723 Fed.Appx. 302 (6th Cir. 2018), 16-4321, United States v. O’Connor

• Citation: 723 Fed.Appx. 302
• Opinion Judge: BERNICE BOUIE DONALD, Circuit Judge.
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Arian O’CONNOR, Defendant-Appellant.
• Attorney: Daniel R. Ranke, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee Russell Stephen Bensing, Law Offices, Cleveland, OH, for Defendant-Appellant
• Judge Panel: BEFORE: MOORE, WHITE and DONALD, Circuit Judges.
• Case Date: February 05, 2018
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

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723 Fed.Appx. 302 (6th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Arian O’CONNOR, Defendant-Appellant.

No. 16-4321

United States Court of Appeals, Sixth Circuit

February 5, 2018

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Daniel R. Ranke, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee

Russell Stephen Bensing, Law Offices, Cleveland, OH, for Defendant-Appellant

BEFORE: MOORE, WHITE and DONALD, Circuit Judges.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

A jury convicted Defendant-Appellant Arian O’Connor ("O’Connor") of one count of felon in possession of a firearm,

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18 U.S.C. § § 922(g)(1) and 924(a)(2). At trial, O’Connor moved to suppress evidence, alleging that the search warrant affidavit in question did not establish probable cause. The district court denied the motion. On appeal, O’Connor challenges that denial, and challenges the sufficiency of evidence for his conviction. For the reasons set forth below, we affirm the district court’s order denying O’Connor’s motion to suppress, and affirm his conviction and sentence.

I.

On August 11, 2015, the Youngstown (Ohio) Police Department ("YPD") received a 911 call from Lisa Ashford ("Ashford") reporting that a man and a woman were attempting to break into the home Ashford shared with Ronald Scott ("Scott") at 495 Sunshine Avenue, Youngstown, Ohio. Ashford described a man holding a black short-barreled shotgun with a pistol grip, and stated that the man and woman were driving a gray 2014 Ford Focus with Florida license plate CHY-P34 ("Ford Focus"). Ashford subsequently identified the male intruder as O’Connor. R. 41-1: Search Warrant Affidavit, PageID# 166 ¶¶ 3, 5-7. O’Connor had rented the vehicle from Enterprise Car Rental the previous day. Id., PageID# 166 ¶ 4.

As O’Connor and his girlfriend, Jennifer Price ("Price"), attempted to break into the house, Ashford told Scott to stay inside because O’Connor was armed, and warned O’Connor and Price that she was going to call the police. O’Connor and Price fled in the Ford Focus. Id., Page ID# 166, ¶ 7. While responding to the call, YPD Officer Anthony Tulipano observed Price and O’Connor on Landsdowne Avenue in the Ford Focus. Id., PageID# 166, ¶ 8. Investigation revealed that earlier that day, O’Connor and Price had driven to the apartment of Robert Reed ("Reed") and Cheryl Rotan ("Rotan"). O’Connor was seen carrying the same type of shotgun inside Reed and Rotan’s apartment. Id., PageID# 166, ¶¶ 1-2. When the YPD interviewed Ashford the same day, she identified O’Connor from a photo array as the man who had attempted to break into her home. Id., PageID# 166, ¶¶ 9, 10.

The next day, Officer Tulipano observed O’Connor’s rented Ford Focus parked at 2108 Burbank in Youngstown. Id., PageID# 166, ¶ 11. The police also learned that O’Connor was a convicted felon¹ and therefore prohibited from owning or possessing a firearm. Id., Page ID# 166, ¶ 12. The City of Youngstown Prosecutor’s Office filed a complaint, charging O’Connor and Price with attempted aggravated burglary, and O’Connor with possession of a weapon while under a disability. Id., PageID# 166, ¶ 13. Arrest warrants followed. PageID#166-67, ¶ 14.

Reciting the above information that same day, YPD Detective Sergeant Donald Scott ("D/S Scott") obtained a search warrant from a Youngstown Municipal Judge for 2108 Burbank, Youngstown, and for O’Connor’s rented Ford Focus. R. 41-2: Search Warrant, PageID# 168-70. On executing the search warrant later that day at 2108 Burbank, officers recovered a Maadi, an AK-47 style assault rifle with 30 rounds of ammunition, found hidden between a mattress and box spring in the south second floor bedroom, marijuana, a bag containing ammunition of various calibers, and other items. R. 38-1: Search Warrant Affidavit Inventory, Exhibit A, PageID# 149-51. The search also revealed O’Connor’s Social Security card on a dresser in the upstairs sitting area, R. 75: Trial Tr., Vol. 1, PageID# 761-62, and his

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driver’s license, which listed 2108 Burbank, Youngstown, as his home address, in the rental car, R. 38-1: Search Warrant Affidavit Inventory, Exhibit A, PageID#149.

A November 4, 2015, single-count indictment charged O’Connor with being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2).² O’Connor moved to suppress on June 30, 2016, claiming that the affidavit failed to establish probable cause for the search, and disputing the reliability of the information supporting the affidavit and the nexus between the alleged criminal activity and the premises. R. 38: Motion to Suppress, PageID# 139-42. The government responded that the warrant established probable cause for the search as well as a clear nexus between possession of a firearm and the premises to be searched.

On July 13, 2016, the district court denied O’Connor’s motion to suppress, without a hearing. United States v. O’Connor, No. 1:15CR405, 2016 WL 3725937 at *2-3, 2016 U.S. Dist. LEXIS 90759 at *6 (N.D. Ohio July 13, 2016). In denying the motion, the district court reasoned: The Affidavit contains a description by four eyewitnesses of Defendant’s suspected criminal activity and his possession of a shotgun on August 11, 2015. The witnesses saw Defendant in the gray 2014 Ford Focus he rented the day before. Office Tulipano saw Defendant in that car in the area on August 11, 2015 and then saw the vehicle parked at 2108 Burbank on August 12, 2015. One of the witnesses identified Defendant in a photo line-up and re-affirmed what she observed about Defendant and the shotgun in a videotaped police interview. Given all the circumstances set forth in the Affidavit, the Municipal Judge made the fair and practical inference that the gun which Defendant was prohibited from possessing would be found either inside Defendant’s rental car or his Burbank residence.

Id. at *5-6.

The case proceeded to a jury trial on July 27, 2016. The government called three witnesses: (1) James Corrin, a State of Ohio parole officer on assignment to the United States Marshals Service, who assisted YPD in the August 12, 2015 search at 2108 Burbank, R. 75: Trial Trans. Vol. 1, PageID# 741-75, and who discovered the assault rifle under the mattress, id., PageID# 752, 755; (2) D/S Scott, whose affidavit led to issuance of the search warrant, who took part in the search at 2108 Burbank, id., PageID# 776-803, and who observed the assault rifle during the search, id., PageID# 781-84; and (3) David Miller, an Ohio Bureau of Criminal Investigations ("BCI") forensic scientist, who testified regarding his DNA testing on the assault rifle seized from 2108 Burbank, R. 76: Trial Trans. Vol. 2, PageID# 808-64. Miller testified that, using DNA standards provided to him for O’Connor and Price, he determined that the major DNA contributors to the firearm were O’Connor and Price. Id., PageID# 819, 826-30. Miller also testified that "the proportion of the population that can’t be excluded as possible contributors to the mixture of DNA profiles on [the assault rifle] is 1 in 478,900" for both Price and O’Connor. Id., PageID# 828.

On July 28, 2016, the jury found O’Connor guilty of being a felon in possession of a firearm. R. 76: Trial Trans., Vol. 2, PageID# 1014-16; R. 52: Verdict, PageID# 246.

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O’Connor was sentenced to 120 months’ imprisonment, followed by a three-year term of supervised release. R. 71: Sentencing Trans., PageID# 428; R. 65: Judgment, PageID# 380-86. O’Connor filed a timely notice of appeal from the district court’s denial of his motion to suppress and his conviction. R. 66: Notice of Appeal, PageID# 387-88.

II.

A.

O’Connor first challenges the search warrant, asserting that the supporting affidavit failed to establish probable cause. (Appellant’s Br. at 9-14). Where the district court denied a motion to suppress without holding an evidentiary hearing, we "review de novo the court’s legal conclusion that the affidavit provided probable cause." United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2016) (quoting United States v. Brown, 732 F.3d 569, 572 (6th Cir. 2013)). We review the district court’s factual findings for clear error, United States v. Watkins, 691 F.3d 841, 851 (6th Cir. 2012), viewing the evidence in the light most favorable to the government, United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999) (citation omitted). We owe no particular deference to the conclusions of the district court as a reviewing court. Brown, 828 F.3d at 381.

We accord a magistrate’s probable cause finding "great deference" and reverse only where the warrant issued "arbitrarily." United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002) (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc) ). The magistrate must "make a practical, common sense decision whether, given all the circumstances set forth in the affidavit[,] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). We, in turn, must simply "ensure that the magistrate had a substantial basis" for finding probable cause. Id. (citation omitted).

In challenging the adequacy of the search warrant affidavit, O’Connor invokes the protections of the Fourth Amendment to the United States Constitution, which requires "probable cause" for a search warrant to issue. U.S. Const...