United States v. Ray

• Citation: 803 F.3d 244
• Decision Date: 23 September 2015
• Docket Number: No. 14–2159.,14–2159.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Alvin RAY, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

803 F.3d 244

UNITED STATES of America, Plaintiff–Appellee

v.Alvin RAY, Defendant–Appellant.

No. 14–2159.

United States Court of Appeals, Sixth Circuit.

Argued: June 12, 2015.

Decided and Filed: Sept. 23, 2015.

ARGUED:Mark H. Magidson, Detroit, Michigan, for Appellant. Shane Cralle, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Mark H. Magidson, Detroit, Michigan, for Appellant. Shane Cralle, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.^*

OPINION

MARBLEY, District Judge. Appellant Alvin Ray (“Ray”) appeals his jury conviction for one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), 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). Ray presents several claims of error, challenging the admission of his prior criminal conviction, the sufficiency of the evidence to sustain a conviction under 18 U.S.C. § 924(c), the admission of his alleged confession under the Fifth Amendment, the denial of a discovery request, the denial of a motion to suppress, and the instructions given to the jury. On the issue of whether the district court erred in admitting Ray's alleged confession, we REVERSE and REMAND for an evidentiary hearing in accordance with this Opinion. We AFFIRM on all other issues.

I. BACKGROUND

A. Factual Background

Sometime prior to August 22, 2012, the Detroit Police Department (“DPD”) claims it received complaints that narcotics were being sold from a residence located at 9241 Genessee Street, Detroit, Michigan. (R. 31, Mem. and Order Denying Def. Mot. to Suppress at 2). On August 22, 2012, DPD Officer Aaron Yopp used a “confidential informant” (“CI”), to make a controlled buy at 9241 Genessee Street. (R. 38, Franks Hearing Tr., July 29, 2013, PageID 108110, 112). Officer Yopp indicated that DPD had received complaints about drug activity at the residence, but he had not conducted any surveillance of the home prior to the controlled buy. (Id. at 109–10).

Officer Yopp picked up the CI at an undisclosed location, took him to 9241 Genessee Street, and provided him with cash. (Id. at 120–22). From his parked vehicle, Officer Yopp observed as the CI went to the front door of the residence, but was unable to see the person with whom the CI interacted on the other side of the door. (Id. ). According to Officer Yopp, the CI returned to Yopp's vehicle with a knotted bag of 0.8 grams of marijuana. (Id. ). The CI told Yopp that he purchased the marijuana from a black male, age 33–37, 5'9?, 230 pounds, with a medium complexion, bald head, and a fat face. (Id. at 122). The CI also stated that the subject was Ray. (R. 31, Mem. and Order Denying Def. Mot. to Suppress at 3). Based on this information, Officer Yopp applied for a search warrant to search the residence located at 9241 Genessee Street. The search warrant was signed the same day.

The next day, August 23, 2012, DPD officers executed a search warrant at the residence located at 9241 Genessee Street. (R. 89, Tr. Jury Trial, Vol. 1, May 19.2014, PageID 655). Upon arrival at the home, the officers encountered a teenage boy on the sidewalk. The boy indicated that Ray was his father, and that Ray was inside the home. (Id. at 731–32). The officers then walked to the front door, knocked, and announced that they had a search warrant. (Id. at 658–59). No one responded at the door. (Id. at 733). The officers claim they found the door unlocked, and so they entered, announced themselves, and secured the inside of the home. (Id. ).

Officer Gregory Robson and Officer Jeffrey Pacholski testified that they found Ray and his longtime girlfriend and mother of his 14–year old child, Cara Lee, sleeping in the southeast upstairs bedroom. (Id. at 661, 735). DPD officers awoke the pair and escorted them downstairs to the living room. (Id. at 660–61, 736). Once Ray and Lee were secured, DPD officers searched the home. (Id. at 659–61).

The bedroom where Ray and Lee were found held an air mattress and a television on a stand. (Id. at 661–63, 738–39). Officers Robson and Pacholski testified that, during the search, DPD officers discovered a plastic sandwich bag on the television stand, next to mail addressed to Ray and pill bottles prescribed to him. (Id. at 742). The plastic bag contained 31 individually packaged bags of marijuana and $148. (Id. at 665–66, 708–09, 741–42). Three shotgun shells were found on the television stand, as well. An unloaded 12–gauge shotgun was found leaning against the wall behind the bedroom door. (Id. at 662–63, 739–40). Officer Pacholski also found a loaded .22 caliber rifle in the closet of a second bedroom in the southwest corner of the home. (Id. at 746).¹ No drugs or drug paraphernalia were found in the second bedroom.

In the kitchen, on the main floor of the home, the officers found a bag of loose marijuana. (Id. at 747, 757). In the pocket of a Detroit Tigers coat hanging in the living room closet, Officer Robson found a plastic bag filled with 49 smaller bags of crack cocaine. (Id. at 669–71). Also recovered in the search from the same living room closet was a fully loaded .380 caliber semiautomatic handgun in the pocket of a different jacket—a Columbia jacket. (Id. at 672–74). Officer Pacholski claimed no evidence—such as mail, clothing, or medication—was found suggesting that anyone other than Ray lived in the residence. (Id. at 737, 751–52).

Officer Robson also testified at trial that during the execution of the search warrant, he had a conversation with Ray and Lee while they were secured in the living room, but before any Miranda warning had been given. According to Officer Robson, the parties discussed Lee's employment, and Ray informed the officer that, when he first heard the officers shouting, he thought the police were in the neighborhood to raid a neighbor's house. (Id. at 678, 717–18). He stated that he had a “general conversation” with Ray and Lee and discussed “[n]othing pertaining to the case.” (Id. ). Ray, on the other hand, testified that, as his home was being searched, he spoke with two officers, one whose name he did not recall and one called “Wolverine.” Ray claims “Wolverine,” later identified as Officer Patrick Hill, informed Ray that both he and Lee were going to be arrested. (R. 91, Tr. Jury Trial, Vol. 3, May 22, 2014, PageID 957–60). Ray claims that he took responsibility for the illegal items found during the search so that he and Lee's son would not have to see Lee taken out of the house in handcuffs. (Id. ). After the search concluded, the officers released Lee at the home, but arrested Ray and took him to the police station. (R. 89 at 680).

Officer Robson testified at trial that, at the police station, he and Officer Hill interrogated Ray together. (Id. at 684–85). Officer Robson indicated that he observed Officer Hill give Ray his Miranda rights. (Id. at 684–85). Officer Robson also testified that Ray signed a Miranda waiver, on which Ray indicated that he understood his rights by initialing each paragraph explaining his rights, and agreed to answer the officers' questions. (Id. at 685–87). Further, Robson testified that, during the interrogation, Ray admitted that he sold marijuana that he purchased from others in the neighborhood. (Id. at 693). According to the officers, Ray also stated that he had lived in the 9241 Genessee Street residence for ten years; he acknowledged that the 12–gauge shotgun belonged to him; he denied ownership of the other guns in the house, claiming they belonged to his girlfriend's uncle, who recently died; and he admitted that he was aware of the crack cocaine found in the coat closet, though he claimed that a friend had left it at a party held at the house the night before. (Id. at 691–94).

B. Procedural History

On February 21, 2013, the Federal Grand Jury returned an indictment charging Ray with four counts: (1) Felon in Possession of a Firearm, 18 U.S.C. 922(g)(1), in violation of 18 U.S.C. 924(a)(2) ; (2) Possession with Intent to Distribute Controlled Substance—Cocaine, in violation of 21 U.S.C. 841(a)(1) and 21 U.S.C. 841(b)(1)(C) ; (3) Possession with Intent to Distribute Controlled Substance—Marijuana, in violation of 21 U.S.C. 841(a)(1) and 21 U.S.C. 841(b)(1)(D) ; and (4) Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. 924(c) and 18 U.S.C. 924(c)(1)(A)(i). (R. 7, Indictment, PageID 11–12).

1. The Franks Hearing

Following Ray's arrest and detention without bond, the Defense filed a motion for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), challenging the veracity of the statements made supporting the warrant that authorized the search of Ray's home and requesting suppression of the evidence discovered during the execution of the search warrant—specifically, the cocaine, marijuana, and firearms. (R. 23, Franks Motion, PageID 36–44). The district court granted Ray's request for a Franks hearing, which the court held on July 29, 2013.

At the hearing, and in its motion, the Defense argued that the Officer Yopp's affidavit was insufficient to establish probable cause for a search warrant because: (1) Yopp was untruthful in the affidavit when he averred that he received complaints about narcotics being sold at Ray's home prior to August 23, 2012; and (2) Ray in fact did not sell marijuana to the CI on August 22, 2012. (R. 23; R. 38 at 101–103). Ray did not call any witnesses or otherwise proffer any evidence to the court. (R. 31, Mem. and Order Denying Def. Mot. to Suppress Evidence at 2).

The Government called two witnesses: (1) the affiant, Officer Yopp; and (2) DPD Sergeant Jason Sloan. (R. 38 at 106). Officer Yopp testified that he received narcotics complaints about drug...