           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    United States v. Johnson                   No. 02-5540
        ELECTRONIC CITATION: 2003 FED App. 0406P (6th Cir.)
                    File Name: 03a0406p.06                                 Hamilton III, ASSISTANT UNITED STATES ATTORNEY,
                                                                           Knoxville, Tennessee, for Appellee. ON BRIEF: Paula R.
                                                                           Voss, FEDERAL DEFENDER SERVICES, Knoxville,
UNITED STATES COURT OF APPEALS                                             Tennessee, for Appellant. David C. Jennings, ASSISTANT
                                                                           UNITED STATES ATTORNEY, Knoxville, Tennessee, for
                  FOR THE SIXTH CIRCUIT                                    Appellee.
                    _________________
                                                                                               _________________
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                                                 OPINION
                                   -                                                           _________________
                                   -   No. 02-5540
            v.                     -                                          BOGGS, Chief Judge. Maurice Johnson appeals the district
                                    >                                      court’s denial of his motion to suppress drugs found at one of
                                   ,                                       his temporary places of abode and his confession to being the
 MAURICE A. JOHNSON,               -
          Defendant-Appellant. -                                           owner of these drugs. The state police had obtained a search
                                                                           warrant for the residence of Hennis Tracy, Johnson’s half-
                                  N                                        sister, based upon surveillance of that residence and the
       Appeal from the United States District Court                        statements of a confidential informant. Upon execution of the
    for the Eastern District of Tennessee at Knoxville.                    warrant, the police had discovered drugs at the residence, but
     No. 01-00117—R. Leon Jordan, District Judge.                          not Johnson. The police coaxed Johnson back to the premises
                                                                           of the search by threatening to arrest Tracy if he did not
                     Argued: August 7, 2003                                confess to owning the drugs. Johnson did so and eventually
                                                                           pleaded guilty to possession with intent to distribute. On
            Decided and Filed: November 14, 2003                           appeal, he challenges the validity of search warrant and the
                                                                           voluntariness of his confession. We affirm.
 Before: BOGGS, Chief Judge; SILER, Circuit Judge; and
               RICE, District Judge.*                                                                    I

                       _________________                                     On or about January 7, 2001, the Monroe County,
                                                                           Tennessee, police department began a surveillance of Tracy’s
                            COUNSEL                                        residence. The primary target of the surveillance was
                                                                           Johnson, Tracy’s half-brother. Johnson himself had no
ARGUED: Paula R. Voss, FEDERAL DEFENDER                                    permanent residence but rather stayed for periods of days at
SERVICES, Knoxville, Tennessee, for Appellant. F. M.                       the homes of friends and family members, including Tracy,
                                                                           and the police suspected that he dealt drugs out of his hosts’
                                                                           homes. During the surveillance of Johnson’s visit to the
    *
                                                                           Tracy residence, numerous short-term visitors, parking up to
     The Honorable Walter Herbert Rice, United States District Judge for   six or eight cars at a time, were observed. Some of these
the Southern District of Ohio, sitting by designation.

                                   1
No. 02-5540                   United States v. Johnson      3    4    United States v. Johnson                     No. 02-5540

visitors were known to the police as having records of drug      Fourth Amendment guarantee against unreasonable searches
offenses. One visitor was also a confidential informant for      and seizures and the Fifth Amendment privilege against self-
the police department, who had previously provided               incrimination and guarantee of due process. The magistrate
information helpful to the prosecution of other drug offenses.   judge recommended a denial of the suppression motion and
On January 9, he informed the police that within the previous    the district court adopted this recommendation over Johnson’s
three days he had been present in the Tracy residence and had    objection. In response, Johnson entered a conditional guilty
seen cocaine being sold there. The police subsequently           plea subject to a reservation of the right to appeal the denial
sought a search warrant for the Tracy residence based on an      of his suppression motion and was sentenced to sixty months
officer’s affidavit restating the information provided by the    of incarceration and an equal period of supervised release.
confidential informant. A magistrate judge issued such a         This timely appeal of the denial of the suppression motion
warrant shortly after midnight on January 10.                    ensued.
  At about 1:30 A.M. on January 10, the police executed the                                    II
warrant on the Tracy residence. While Johnson was not
found on the premises, the police did discover more than nine       “In reviewing the district court’s denial of a defendant's
grams of crack cocaine hidden in the headboard of Tracy’s        motion to suppress, this Court reviews the district court’s
bed. At this point Tracy disclaimed ownership of the drugs       findings of fact for clear error and its conclusions of law de
and placed the blame on Johnson. The police responded that       novo.” United States v. Miggins, 302 F.3d 384, 397 (6th Cir.
they would not arrest Tracy if Johnson turned himself in and     2002) (citing United States v. Bradshaw, 102 F.3d 204, 209
accepted responsibility for the drugs. Eventually, Tracy was     (6th Cir. 1996)).
able to track down Johnson via phone calls and an
intermediary and asked him to return to the residence. At           Johnson argues that the search warrant on the Tracy home
about 4 A.M., Johnson arrived at the Tracy residence, which      was defective because the affidavit on which it was based was
was still occupied by about a dozen armed police officers.       insufficient. “The standard of review for the sufficiency of an
Johnson asked to speak with an investigating officer and the     affidavit ‘is whether the magistrate had a substantial basis for
officer and Johnson retreated to the residence’s back            finding that the affidavit established probable cause to believe
bedroom, leaving the door slightly ajar. Johnson immediately     that the evidence would be found at the place cited.’” United
confessed to owning the drugs found in Tracy’s bedroom.          States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001) (quoting
After reading Johnson his Miranda rights, he iterated this       United States v. Davidson, 936 F.2d 856, 859 (6th Cir.
confession and was arrested. In the search incident to arrest,   1991)). “A magistrate’s determination of probable cause is
another gram of crack cocaine was found in Johnson’s pocket.     afforded great deference by the reviewing court” and should
                                                                 only be reversed if arbitrarily made. Greene, 250 F.3d at 478
  On August 7, 2001, a grand jury in the United States           (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir.
District Court for the Eastern District of Tennessee indicted    2000) (en banc); United States v. Finch, 998 F.2d 349, 352
Johnson on one count of possession with intent to distribute     (6th Cir. 1993); and Davidson, 936 F.2d at 859). “[R]eview
more than five grams of crack cocaine, in violation of 21        of an affidavit and search warrant should rely on a ‘totality of
U.S.C. § 841(a)(1), (b)(1)(B). The magistrate judge assigned     the circumstances’ determination, rather than a line-by-line
to the matter held hearings on Johnson’s motion to suppress      scrutiny.” Greene, 250 F.3d at 479 (citing Allen, 211 F.3d at
the drugs and his confession as obtained in violation of the     973). “Courts should review the sufficiency of the affidavit
No. 02-5540                    United States v. Johnson          5   6    United States v. Johnson                     No. 02-5540

in a commonsense, rather than hypertechnical manner.”                This statement of facts was followed by a listing of evidence
Greene, 250 F.3d at 479 (citing Allen, 211 F.3d at 973; and          to be seized, including drugs.
Davidson, 936 F.2d at 859). “Probable cause exists ‘when
there is a ‘fair probability,’ given the totality of the                Against the district court’s conclusion that this affidavit
circumstances, that contraband or evidence of a crime will be        was sufficient to support a search warrant, Johnson here raises
found in a particular place.” Greene, 250 F.3d at 479 (citing        a long series of meritless objections. Johnson complains that
Davidson, 936 F.2d at 859). “Probable cause is defined as            the warrant did not name the confidential informant.
reasonable grounds for belief, supported by less than prima          However, a warrant need not name a confidential informant,
facie proof but more than mere suspicion.” United States v.          but merely provide indicia of reliability. This the affidavit
Bennett, 905 F.2d 931, 934 (6th Cir. 1990).                          does by stating that the confidential informant had previously
                                                                     provided information leading to successful discovery.
  The affidavit in the present case was given by one of the          Johnson objects that the affidavit merely claims “successful
investigating officers. After recounting the averring officer’s      discovery,” not resulting arrest and conviction. This
professional history, the affidavit summarizes the facts on          objection misses the point of the claim which is to indicate
which to base the search warrant as follows:                         reliability or truthfulness and not usefulness. Even if, through
                                                                     reasons that may not have been related to the informant, all
  On Tuesday, January 9, 2001, your affiant met with the             previous successful searches based on his statements had not
  proven credible and reliable source of information who             led to successful prosecutions, this would by itself not have
  within the past 72 hours has observed a quantity of crack          thrown any doubt on the reliability or truthfulness of the
  cocaine stored inside [the Tracy residence]. The                   informant. The mere fact that contraband was discovered
  informant overheard conversations about crack cocaine,             where he claimed it was going to be discovered is sufficient
  weights, and prices and was present when crack cocaine             indicia of his reliability. Johnson claims that the police
  was purchased at the residence. The crack cocaine is               surveillance of the residence could not have confirmed the
  being sold from the residence by Maurice Johnson, who              reliability of the informant because the surveillance had
  does not reside at this residence, but frequents this              started before the informant gave his statements. However,
  residence with friends and relatives. Your affiant and             there is no logical reason why observations made prior to the
  other agents have conducted surveillance on this                   statement should not be able to support the reliability of a
  residence and have observed numerous vehicles, as many             statement made after the observations. Moreover, we note
  as six or eight at a time at the residence, some of which          that the surveillance continued after the informant made his
  would stay for only short periods of time. Some of the             statements.
  vehicles which were observed by your affiant to come
  and go from the residence are known to your affiant to               Johnson also criticizes the form of the affidavit on various
  have a history of drug charges. . . . This confidential            technical grounds. The affidavit does not quote the informant
  reliable informant is a creditable source of information           directly and hence does not indicate exactly what the
  who has proven reliable in the past and by facts                   informant said. The affidavit did not state what quantities of
  contained in this affidavit. This informant has conducted          drugs were observed and therefore leaves open the possibility
  at least four (4) controlled purchases of narcotics for your       that merely non-prosecutable trace amounts were present.
  affiant which all have led to successful discovery.                The affidavit does not make clear the source of the statement
                                                                     that Johnson was a drug dealer. The informant merely claims
No. 02-5540                     United States v. Johnson        7    8     United States v. Johnson                      No. 02-5540

to have been present during the drug transactions and does not       (holding that “infirmity of part of a warrant requires the
state that he actually witnessed the transactions or had             suppression of evidence seized pursuant to that part of the
witnessed Johnson buying or selling drugs. However, all of           warrant . . . , but does not require the suppression of anything
these objections are most charitably described as                    described in the valid portions of the warrant.” (quoting
hypertechnical.        The affidavit clearly implies what            United States v. LeBron, 729 F.2d 537 n.2 (8th Cir. 1984))).
information was received from the informant by reciting facts,
which could not have been known directly to the averring                The United States argues that even if the warrant was
officer, immediately following the mention of the informant.         defective, Johnson lacks standing to challenge its validity, an
If an informant claims to be present during a drug sale, the         issue not reached by the district court. However, as we
common-sense interpretation of that claim is that the                conclude that the search was made pursuant to a valid
informant witnessed the transaction and that the transaction         warrant, and therefore constitutional, regardless of whether
involved quantities of drugs larger than trace amounts.              Johnson had standing to challenge it, we need not and do not
Johnson’s objection to the lack of more explicit identification      here resolve the much closer question of whether Johnson had
of his person in the affidavit also misses the mark. The             a legitimate expectation of privacy in the Tracy residence.
affidavit merely needed to support the conclusion that
contraband or evidence could be found at the Tracy residence.                                       III
That it did. Even if there had been no mention of Johnson in
the affidavit at all, it would still have been sufficient for that      Johnson challenges the admissibility of his confession on
purpose.                                                             the grounds that it was not voluntarily made and hence
                                                                     obtained in violation of the Due Process Clause. “In
  Johnson raises two more spurious objections. He claims             determining whether a confession has been elicited by means
that because the informant claimed to have observed                  that are unconstitutional, this court looks to the totality of the
contraband only within three days of his statement and the           circumstances concerning whether a defendant’s will was
search warrant itself was only issued the day after the              overborne in a particular case.” United States v. Mahan, 190
statement, the information was stale. For this proposition,          F.3d 416, 422 (6th Cir. 1999) (quoting Ledbetter v. Edwards,
Johnson cites United States v. Spikes, 158 F.3d 913, 923 (6th        35 F.3d 1062, 1067 (6th Cir. 1994)) (internal quotation marks
Cir. 1998)). However, in Spikes this court upheld a search of        omitted). “In determining the voluntariness of a confession,
a drug distribution facility based on information ranging in         a reviewing court will not disturb the trial court’s findings
age between four years and ten days. Id. at 924. In our case,        concerning specific events surrounding the confession unless
the information was at most four days old at the time of the         clear error appears on the record.” United States v. Wrice,
search, so there is no grounds for a staleness challenge.            954 F.2d 406, 410-11 (6th Cir. 1992). “When a defendant
Johnson also claims that the affidavit was overbroad in              claims that a confession was coerced, the government bears
requesting authorization to search “all individuals and              the burden of proving by a preponderance of the evidence that
vehicles . . . present at the execution of the search warrant.”      the confession was in fact voluntary. This Court has
However, the contraband here was not found pursuant to               established three requirements for a finding that a confession
these possibly overbroad specifications, but within the              was involuntary due to police coercion: (i) the police activity
confines of the house. As Johnson does not allege that this          was objectively coercive; (ii) the coercion in question was
part of the warrant was overbroad, the issue is moot. See            sufficient to overbear the defendant’s will; and (iii) the
United States v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993)         alleged police misconduct was the crucial motivating factor
No. 02-5540                    United States v. Johnson      9    10   United States v. Johnson                     No. 02-5540

in the defendant’s decision to offer the statement.” Mahan,       convict Williams of two counts of first-degree murder. Id. at
190 F.3d at 422 ( internal citations omitted).                    287. On federal habeas review, we examined Williams’s
                                                                  claim that the promise of leniency was unconstitutionally
   Here the question of the voluntariness of Johnson’s            coercive:
statements reduces to the first factor, whether the threat to
charge Tracy if Johnson did not confess and the promise not         We recognize that the success of a criminal investigation
to charge her if Johnson confessed were objectively coercive.       often hinges on obtaining information from
The proposition that Johnson decided for internal reasons           uncooperative individuals. Indeed, many otherwise
after an alleged long career in the drug business to unburden       unobtainable convictions are secured through extending
his soul of his criminal conduct at 4 A.M. in his half-sister’s     immunity in exchange for a defendant’s testimony
house to a group of police officers can be discounted. Hence        against more culpable co-defendants. The necessity of
it must have been police conduct that caused him to confess.        foregoing the prosecution of an informant in order to
Equally implausible is the suggestion that it was anything          convict the ringleaders is an altogether different situation
other than this threat that caused Johnson to confess his guilt     from the deliberate inducement of inculpatory statements
as soon as he entered the premises. Hence the threat was a          through illusory promises of leniency. Even in situations
crucial motivating factor in Johnson’s decision to confess. As      where immunity is not envisaged, we have no doubt that
for the question of whether the threat was objectively              effective interrogation techniques require, to some extent,
coercive, two lines of cases in this court are instructive, one     a carrot-and-stick approach to eliciting information from
concerning threats and promises with respect to the defendant       an uncooperative suspect. However, when promises of
and one concerning threats and promises with respect to third       leniency, coupled with threats of immediate
parties.                                                            imprisonment, have a coercive effect on a suspect, we are
                                                                    obliged to inquire whether the coercion in question was
   Police promises of leniency and threats of prosecution can       sufficient to overbear the will of the accused.
be objectively coercive. In Wrice, we conceded “that a
promise of lenient treatment or of immediate release may be       Id. at 289 (emphasis added). We then proceeded to the other
so attractive as to render a confession involuntary.” 954 F.2d    parts of the Mahan test and ultimately concluded that
at 411 (citing Streetman v. Lynaugh, 812 F.2d 950, 957 (5th       Williams’s confession had been involuntary and therefore
Cir. 1987)). We first applied this principle in Williams v.       affirmed the district court’s grant of a writ of habeas corpus.
Withrow, 944 F.2d 284 (6th Cir. 1991), modified on other          Id. at 290.
grounds, 507 U.S. 680 (1993). Williams was a suspect in a
double homicide. Id. at 286. Williams admitted to having             Unsurprisingly, Williams has led to a substantial number of
provided and disposed of the gun, but the investigating           federal habeas claims. However, almost all of these claims
officers accused him of lying to cover up deeper involvement.     have been rejected. See, e.g., United States v. (Lawrence
Ibid. At this point an interrogating officer stated that if       Ozel) Little, 9 F.3d 110, 1993 WL 453396, at*9-10 (6th Cir.
Williams “was a witness, and he had no active part in the         1993) (table) (distinguishing Williams on the grounds that
crime, and that could be confirmed by polygraph, that he          promises of leniency were, in contrast to Williams, not
would not be charged.” Id. at 289. In response, Williams          illusory);United States v. Redditt, 2003 WL 21212672, at *3
admitted that he had also driven the shooter to and from the      (6th Cir. 2003) (table) (distinguishing Williams because
scene of the crime. Id. at 286. This admission was used to        federal investigators offered Redditt merely the elimination of
No. 02-5540                          United States v. Johnson           11     12       United States v. Johnson                           No. 02-5540

his federal charges, carrying sentences of up to forty years in                  one person admitted sole ownership. The defendant then
prison, while state charges were not discussed); United States                   directed the officers to the garage, where he showed them
v. (Hazel) Little, 12 F.3d 215, 1993 WL 501570, at *5 (6th                       a quantity of crack cocaine hidden on top of a beam. . . .
Cir. 1993) (table) (distinguishing Williams on the grounds                       [T]he defendant was placed under arrest and advised of
that promises of leniency made during plea negotiations in the                   his rights. The other occupants of the house were not
presence of counsel were not coercive, even if they might                        arrested.
have been if made by police officers during the investigation).
                                                                               998 F.2d at 355. We reasoned that “[c]oercion may involve
  From these cases we deduce the rule that promises of                         psychological threats as well as physical threats. Specifically,
leniency may be coercive if they are broken or illusory.1                      threats to arrest members of a suspect’s family may cause a
Here, the promise was not to prosecute Tracy if Johnson                        confession to be involuntary.” Id. at 356 (citing Rogers v.
turned himself in. This was not an illusory promise as it                      Richmond, 365 U.S. 534 (1961) (finding coercion where
actually committed the police to undertake a specific course                   prisoner confessed under threat that his wife would otherwise
of action in return for Johnson’s cooperation, as surely                       be taken in for questioning)).
Johnson would be arguing here if the police had prosecuted
Tracy. Moreover, the promise was not broken because the                          At the time the threat was made, the police had no basis
police in fact did not prosecute Tracy. Therefore the promise                    for concluding (1) that either [mother or girlfriend] had
of leniency for Tracy was not coercive under the                                 knowledge of the existence of cocaine in the house;
Williams line of cases.                                                          (2) that either woman had knowledge that Finch was
                                                                                 involved in the distribution of cocaine; (3) that a
  A second line of cases concerns promises of leniency and                       conspiracy existed; (4) that either woman was in
threats of prosecution to third parties. The factual situation in                constructive possession of the cocaine for which the
Finch was as follows:                                                            police were searching; or (5) that either woman was an
                                                                                 aider or abettor. Furthermore, the context of the threat is
  Upon entering the [defendant’s residence], the officers                        not such that it may be found to have been conditioned
  discovered the defendant’s mother . . . close enough to                        upon any fact except finding cocaine.
  the door to hear the officers knock and yell. The
  defendant was discovered, along with a female                                Finch, 998 F.2d at 356. From these facts we concluded that
  companion, in a bedroom at the rear of the house. The                        “there was no probable cause to arrest the women and
  defendant was told that the officers had a warrant to                        therefore, no legal basis existed for threatening to do so.”
  search for cocaine. All three of the occupants denied that                   Ibid. On this basis we concluded that Finch’s confession was
  there was any cocaine in the house. Whereupon,                               involuntary and had to be suppressed.2
  defendant was told that if any cocaine were discovered,
  all three persons in the house could be arrested unless
                                                                                    2
                                                                                     That it is this determination–whether the execution of the threat
                                                                               would have been lawful–which is dispositive, we find confirmed in one
    1
                                                                               of our unpublished o pinions. United States v. Dillard, 983 F.2d 1069,
      In this context, an illusory promise is a statem ent in the fo rm of a   1992 WL 3 61373, at *3 (6th C ir. 199 2) (tab le) (concluding that thre at to
promise, but lacking its substance in that it does not actually commit the     arrest defendant’s mother was not coercive because the police had
police to undertake or refrain from any particular course of action.           probable cause to arrest mother).
No. 02-5540                           United States v. Johnson            13     14    United States v. Johnson                           No. 02-5540

   Therefore the question whether the threat to prosecute                        former statement were inadmissible, as obtained outside the
Tracy was coercive turns on the issue of whether the threat                      strictures that the rule of Miranda places on custodial
could have been lawfully executed. Whether the police could                      interrogations, the latter statement would still be admissible.
have lawfully arrested Tracy in turn depends on whether the                      See Oregon v. Elstad, 470 U.S. 298, 318 (1985).
investigating officers had probable cause to suspect Tracy of
criminal involvement. Johnson, citing the superficial                                                              IV
similarities between his circumstances and the circumstances
in Finch, urges us to reach the same conclusion as we did                          For the foregoing reasons, we AFFIRM the denial of
there. However, in contrast to Finch, here there existed a                       Johnson’s suppression motion.
sufficient factual basis for the police officers to have probable
cause to arrest Tracy. Johnson ran a drug distribution
business out of Tracy’s residence, involving frequent visits by
a large number of customers. Tracy must at least have had
very strong suspicions about her half-brother’s activities and
the presence of the product traded at her home. While Tracy
was not charged in a drug distribution conspiracy or as an
aider or abettor, the investigating officers could have
reasonably suspected that her involvement rose to such levels.
Moreover, the drugs here were found in the bed occupied by
Tracy. These facts were sufficient to create probable cause to
arrest. Therefore, the police would not have acted wrongfully
had they arrested Tracy and were not coercive in threatening
to do so.
  Johnson also raises the issue of whether his confession was
obtained in violation of his Miranda rights. As Johnson made
substantively identical statements both upon entering the
Tracy residence, before he was mirandized, and later during
the interrogation in the back bedroom, after he was
mirandized,3 we need resolve this issue here. Even if the


    3
      Johnson attempts to raise the issue that he was not mirand ized a t all.
However, the officers testified that he was and he did not testify to the
contrary, nor d oes his counsel here make the factua l that claim that he had
not been mirandized. In such circumstances, the mere absence of a
written waiver will not support the conclusion that there was no waiver.
Miggins, 302 F.2d at 397 (“Although [the defendant] suggests that his            none can be found, for the proposition that a written waiver is necessary
waiver was not knowingly, voluntarily and intelligently made beca use he         to establish a knowing, intellige nt and voluntary waiver of Miranda
did not sign a waiver form listing his rights, he offers no authority, and       rights.”)
