                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0020n.06

                                           No. 10-6353

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Jan 09, 2012
UNITED STATES OF AMERICA,                         )
                                                  )                         LEONARD GREEN, Clerk
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
MARCUS COLLINS,                                   )   WESTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )



       Before: SUHRHEINRICH, SUTTON and COOK, Circuit Judges.


       SUTTON, Circuit Judge. Marcus Collins appeals his conviction on federal firearms charges,

arguing that the district court improperly admitted his confession to the crime and other evidence.

We affirm.


                                                 I.


       In January 2009, Memphis police identified a trend connecting vehicle break-ins in the

Tillman Precinct. Witnesses of several burglaries reported that the culprit was a man wearing a

toboggan (the hat, not the sled) and driving a dark-colored Cadillac with a malfunctioning taillight.

Officers set up surveillance in the neighborhood on the nights of the week when most of the

burglaries seemed to be occurring, and eventually identified a vehicle matching the profile. The

vehicle was registered to Marcus Collins, whom they placed under intermittent surveillance for
No. 10-6353
United States v. Collins

roughly two weeks. During that time, they saw Collins drive his Cadillac to a car lot, leave it there

and drive off in a black Ford Taurus with temporary tags. Later reports of automobile break-ins in

the area described a suspect who matched the earlier description, except witnesses now reported he

drove a black Ford Taurus.


       On January 28, 2009, several break-ins occurred in the neighborhood. After a plain-clothes

officer reported seeing a vehicle matching the description of Collins’ Taurus, Officer Zane Lewis

stopped Collins. As he approached the Taurus, Lewis saw a black and green duffle bag with the logo

of White Station High School on the back seat—the same type of bag that had been stolen in one of

the break-ins earlier in the day. Through questioning, Lewis learned that Collins was driving without

insurance and with a suspended license. He performed a pat-down and discovered a flashlight and

a metal object used for breaking glass known as a “window punch, both tools commonly used by car

burglars. Lewis placed Collins under arrest and had his car towed. Before removing the vehicle, the

police performed an inventory search of it.


       After giving oral and written waivers of his Miranda rights, Collins confessed to numerous

car burglaries, including the theft of a shotgun that forms the basis for the federal firearms charges

here. A grand jury charged Collins with being a felon in possession of a firearm and knowingly

possessing a stolen firearm. See 18 U.S.C. §§ 922(g), (j). The case went to trial, and the jury

convicted Collins of both charges.




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United States v. Collins

                                                 II.


       Collins argues that the district court should have suppressed the evidence gathered from his

car as the product of an unconstitutional search. The district court held that officers performed the

inventory search in a manner consistent with the department’s towing policy, making the evidence

admissible under South Dakota v. Opperman, 428 U.S. 364, 372 (1976). On appeal, the parties spar

over whether the search complied with the department’s policy, disputing the facts (whether the car

was legally parked) and the meaning of the policy (whether the fact Collins was alone meant a friend

could not move the vehicle for him). We need not answer these questions because either way the

police had probable cause to search the vehicle. Arizona v. Gant, 556 U.S. 332, __, 129 S. Ct. 1710,

1721 (2009) (noting that “established exceptions to the warrant requirement authorize a vehicle

search” where “there is probable cause to believe a vehicle contains evidence of criminal activity”).


       Consider the probable-cause evidence arrayed against Collins. Witnesses confirmed that

Collins switched from driving a Cadillac to a Taurus at the same time the burglar made a similar

switch. A bag visible in Collins’ back seat matched the description of a bag stolen from a car earlier

in the day. And during the pat-down of Collins, Officer Lewis discovered tools often used by car

burglars. All of this gave the police probable cause to believe that they would discover additional

evidence of the vehicle break-ins in Collins’ car. The trial court properly admitted the evidence.


       The district court also properly admitted Collins’ confession. A person may waive his Fifth

Amendment rights “provided the waiver is made voluntarily, knowingly and intelligently.” Miranda


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United States v. Collins

v. Arizona, 384 U.S. 436, 444 (1966). Collins did just that. He points to no evidence of police

coercion, which would be necessary to a claim of involuntariness. See Colorado v. Connelly, 479

U.S. 157, 167 (1986). And he has not demonstrated that his diabetes (or anything else) left him

unable to understand what he was doing; the investigating officer, to the contrary, testified that

Collins was “very alert” throughout the interview. R. 53-1 at 13. Also confirming that Collins knew

what he was doing are his accurate descriptions of robberies that occurred weeks earlier and his

cogent explanation of why he would break multiple windows in the cars he targeted rather than just

one (he was concerned that opening a door might set off the car alarm). On this record, the district

court permissibly found that the confessions were knowing and intelligent. See United States v.

Davis, 430 F.3d 345, 351 (6th Cir. 2005).


       Collins persists that his diabetes caused his blood sugar to drop during the interview, leaving

him “out of [his] mind” and unable to carry on a conversation or waive his Miranda rights. R. 53

at 137–38. But during the same hearing, he also testified (without corroboration) that when his

blood sugar was tested shortly after the interview it was “extremely high”—higher than it had ever

been, so high indeed that the machine could not read it. R. 53 at 139. Even assuming that low (or

high) blood sugar would be enough to void a Miranda waiver, the district court was not required to

believe one-half of this contradictory story.


       Collins, lastly, argues that the prosecution violated its discovery obligations when it failed

to provide two supplemental witness reports in advance of trial. Rule 16 of the Federal Rules of

Criminal Procedure requires the government to give the defendant access to evidence in its

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United States v. Collins

possession if it “is material to preparing the defense” or the government intends to use it in its case-

in-chief. This evidence came to light during the defense’s cross-examination, so the only possible

ground for a Rule 16 violation would be a showing that the supplemental witness statements were

“material to preparing the defense.” But the supplemental reports did not differ from the incident

report (which the prosecution provided to Collins) in any meaningful way, establishing that access

to them was not material to the preparation of the defense. Even if there were something helpful in

the supplemental reports, the strength of the government’s case—based on Collins’ signed and valid

confession to the crime, including an accurate description of the shotgun—would make any error

harmless. See Fed. R. Crim. P. 52(a); United States v. Clark, 385 F.3d 609, 619 (6th Cir. 2004).


                                                  III.


        For these reasons, we affirm.




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