United States v. Morris, Darryl ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2017
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRYL MORRIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-CR-30101—Jeanne E. Scott, Judge.
____________
ARGUED OCTOBER 29, 2003—DECIDED NOVEMBER 19, 2003
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
KANNE, Circuit Judges.
FLAUM, Chief Judge. Darryl Morris was convicted for
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g) and was sentenced to fifty-seven months
imprisonment and three years of supervised release. He
now appeals his conviction, arguing that the district court
erred by refusing to suppress certain evidence against him.
Morris further asserts that even if the evidence was
properly admitted, it was insufficient to support the jury’s
guilty verdict. Morris also appeals his sentence, claiming
that the district court improperly enhanced his offense level
pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5). For the reasons stated herein, we affirm.
2 No. 03-2017
I. BACKGROUND
On January 8, 2001, a search warrant was issued for the
residence located at 1225 East Ash Street in Springfield,
Illinois. The warrant was based upon two informants’ tips
that drugs were being sold from the residence. The infor-
mants’ tips were corroborated by evidence removed from
trash cans outside of the residence. Specifically, the trash
cans contained a .22-caliber round of ammunition and
numerous plastic bags containing residue that tested posi-
tive for cocaine and cannabis.
The next day, ten Springfield police officers arrived at the
residence to execute the search warrant. The officers wore
ballistic vests, protective masks, gloves, helmets and
goggles, and one officer carried a ballistics shield. The
officers also carried a fire extinguisher. After knocking on
the front door and announcing, “Springfield Police, search
warrant,” the officers opened the door with a battering ram.
As the door opened, an officer saw a man run from the front
room and out of view. Another officer checked the front
room to ensure it was unoccupied and then dropped a
“flash-bang” device inside of the doorway. Approximately
two to five seconds later the device detonated, causing a
loud bang and a flash of bright light.
After the device detonated, officers entered the residence.
In one bedroom they found the defendant’s brother who
rented the residence, a female and an infant. The officers
secured these individuals and proceeded to search the rest
of the house. When they reached an open stairway that led
to a dark basement, the officers heard voices below. The
officers asked if there were children in the basement, and
a voice said that there were no children present. Officers
looked to the bottom of the stairs to ensure that no one was
in the area, and then dropped a second flash-bang device
into the stairwell. Once the device detonated, officers
entered the basement and secured four adult males, one of
whom was the defendant, Darryl Morris.
No. 03-2017 3
Next, the officers searched the house for evidence of con-
traband. In a bedroom closet, officers noticed that a ceiling
panel was slightly displaced. When they reached overhead,
the officers found a .22-caliber Thompson handgun and 126
rounds of ammunition. In another ceiling alcove officers
found a .357 Sig Saur semi-automatic pistol with three
loaded magazines. In the basement officers found a .44
magnum barrel that fit the Thompson handgun, 2.9 grams
of marijuana, less than a gram of cocaine, bags with mari-
juana and cocaine residue, bags with corners cut off, a gram
weight scale, and a marijuana grow book.
Throughout the course of the investigation, Morris made
numerous inculpatory statements regarding the contraband
items. At the beginning of an interview with the police at
the scene of the search, Morris told an officer that he lived
at the residence. After the guns were found, Morris told the
same officer that he had purchased the Thompson handgun
for one hundred dollars and was storing the Sig Saur for
someone else. Five hours after the search of the residence,
Morris told two detectives that the guns were his. One
detective wrote out Morris’s statement, and Morris signed
the statement. This statement included admissions that
Morris did not have a job for three years, but “smoke[s]
weed and sometimes get[s] enough to make a little money
to pay for rent.” Morris further admitted that he kept the
Thompson handgun for protection. More than six months
later when Morris was arrested by Agents from the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (“ATF”),
Morris again stated that he never fired the guns and that
it was better for him to have possession of them than
someone who would shoot people with them.
At trial, the government introduced the firearms and
ammunition into evidence. The government also elicited
expert testimony that Morris’s palm print was found on the
.22-caliber handgun. Testimony regarding Morris’s various
inculpatory statements was given by the officer who
4 No. 03-2017
executed the search, a detective who interrogated Morris at
the police station, and the ATF agent who arrested Morris
more than six months later. Morris testified on his own
behalf and denied that he made any of the inculpatory
statements or ever possessed the guns. The jury found
Morris guilty of being a felon in possession of a firearm on
December 10, 2002.
II. ANALYSIS
A. Motion to Suppress
Morris argues that the use of the second flash-bang device
was unreasonable and that his inculpatory statements and
the two guns should have been suppressed as fruits of a
Fourth Amendment violation. When reviewing a district
court’s denial of a motion to suppress, legal conclusions are
reviewed de novo and factual findings are reviewed for clear
error. See Ornelas v. United States, 517 U.S. 690, 699
(1996). Using these standards, we find that the district
court properly denied Morris’s motion to suppress.
This Court has often emphasized the dangerous nature of
flash-bang devices and has cautioned that the use of such
devices in close proximity to suspects may not be reason-
able. See, e.g., United States v. Jones, 214 F.3d 836, 837 (7th
Cir. 2000) (stating that the “police cannot automatically
throw bombs into drug dealers’ houses, even if the bomb
goes by the euphemism ‘flash-bang device’ ”); United States
v. Folks, 236 F.3d 384, 388 (7th Cir. 2001) (pausing and
listing cases “to note the potentially serious injuries that
may arise from the use of a flash-bang device during a
search”). However, this Court has also held that exclusion
of evidence under the Fourth Amendment requires more
than unreasonable police behavior: “the exclusionary rule
No. 03-2017 5
depends on causation.”1 Jones, 214 F.3d at 838. In this case
the evidence against Morris was properly admitted because
Morris cannot show that the use of the flash-bang device
caused the discovery of the guns or his inculpatory state-
ments.
Rather, this case is governed by the inevitable discovery
doctrine. The inevitable discovery doctrine states that evi-
dence that may have been questionably secured by the po-
lice need not be suppressed if it would have been discovered
if the search was conducted more reasonably. See Folks, 236
F.3d at 388. As we stated in Jones, where a “warrant
authorized the entry . . . seizure of evidence was inevitable.”
Jones, 214 F.3d at 838. The two guns in this case, both
found on the main floor of the house, would certainly have
been found without the use of the flash-bang device in the
basement. In other words, it is the fact that the officers
searched pursuant to a valid warrant which led to the
discovery of the guns, not the use of the flash-bang device.
The same reasoning applies to Morris’s inculpatory
statements. If a defendant is under lawful arrest and his
1
It is not clear in this case that the police even were unreason-
able in their use of the flash-bang device. The police had reason to
believe that the inhabitants of the residence were dangerous after
finding live ammunition in the trash. When they arrived at the
house they discovered that several suspects were in a dark
basement with an open stairwell that the officers would have to
travel down in order to secure the suspects. Before using the
device, the officers inquired whether children were present. They
next inspected the area where the device was to be thrown to
ensure that no one was within the stairwell. Furthermore, the
officers carried a fire extinguisher to eliminate any fires that may
have resulted. The officers’ actions therefore do appear to be rea-
sonable, but we do not need to decide the issue because Morris’s
claim cannot prevail even assuming that the police acted unrea-
sonably.
6 No. 03-2017
inculpatory statements are not involuntary or caused by the
unreasonable search, the statements should not be sup-
pressed. See Jones, 214 F.3d at 838. In Jones, this Court
refused to suppress inculpatory statements made thirty
minutes after the use of a flash-bang device because “inter-
vening events demonstrate[d] that the illegality did not
cause the confession.” Id. Morris argues that this case is
distinguishable from Jones because Morris’s statements
were involuntarily made when the flash-bang device caused
him to fear for his safety.
We disagree. Other than Morris’s allegation that he con-
fessed because of the flash-bang device, there is no evidence
to support the conclusion that the device caused Morris’s
statements to be involuntary. One officer testified that
Morris’s statements at the house were made in a “chatty”
manner and were freely given. He further testified that
there was nothing about Morris’s manner or speech that
suggested he was confused or disoriented. The volun-
tariness of the statements is also confirmed by the fre-
quency of Morris’s confessions—he confessed a total of four
times to five separate law enforcement officers and as late
as six months after the flash-bang device was used. More-
over, Morris’s current allegations are inherently incredible
as he testified at trial that he never made the inculpatory
statements at all. Therefore, there is no evidence that
Morris’s statements were involuntary or linked to the use
of the flash-bang device and the district court properly
denied Morris’s motion to suppress.
B. Sufficiency of the Evidence
Morris next argues that even with the admission of the
inculpatory statements and guns, the government’s case
was insufficient to prove Morris’s guilt beyond a reasonable
doubt. In reviewing a case for sufficiency of the evidence we
view the evidence in the light most favorable to the govern-
No. 03-2017 7
ment and uphold the verdict if a rational trier of fact could
have found the existence of each element of the crime
beyond a reasonable doubt. See United States v. Kitchen, 57
F.3d 516, 520 (7th Cir. 1995). The crime of being a felon in
possession of a firearm has three elements: (1) the defen-
dant has a previous felony conviction; (2) the defendant
possessed a firearm; and (3) the firearm traveled in or
affected interstate commerce. Id. In this case, Morris
concedes that the government presented sufficient evidence
that Morris was previously convicted of a felony and that
the guns found in the residence traveled in or affected
interstate commerce. Morris argues solely that the govern-
ment did not prove that he possessed a firearm.
As we have stated many times, possession “may be either
actual or constructive and it need not be exclusive but may
be joint . . . Actual possession exists when a tangible object
is in the immediate possession or control of the party. Con-
structive possession exists when a person does not have
actual possession but instead knowingly has the power and
the intention at a given time to exercise dominion and con-
trol over an object.” United States v. Garrett, 903 F.2d 1105,
1110 (7th Cir. 1990). Actual and constructive possession
may be proved by either direct or circumstantial evidence.
See id.In this case, two firearms were found in the same house
in which Morris was located. The house was rented by
Morris’s brother. Morris confessed that he possessed these
firearms to at least four different law enforcement officers,
and provided a detailed written description of how he ob-
tained the weapons, who he obtained the weapons from, and
why he was in possession of the weapons. Furthermore,
Morris’s palm print was found on one of the weapons.
This case is very similar to United States v. Wilson, 922
F.2d 1336, 1339 (7th Cir. 1991), where we held that the jury
8 No. 03-2017
had sufficient evidence to convict the defendant for being a
felon in possession of a firearm where a gun found at the
defendant’s girlfriend’s apartment had the defendant’s
fingerprint on it. Although there was no direct evidence to
establish that the gun belonged to the defendant and no
witnesses testified that they had seen him with the gun,
this Court still found that a rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. Id.
at 1338.
The major factor that distinguishes this case from Wilson
is that in this case the defendant also confessed several
times to being in possession of the weapons. That clearly
lends even more support to the jury’s verdict. We therefore
hold that a rational jury could have found Morris guilty
beyond a reasonable doubt.
C. Sentencing Enhancement
Morris’s last argument is that the district court erred by
enhancing his sentence by four offense levels for possessing
a firearm in connection with the sale of marijuana. United
States Sentencing Guideline § 2K2.1(b)(5) provides for a
four-level enhancement if the government proves by a
preponderance of the evidence that the defendant possessed
a firearm in connection with another felony offense. We
review the district court’s decision to apply this sentencing
enhancement for clear error, and we will reverse the district
court only if “after considering all of the evidence, [we are]
left with the definite and firm conviction that a mistake has
been committed.” United States v. Wyatt, 102 F.3d 241, 246
(7th Cir. 1996).
Here, Morris signed a statement admitting that he
smokes marijuana and sometimes obtains enough mari-
juana “to make a little money to pay for rent and still have
enough to get high myself.” He further admitted that his
No. 03-2017 9
last legitimate job was three years before his arrest. In the
same statement Morris acknowledged that he keeps the .22-
caliber handgun for protection and has had it with him
numerous times. Morris was arrested in the basement of his
brother’s house, where the police found 2.9 grams of
marijuana, bags with trace amounts of marijuana, and a
marijuana grow book. The day before Morris was arrested
the police found several more bags with trace amounts of
marijuana in the trash outside of the residence. Given this
evidence, the district court could have found that Morris
sold marijuana using his gun for protection.
We have previously held that possessing a firearm for
protection while selling drugs is using a firearm is used
“in connection with” a felony within the meaning of
§ 2K2.1(b)(5). See United States v. Haynes, 179 F.3d 1045,
1047 (7th Cir. 1999). Moreover, the sale of marijuana is a
felony offense. See 21 U.S.C. 841(b)(1)(d). The district court
therefore could have found by a preponderance of the
evidence that § 2K2.1(b)(5) should be applied.
Morris contends that the district court should not have
relied upon his inculpatory statements because his words
were uncorroborated and later denied by Morris himself.
While it gives us pause that there is no direct evidence
showing that Morris personally was engaged in drug sales,
we cannot say that it was clearly erroneous for the judge to
conclude that Morris’s inculpatory statements should be
credited. Many defendants do not tell the truth while un-
dergoing criminal prosecutions. It is not clear error for the
district court to believe the defendant’s inculpatory state-
ments while disbelieving the defendant’s self-serving state-
ments. This is especially true considering that in this case,
the physical evidence—the marijuana, bags with traces of
marijuana, marijuana grow book, and gun with Morris’s
palm print on it—were consistent with Morris’s confession.
Therefore, it was certainly a permissible inference that
Morris was engaged in selling marijuana and used his guns
10 No. 03-2017
in connection with that felony. Because “a district court’s
choice between two permissible inferences from the evi-
dence cannot be clearly erroneous,” United States v. Wyatt,
102 F.3d 241, 246 (7th Cir. 1996), we affirm Morris’s
sentence.
III. CONCLUSION
For these reasons, we AFFIRM Morris’s conviction and
sentencing enhancement.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-03