United States v. Williams

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0480n.06
Filed: August 8, 2008
No. 07-5692
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. On appeal from the United States
District Court for the Western
DELAWRENCE WILLIAMS, District of Tennessee
Defendant-Appellant.
/
BEFORE: BOGGS, Chief Judge, RYAN, and COLE, Circuit Judges.
RYAN, Circuit Judge. The defendant, Delawrence Williams, appeals his
conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
He claims the district court erred in denying his motion to suppress the evidence and that
there was insufficient evidence to support his jury conviction. For the reasons set forth
below, we affirm the district court’s judgment.
I.
Dyer County Sheriff’s Department Sergeant Kenny Gibbons responded to a
domestic disturbance call at Williams’s mobile home on September 28, 2003, and, on his
arrival, saw Vivial Taylor, Williams’s girlfriend, walking away from the mobile home.
Gibbons recognized Taylor as Williams’s girlfriend based on prior police contact with the
couple. According to Gibbons, Taylor told him that she and Williams had an altercation in
Williams’s home, over his alleged infidelity, and that Williams threw her over a counter in
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the kitchen. She told Gibbons that she managed to escape the house and get into her car,
and that Williams followed her with a sling blade knife. Taylor then tried to run over
Williams with her car and when she was unsuccessful, settled on ramming her car into his.
Gibbons arrested Taylor for aggravated domestic assault and placed her in the
police car. Taylor stated that “if she was going to jail,” then Williams “was going to jail for
a long time” because there were drugs in the house. Gibbons called Dyer County Sheriff’s
Department criminal investigator Terry McCreight, who proceeded to Williams’s mobile
home. There were two other officers already on the scene with Williams, who, by that time,
had come out of his mobile home. When asked what happened, Williams stated that, “he
did it, he hit her, he should go to jail, she shouldn’t.” Officers arrested Williams and took
him to the station.
As it was standard police procedure in domestic dispute cases to ask permission
to enter the premises to preserve evidence, Gibbons informed Taylor, at the scene, that
he would need to go in the house to take pictures. According to Gibbons, Taylor
consented and offered Gibbons her keys. On the bedroom dresser, officers observed a
cigar appearing to have marijuana inside, alongside a napkin containing white residue
resembling cocaine.
Shortly thereafter, investigator McCreight applied for and was issued a search
warrant for Williams’s home to search for drugs and firearms. In the supporting affidavit,
McCreight did not include the information about the drugs the officers observed in plain
view, but asserted instead that Taylor had stated that she observed drugs in the home.
Other officers executed the search later that day, and discovered, among other things, a
.40-caliber handgun, five plastic bags of cocaine, and a bag of marijuana.
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A federal grand jury indicted Williams for being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), while state prosecutors pursued a charge of
possession of cocaine with intent to sell or deliver.
On September 11, 2006, the district court held an evidentiary hearing on Williams’s
motion to suppress. Williams argued that the firearm should not be introduced as evidence
because it was seized from his residence, in violation of the Fourth Amendment. He
claimed that police entered his home without consent and that the affidavit in support of
the search warrant application lacked probable cause. The district court denied the
motion, holding that Taylor had apparent authority to give consent for the search, and even
if she lacked authority, the initial entry for the purpose of taking photographs of the scene
of the reported domestic disturbance was made in good faith reliance on Taylor’s apparent
authority.
The court also held: 1) that the magistrate judge correctly found probable cause to
issue the search warrant with regard to the drugs; 2) that the statement in McCreight’s
affidavit regarding the firearms constituted an intentional or reckless falsehood; but that 3)
officers lawfully seized the firearm under the plain view doctrine. A jury convicted Williams
of the firearm charge and the court sentenced him to 120 months’ imprisonment.
Williams now appeals, arguing the district court erred in denying his motion to
suppress, and that the government introduced insufficient evidence to sustain a guilty
verdict. Williams has abandoned his argument that officers initially entered his home
without consent. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991).
II.
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Williams argues that his motion to suppress should have been granted because the
search warrant affidavit did not show probable cause.
In reviewing a district court’s denial of a motion to suppress, we review findings of
fact for clear error and conclusions of law de novo, United States v. Hudson, 405 F.3d 425,
431 (6th Cir. 2005), viewing the evidence in the light most favorable to the government.
United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003).
The search warrant application sought to obtain two types of contraband: drugs and
firearms. We are satisfied that probable cause existed within the four corners of the
affidavit to support issuance of the search warrant for the drugs despite the district court’s
error in considering extraneous statements made by officers regarding their observation
of drugs in plain view.
When a magistrate is presented with an application for a search warrant, he must
consider the totality of the circumstances and “make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). The magistrate must have a “‘substantial basis
for . . . conclud[ing]’ that a search would uncover evidence of wrongdoing.” Id. at 236
(alterations in original) (citation omitted).
We have held that “[w]hen a witness has seen evidence in a specific location in the
immediate past, and is willing to be named in the affidavit, the totality of the circumstances
presents a substantial basis for conducting a search for that evidence.” United States v.
Pelham, 801 F.2d 875, 878 (6th Cir. 1986) (internal quotation marks omitted).
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McCreight stated in his affidavit that Taylor told him that “there was Cocaine and
Marijuana inside of the residence. Vival [sic] Taylor stated she stayed overnight on
09/27/03 at the residence and saw cocaine in the closet of Delawrence Williams[’s]
residence.” We think this statement, plus the fact that Taylor’s name appeared in the
affidavit, provided the magistrate a substantial basis for issuing the search warrant as it
related to the drugs.
Williams argues that Taylor’s statements were not credible because she was “mad”
at Williams and told police about the drugs out of vengeance, thus negating any probable
cause. Williams did not present this argument in the district court; therefore, it is waived.
See United States v. Blair, 214 F.3d 690, 697 (6th Cir. 2000). Even if Williams’s argument
were properly before us, it would fail. We have held that where, as here, an informant is
identified in the affidavit (and thus subject to liability for providing false information); has
personal knowledge of criminal activity; and provides information consistent with facts
independently verified by the police, probable cause may be found to support a search
warrant. United States v. Couch, 367 F.3d 557, 560-61 (6th Cir. 2004); see also Pelham,
801 F.2d at 878. We think that, regardless of her motive, Taylor’s statements to officers
met this standard.
We also agree with the district court that, despite investigator McCreight’s false
assertion in the search warrant affidavit concerning the presence of firearms in Williams’s
residence, officers executing the search warrant lawfully seized the .40-caliber handgun
because it was in plain view and would have been subject to seizure even if it had not been
mentioned in the search warrant. In Blair, we held that “so long as the agent is lawfully
present, the discovery is inadvertent, and the incriminating nature of the item is
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immediately apparent,” the article may be seized. Blair, 214 F.3d at 698 (internal quotation
marks and citations omitted).
Here, the officers were lawfully in the home to search for drugs, and during the
search, discovered the firearm in the night stand drawer. The weapon was subject to
seizure for the further reason that the officers knew from previous dealings that Williams
was a felon.
The district court correctly denied Williams’s motion to suppress the evidence.
III.
Williams next argues that the evidence was insufficient to support his conviction.
We review sufficiency of evidence claims in the light most favorable to the
government. If any “rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt,” then sufficient evidence exists. Jackson v. Virginia,
443 U.S. 307, 319 (1979). We will “not weigh the evidence, assess the credibility of the
witnesses, or substitute our judgment for that of the jury.” United States v. Wright, 16 F.3d
1429, 1440 (6th Cir. 1994).
In order to prove the felon-in-possession offense, the government must show that:
Williams had a previous felony conviction; he possessed a firearm; and the firearm traveled
in interstate commerce. 18 U.S.C. § 922(g). Possession can be actual or constructive.
Constructive possession is the “ownership, or dominion or control over the item itself, or
dominion over the premises where the item is located.” United States v. Richardson, 510
F.3d 622, 627 (6th Cir. 2007) (internal quotation marks and citations omitted), cert. denied,
128 S. Ct. 2072 (2008). We think the government produced ample evidence to satisfy all
three elements.
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First, Williams was a prior felon. Second, the firearm was shown to have originated
outside Tennessee and traveled across the border to reach Williams’s home. Finally, the
weapon was in Williams’s constructive possession. The government proved the
possession element by introducing numerous exhibits, including: mail addressed to
Williams; utility and phone records from the mobile home; a cell phone box found directly
underneath the gun, bearing an identification number matching the cell phone found on
Williams’s person; and a driver’s license and photos bearing Williams’s likeness, which
were also found in the same bedroom as the firearm. In sum, we think the government
produced more than sufficient evidence to support a rational trier of fact’s conclusion that
each element of the firearm offense was proved beyond a reasonable doubt.
IV.
The district court’s judgment is AFFIRMED.