Howard, Phillip Thornton, and three women were on the front porch. Officer Dews was familiar with Mr. Sims from previous arrests, but it does not appear that he knew the others. The porch contained a couch, a couple of chairs, and a filing cabinet with a black bag on top of it.

Dews testified that he saw Sims approach a number of cars that stopped in front of the house. He saw Sims take money from people in the cars and give them something in return, which Officer Dews believed were drugs. The defendant stayed on the porch, but Dews saw Sims look back toward the porch and communicate with the defendant. To Officer Dews, it appeared that the defendant was giving Sims directions. Dews explained:

Q. What was Mr. Johnson doing?

A. Mr. Johnson was on the — on the porch when I first got to the location. And he would yell to Mr. Sims, who was standing in front of the building across the street where I was positioned, and he was telling him, you know, to stop the car, get this one here. So, when Mr. Sims — that's what attracted my attention to Mr. Johnson, because Mr. Sims looked back to this address where Mr. Johnson was standing on the porch, like he was getting directions or getting information from him, so they were actually communicating with one another —

MR. COHEN: Objection, Your Honor.

THE COURT: Overruled.

J.A. 211. Dews saw the defendant give the money that he collected from the passengers to Michael Howard, who put it in his pocket.

Officer Dews also saw Thornton approach vehicles that stopped in front of the house. Dews testified that Thornton also appeared to be getting instructions from the defendant, who stayed on the porch. Thornton would approach the cars, speak with the occupants, and return to the porch. Mr. Johnson would take something out of the black bag on the filing cabinet and give it to Thornton. Thornton would then return to the street and give the item to the occupant of the vehicle, who would give Thornton cash. Thornton returned to the porch and gave the money to one of the females sitting on the porch. This is how Officer Dews characterized what he saw:

Q. Now, at this time were there other people located at 4704 Peabody?

A. Yes, there were. There were three females sitting in chairs on the porch, and it [sic] was also another male on the porch by the name of Mr. Phillip Thornton. He was sitting on the porch also. Mr. Johnson was also having Mr. Thornton leave the porch and approach vehicles that were coming down Peabody, have them — have him approach the car, see what the — you know, if the car pulled up and stopped, see what they wanted. If they wanted to purchase something, what did they want to purchase. Mr. Thornton would yell back to Mr. Johnson that they wanted certain —

MR. COHEN [defense counsel]: Objection, Your Honor; hearsay.

THE COURT: Sustained.

Q. While all this was going on, how did the defendant behave?

A. He behaved as though he was in charge. That he was — he was basically in charge of the whole operation, or however — whatever was being sold, whatever was being purchased, whatever activities were going on, he was the man that was in control of that at that corner.

J.A. 212-13, 215-16.

Officer Dews then was permitted to testify as an expert that the activity that he observed constituted drug trafficking:

MR. OAKLEY [AUSA]: And, Your Honor, we would ask that the witness be identified as an expert in the identification and behavior of street-level narcotics trafficking.

THE COURT: Mr. Cohen?

MR. COHEN: No objection, Your Honor.

THE COURT: All right. Officer Dews will be accepted as an expert in the area of street-level narcotics transactions and behaviors that accompany that activity

....

Q. Officer Dews, now, based upon your experience, your training and your expertise and what you'd observed that day on July 22nd, 2003, on Peabody and Orlando, do you have an opinion, to a reasonable degree of certainty as to what was going on between Mr. Johnson and the other people?

A. From — based on my experience and what I saw, there was actually — there was actual drug trafficking going on. Mr. Johnson was the man in charge of the — the sale and also the operations that was there on that corner at that immediate complaint that we addressed.

J.A. 206, 224. The defendant's attorney did not object to this testimony.

Officer Dews testified next that a Geo Tracker came by and parked in front of the house. Dews said that the defendant referred to the driver as "White Horse." The passenger was a heavy set man. White Horse and the heavy set man got out of the Tracker, and the defendant walked from the porch to the sidewalk to meet them. White Horse stayed on the sidewalk, while the defendant and the heavy set man went onto the porch and sat on the couch. Officer Dews saw the defendant put something on the ground between his feet. Then the defendant took "a wad of money" from his left pocket and gave it to the heavy set man. J.A. 218. The heavy set man and White Horse left in the Tracker.

The defendant took whatever was between his feet and walked out to the street where a gray van was parked. He called for Sims to come over. Officer Dews could see that the defendant had a white baggie and a scale in his hands, which he handed to Sims. Sims put the items in the van, and the defendant headed back to the porch.

Officer Dews was relaying everything he saw to other officers via radio and cellular phone. He asked these other officers to stop the Tracker, but they failed to do so. After the transfer of items to the van and while the defendant was moving toward the porch, the other officers moved in on the house at 4704 Peabody Ave. At that point, the defendant ran up the steps and into the house.

Police Officers Terry Dukes and Ryan Hudson were two of the officers who arrived at the house. They were in an unmarked van, but they were wearing tactical vests with "POLICE" patches on them. Officer Dukes testified that the defendant ran into the house when Dukes shouted "Police." Officers Dukes and Hudson followed the defendant into the house and eventually found him in the closet of a bedroom on the second floor. Officer Dukes said he drew his gun and called out "police." He testified that the defendant threw an object out of the closet. It landed on a laundry bag on the bed, and it turned out to be a handgun. Officer Hudson recovered the handgun. He read the defendant his Miranda rights and then asked him if the gun was loaded. The defendant replied that it was not. The defendant was arrested.

On April 7, 2004, the defendant was charged with distributing crack cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, possessing a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and possessing ammunition while under disability as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).

On January 12, 2005, the defendant filed a motion to suppress evidence, arguing that the officers lacked probable cause to believe the defendant had committed a crime or that there was evidence of a crime in the house. He also argued that the warrantless entry of the house could not be justified by one of the exceptions to the warrant requirement. The district court denied the motion, concluding that Officer Dews' observations constituted probable cause to believe the defendant was engaged in drug trafficking activity. The officers were therefore entitled to arrest the defendant without a warrant. Once the police set the lawful arrest in motion, they were entitled to follow the fleeing defendant into the house under the "hot pursuit" exception explained in United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

On March 11, 2005, a jury convicted the defendant of distributing crack cocaine (count 2) and being a felon in possession of ammunition (count 1) but acquitted him of possessing a firearm in furtherance of a drug crime (count 3). The presentence investigative report put the defendant at an offense level of 34 with 16 criminal history points, based on the conclusion that the defendant is a career offender. The defendant...