United States v. Kelvin Crumpton

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0131p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA, ┐
Plaintiff-Appellant (15-1299), │
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Plaintiff-Appellee (15-1560), │ Nos. 15-1299/1560
>
│
v. │
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KELVIN ALEXANDER CRUMPTON, │
Defendant-Appellee (15-1299), │
│
Defendant-Appellant (15-1560). │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:13-cr-20842—Arthur J. Tarnow, District Judge.
Argued: March 11, 2016
Decided and Filed: June 2, 2016
Before: DAUGHTREY, MOORE, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Shane N. Cralle, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan,
for Appellant in 15-1299 and for Appellee in 15-1560. Martin J. Beres, Clinton Township,
Michigan, for Appellee in 15-1299 and for Appellant in 15-1560. ON BRIEF: Shane N. Cralle,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellant in 15-1299 and
for Appellee in 15-1560. Martin J. Beres, Clinton Township, Michigan, for Appellee in 15-1299
and for Appellant in 15-1560.
1
Nos. 15-1299/1560 United States v. Crumpton Page 2
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OPINION
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KAREN NELSON MOORE, Circuit Judge. A two-count indictment charged Kelvin
Crumpton with being a felon in possession of ammunition and with possessing various narcotics
with the intent to distribute them. The evidence against him came largely from two sources: An
October 18, 2013 search of his residence, which uncovered ammunition and narcotics, and two
statements made by Crumpton to law enforcement while being interrogated during that search.
Crumpton twice moved pretrial to suppress the evidence recovered from the search, but the
district court denied both motions. At the close of the government’s case, Crumpton argued for
the first time that the first of his statements to law enforcement was made after inadequate
Miranda warnings. The district court agreed, suppressed that statement, and instructed the jury
not to consider it. After Crumpton was convicted by the jury on both counts, he moved for a
partial judgment of acquittal, arguing that the evidence was insufficient to support his conviction
for possession of ammunition. In the alternative, Crumpton sought a new trial under the theory
that the jury had been prejudiced by hearing his first statement to law enforcement. The district
court granted this motion, ruling sua sponte that Crumpton’s second statement to law
enforcement must be suppressed and that this suppression rendered the evidence insufficient to
support the jury’s verdict regarding the possession-of-ammunition charge. In the alternative, the
district court granted Crumpton a new trial out of concern that the jury was prejudiced by hearing
Crumpton’s first statement to law enforcement. The government appeals the grant of
Crumpton’s motion for judgment of acquittal and for a new trial, and Crumpton appeals his
narcotics conviction. For the reasons that follow, we REVERSE the district court’s grant of
Crumpton’s motion for judgment of acquittal or a new trial regarding the ammunition charge and
REINSTATE the jury’s guilty verdict, AFFIRM Crumpton’s narcotics conviction, and
REMAND for resentencing.
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I. BACKGROUND
A. Factual Background
735 Sloan Street is a single-story house located on the east side of Sloan Street in Detroit,
and it is the only house on that side of an otherwise vacant, overgrown block. See R. 54 (Trial
Tr. Vol. 1 at 44:1–5) (Page ID #794). From the outside, it appears to be a single-family home, R.
53 (Trial Tr. Vol. 2 at 64:24–65:6) (Page ID #667–68), but there are multiple mailboxes in front
of the house, id. at 57:19–58:1 (Page ID #660–61).
In 2013, Officer Donald Farris of the Wayne County Sheriff’s Office “had a confidential
source . . . that was providing information on [735 Sloan Street].” R. 54 (Trial Tr. Vol. 1 at
44:12–13) (Page ID #794). That informant indicated to Officer Farris “that a black/male residing
in this dwelling was selling crack-cocaine and heroin from this residence.” R. 15-1 (Search
Warrant ¶ 3) (Page ID #102). Officer Farris investigated and “identified some individuals that
were associated with that residence,” including Crumpton. See R. 54 (Trial Tr. Vol. 1 at 44:16–
17) (Page ID #794); R. 15-1 (Search Warrant ¶ 3) (Page ID #102). Officer Farris then presented
a photograph of Crumpton to the confidential informant, who “immediately identified the
photograph as the main narcotics seller at the Sloan St residence.” R. 15-1 (Search Warrant ¶ 4)
(Page ID #102). The informant also indicated that Crumpton “sells narcotics on a regular basis
and accepts money, firearms, vehicles, and other stolen property as payment” and that he
“maintains firearms at the residence, likely to protect his drug trade.” Id. ¶ 5 (Page ID #102).
Farris next utilized that confidential informant to conduct a purchase of crack cocaine from the
home. See R. 54 (Trial Tr. Vol. 1 at 45:2–10) (Page ID #795); R. 53 (Trial Tr. Vol. 2 at 37:24–
40:18, 61:4–62:2) (Page ID #640–43, 664–65); R. 15-1 (Search Warrant ¶ 4) (Page ID #102).
Based upon this information, Officer Farris obtained a search warrant for the Sloan Street
Residence.
The search warrant was executed on October 18, 2013. During the search, agents found
that the house was divided between front and back, but “[t]here was an access way that would
allow someone to move about the house from the front to the back”—“[i]t was a small kind of
hole in the wall.” R. 53 (Trial Tr. Vol. 2 at 9:19–23) (Page ID #612). There were also entrances
Nos. 15-1299/1560 United States v. Crumpton Page 4
to the house in both the front and back. See id. at 9:12–18 (Page ID #612). The back of the
house had two rooms, one of which was set up as a bedroom while the other was “more like a
closet with just a bunch of clothes and stuff scattered.” Id. at 10:23–11:5 (Page ID #613–14).
The front of the house had a cluttered room with a number of items that Officer Farris suspected
were stolen property, and also a “room kind of like a bedroom off of this front room that had
almost a studio setup, a laptop and speakers and DJ type equipment.” Id. at 12:19–25 (Page ID
#615). Although a number of the rooms in the house could have been used as bedrooms, only
one bed was found in the house (in the back bedroom), id. at 64:5–11 (Page ID #667), and a
single mattress was found in the front of the house, id. at 65:12–20 (Page ID #668).
The search revealed twenty-three rounds of ammunition of various types, found in a front
room, id. at 12:5–13:6 (Page ID #615–16), as well as crack cocaine, powder cocaine, marijuana,
and heroin in both the front and rear areas of the house, including in the bedroom in which
Crumpton was found, id. at 10:15–24, 13:18–25:24 (Page ID #613, 616–28). Finally, law
enforcement recovered from the rear of the house various “residency documents”—including
one such document linking the Sloan Street address to Crumpton’s name. See id. at 28:16–31:4
(Page ID #631–34). Law enforcement also located six people, in addition to Crumpton,
including four who indicated that they lived at the Sloan Street Residence or were “staying
there.” See id. at 6:14–10:2 (Page ID #609–12). Everyone was taken outside of the house while
the search occurred. See id. at 103:13–22 (Page ID #706).
At this point, Crumpton was interrogated by ATF Agent Gregory Lotoczky, who read
Crumpton his Miranda rights. See id. at 104:1–5 (Page ID #707). This encounter was recorded
(“the First Warnings”), and included Agent Lotoczky reciting and Crumpton confirming his
understanding of the following: (1) “the right to remain silent”; (2) that “[a]nything you say can
be used against you in court”; (3) “the right to consult with an attorney and have them present
during questioning” and (4) that “[i]f you cannot afford an attorney, one will be appointed to
represent you prior to questioning.” R. 68-3 (Tr. of Audio Recording at 2) (Page ID #967).
After briefly entering the house, Lotoczky returned and spoke with Crumpton. See R. 53 (Trial
Tr. Vol. 2 at 105:8–25) (Page ID #708). An audio recording of that conversation reflects that
Nos. 15-1299/1560 United States v. Crumpton Page 5
Crumpton admitted that “there might be some old bullets laying around” the house (“the First
Statement”). R. 68-1 (Tr. of Audio Recording at 4) (Page ID #937).
Agent Lotoczky subsequently had another interaction with Crumpton, which took place
in the Sloan Street Residence’s front room. See R. 53 (Trial Tr. Vol. 2 at 108:11–16) (Page ID
#711). Lotoczky read Crumpton his Miranda rights (“the Second Warnings”)—this time adding
a fifth warning that “if you decide to answer any questions now without a lawyer present, you
have the right to stop answering at any time.” R. 68-2 (Tr. of Audio Recording at 2–4) (Page ID
#940–42). Agent Lotoczky then discussed Crumpton’s ability to waive his rights, at which point
Crumpton asked to “see the search warrant and, uh, or the arrest warrant or whatever you have.”
Id. at 4 (Page ID #942). Agent Lotoczky said he would “show it to you in a little while,” and
Crumpton reiterated his desire to see the search warrant. Id. at 4–5 (Page ID #942–43). At this
point, Lotoczky returned to a discussion of Crumpton’s Miranda rights, and Crumpton flatly
stated “I want to see the search warrant before I sign anything,” then asking if “[i]t’s like I’m
giving consent then if I waive anything,” seeming to think that the Miranda waiver would reflect
his consent to the search of his home. Id. at 5 (Page ID #943). Agent Lotoczky clarified that
“the search warrant is for the house,” explaining that “[w]hat this is saying is that I read to you
your rights and you understand your rights” and “that we can talk . . . . And if you don’t want to
talk, you don’t have to talk.” Id. at 5–6 (Page ID #943–44).
During the ensuing interrogation, Crumpton said more about the ammunition (“the
Second Statement”): (1) “I know of some bullets up there,” id. at 10 (Page ID #948); (2) “I
found some bullets and they just set em’ up there,” id.; and (3) “Them bullets was just there
‘cause the mothafucka said, dude, I need some bullets and, or whatever, and no, I just say, leave
‘em here, I probably know somebody that do, so,” id. at 24 (Page ID #962). Lotoczky began to
turn the conversation toward the subject of drug dealing, and Crumpton repeatedly interrupted to
ask to see a copy of the search warrant. See id. at 14–15 (Page ID #952–53). Ultimately,
Lotoczky asked another officer to retrieve a copy of the search warrant and then showed
Crumpton the warrant. See id. at 15, 20 (Page ID #953, 958). Although Crumpton largely
answered Lotoczky’s questions throughout the interrogation, he declined to answer questions
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about the value of the narcotics seized from the house, id. at 21–22 (Page ID #959–60), and how
long the narcotics that were found in the residence had been there, id. at 24 (Page ID #962).
B. Procedural History
Crumpton was charged with being a felon in possession of ammunition and with
possession with the intent to distribute cocaine, cocaine base, heroin, and marijuana. See R. 6
(Indictment) (Page ID #11–14). He twice moved pretrial to suppress evidence obtained during
the search of the Sloan Street Residence, first on the grounds that the search warrant was not
supported by probable cause and failed to identify with sufficient particularity the house to be
searched, and later on the grounds that agents had violated Federal Rule of Criminal Procedure
41 by failing to leave a copy of the warrant after completing the search. See R. 14 (First Mot. to
Suppress) (Page ID #73–86); R. 32 (Second Mot. to Suppress) (Page ID #155–66). The district
court denied both motions. See R. 71 (Tr. of March 25, 2014 Suppression Hearing at 12:9–13)
(Page ID #1013); R. 40 (Tr. of July 24, 2014 Suppression Hearing at 38) (Page ID #318).
Crumpton’s trial began on September 3, 2014. At the close of the government’s case,
Crumpton’s attorney raised for the first time a request to suppress Crumpton’s First Statement:
“Your Honor, I have a concern that when I listened to the tapes, that I missed a point on the
Miranda warnings because of a bit of a belief that an essential warning is a warning to the person
that is being questioned that he may discontinue the questioning.” R. 52 (Trial Tr. Vol. 3 at
40:9–13) (Page ID #500). After the government stated that the Second Warnings included that
warning, the district court asked Crumpton’s lawyer: “So, the second statement there’s no
challenge to.” Id. at 42:18 (Page ID #502). Crumpton’s lawyer responded: “No, Your Honor.”
Id. at 42:19 (Page ID #502). The district court then ruled that “the first statement cannot be used
in closing argument. The second may.” Id. at 42:23–24 (Page ID #502). The district court
denied Crumpton’s oral motion for judgment of acquittal on the possession-of-ammunition
count, id. at 45:2–6 (Page ID #505), and the jury later convicted Crumpton of both charges, R. 43
(Verdict Form) (Page ID #342).
Afterwards, Crumpton moved for judgment of acquittal on the possession-of-ammunition
count on the grounds that there was insufficient evidence that he possessed the bullets and that
Nos. 15-1299/1560 United States v. Crumpton Page 7
the now-suppressed First Statement had been presented to the jury and could have affected the
verdict. See R. 44 (Mot. for J. of Acquittal) (Page ID #343–46); R. 44-1 (Mem. in Supp.) (Page
ID #347–58). The district court granted Crumpton’s motion, finding sua sponte that the Second
Warnings were deficient under Miranda and that Crumpton’s waiver of rights in response to
those warnings was not knowing and voluntary, making the Second Statement inadmissible. See
R. 51 (Opinion at 7, 12–23) (Page ID #437, 442–53). Because this rendered the evidence
insufficient to convict Crumpton of the ammunition charge, the district court granted Crumpton’s
motion for judgment of acquittal. See id. at 29 (Page ID #459). In the alternative, the district
court granted Crumpton a new trial, holding that the initial admission of the First Statement so
tainted the jury’s verdict that a new trial was necessary. See id. at 26–27. The government
timely appealed this order, R. 57 (Gov’t’s Notice of Appeal) (Page ID #868), and Crumpton
timely appealed his narcotics conviction, see R. 65 (Notice of Appeal) (Page ID #901).
II. ANALYSIS – GOVERNMENT’S APPEAL
In challenging the district court’s grant of Crumpton’s motion for judgment of acquittal
and conditional grant of a new trial, the government challenges the district court’s after-the-fact
suppression of Crumpton’s statements. We begin our analysis with the Second Statement, the
exclusion of which prompted the district court to grant Crumpton’s motion for judgment of
acquittal. Because that exclusion was erroneous, we consider the Second Statement in assessing
the sufficiency of the evidence to support the jury’s verdict. Finding the evidence sufficient, we
REVERSE the district court’s grant of Crumpton’s motion for judgment of acquittal. We then
proceed to the district court’s grant of a new trial, which we REVERSE because it was premised
on the prejudicial effect of the First Statement, but the First Statement was improperly excluded.
Accordingly, we REINSTATE the jury’s verdict and REMAND for resentencing.
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A. Exclusion of the Second Statement1
1. Content of Miranda Warning
The district court premised its suppression of the Second Statement in part on its concern
that Agent Lotoczky misled Crumpton into believing that he would never go to court in
connection with statements he might give to law enforcement, and thereby nullified the Miranda
warning that anything Crumpton said could be used against him in court. See R. 51 (Opinion at
12–15) (Page ID #442–45). This was based upon the district court’s reading of the following
exchange between Agent Lotoczky and Crumpton:
Agent: Anything you say can be used against you in court. You understand that?
KC: Yes. Um hmm.
Agent: Okay.
KC: Will we be going to court?
Agent: No, I’m just saying, in general. Anything you say can be used against
you in court. That’s, these are your rights. I’m just, reading, reading them to ya
on, off a piece of paper.
R. 68-2 (Tr. of Audio Recording at 3) (Page ID #941). The district court viewed Agent Lotoczky
as “directly contradict[ing]” the required warning that any statements could be used against
Crumpton in court. See R. 51 (Opinion at 13) (Page ID #443).
We review the district court’s findings of fact regarding a motion to suppress for clear
error and its legal conclusions de novo. United States v. Al-Cholan, 610 F.3d 945, 953 (6th Cir.
2010). Generally, “the adequacy of Miranda warnings is treated as a question of law.” United
States v. Wooten, 602 F. App’x 267, 272 (6th Cir. 2015). Crumpton asks that the district court’s
decision be reviewed for clear error, Crumpton Appellee Br. at 29, but the question before us is a
1
The appropriateness of the district court’s sua sponte suppression of the Second Statement is itself
questionable because “[o]ur adversary system is designed around the premise that the parties know what is best for
them, and are responsible for advancing the facts and arguments entitling them to relief.” Greenlaw v. United
States, 554 U.S. 237, 244 (2008) (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring
in part and concurring in the judgment)). For that reason, “before acting on its own initiative, a court must accord
the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006).
The district court did not follow this path, but we nonetheless rest our decision on the merits of the district court’s
decision alone.
Nos. 15-1299/1560 United States v. Crumpton Page 9
legal one: Given the undisputed words that were said and the undisputed recording of them,
were the Second Warnings legally sufficient? See United States v. Wysinger, 683 F.3d 784, 793
(7th Cir. 2012) (applying de novo review where a Miranda issue was raised involving an
interrogation captured on an undisputed videotape because “[t]he parties do not disagree in any
material way about the words that [the defendant] spoke when he referenced his right to an
attorney” and “[i]nstead, they take issue with the legal effect of those words, and that is a
question of law”). We therefore review this issue de novo.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court mandated that four
warnings be given to inform a suspect in police custody of certain rights in order to protect the
privilege against self-incrimination. One such warning was phrased in the opening section of the
Supreme Court’s opinion as notice “that any statement he does make may be used as evidence
against him.” Id. at 444. At two later points in the opinion, the Supreme Court suggested that
the warning would use the phrase “in court.” See id. at 469 (“that anything said can and will be
used against the individual in court”); id. at 479 (“that anything he says can be used against him
in a court of law”). We have sometimes phrased the warning without the “in court” language.
See United States v. Tillman, 963 F.2d 137, 141 (6th Cir. 1992) (finding Miranda warnings to be
inadequate where they omitted any warning regarding the consequences of waiving the privilege
against self-incrimination, and describing the defect as the fact that the “[d]efendant was never
told [that] any statements that he would make could be used against him”). The varying use of
the phrase “in court” is unsurprising, given that the Supreme Court “has not dictated the words in
which the essential information must be conveyed,” and “[t]he inquiry is simply whether the
warnings reasonably convey to a suspect his rights as required by Miranda.” Florida v. Powell,
559 U.S. 50, 60 (2010) (internal quotation marks and brackets omitted); see also Duckworth v.
Eagan, 492 U.S. 195, 203 (1989) (“Reviewing courts . . . need not examine Miranda warnings as
if construing a will or defining the terms of an easement.”).
The warning seeks to convey “the consequences of forgoing [the privilege against self-
incrimination]” and “to make the individual more acutely aware that he is faced with a phase of
the adversary system—that he is not in the presence of persons acting solely in his interest.”
Miranda, 384 U.S. at 469. In keeping with this purpose, two other Circuits have specifically
Nos. 15-1299/1560 United States v. Crumpton Page 10
held that a warning that omits the “in court” language does not violate Miranda. In United States
v. Castro-Higuero, 473 F.3d 880, 886 (8th Cir. 2007), the Eighth Circuit reiterated a prior
holding that the contention “that [a suspect] did not know the full extent of his rights because the
interpreter only informed him that anything he said could be used against him, instead of
informing him that anything he said could be used against him in court, is also without merit.”
See also Evans v. Swenson, 455 F.2d 291, 295–96 (8th Cir. 1972) (finding, with little
explanation, that a warning phrased as “any statement you do make could be used against you”
was an appropriate conveyance of “the risk or consequences of not [remaining silent]”). The
Fourth Circuit was more thorough, explaining that omitting the words “in court” was acceptable
because the warning became even stronger by “unequivocally convey[ing] that all of
[a suspect’s] statements could be used against him anytime, anywhere, including a court of law.”
United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996). Finally, the Tenth Circuit arguably
hinted in this direction in a case in which a Spanish-speaking suspect was given a complete
“written Miranda warning in Spanish at the start of the interview,” but after an officer decided
instead to give an oral warning, the suspect received a translation that suggested only “that
anything she said may be to her detriment and could be used against her ‘according to the law.’”
United States v. Hernandez, 93 F.3d 1493, 1497 (10th Cir. 1996). The Tenth Circuit found that
this oral warning “convey[ed] the essence of the Miranda warning . . . that anything she said
could be used against her.” Id. at 1502. We agree that use of the term “in court” certainly helps
to ensure a suspect’s awareness of both the “consequences of forgoing” the privilege against self-
incrimination and the fact “that he is faced with a phase of the adversary system,” Miranda,
384 U.S. at 469, but it is not the only way to do so. A suspect who is informed of his right to
remain silent and the fact that failing to do so will result in his statements being used “against
him” is sufficiently informed of the key information the warning seeks to provide. Thus, Agent
Lotoczky was not required to add the words “in court” to his warning to Crumpton.
Nor did Agent Lotoczky undermine or contradict the point of the warning by answering
“[n]o” when Crumpton asked “[w]ill we be going to court.” R. 68-2 (Tr. of Audio Recording at
3) (Page ID #941). Agent Lotoczky actually said “[n]o, I’m just saying, in general. Anything
you say can be used against you in court. That’s, these are your rights.” Id. Far from indicating
that Crumpton would never go to court and thus could waive his right to remain silent without
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consequence, this answer clarified that Agent Lotoczky was not telling Crumpton what would
happen next that day, but instead was informing Crumpton of his rights and the consequences of
waiving them. The district court brushed this aside as failing to “correct the misinformation he
had just provided,” R. 51 (Opinion at 13 n.6) (Page ID #443), but it in fact serves to bolster the
conclusion that Agent Lotoczky conveyed the full range of necessary information, as Agent
Lotoczky reiterated that Crumpton’s statements could be used against him, and added the
helpful—but not required—explanation that they could be used “in court.” This is therefore not
a case in which a warning was flatly contradicted by a subsequent statement. See, e.g., Hart v.
Attorney General, 323 F.3d 884, 894 (11th Cir.) (after proper warning regarding the right to
counsel, suspect asked “for a clarification of his right to counsel, and [a law-enforcement officer]
responded by telling him that the disadvantage of having a lawyer present was that the lawyer
would tell [the suspect] not to answer incriminating questions” and the officer later told the
suspect that “honesty wouldn’t hurt him”), cert. denied, 540 U.S. 1069 (2003). The Second
Warnings were therefore adequate under Miranda.
2. Knowing and Voluntary Waiver
Even when proper Miranda warnings are given, a suspect’s subsequent statements may
be suppressed if the suspect’s waiver of Miranda rights was not made “voluntarily, knowingly
and intelligently.” Miranda, 384 U.S. at 444. There are “two distinct dimensions” to this
assessment: “First, the relinquishment of the right must have been voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion, or deception.”
Moran v. Burbine, 475 U.S. 412, 421 (1986). “Second, the waiver must have been made with a
full awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it.” Id. In assessing whether a waiver was knowing and voluntary, “this
court looks at the totality of the circumstances concerning whether a defendant’s will was
overborne in a particular case.” Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir. 1994)
(internal quotation marks omitted), cert. denied, 515 U.S. 1145 (1995). “The relevant question is
not whether the ‘criminal suspect [knew] and [understood] every possible consequence of a
waiver of the Fifth Amendment privilege,’ but rather whether the ‘suspect [knew] that he [could]
choose not to talk to law enforcement officers, to talk only with counsel present, or to
Nos. 15-1299/1560 United States v. Crumpton Page 12
discontinue talking at any time.’” Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir.) (en banc)
(quoting Colorado v. Spring, 479 U.S. 564, 574 (1987)), cert. denied, 558 U.S. 850 (2009).
The district court relied on this doctrine as an alternate ground for suppressing the Second
Statement, concluding that Crumpton’s waiver of rights was neither knowing nor voluntary. See
R. 51 (Opinion at 15–23) (Page ID #445–53). As for the adequacy of the warnings themselves,
these issues present no real dispute about the facts; rather, the district court drew inferences from
the undisputed transcript and audio recording, but those inferences speak to the legal effect of the
words that were said. De novo review is therefore applicable. See Al-Cholan, 610 F.3d at 953(“This court reviews a trial court’s legal conclusions on Miranda waivers de novo, and findings
of fact underlying those conclusions for clear error.”) (internal quotation marks omitted).
The district court found Crumpton’s waiver to be involuntary in part due to deception by
Agent Lotoczky regarding whether Crumpton would go to court and Agent Lotoczky’s statement
that “there was ‘nothing on [Defendant] yet.’” R. 51 (Opinion at 15–16) (Page ID #445–46). As
discussed previously, Agent Lotoczky did not deceive Crumpton into thinking that he would
never go to court or that his statements could not otherwise be used against him. See supra Part
II.A.1. The district court’s conclusion that Crumpton was also deceived by a statement implying
that the officers had “nothing on [Defendant] yet” is not supported by the record. The district
court was referring to a statement that is transcribed—in an undisputed transcript—as follows:
Agent: We are going to going [sic] through this line by line. I’m not gonna try to
hoodwink you here or try to do anything unsha, you know, shady here, you know.
[Unidentified]: I was going to say, it sounds like he dealt with someone shady
looking for carpet or something.
[Laughter]
Agent: No, no, nothing on here yet.
R. 68-2 (Tr. of Audio Recording at 7) (Page ID #945) (emphasis added). The audio recording
does not reveal anything to support a reading of that statement—“nothing on here yet”—as
indicating that the agents did not have any “evidence” on “Crumpton.” The statement came
amidst a discussion of Crumpton’s potential waiver of his Miranda rights, and if anything,
appears to have been an aside to another agent indicating that Crumpton had not yet signed the
Nos. 15-1299/1560 United States v. Crumpton Page 13
waiver-of-rights form. See Gov’t Appellant Br. at 36. Accordingly, the district court erred in
finding that Crumpton was deceived.
The district court was also wrong to hold that Crumpton was coerced into waiving his
rights. See R. 51 (Opinion at 15–20) (Page ID #445–50). First, it found that Agent Lotoczky
indicated that he would show Crumpton the search warrant only if Crumpton waived his
Miranda rights, but such a condition is absent from the conversation. Second, although the
district court raised an arguable point regarding Crumpton’s statement that he wanted to see the
search warrant before signing anything, the context of that statement shows that Crumpton was
concerned about consenting to the search and thereby waiving the right to challenge the search
warrant. See R. 68-2 (Tr. of Audio Recording at 5–6) (Page ID #943–44). Once that confusion
was cleared up, Crumpton signed the written waiver form, itself “strong proof of the validity of
th[e] waiver.” North Carolina v. Butler, 441 U.S. 369, 373 (1979). Third, the discussion of
Crumpton’s girlfriend was brief (and it came after Crumpton waived his Miranda rights): Agent
Lotoczky asked what she would say if he asked her whether the drugs in Crumpton’s house
belonged to her, and Crumpton responded that “[s]he don’t, she don’t have nothing to do with
this.” See R. 68-2 (Tr. of Audio Recording at 22) (Page ID #960). Fourth, the district court
pointed to only a single instance of Crumpton supposedly being interrupted and belittled—an
instance when another agent briefly joined the conversation. See R. 51 (Opinion at 17) (Page ID
#447); R. 68-2 (Tr. of Audio Recording at 7) (Page ID #945). Finally, the fact that Crumpton
was put outside in the cold certainly plays into the totality-of-circumstances analysis, but it is a
single factor that is outweighed by other factors, including the fact that Crumpton was twice
advised of his Miranda rights and given a written waiver that he signed, the relatively brief time
during which Crumpton was interviewed, and Crumpton’s extensive prior experience with the
criminal justice system. See Ledbetter, 35 F.3d at 1067, 1070. Under the totality of the
circumstances, it was erroneous to conclude that Crumpton’s waiver was a product of coercion.
It was also error to conclude that Crumpton did not knowingly waive his rights. The
district court based its finding on Crumpton’s “reliance on his belief that he was not going to
court, and thus that his statements would not be used against him in court.” R. 51 (Opinion at
20) (Page ID #450). The district court reiterated its argument regarding Crumpton’s
Nos. 15-1299/1560 United States v. Crumpton Page 14
comprehension of the waiver form, but this misreads the Agent’s attempts to educate Crumpton
about the difference between waiving Miranda rights and consenting to a search. The district
court also resurrected its concern that Crumpton was not properly warned because “going to
court is an explicitly required consequence of which suspects must be warned.” R. 51 (Opinion
at 21) (Page ID #451). This is an inaccurate understanding of Miranda, supra Part II.A.1, and it
is difficult to say that Crumpton was not aware of his right to remain silent and the consequences
of waiving that right when Crumpton selectively declined to answer certain questions regarding
the narcotics that were located in his home. See R. 68-2 (Tr. of Audio Recording at 21–22, 24)
(Page ID #959–60, 962). Accordingly, there was no basis to hold that Crumpton’s waiver of
rights was not a knowing one.
B. Sufficiency of the Evidence
The district court’s grant of Crumpton’s motion for judgment of acquittal was premised
on its suppression of the Second Statement. See R. 51 (Opinion at 1–2) (Page ID #431–32). Our
holding that each of the district court’s reasons for suppressing the Second Statement was
erroneous thus erodes the foundation for granting a judgment of acquittal. The government
requests that we then reverse “the corresponding judgment of acquittal” and reinstate the verdict.
Gov’t Appellant Br. at 16. Crumpton twice argued before the district court that the trial
evidence—including the Second Statement—was insufficient to support his conviction. When he
raised the argument at trial, the district court disagreed, holding that the Second Statement
supplied a sufficient connection to the ammunition. See R. 52 (Trial Tr. Vol. 3 at 43:14–45:6)
(Page ID #503–05). When Crumpton raised the argument in his written motion for judgment of
acquittal, R. 44-1 (Br. in Supp. of Mot. for J. of Acquittal at 6–12) (Page ID #352–58), the
district court did not rule because it excluded the Second Statement. We find that the evidence,
when the Second Statement is considered, is sufficient to support the jury’s verdict, as the district
court held during trial.
“In reviewing a claim that the evidence at trial was insufficient to sustain a conviction,
we consider ‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Carter, 465 F.3d 658, 664 (6th Cir. 2006) (quoting United
Nos. 15-1299/1560 United States v. Crumpton Page 15
States v. Copeland, 321 F.3d 582, 600 (6th Cir. 2003)), cert. denied, 550 U.S. 964 (2007). To
convict Crumpton for being a felon in possession of ammunition, the jury needed to find that he
possessed the ammunition. See United States v. Walker, 734 F.3d 451, 455 (6th Cir. 2013). This
may be satisfied by showing that Crumpton had constructive possession of the ammunition,
which “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 control over an object, either
directly or through others.” United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)
(quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973)), cert. denied, 525 U.S.
1166 (1999).
Crumpton’s affiliation with and control over the front area of the Sloan Street Residence,
when combined with his statement regarding his involvement in placing the ammunition in the
house and holding it for someone else, is sufficient to support a jury finding of constructive
possession. We have held that “[p]roof that ‘the person has dominion over the premises where
the [item] is located’ is sufficient to establish constructive possession.’” Id. (quoting United
States v. Clemis, 11 F.3d 597, 601 (6th Cir. 1993)). And although “nonexclusive possession of
the premises cannot establish constructive possession over items found within the premises,”
such an inference is appropriate when “there are other incriminating statements or circumstances
tending to buttress such an inference.” United States v. Bailey, 553 F.3d 940, 944 n.3 (6th Cir.
2009) (quotation marks omitted). Accordingly, Crumpton’s nonexclusive control over the front
area of the house—which a jury could infer from his access to that area and the fact that he
stored many of his belongings in that area—is a basis for finding constructive possession because
Crumpton said that he knew of the bullets and indicated that he had “found” them, later
explaining that another person brought them by, asked whether Crumpton needed them, and
Crumpton said “leave ‘em here, I probably know somebody that do.” R. 68-2 (Tr. of Audio
Recording at 10, 24) (Page ID #948, 962); see United States v. Newsom, 452 F.3d 593, 609 (6th
Cir. 2006) (relying in part on a defendant’s statements to law enforcement that he knew of the
existence of a firearm found in his vehicle and had previously “actually possessed it” to support a
finding of constructive possession). Accordingly, we REVERSE the district court’s grant of
Crumpton’s motion for judgment of acquittal on the possession-of-ammunition charge.
Nos. 15-1299/1560 United States v. Crumpton Page 16
C. Conditional Grant of New Trial
In granting Crumpton’s motion for judgment of acquittal, the district court was required
to “conditionally determine whether any motion for a new trial should be granted if the judgment
of acquittal is later vacated or reversed.” Fed. R. Crim. P. 29(d)(1). The district court found that
Crumpton would be eligible for a new trial if the judgment of acquittal were reversed because the
First Statement was prejudicially admitted to the jury before the district court found it to have
been obtained in violation of Miranda. See R. 51 (Opinion at 27) (Page ID #457). Our reversal
of the district court’s grant of Crumpton’s motion for judgment of acquittal means that “the trial
court must proceed with the new trial unless the appellate court orders otherwise.” Fed. R. Crim.
P. 29(d)(3)(A). The government asks that we reverse the conditional grant of a new trial as well.
See Gov’t Appellant Br. at 15, 45.
The district court premised its grant of a new trial on the allegedly prejudicial improper
admission of the First Statement. We need not analyze the legal standard for determining
whether improperly admitted evidence was sufficiently prejudicial to warrant a new trial,
however, because we disagree that the First Statement’s admission was even improper.
Although we do not have jurisdiction to review an appeal by the government of a mid-
trial decision on a motion to suppress, we do have jurisdiction over appeals “by the United States
. . . from a decision, judgment, or order of a district court . . . granting a new trial after verdict or
judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where
the double jeopardy clause of the United States Constitution prohibits further prosecution.”
18 U.S.C. § 3731. Section 3731 “is to be liberally construed to effectuate its purposes,” United
States v. Lawrence, 555 F.3d 254, 259 (6th Cir. 2009), cert. denied, 559 U.S. 1009 (2010), and
“[t]he Supreme Court has stated that the purpose of section 3731 is ‘to remove all statutory
barriers to Government appeals and to allow appeals whenever the Constitution would permit,’”
United States v. Layton, 720 F.2d 548, 554 (9th Cir. 1983) (quoting United States v. Helstoski,
442 U.S. 477, 487 n.6 (1979)), overruled on other grounds by United States v. W.R. Grace,
526 F.3d 499 (9th Cir. 2008). It would therefore be strange to preclude our review of whether
the First Statement was improperly admitted, when we are clearly able to review the
appropriateness of the district court’s conditional grant of a new trial, which was premised
Nos. 15-1299/1560 United States v. Crumpton Page 17
entirely upon the prejudicial effect of the assertedly improper admission of the First Statement.
See United States v. Harshaw, 705 F.2d 317, 318–20 (8th Cir. 1983) (finding jurisdiction to
review a grant of a mistrial where the district court had held “that the government failed to
establish the existence of a conspiracy between [the defendant] and [a witness], thereby
rendering [the witness’s] hearsay statements inadmissible,” because hearing the appeal would
neither violate the Double Jeopardy Clause nor “interrupt an ongoing trial”). We therefore
proceed to the merits of the district court’s exclusion of the First Statement.
The district court excluded the First Statement based on its belief that Miranda requires
that a suspect be warned of his right to cease answering questions at any time during a custodial
interrogation. See R. 52 (Trial Tr. Vol. 3 at 42:23–24, 46:4–7) (Page ID #502, 506). This is a
misreading of Miranda, which mandated that a suspect undergoing custodial interrogation be
informed of four particular rights: (1) “that he has a right to remain silent”; (2) “that any
statement he does make may be used as evidence against him”; (3) “that he has a right to the
presence of an attorney”; and (4) that the attorney may be “either retained or appointed.”
384 U.S. at 444. Subsequent Supreme Court decisions have echoed these four—and only four—
required warnings. See, e.g., Powell, 559 U.S. at 59–60; Spring, 479 U.S. at 567 n.1.2 We and
other circuits have made clear that “a defendant need not be informed of a right to stop
questioning after it has begun.” United States v. Lares-Valdez, 939 F.2d 688, 689 (9th Cir.
1991); see also United States v. Davis, 459 F.2d 167, 168–69 (6th Cir. 1972) (describing the
contention that Miranda was violated where a suspect “was not clearly apprised of the fact that
he could terminate any questioning” as “without merit”); United States v. Ellis, 125 F. App’x
691, 699 (6th Cir. 2005) (“a statement instructing [the suspect] that he has the right to stop
answering questions at any point after questioning has begun[] is not a phrase that the Supreme
Court in Miranda suggested should be read to criminal suspects before interrogation”). The
district court therefore erred in holding that the First Statement was a product of an inadequate
2
In its Opinion granting Crumpton’s motion for judgment of acquittal, the district court suggested in a
footnote that the fifth warning is required by the Supreme Court’s decision in Spring. See R. 51 (Opinion at 4 n.1)
(Page ID #434) (citing Spring, 479 U.S. at 573–74). But Spring does not mandate that a defendant be provided that
explicit fifth warning, and itself listed the four standard warnings as all that are required. See Spring, 479 U.S. at567 n.1.
Nos. 15-1299/1560 United States v. Crumpton Page 18
Miranda warning.3 Because the First Statement was properly admitted, we reject the district
court’s conclusion that it had a legally prejudicial effect on the jury and therefore REVERSE its
conditional grant of a new trial.4
III. ANALYSIS – CRUMPTON’S APPEAL
In a separate appeal, Crumpton contests his narcotics conviction, arguing that the district
court erred in denying his motions to suppress the evidence that was seized from the Sloan Street
Residence during the search of the home, and that the prosecutor engaged in misconduct during
her closing argument. We find no merit to either contention and AFFIRM the conviction.
A. Search of Crumpton’s Residence
Before trial, Crumpton filed two motions to suppress, each of which sought to suppress
the evidence recovered during the search of the Sloan Street Residence. His first motion argued
that the search warrant did not adequately describe the location to be searched because of an
incorrect address, and that the warrant was not supported by probable cause. The district court
denied that motion and Crumpton obtained new counsel, who filed his second motion, arguing
that the search was invalid because law enforcement failed to leave a copy of the search warrant
at the Sloan Street Residence, in violation of Federal Rule of Criminal Procedure 41. The district
3
Nor do we accept Crumpton’s argument—newly raised on appeal—that his waiver of Miranda rights was
neither knowing nor voluntary because he was not told of his right to cut off questioning at any time. See Crumpton
Appellee Br. at 19. In assessing whether a waiver of Miranda rights was knowing and voluntary, “[t]he relevant
question is not whether the ‘criminal suspect [knew] and [understood] every possible consequence of a waiver of the
Fifth Amendment privilege,’ but rather whether the ‘suspect [knew] that he [could] choose not to talk to law
enforcement officers, to talk only with counsel present, or to discontinue talking at any time.’” Garner, 557 F.3d at
261 (quoting Spring, 479 U.S. at 574). Although we have indicated that a suspect’s knowledge of the ability to cut
off questioning at any time may be relevant to the voluntariness analysis, United States v. Ricks, No. 92-5503, 1993
WL 78781, at *3 (6th Cir. Mar. 19, 1993) (per curiam), cert. denied, 508 U.S. 945 (1993), it is difficult to see how
the bare fact that Crumpton was not specifically told of his right to cut off questioning could render his waiver
involuntary, given our binding precedent that failing to warn a suspect of that right will not invalidate a Miranda
warning. See Davis, 459 F.2d at 168–69.
4
The district court added as a basis for granting a new trial that “the curative jury instruction implicated the
accused’s right to remain silent.” R. 51 (Opinion at 27) (Page ID #457). The district court’s curative instruction
was abrupt, coming after the First Statement had been admitted and stating, without context, “I will tell the jury that
that first statement is not to be considered for any purpose.” R. 52 (Trial Tr. Vol. 3 at 46:17–19) (Page ID #506).
This instruction was vague enough to prompt a note from a juror asking “[w]hat was the statement”—to which the
district court responded “[i]f I were to tell you what the statement was, I would be making it even harder for you to
forget it,” id. at 75:2–6 (Page ID #535)—but we do not see how the instruction could be construed as a comment on
Crumpton’s right to remain silent.
Nos. 15-1299/1560 United States v. Crumpton Page 19
court denied this motion as well. Crumpton challenges these rulings on appeal, and adds an
additional argument that the search warrant did not adequately describe the location to be
searched because it did not specify which of the apartments in the Sloan Street Residence were to
be searched.
1. Particularity
The Fourth Amendment mandates that any warrant must “particularly describ[e] the
place to be searched.” U.S. CONST. amend. IV. “In determining whether a warrant describes
with sufficient particularity the place to be searched, we consider: ‘(1) whether the place to be
searched is described with sufficient particularity as to enable the executing officers to locate and
identify the premises with reasonable effort; and (2) whether there is reasonable probability that
some other premises may be mistakenly searched.’” Knott v. Sullivan, 418 F.3d 561, 568 (6th
Cir. 2005) (quoting United States v. Gahagan, 865 F.2d 1490, 1497 (6th Cir. 1989)).
“[T]echnical inaccuracies in a warrant do not automatically render unconstitutional searches
conducted pursuant to such a warrant,” so the issue is whether the description is sufficient, not
whether it is perfect. Id. at 569.
Crumpton first argues that the warrant was not sufficiently particular because it did not
accurately describe the Sloan Street Residence. Crumpton relies on the fact that the warrant was
for “two (2) residential structures located in the vicinity of [the] property lot at 761 South Sloan
Street, Detroit, MI,” R. 15-1 (Search Warrant at 1) (Page ID #101), when the address is actually
735 South Sloan Street, Crumpton Appellant Br. at 15–16.
Crumpton is right that such an error could lead to an unacceptable likelihood that officers
would be unable “to locate and identify the premises with reasonable effort” and thus create a
“reasonable probability that some other premises may be mistakenly searched.” Knott, 418 F.3d
at 568 (quoting Gahagan, 865 F.2d at 1497). But such an error does not invalidate a search
warrant if the warrant includes other specific descriptors that remove the probability that the
wrong location could be searched, especially when the warrant affiant participates in the
execution of the search. See, e.g., United States v. Hang Le-Thy Tran, 433 F.3d 472, 480 (6th
Cir.) (warrant misidentified address, but correctly located the place to be searched as “on 28th
Nos. 15-1299/1560 United States v. Crumpton Page 20
Street, S.W. in the 900 block” and as having “a portioned-off storage room in the lower level of
that building,” and “[t]he executing officer . . . was also the warrant’s affiant”), cert. denied,
549 U.S. 903 (2006); United States v. Pelayo-Landero, 285 F.3d 491, 497 (6th Cir. 2002)
(warrant may have misidentified address, but “include[d] specific directions from an identifiable
point,” “describe[d] the particular trailer by color, by a certain exterior trim, and by a wooden
deck,” as well as the “unusual feature” of “the number 954 displayed under a window air
conditioner on the right end of the trailer,” included a photograph of the trailer, and an affiant
“was the team leader at the search”).
The warrant in this case included such information. It identified the Sloan Street
Residence as being “in the vicinity of [the] property lot at 761 South Sloan Street, Detroit, MI,”
R. 15-1 (Search Warrant at 1) (Page ID #101), which is not wrong—735 South Sloan Street is,
after all, in the vicinity of 761 South Sloan Street. In any event, the Sloan Street Residence was
the only residential structure on that side of the 700 block of South Sloan Street, and the warrant
included a number of additional descriptors—including a blurry photograph—that ensured that
the correct building would be searched. See id. (describing the residence as “a 1 1/2–story,
single family residence, with blue siding, white trim” that had “an[] additional sub-structure
present [at] the rear of the location,” which was described as “located immediately off the east
side (rear) of the primary residence within the same property lot, but containing a separate
exterior entrance”). Finally, Officer Farris, the search warrant affiant, participated in the
execution of the search warrant, after having been to the house previously. See id.; R. 54 (Trial
Tr. Vol. 1 at 43:19–23, 45:17–47:1) (Page ID #793, 795–97). The warrant therefore sufficiently
described the Sloan Street Residence.5
Crumpton’s second argument is that the warrant fails the particularity requirement
because it did not identify which of the apartments within the Sloan Street Residence were to be
5
Crumpton asserts that the house has the number “735” on it, but there is no merit to any suggestion that
officers should have noticed this number and acted differently. Agent Lotoczky testified during a suppression
hearing that “the address was hidden by part of a fence and maybe a shrub on the side of the house – actually right in
front of the house, on the corner of the house.” R. 39 (Tr. of July 7, 2014 Hearing at 11–12) (Page ID #259–60).
Nor would learning the home’s precise address have changed or contradicted anything in the warrant or affidavit, as
the warrant acknowledged that the number 761 was an approximation. See R. 15-1 (Search Warrant at 1) (Page ID
#101).
Nos. 15-1299/1560 United States v. Crumpton Page 21
searched, and the officers erred in continuing to search after they should have noticed that the
home was broken up into separate apartments. See Crumpton Appellant Br. at 18. As the
government notes, this argument was not made in either of Crumpton’s motions to suppress.
Arguably, however, Crumpton properly raised the issue pro se before the district court by
mentioning it during both hearings on his First Motion to Suppress. See R. 70 (Tr. of Feb. 28,
2014 Hearing at 14:4–7) (Page ID #996) (“I’m trying to contest the warrant on a particularity
requirement, which they have it marked as a single home and it’s a four-apartment dwelling.”);
R. 71 (Tr. of Mar. 25, 2014 Hearing at 9:4–18) (Page ID #1010) (emphasizing that “the warrant
that was shown to me had 735 Sloan with no apartment number” and agreeing with the district
court’s phrasing of his argument as “the only problem with [the warrant was] that it didn’t have
the apartment number”). The government argues that this issue was either waived or forfeited,
but we need not decide whether Crumpton’s pro se arguments were sufficient to raise the issue
because we find that the district court did not err at all on the record that was presented to it.
As a general rule, “[a] warrant describing an entire building when cause is shown for
searching only one apartment is void.” United States v. Votteller, 544 F.2d 1355, 1363 (6th Cir.
1976). “[W]hen the structure under suspicion is divided into more than one occupancy unit,
probable cause must exist for each unit to be searched.” United States v. Shamaeizadeh, 80 F.3d
1131, 1137 (6th Cir. 1996) (internal quotation marks omitted). When a warrant is obtained for
an entire structure, it is invalid if law enforcement “had known, or should have known,” that the
location was divided into separate units. Maryland v. Garrison, 480 U.S. 79, 85–86 (1987).
Furthermore, law enforcement officers are “required to discontinue [a] search . . . as soon as they
discover[]” that a location is in fact subdivided into separate dwelling units, especially if it is
unclear which unit belongs to the subject of the warrant. Id. at 87. “[T]he validity of the search
. . . depends on whether the officers’ failure to realize the overbreadth of the warrant was
objectively understandable and reasonable.” Id. at 88.
The record contains little to suggest that the government could have known prior to the
search that the residence was subdivided. The investigation did not reveal the existence of
subdivided apartments. R. 53 (Trial Tr. Vol. 2 at 64:24–65:6) (Page ID #667–68) (Officer Farris
testifying that the residence appeared to be a single-family home from the outside); cf. R. 15-1
Nos. 15-1299/1560 United States v. Crumpton Page 22
(Search Warrant ¶ 3) (Page ID #102) (“Through the course of this investigation, affiant was
unable to observe any numbers affixed to the residence.”). And although there were multiple
mailboxes in front of the house, R. 53 (Trial Tr. Vol. 2 at 57:19–58:1) (Page ID #660–61), it is
not clear how visible they were.6 The evidence in the record also suggests that any apartment
numbers that may have existed were not easily visible. See id. at 122:20–23 (Page ID #725).
Accordingly, aside from the existence of multiple mailboxes of indeterminate visibility, the
record reflects nothing that could have notified the agents that they were looking at a dwelling
with multiple apartments. This is not sufficient to put law enforcement on notice. See United
States v. Brooks, 294 F. App’x 71, 73 (4th Cir. 2008) (officer’s failure to notice multiple
mailboxes and doorbells was reasonable where they were difficult to see and the officer observed
the building at night from across the street).
Crumpton presents a closer question with respect to what the agents would have learned
upon executing the search warrant. Although there is no evidence that officers saw apartment
numbers during the search, they did find that the structure was divided between the front and
back of the house. To be sure, “[t]here was an access way that would allow someone to move
about the house from the front to the back,” but “[i]t was a small kind of hole in the wall.” R. 53
(Trial Tr. Vol. 2 at 9:21–23) (Page ID #612). Nor does it appear to have been a normal
passageway akin to an unlocked door. See id. at 110:2–4 (Page ID #713) (ATF Agent Lotoczky:
“[I]t looked to me that you could fit through there if you want, that you could squeeze through
there.”); R. 68-2 (Tr. of Audio Recording at 17–18) (Page ID #955–56) (when asked whether he
is “able to slip through that little, little hole through that, through that wall there,” Crumpton
responded that the hole had been created “to fix some wiring” and that he does not use the hole
to pass from the front to the back portion of the house). Thus, unlike in the case cited by the
government, there was a clearer delineation between the front and back portions of the house.
See United States v. White, 416 F.3d 634, 639 (7th Cir. 2005) (house “d[id] not have the typical
distinctions that designate separate apartments” as “[t]he living areas on both floors are not
6
Crumpton refers to a video of the execution of the search warrant on this point, which was introduced at
trial as Exhibit 31 and was played for the jury. See R. 54 (Trial Tr. Vol. 1 at 48:12–50:18) (Page ID #798–800);
R. 53 (Trial Tr. Vol. 2 at 5:11–23) (Page ID #608). The video was not made part of the district court’s electronic
record, however, nor was it forwarded to this court for purposes of appeal. Because the video has not been made
part of the record before us, we cannot evaluate its effect on the case.
Nos. 15-1299/1560 United States v. Crumpton Page 23
separate from each other,” “[t]here is no indication that a person who lives downstairs could not
go upstairs,” and “[t]here do not appear to be any internal locks separating the allegedly distinct
parts of the . . . house”).
The manner in which the house was laid out did not suggest that there were separate
living areas, however. The various rooms in the house that could have been set up as bedrooms
were not, with only the back bedroom set up that way and the others appearing more like living
rooms and storage for various items. See R. 53 (Trial Tr. Vol. 2 at 10:23–11:5, 12:19–25, 64:5–
11, 65:12–20) (Page ID #613–15, 667–68). Some of the belongings that Crumpton claimed
during his conversation with Agent Lotoczky, including his pet snake and electronic equipment,
were also found in the front area of the house. See R. 68-1 (Tr. of Audio Recording at 2) (Page
ID #935); R. 68-2 (Audio Recording Tr. at 1, 11) (Page ID #939, 949). The lack of indicia that
the house included any separate living areas, along with the suggestion that Crumpton used the
front and back areas of the house, renders the government’s belief that the house was a single
residence reasonable. Compare Shamaeizadeh, 80 F.3d at 1138–39 (police should have known
that a basement apartment was a separate residence where “[t]he officers had previously
discovered that the door connecting the upper floor and basement floor was locked,” an officer
“noticed that the apartment had its own den and refrigerator” and a resident of the home “had
informed the officers that her access to the basement apartment was restricted”). Accordingly,
the agents acted reasonably here in continuing to search the front portion of the house.
2. Probable Cause to Support Search Warrant
Crumpton also challenges the adequacy of the affidavit submitted in support of the search
warrant, contending that it failed to supply sufficient indicia of reliability regarding the evidence
provided by the confidential informant. See Crumpton Appellant Br. at 20. We review the
district court’s findings of fact in connection with a motion to suppress for clear error, and its
legal conclusions de novo, but “when judging the sufficiency of an affidavit to establish probable
cause in support of a search warrant,” we “accord the magistrate’s determination great
deference.” United States v. Terry, 522 F.3d 645, 647 (6th Cir.) (internal quotation marks
omitted), cert. denied, 555 U.S. 904 (2008).
Nos. 15-1299/1560 United States v. Crumpton Page 24
“To demonstrate probable cause to justify the issuance of a search warrant, an affidavit
must contain facts that indicate ‘a fair probability that evidence of a crime will be located on the
premises of the proposed search.’” United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)
(quoting United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005)). An affidavit, like this one,
that is based on information provided by a confidential informant, prompts us to “consider the
veracity, reliability, and the basis of knowledge for that information as part of the totality of the
circumstances for evaluating the impact of that information.” Id. at 532 (quoting United States v.
Helton, 314 F.3d 812, 819 (6th Cir. 2003)). “While independent corroboration of a confidential
informant’s story is not a sine qua non to a finding of probable cause, in the absence of any
indicia of the informant’s reliability, courts insist that the affidavit contain substantial
independent police corroboration.” Id. (internal citation omitted). At the same time,
“independent corroboration of the tip by police is not required when the court is provided with
assurances that the informant is reliable.” United States v. Thomas, 605 F.3d 300, 307 (6th Cir.
2010). “In such cases, the affiant need only attest ‘with some detail’ that the informant provided
reliable information in the past.” Id. (quoting United States v. McCraven, 401 F.3d 693, 697 (6th
Cir. 2005)).
The warrant affidavit was more detailed than Crumpton avers. It explains that Officer
Farris “received a tip that a black/male residing in [the Sloan Street Residence] was selling
crack-cocaine and heroin from this residence.” R. 15-1 (Search Warrant ¶ 3) (Page ID #102).
Farris “met with an established confidential informant” who identified Crumpton as the
individual who was selling narcotics from the house, and Farris then used that same informant to
conduct a controlled purchase of narcotics. Id. ¶ 4 (Page ID #102). Farris searched the
informant immediately before the purchase, and watched the informant enter and exit the house.
Id. Farris subsequently learned from the same informant that Crumpton regularly sells narcotics
from that location. See id. ¶ 5 (Page ID #102). Finally, the affiant swore that the confidential
informant “has previously proved to be a credible and reliable source of information, whose past
information has led to the successful seizures and confiscations of large quantities of narcotics,
prescription pills, illicit narcotics proceeds, and firearms, along with successful criminal
convictions of narcotics sellers.” Id. (Page ID #103).
Nos. 15-1299/1560 United States v. Crumpton Page 25
Officer Farris’s close supervision of a controlled purchase of narcotics supplies
independent corroboration of the confidential informant’s tip. See United States v. Coffee,
434 F.3d 887, 893–95 (6th Cir.) (tip was sufficiently corroborated where an officer watched a
confidential informant entering and exiting the residence from which narcotics were allegedly
being sold and searched the informant before and after the controlled buy), cert. denied, 547 U.S.
1158 (2006). Nor is this a case in which the affidavit was entirely lacking in a description of the
informant’s reliability. Although the informant was not named, “there is no requirement that an
informant be named either in the affidavit or the search warrant.” United States v. Jackson,
470 F.3d 299, 308 (6th Cir. 2006), cert. denied, 550 U.S. 961 (2007). Instead, “the affiant need
only specify that the confidential informant has given accurate information in the past to qualify
as reliable.” United States v. Greene, 250 F.3d 471, 480 (6th Cir. 2001). Officer Farris did just
that. See R. 15-1 (Search Warrant ¶ 5) (Page ID #103). Accordingly, the affidavit was sufficient
to support a finding of probable cause.
3. Federal Rule of Criminal Procedure 41
Crumpton’s Second Motion to Suppress relied on his allegation that the search team
failed to leave a copy of the search warrant at the Sloan Street Residence, in violation of Federal
Rule of Criminal Procedure 41. The district court denied this motion, relying on testimony from
two law-enforcement officers: Agent Lotoczky, who testified that Officer Farris told him that he
had left a copy of the search warrant at the residence, and Officer Farris, who testified that he
generally left copies of search warrants behind, but could not remember this particular instance.
See R. 40 (Tr. of July 24, 2014 Hearing at 38) (Page ID #318). Crumpton argues that it was
clearly erroneous to credit this testimony because neither agent could confirm that the warrant
was left based on personal knowledge. See Crumpton Appellant Br. at 25.
Federal Rule of Criminal Procedure 41(f)(1)(C) provides that “[t]he officer executing the
warrant must give a copy of the warrant and a receipt for the property taken to the person from
whom, or from whose premises, the property was taken or leave a copy of the warrant and
receipt at the place where the officer took the property.” Rule 41 provides a statutory rule that is
not required by the Fourth Amendment. Frisby v. United States, 79 F.3d 29, 32 (6th Cir. 1996);
see also Baranski v. Fifteen Unknown Agents, 452 F.3d 433, 444 (6th Cir. 2006) (en banc).
Nos. 15-1299/1560 United States v. Crumpton Page 26
“[A]lthough the procedural steps enumerated in [Rule 41] are important and should not be
disregarded, they are ministerial and ‘[a]bsent a showing of prejudice, irregularities in these
procedures do not void an otherwise valid search.’” Frisby, 79 F.3d at 32 (quoting United States
v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971)).
It was not clear error for the district court to rely on the combination of Officer Farris’s
testimony regarding his normal practice of leaving behind a copy of a warrant after a search, R.
40 (Tr. of July 24, 2014 Suppression Hearing at 6) (Page ID #286), and Agent Lotoczky’s
testimony that Farris previously told him that he had done so at the Sloan Street Residence, see
R. 39 (Tr. of July 7, 2014 Suppression Hearing at 9–10, 13–14) (Page ID #257–58, 261–62).
The only evidence presented to the contrary came from Crumpton, who was detained during the
search and arrested afterward and therefore had no basis for knowing whether a copy of the
warrant was left, id. at 25–27 (Page ID #273–75), and his mother, who testified to having entered
the premises around 5:00 in the afternoon after the search had ended and to not seeing a copy of
the warrant while cleaning the interior of the house, R. 40 (Tr. of July 24, 2014 Suppression
Hearing at 26) (Page ID #306). Even if the district court had clearly erred, Crumpton has
pointed to no basis for finding that he was prejudiced by this error. He was shown a copy of the
warrant during his interrogation at the scene of the search, so it is difficult to imagine what
prejudice he could have suffered if the agents did not leave a copy of the warrant at the house as
well.
B. Prosecutorial Misconduct
During Crumpton’s trial, his mother testified that the ammunition that was found in the
Sloan Street Residence had “turned up one day,” that she left it in the place where it was
ultimately found, that it did not belong to Crumpton, and that the ammunition was not disposed
of because two other individuals planned to use it at a firing range. See R. 52 (Trial Tr. Vol. 3 at
55:15–58:2) (Page ID #515–18). The prosecutor cross-examined her about the fact that she had
not previously mentioned this information when testifying during a prior hearing. See id. at
63:23–66:5 (Page ID #523–26). Crumpton’s lawyer then mentioned this testimony to negate the
government’s evidence of possession during his closing argument. See id. at 100:9–101:21
Nos. 15-1299/1560 United States v. Crumpton Page 27
(Page ID #560–61). In response, the government made the following statements in its closing
argument:
My final point that I’d like to make to you is he talked about the mother’s
testimony today.
If the mother had information as to whose bullets they were or whose ammunition
they were, why didn’t she disclose that prior to trial today? Why didn’t she testify
to that at a prior hearing? Why didn’t she bring that up then?
Do you think that the Government really wants to charge somebody that’s
innocent?
Never before was that information disclosed. Momma didn’t say it. Defendant
didn’t say it. Defendant’s counsel didn’t say it. It’s the first time we’ve heard it
today.
So, I’m going to ask you to take into consideration all of those things and to think
very carefully about the testimony that you’ve heard and the exhibits that we’ve
entered. And the Government urges you to find beyond a reasonable doubt that
this Defendant is guilty of both of the crimes charged.
Id. at 106:22–107:13 (Page ID #566–67). Because Crumpton did not object to any of these
statements before the district court, we review for plain error. See United States v. Davis, 514
F.3d 596, 615–16 (6th Cir.), cert. denied, 555 U.S. 835 (2008).
The Supreme Court “has recognized that prosecutorial misconduct may ‘so infec[t] the
trial with unfairness as to make the resulting conviction a denial of due process.’” Greer v.
Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). “To constitute a due process violation, the prosecutorial misconduct must be ‘of
sufficient significance to result in the denial of the defendant’s right to a fair trial.’” Id. (quoting
United States v. Bagley, 473 U.S. 667, 676 (1985)). We conduct this inquiry by “determin[ing]
whether the prosecutor’s statements were both improper and flagrant.” Davis, 514 F.3d at 613.
Statements may be improper when they are not “based on the evidence in the record,” are
“calculated to incite the passions and prejudices of the jurors,” or are “designed to completely
undercut the defendant’s sole mitigation theory, effectively denying him fair jury consideration.”
Id. (quoting Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006)).
Nos. 15-1299/1560 United States v. Crumpton Page 28
Crumpton argues that the prosecutor improperly assumed facts not in evidence by stating
that Crumpton’s mother had never previously mentioned her knowledge of the ammunition that
was recovered from the Sloan Street Residence. See Crumpton Appellant Br. at 34–35. He
objects that the statement “[d]o you think that the Government really wants to charge somebody
that’s innocent” constituted improper vouching and bolstering of the government’s case and
witnesses. See id. at 36. Finally, Crumpton objects that the prosecutor improperly shifted the
burden of proof to the defense by implying that Crumpton, his counsel, or his mother was
required to “say” something to dispel the government’s belief regarding the ammunition. See id.
at 35.
Crumpton fails to demonstrate plain error. Far from mischaracterizing the evidence, the
prosecutor’s statement that Crumpton’s mother had not previously mentioned her knowledge of
the ammunition was, in context, referring to the fact that her prior testimony did not mention her
knowledge, thereby undermining her credibility and Crumpton’s reliance on her testimony.
Neither that statement, nor the statement that Crumpton, his counsel, and his mother did not “say
it”—i.e., did not reveal the knowledge to which his mother testified at trial—shifted the burden
of proof to Crumpton. Rather, they responded to Crumpton’s argument that the only evidence
regarding who owned the bullets came from Crumpton’s mother, whose testimony he suggested
the jury should find credible.7
The other challenged comment—“[d]o you think that the Government really wants to
charge somebody that’s innocent”—was improper because it tended “to suggest that [the]
7
Amidst this argument, Crumpton may have sought to raise the additional argument that the prosecutor’s
“say it” statement was an improper comment on Crumpton’s exercise of his Fifth Amendment right not to testify.
See Crumpton Appellant Br. at 36. The cases Crumpton cited addressed only the burden-shifting issue with one
exception. That exception, Lockett v. Ohio, 438 U.S. 586 (1978), does not elaborate the distinct legal standard
applicable to such a claim, and Crumpton did not otherwise spell out that analysis, see Lent v. Wells, 861 F.2d 972,
975 (6th Cir. 1988) (setting forth a four-factor test for determining whether such a reference is problematic), cert.
denied, 489 U.S. 1100 (1989). Generally, “[i]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.” Hayward v. Cleveland Clinic Found., 759 F.3d 601, 618
n.9 (6th Cir. 2014) (quoting McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997)). Therefore, “[i]t is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on
its bones.” Id. (quoting McPherson, 125 F.3d at 995–96). Thus, we decline to review arguments where an appellant
fails to offer any “real analysis” of the argument or to elaborate the elements of a particular legal claim. See
McPherson, 125 F.3d at 995–96. The cursory nature of Crumpton’s discussion and the lack of exploration of the
legal standard applicable to the claim that a prosecutor’s statement indirectly implicated a defendant’s Fifth
Amendment right render the issue insufficient for our review.
Nos. 15-1299/1560 United States v. Crumpton Page 29
defendant is guilty merely because he is being prosecuted or has been indicted.” United States v.
Bess, 593 F.2d 749, 754 (6th Cir. 1979). But Crumpton cannot show that the comment was
flagrant under the plain-error standard. Flagrancy, we have held, is “a pretty high standard.”
United States v. Francis, 170 F.3d 546, 552 (6th Cir. 1999). Statements are found to be flagrant
based upon four factors: “(1) the likelihood that the remarks of the prosecutor tended to mislead
the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive;
(3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the
evidence against the defendant.” Davis, 514 F.3d at 613 (quoting Broom, 441 F.3d at 412). The
comment was undoubtedly isolated. Nor does the record indicate that the remark was deliberate,
appearing as it did in the midst of a response to Crumpton’s reliance on his mother’s arguably
newfound memory regarding the ownership of the ammunition. Accordingly, the single
improper remark is not so flagrant as to warrant reversal of Crumpton’s conviction under the
plain-error standard.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s grant of Crumpton’s motion
for judgment of acquittal or a new trial regarding the ammunition charge, AFFIRM Crumpton’s
narcotics conviction, and REMAND for resentencing.