                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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
(No. 07-5692)                                 -2-

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.
(No. 07-5692)                                -3-

       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.
(No. 07-5692)                                   -4-

       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).
(No. 07-5692)                                 -5-

       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
(No. 07-5692)                                -6-

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.
(No. 07-5692)                               -7-

       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.
