United States v. Doxey, 14-2600

• Decision Date: 18 August 2016
• Docket Number: No. 14-2600,14-2600
• Citation: 833 F.3d 692
• Parties: United States of America, Plaintiff–Appellee, v. Jeffrey Dewitt Doxey, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

833 F.3d 692

United States of America, Plaintiff–Appellee,

v.Jeffrey Dewitt Doxey, Jr., Defendant–Appellant.

No. 14-2600

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2016

Decided and Filed: August 18, 2016

COUNSEL ARGUED: Amanda Urban, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellant. Sally J. Berens, United States Attorney'S Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: Amanda Urban, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, Dennis G. Terez, Office of the Federal Public Defender, Cleveland, Ohio, Melissa M. Salinas, Office of the Federal Public Defender, Toledo, Ohio, for Appellant. Jeff J. Davis, United States Attorney'S Office, Grand Rapids, Michigan, for Appellee.

Before: KEITH, CLAY, and WHITE, Circuit Judges.

OPINION

CLAY

, Circuit Judge.

Defendant Jeffrey Doxey, Jr. appeals his jury conviction and sentence for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1)

. This case arises from police officers' search of Doxey, during which they found a bag of heroin protruding from in-between his buttocks. On appeal, Doxey raises a Fourth Amendment challenge to the search of his person and the seizure of the heroin, argues that the identity of a confidential informant should have been revealed, and challenges his career offender designation at the time he was sentenced. For the reasons set forth below, we AFFIRM the district court.

BACKGROUND

Factual Background

This case resulted from an investigation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) into the theft of a number of firearms from two Michigan gun dealers in June and July 2013. The ATF investigation led to the arrests of Joseph Sweet and Ronald Patrick Cook, both of whom admitted to trading the stolen firearms with Doxey, their drug dealer, in exchange for heroin and cash. With this information, ATF Special Agent Jack Smith contacted the Michigan State Police West Michigan Enforcement Team (“WEMET”), a multi-jurisdictional narcotics task force, for help in investigating Doxey.

On May 29, 2013, Doxey was paroled from the Michigan Department of Corrections for his 2001 conviction for delivery of less than 50 grams of cocaine. According to his presentence investigation report (“PSR”), Doxey initially received probation for that offense in 2001, but he violated his probation and was sentenced to a term of imprisonment.

In addition to the information from Special Agent Smith, WEMET officers received information on July 30, 2013 from a confidential informant (“CI”) connecting Doxey with drug trafficking. The CI told the officers that Doxey was a heroin dealer who drove a white Suburban with rust along the bottom of it. The CI also said that Doxey had possessed a large quantity of heroin within the past twenty-four hours.

Later that same day, WEMET officers, who had been looking for Doxey, located him at a gas station in Muskegon Heights, Michigan. The officers observed Doxey—who they knew was on parole—engage in an apparent “hand-to-hand” narcotic transaction with another man from the white SUV Doxey was driving. (R. 52, Suppression Hearing Transcript, PageID# 162.) The officers then watched Doxey drive away with two female passengers inside. Because Doxey had a suspended license, the officers planned to stop the SUV. But before the officers could pull Doxey over for the violation, Doxey pulled over to the side of the road. One of the WEMET officers, Trooper Marshall, pulled up behind Doxey in an unmarked black Dodge Caravan. As Trooper Marshall pulled up behind the SUV, Doxey was already getting out of his car. Trooper Marshall approached Doxey and told him he needed to speak with him. Doxey was cooperative and accompanied Trooper Marshall to the back of the SUV.

At some point, other WEMET officers arrived, and one of them, Lieutenant Fias, searched Doxey with his consent. Lieutenant Fias removed $1,560 in cash from Doxey's pants pocket. When questioned, Doxey said his girlfriend, Nancy Todd, gave him some of the money and that the remaining money was gambling proceeds. The other officers searched the car Doxey had been driving.

During the search, Trooper Marshall found a partially burnt marijuana cigarette and a digital scale in the center console of the car. The officers also questioned the two passengers, but did not ask them about the evidence taken from the car.

The officers then took Doxey to Todd's house, where Doxey was living at the time. Todd provided the officers with written consent to search her house. The officers searched Todd's house and found in the kitchen a glass Pyrex jar which contained heroin residue. The officers also found baking soda, which, as they later testified, is commonly used to dilute heroin. At that point, the officers Mirandized Doxey and questioned him about the drugs found in the house and car. Doxey denied that any of the items found by the officers belonged to him and said that the items found in the house likely belonged to Todd's ex-boyfriend.

While still inside Todd's house, the officers asked Doxey if he would consent to another search of his person, and Doxey agreed. Because the officers suspected that Doxey was hiding drugs in his genital area, they asked him to remove his underwear and squat so that his genitals and his rectum could be examined. Trooper Marshall explained that “it [i]s quite common for people that are trafficking narcotics or trying to [hide] any type of narcotics for people to try and hide them on their person so police officers can't find them.” (R. 93, Jury Trial Transcript, Volume II, PageID# 720.)

Doxey initially complied by pulling his pants and underwear down. But when the officers asked him to squat down, Doxey was “reluctant to do that.” (Id. at 761.) Instead, Doxey “would squat just a little bit, like it was quite evident he was clenching his butt cheeks together in order to hide something, to prevent something to fall out.” (Id. at 721.) Because it was obvious to the officers that Doxey was hiding drugs in his rectum, they decided to take him to the Muskegon Police Department for another search.

At the police department, Lieutenant Fias contacted Doxey's parole officer and learned that as a condition of his parole, Doxey was required to allow complete searches of his person by law enforcement officers. Lieutenant Fias explained this to Doxey, and Doxey again allowed the officers to search him. But Doxey continued to attempt to hide whatever it was that was in his rectum: “he was trying to back into the wall, wouldn't squat down, just going out of his way to not ... relax his butt cheeks.” (R. 52 at 167.) The officers had removed Doxey's handcuffs after he consented to the search, but Doxey became combative with the officers during the search and had to be physically restrained. Once the officers were able to restrain Doxey, they could see “the corner tie bag in between his butt crack.” (Id. ) Trooper Marshall explained how he retrieved the plastic bag from in-between Doxey's buttocks:

I told [the other officers] I saw the plastic, and they said go ahead and get it. At that point, [Doxey] was fighting and he rolled away from me and I was unable to get it. So [the other officers] were able to turn [Doxey] back around so I could actually flick it out of his butt cheeks with my finger, and he [was] taken into custody at that point.

(Id. at 135.)

A field test confirmed that the substance in the plastic bag was heroin, and a forensic scientist for the Michigan State Police confirmed at trial that the substance was heroin weighing 8.17 grams.

Procedural Background

Doxey was originally charged with state crimes, but the case was taken over by federal prosecutors. On November 20, 2013, a federal grand jury charged Doxey with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1)

. Over the course of several motions hearings, the district court granted two requests by Doxey for new counsel, but denied his third such request.

A. Doxey's Motion for Disclosure of CI's Identity

In March 2014, Doxey's second attorney filed a motion to disclose the identity of the CI. In his motion, Doxey argued that disclosure of the CI's identity would allow him to assess the strength of the government's case. His motion stated that “[w]ithout this information, [Doxey] is unable to make an informed decision regarding proceeding to trial.” (R. 28, Brief in Support of Motion for Disclosure of Informant's Identity, PageID# 46.) The government opposed the motion, arguing that the CI was “merely a tipster.” (R. 29, Response to Motion for Disclosure, PageID# 54.)

At a final pretrial conference, Doxey's third and final attorney asked the district court to rule on the arguments in the brief submitted by Doxey's prior counsel. The district court denied the motion to disclose the CI's identity on the ground that disclosure was not necessary to ensure Doxey obtained a fair trial. The district court reasoned that because the CI's role was limited to providing information without further participation, this was not an exceptional circumstance requiring disclosure.

B. Doxey's Motion to Suppress

In June 2014, Doxey filed a motion to suppress the evidence, including the drugs found on him. In his motion, Doxey challenged the stop of his vehicle and argued he did not consent to the search of his vehicle or person. Alternatively, Doxey argued if he did consent, the consent was involuntary. Doxey did not specifically argue that a warrant was required for the bag of heroin retrieved from in-between his buttocks. Instead, Doxey argued that the initial traffic stop and initial search violated the Fourth Amendment and that therefore, all evidence subsequently obtained should have been suppressed as fruit of the poisonous tree under Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)

. (R. 40, Brief in Support of Motion to...