690 Fed.Appx. 366 (6th Cir. 2017), 16-1785, United States v. Ray

Docket Nº:16-1785
Citation:690 Fed.Appx. 366
Opinion Judge:MARBLEY, District Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALVIN RAY, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Shane N. Cralle, United States Attorneys Office, Detroit, MI. For ALVIN RAY, Defendant - Appellant: Mark Henry Magidson, Detroit, MI.
Judge Panel:BEFORE: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.[*].
Case Date:June 08, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 366

690 Fed.Appx. 366 (6th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ALVIN RAY, Defendant-Appellant

No. 16-1785

United States Court of Appeals, Sixth Circuit

June 8, 2017

NOT RECOMMENDED FOR PUBLICATION

Editorial Note:

Sixth Circuit Rule 28(g) limits citation to specific situations. Please see Rule 28(g) before citing in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served on other parties and the Court.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN.

United States v. Ray, ( E.D. Mich., June 8, 2016)

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Shane N. Cralle, United States Attorneys Office, Detroit, MI.

For ALVIN RAY, Defendant - Appellant: Mark Henry Magidson, Detroit, MI.

BEFORE: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.[*].

OPINION

Page 367

MARBLEY, District Judge.

This case is before us a second time, following a remand to the district court to conduct an evidentiary hearing on Alvin Ray's motion to suppress statements he made to the police after receiving a " midstream" Miranda warning. See United States v. Ray (Ray I), 803 F.3d 244 (6th Cir. 2015). On remand, the district court conducted a hearing and applied the midstream Miranda warning test from Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), as we instructed, but still found Ray's post- Miranda confession admissible. United States v. Ray, No. 13-20143, 2016 WL 3180184 (E.D. Mich. June 8, 2016). As explained below, however, a reasonable person in Ray's shoes would not have viewed the post- Miranda questioning as a " new and distinct experience" that presented " a genuine

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choice whether to follow up on [his] earlier admission." Ray I, 803 F.3d at 272-73 (quotation omitted). Accordingly, we reverse and remand for a new trial.

I. BACKGROUND

We already recited the relevant facts in Ray's first appeal. The short version is that, upon receiving complaints of drug activity at a residence on Genesee Street, Detroit police officers arranged for a controlled buy using a confidential informant (" CI" ). The CI returned carrying a bag of marijuana that he claimed he purchased from a black male named Alvin Ray. The police then obtained a search warrant and returned the next afternoon to execute it.

Upon executing the warrant, the police discovered Ray and his longtime girlfriend, Cara Lee (the mother of Ray's teenaged son), asleep upstairs. The officers rousted the pair from bed, took them down to the living room, handcuffed them, and made them face a wall while the officers searched the house for drugs and contraband. The officers ultimately discovered marijuana, crack cocaine, an unloaded shotgun, several shotgun shells, a .22 caliber rifle, and a semiautomatic handgun in various rooms of the house.

Ray and Lee remained detained in the living room for roughly an hour while the officers executed the warrant. Several officers walked through the living room at different times, but no single officer maintained custody of Ray and Lee during the entirety of the search.

Ray and Lee testified on remand and told essentially the same story: (1) that one or more officers remarked that there were enough guns in the house for both Ray and Lee to go to jail; (2) that one or more officers commented on Lee's status as a state-court employee and made veiled threats about her continued employment; (3) that an officer asked Ray whether he had been to jail before, to which Ray replied that he had been to federal prison; (4) that the same officer chastised Ray for destroying the community by selling drugs; (5) that the same officer asked who owned the guns the police found in the house; and (6) that, in response, Ray took the blame for the guns to spare Lee the embarrassment of being arrested or losing her job.

Five of the officers who executed the warrant also testified on remand, while a sixth died before Ray's original trial and, thus, was unable to testify. The officers generally denied that anyone discussed the guns or drugs with Ray while they were in the house. Not one of the officers testified that a threat, whether explicit or implicit, was made to Ray or that he was questioned at the house. The officers explained that it would have violated their procedures to question Ray (or Lee) in the home or in the presence of one another. The officers further testified that any discussion with Ray and Lee while at the house was limited to collecting routine biographical information and to general topics, like sports and the weather. That said, Officers Wiencek and Robson admitted that they spoke to Lee about her son and her employment at the Wayne County Friend of the Court's Office. And several officers left open the possibility that someone on their task force asked Ray and Lee about who owned the guns in the home. But not one officer could recall Ray claiming ownership, whether solicited or unsolicited, of the guns or drugs while at the house.

After the search concluded, the officers arrested Ray (but not Lee) and took him to the local police station for questioning. Once there, Officers Hill and Robson gave Ray Miranda warnings for the first time, both orally and in writing. Ray signed a

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Miranda warning form and certified that he had not been threatened or promised anything. He also agreed to answer their questions. At that point, the officers allege that Ray first told them that the marijuana and shotgun belonged to him, but he denied ownership of the crack cocaine and the other guns. Ray testified that, during the interrogation, he admitted that the shotgun and marijuana were his (but not the other firearms) because he already had admitted to it earlier at the house, and because he was afraid that if he denied ownership now, the police would retaliate against him by arresting and charging his girlfriend.

As a result of the search and Ray's statements to the police, he was convicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); two counts of possession with intent to distribute controlled substances (cocaine and marijuana), in violation of 21 U.S.C. § 841; and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Lee was not charged with any crimes.

Ray appealed his convictions on several grounds, one of which we found potentially meritorious. Ray I, 803 F.3d at 251. Accordingly, we reversed his convictions and remanded the matter to the district court to conduct an evidentiary hearing regarding the admission of Ray's station-house confession. Id. In so doing, we explicitly adopted the " multi-factor test" from Missouri v. Seibert to govern the admissibility of statements given after " midstream Miranda warnings." Id. at 272-73 (citing Seibert, 542 U.S. at 616 (plurality opinion)).

On remand, the district court held an evidentiary hearing, as instructed, and applied the multi-factor test from Seibert before determining that Ray's confession was admissible. Ray, 2016 WL 3180184, at *4-5. The court first concluded that most of Ray's testimony during the hearing was not credible. Id. at *3 (" With such discrepancies in Ray's testimony on such basic facts as the race of the threatening police officer, content of his threat, and timing of the admission, Ray's testimony [regarding coercive conduct] is not credible. Moreover, no testimony by any police officer at trial or the evidentiary hearing supports Ray's account . . . ." ). The court then examined each of the five factors from Seibert and concluded that not one of them supported a finding that Ray's police-station confession was inadmissible. Id. at *4-5. Next, the court found that Ray's station-house Miranda waiver was made knowingly, voluntarily, and intelligently. Id. at *5. As a result, the court concluded that Ray's post- Miranda statements were properly admitted at trial. Id.

II. STANDARD OF REVIEW

In determining the admissibility of statements allegedly taken in violation of a defendant's Miranda rights, we review the district court's factual findings for clear error and its legal conclusions de novo. Ray I, 803 F.3d at 265. We generally defer to the district court's assessments of credibility, review the evidence in the light most favorable to the district court's decision, and consider the evidence in the light most favorable to the government. Id.

III. ANALYSIS

Ray argues...

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