                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0183n.06
                             Filed: April 4, 2008

                                            No. 06-4134

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE NORTHERN
               v.                                          )        DISTRICT OF OHIO
                                                           )
GLENN WILLIAMS,                                            )
                                                           )
      Defendant-Appellant.                                 )
__________________________________________



BEFORE: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Glenn Williams appeals from his convictions for possession of a controlled

substance with intent to distribute, in violation of 21 U.S.C. § 841, and being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argues that the district court erred in denying

his motion to suppress evidence obtained during an August 17, 2005, search of his home by a SWAT

team of Canton, Ohio, police officers. Specifically, Williams contends that suppression was required

because the search warrant was not supported by probable cause, the SWAT team used a no-knock

entry without permission by the warrant-issuing magistrate, and because statements he made during

his arrest were elicited in violation of Miranda. Finding each of these arguments to lack merit, we

affirm Williams’s convictions.
No. 06-4134
United States v. Williams


                                                  I.

          In 2005, Detective James Daniel, assigned to the Canton Police Department’s vice unit and

responsible for investigating drug complaints and undercover operations of drug purchases, received

“[t]wo or three” complaints of illegal drug activity occurring at 1539 Bryan Avenue in Canton, Ohio.

Daniel followed these complaints by speaking with a confidential informant (“CI”), who told him

that the resident of the Bryan Avenue home sold crack cocaine from the house. The CI provided

reliable information to a different detective during prior unrelated investigations.

          Daniel began surveillance on Bryan Avenue on July 22, 2005, watching the house on ten

separate dates. During this period, Daniel observed “people stopping basically for short times, many

short trips to the residence,” which was consistent with his past observations of other houses used

to sell crack cocaine. Daniel then used the CI to conduct three controlled purchases of crack cocaine

at the Bryan Avenue house. The informant identified Williams as the seller. A search of Williams’s

criminal history revealed that Williams had been convicted of aggravated robbery in 1997 and later

charged, though not prosecuted, for felonious assault and discharging a weapon into a home or

school.

          Based on this information, Daniel requested a search warrant for the Bryan Avenue house.

Because of Williams’s criminal history, and because Daniel’s experience had informed him that

people who sell crack cocaine often carry firearms and present a danger to police officers, Daniel

sought a no-knock warrant. The affidavit stated that Daniel performed surveillance and assisted in




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the controlled buys from July 22, 2004, until August 16, 2004. The Canton Municipal Court granted

Daniel’s request for the warrant.

       A SWAT team of Canton police officers executed the search warrant on the Bryan Avenue

house on August 17, 2005. The officers did not knock and announce their presence before entering.

They found defendant Williams asleep on a couch in the front room of the house. After the officers

handcuffed Williams and seated him upright on the couch, Detective Ryan Davis noticed Williams

reach repeatedly for a ceramic plate that was visible underneath the front of the couch. Because in

Davis’s experience such plates are often used for cutting crack cocaine and therefore tend to have

razor blades on them, he instructed the police officers to remove Williams from the couch. As they

were doing so, Davis asked Williams whether there were any weapons in the house. Williams

replied that a weapon was upstairs; a subsequent search of the upstairs revealed Williams’s response

to be false. As the officers continued to move Williams away from the couch, Williams then stated

that a firearm “was actually underneath the couch.” This turned out to be true.

       On September 28, 2005, Williams was charged in a two-count indictment in the United States

District Court for the Northern District of Ohio, alleging one count of possessing with the intent to

distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and one count of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Williams then filed a pretrial

motion to suppress evidence obtained during the August 17 search of his home, contending that the

search was not supported by probable cause, that the police improperly failed to knock and announce

their presence, and that his statement concerning the location of the gun was taken in violation of


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No. 06-4134
United States v. Williams


Miranda. After the district court denied Williams’s motion, Williams entered into a plea agreement

wherein he preserved his right to appeal the court’s denial of his motion to suppress. The district

court entered judgment against Williams and sentenced him to a term of 120 months of

imprisonment on each count, to be served concurrently. Williams now appeals.

                                                   II.

        Williams first argues that any evidence obtained as a result of the search of his home should

have been suppressed because the search was not supported by probable cause. On review of the

sufficiency of the affidavit, the question “‘is whether the magistrate had a substantial basis for

finding that the affidavit established probable cause to believe that the evidence would be found at

the place cited.’” United States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001) (quoting United States

v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). “Probable cause exists when there is a ‘fair

probability,’ given the totality of the circumstances, that contraband or evidence of a crime will be

found in a particular place.” Greene, 250 F.3d at 479 (internal quotation omitted). We give the

probable cause determination of the warrant-signing magistrate “great deference,” as its findings

“should not be set aside unless arbitrarily exercised.” United States v. Weaver, 99 F.3d 1372, 1376

(6th Cir. 1998) (internal quotation omitted).            Furthermore, we conduct our review of the

magistrate’s determination in a “commonsense, rather than hypertechnical manner,” Greene, 250

F.3d at 479, and judge the sufficiency of the affidavit on the totality of the circumstances, rather than

engaging in line-by-line scrutiny. United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004).




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No. 06-4134
United States v. Williams


         Williams’s probable cause challenge is predicated on the dates listed in the affidavit that

identified when Detective Daniel conducted surveillance of Williams’s residence and executed

controlled purchase buys through the CI. The affidavit stated that the surveillance operations and

controlled purchases occurred in July and August of 2004, one year before the execution of the

search warrant. Thus, according to Williams, the evidence supporting Daniel’s request for a warrant

was stale.

         When apprised of the discrepancy between dates, Daniel testified that it was the result of a

“clerical error,” and that the investigation occurred in 2005 rather than 2004. The district court

accepted Daniel’s explanation:

         The issue that has been raised by counsel as to the discrepancy in the date, the court
         is convinced after hearing the testimony, that any discrepancy in the date, primarily
         the discrepancy that relates to whether or not the events in question, the observations,
         the controlled buys, occurred in 2004 as opposed to 2005. I believe that matter has
         been adequately addressed through the testimony, it is clearly a scribner’s [sic] error
         and has no direct bearing on the validity on the search warrant.

We review the district court’s finding for clear error, see United States v. Miggins, 302 F.3d 384, 397

(6th Cir. 2002), and Williams has not offered any evidence to contradict the court’s finding on this

issue.

         Williams offers no other challenge to the magistrate’s probable cause determination, with

good reason. The affidavit was supported by a statement from a reliable CI that defendant was

selling crack cocaine from his house on Bryan Avenue, by Daniel’s detailed surveillance of the house

in which he observed repeated vehicle and foot traffic consistent with the sale of crack cocaine, and

by three controlled purchases conducted by the CI and supervised by Daniel. This provided more

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No. 06-4134
United States v. Williams


than a sufficient basis for the magistrate to conclude that a “fair probability” existed that drug

contraband would be found at the Bryan Avenue house. Thus, Williams’s probable cause challenge

to the warrant is without merit.1

                                                III.

       Williams next argues that the district court should have suppressed the evidence seized

during the search of his home because the SWAT team entered Williams’s house without first

knocking and announcing its presence. The government responds that, even assuming the SWAT

team did commit a knock-and-announce violation, Williams’s argument is foreclosed by Hudson v.

Michigan, 547 U.S. 586 (2006).

       The government is correct.      In Hudson, Detroit police officers forcibly entered the

defendant’s home after waiting only three to five seconds after knocking and announcing their

presence. Id. at 588. This, conceded the government on appeal, was a knock-and-announce

violation. Id. at 590. Despite the police’s error, the Supreme Court held that the exclusionary rule

did not apply because the officers inevitably would have discovered the evidence upon the execution

of the valid search warrant they had obtained. Id. at 593-94. Rather than suppression of the




       1
        Even assuming that the affidavit lacked probable cause, there is no evidence indicating that
Detective Daniel and the SWAT team executed the search warrant in bad faith or without reasonable
grounds to believe that the warrant was properly issued, such that the Leon good faith exception
would not apply. See United States v. Leon, 468 U.S. 897, 925 (1984) (providing for good-faith
exception to warrant requirement); United States v. Rice, 478 F.3d 704, 711-12 (6th Cir. 2007)
(explaining that Leon exception is inapplicable where officer’s reliance on warrant’s validity was
not objectively reasonable).

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No. 06-4134
United States v. Williams


evidence, the Court held that the proper remedy for a failure to knock and announce is a civil action

brought pursuant to 42 U.S.C. § 1983. Id. at 597-98.

       Because suppression is not an available remedy for Williams’s knock and announce claim,

we need not consider whether the SWAT team was required to announce its presence and therefore

deny Williams’s claim.

                                                IV.

       Finally, Williams argues that the district court should have suppressed his statement made

concerning the location of a firearm in his house. The government contends that the statement is

admissible under the public safety exception to Miranda. We agree.

       We explained recently the public safety exception in the following manner:

       Under the familiar rule of Miranda v. Arizona, “the prosecution may not use
       statements, whether exculpatory or inculpatory, stemming from custodial
       interrogation of the defendant unless it demonstrates the use of procedural safeguards
       effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444
       (1966). However, when officers ask “questions necessary to secure their own safety
       or the safety of the public” as opposed to “questions designed solely to elicit
       testimonial evidence from a suspect,” they do not need to provide the warnings
       required by Miranda. New York v. Quarles, 467 U.S. 649, 659 (1984).

United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). This exception applies “when officers

have a reasonable belief based on articulable facts that they are in danger.” Id. (quoting United

States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001)).

       In Williams, we set forth the standard the government must satisfy in order for custodial

statements, made prior to the issuance of any Miranda warnings, to be admissible under the Quarles

public safety exception. “For an officer to have a reasonable belief that he is in danger,” and thus

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United States v. Williams


for the exception to apply, “he must have reason to believe (1) that the defendant might have (or

recently have had) a weapon, and (2) that someone other than police might gain access to that

weapon and inflict harm with it.” Id. at 428. We explained further that the public safety exception

applies “if and only if” each of these two conditions is met. Id. We conclude that the government

has met its burden to satisfy the two requirements.

       First, the police officers plainly had a reasonable belief that Williams might possess a

weapon. Williams had a criminal history that suggested not only that he possessed weapons, but also

that he was willing to use force, as evidenced by his aggravated robbery conviction and his arrest for

discharging a weapon into a home or school. Moreover, Williams was a suspected dealer of crack

cocaine and, as Detective Daniel testified at the motion to suppress hearing, in Daniel’s experience

“the majority of people who traffic, especially in cocaine, own a gun or have a gun . . . at their

ready.” We have often recognized the propensity of drug traffickers to carry firearms. See United

States v. Till, 434 F.3d 880, 884 (6th Cir. 2006) (affirming district court’s evidentiary ruling that

drugs found in possession of the defendant constituted relevant evidence “because of the propensity

of people involved with drugs to carry weapons”); United States v. Swafford, 385 F.3d 1026, 1030

(6th Cir. 2004) (holding admissible police officer’s testimony that firearms are commonly used in

drug trafficking); see also United States v. Estrada, 430 F.3d 606, 613 (2d Cir. 2005) (“We have

often recognized that firearms are tools of the drug trade that are commonly kept on the premises of

major narcotics dealers.”). Under these circumstances, it was reasonable for Detective Davis to

believe that Williams might have a weapon at the time of the arrest.


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No. 06-4134
United States v. Williams


       It was also reasonable for Davis to believe that someone other than the police might gain

access to a weapon and inflict harm with it. Williams argues that because he was not questioned by

Davis until after he was placed in handcuffs, he was no longer a threat to grab any potential weapon.

The Quarles public safety exception, however, has long permitted questions posed to a defendant

in handcuffs.

       Most notably, in Quarles itself, the defendant was chased and placed in handcuffs before the

arresting officer noticed that the defendant was wearing an empty holster. Quarles, 467 U.S. at 652.

When the officer asked the defendant where the gun was, the defendant nodded in the direction of

empty cartons and responded that the “gun is over there.” Id. The officer found a loaded .38-caliber

revolver in the direction pointed to by the defendant. Id. In recognizing the public safety exception

to Miranda, the Court held that the defendant’s statement and the gun were admissible. Id. at 659-

60.

       Similarly, our sister circuits in interpreting Quarles have held that the public safety exception

applies to inquiries made when the defendant is handcuffed. See, e.g., United States v. Lackey, 334

F.3d 1224, 1228 (10th Cir. 2003); United States v. Edwards, 885 F.2d 377, 384 n.4 (7th Cir. 1989);

see also Estrada, 430 F.3d at 613 (holding that public safety exception applied when police asked,

while handcuffing the defendant, whether any guns were present). But see United States v.

Brathwaite, 458 F.3d 376, 382 n.8 (5th Cir. 2006) (finding public safety exception inapplicable

where the defendants were handcuffed outside of their house and police officers asked whether any




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No. 06-4134
United States v. Williams


guns were “in the house”). Thus, the fact that Williams was handcuffed at the time of his statement

does not foreclose the application of the Quarles exception.

       Here, when Davis encountered defendant, he observed Williams reaching towards a ceramic

plate underneath the couch, which Davis feared had razor blades on it. As a response to Williams’s

movement, Davis instructed other police officers to move Williams away from the couch. It was at

this time that Davis asked Williams, for “safety reasons,” whether there were any weapons involved

in order “to make sure there [were] no weapons in [a nearby chair or couch] before we move a

suspect to it.” It is evident from this context that Davis’s question was not posed as an investigatory

interrogation, but rather as an attempt to prevent Williams from gaining access to a dangerous

weapon. Accordingly, we hold that the district court did not err in denying Williams’s motion to

suppress his statement and evidence of the officer’s discovery of the firearm underneath the couch.

                                                  V.

       For these reasons, we affirm the denial of Williams’s motion to suppress and his resulting

convictions.




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