U.S. v. Ricks

• Decision Date: 19 March 1993
• Docket Number: No. 92-5503,92-5503
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Edward RICKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 501

989 F.2d 501

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Edward RICKS, Defendant-Appellant.

No. 92-5503.

United States Court of Appeals, Sixth Circuit.

March 19, 1993.

Before MILBURN and BATCHELDER, Circuit Judges, and LIVELY, Senior Circuit Judge.

PER CURIAM.

Defendant-appellant, Edward Ricks, appeals his conviction and sentence for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a), and for using or carrying a firearm during and in relation to a drug-trafficking offense, 18 U.S.C. § 924(c). We affirm.

I.

On August 1, 1991, Detective Greg Bowman of the Chattanooga, Tennessee, Police Department Narcotics Division listened in on two telephone calls placed by a confidential informant ("CI") to an individual known to Detective Bowman only as Ed or Edward. In the first phone call, made at approximately 3:00 p.m., the CI said to the individual, whom he addressed as "Edward," "Well, I need it real bad." The individual responded, "Well, you know I always take care of you." In a second phone call to the same individual, made two or three hours later, the CI asked, "Are you doing anything?" The individual responded, "Yeah, come on, I can take care of you."

At approximately 8:00 p.m. that same day, four or five police officers, including Detective Bowman and Officer Sully Batts, also of the Chattanooga Police Department, executed a John Doe search warrant at 1510 North Orchard Knob. When they entered the house, they observed the defendant-appellant, Edward Ricks. The officers secured Ricks by placing him on the floor and then conducted a protective sweep that revealed Ricks had been alone in the house.

The officers searched the house. ¹ In the kitchen, under some meat in the freezer compartment of the refrigerator, Detective Bowman discovered a package of what appeared to be crack cocaine. Detective Bowman testified that after cocaine was discovered in the freezer, he read Ricks his rights under Miranda v. Arizona, 384 U.S. 436 (1966). ² Ricks indicated that he understood his rights. Bowman further testified as follows:

Q Now, after having read him these rights, did he have or ever make a statement to you at that time?

A Yes, sir, he did make a statement. He made the statement that he had kind of gotten out of the drug business, and I made a statement that from what I found, it didn't look like it, or something of that nature, and then he made the statement, well, I kind of got back in it.

Ricks, who testified at trial, denied having made such a statement.

Officer Batts searched the back bedroom of the two-bedroom house. In a bedroom closet, behind a boot, he discovered a package of what appeared to be crack cocaine. In the same closet, approximately one foot from the cocaine, was an unloaded shotgun that had one operable and one inoperable barrel. This bedroom contained mostly men's clothes. In the front bedroom, which contained mostly women's clothes, the police discovered another shotgun, with one shell in the chamber. In the top dresser drawer in the front bedroom was a loaded .22 caliber pistol. On top of the dresser were a wallet containing Ricks's identification and letters set to Ricks at this address. In the living room, behind a couch, police discovered a beeper. Expert trial testimony later established that a total of 11.6 grams of crack cocaine had been discovered.

On September 12, 1991, Ricks was indicted for possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a), and using or carrying a firearm during and in relation to a drug-trafficking offense, a violation of 18 U.S.C. § 924(c). Ricks filed motions to suppress the physical evidence from the search and the inculpatory statement. The district court denied the motions.

A jury trial took place on January 28 and 29, 1991. At trial, in a bench conference, Ricks objected to the introduction of evidence concerning a December 12, 1990 incident involving Ricks. In this incident, Ricks had been arrested along with a number of other individuals and charged with a drug offense. When he was arrested, Ricks did not have any drugs on his person, but he did have approximately $700 in cash and a beeper. Ricks testified that the $700 came from settlement of a lawsuit. The charge was later dismissed. ³ Following argument, the district court ruled that the evidence was admissible under Fed.R.Evid. 404(b) because it went to Rick's opportunity to deal drugs.

Several witnesses testified on Ricks's behalf at trial. His mother, who lived in the house with Ricks, testified that he had used his shotgun to hunt rabbits and squirrels. Keith Hood, a friend of Ricks who had known Ricks for two years, also testified. According to Hood, on the morning of Ricks's arrest, as Hood was leaving a store, he was approached by a man who was driving a white Audi. Hood testified that the man asked Hood to do him a favor. That favor was to place some crack cocaine in Ricks's refrigerator. Hood testified that he recognized the man but did not know his name, where he lived, or the license number of his car.

At approximately 3:45 p.m. that same day, according to Hood, the same man gave him two bags of crack cocaine and told him to place the larger bag in Ricks's refrigerator. The smaller bag was Hood's payment for doing this favor. Shortly thereafter, Hood went to Ricks's house. Present at the house were Ricks, Maurice Thompson, and two other individuals. Hood testified that while in the kitchen, ostensibly to get a beer from the refrigerator, he planted the cocaine in the freezer. On cross-examination, the government elicited a number of inconsistencies in Hood's testimony. ⁴ Part of Hood's testimony was corroborated by that of Maurice Thompson, who testified that he saw Hood get into the white Audi while it was parked down the street from the store. ⁵

Ricks took the stand. He testified that the shotgun found in the back bedroom belonged to a friend, who had left it at Ricks's house. He also testified that he had bought the .22 pistol for his mother for self-protection. Ricks denied knowledge or ownership of the cocaine in the freezer or the closet, denied having talked with the CI on the telephone on August 1, 1990, denied that the beeper found in the living room was his, and denied having made the statement to Detective Bowman about getting back into drugs. When questioned about the fact that other individuals had been prosecuted for drugs in connection with the December 12, 1990, incident, Ricks maintained that "I don't deal with drugs." He also maintained that a beeper found in his possession following during the December 1990 arrest was used to enable customers to contact him to get him to work on their cars.

On rebuttal, two police officers testified concerning the December 12, 1990 arrest. Officer Corliss Cooper, who was part of the police team that made the arrest, testified that prior to his arrest, Ricks had been seen at the back of a truck with several other individuals when cocaine was being passed around. At the time of the arrest, Ricks was at the back of the truck with four individuals who had cocaine on their persons. Officer Jeff Gannaway, who also was involved in the arrest, testified that when arrested, Ricks maintained that the $700 came, not from the settlement of a lawsuit, but from cleaning cars.

Ricks was found guilty on both counts. On April 6, 1992, he was sentenced to 86 months incarceration on the drug count and 60 months incarceration, consecutive to the first sentence, on the firearm count. In imposing sentence, the district court found that all of the cocaine discovered in the house was part of Ricks's relevant conduct for sentencing purposes. The district court also added a two-level enhancement for obstruction of justice. Ricks timely appealed the judgment and the denial of the motions to suppress.

II.

Ricks raises five issues on appeal. We address these issues in turn.

A.

1. The Inculpatory Statement

Ricks first argues that the inculpatory statement regarding his having gotten back in the drug business should have been suppressed. He maintains that this statement was made in response to custodial interrogation. ⁶ Because the Miranda warnings given to Ricks prior to interrogation did not include a warning that Ricks could stop answering questions at any time, ⁷ Ricks alleges that the warnings were defective, and the statement must be suppressed. However, this argument fails.

Under Miranda, a suspect who is in custody may not be interrogated unless he first has been advised of certain rights:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.

Miranda, 384 U.S. at 444. Ricks contends that these rights include the right to stop answering questions at any time. However, we have previously rejected the argument Ricks now makes. See United States v. Davis, 459 F.2d 167, 168-69 (6th Cir.1972). See also United States v. Larez-Valdez, 939 F.2d 688, 689-90 (9th Cir.1991) ("[A] defendant need not be informed of a right to stop questioning after it has begun."); United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir.1978) (this warning is not required by Miranda, although it may be relevant in determining whether answers are voluntarily given). We find that Miranda was fully complied with here, and therefore, suppression of the statement was not required.

2. The Firearms, Beeper, and Personal Papers

The district court also did not err by denying the motion to suppress the firearms, the beeper, and the personal papers found on the dresser. Ricks...