                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0711n.06

                                           No. 14-3794
                                                                                       FILED
                            UNITED STATES COURT OF APPEALS                        Oct 23, 2015
                                 FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                  )
                                           ) ON APPEAL FROM THE UNITED
     Plaintiff-Appellee,                   ) STATES DISTRICT COURT FOR
                                           ) THE NORTHERN DISTRICT OF
v.                                         ) OHIO
                                           )
ALEXIS PEREZ,                              )
                                           ) OPINION
     Defendant-Appellant.                  )
                                           )
                                           )
     BEFORE: GRIFFIN and DONALD, Circuit Judges; TARNOW, District Judge.


       ARTHUR J. TARNOW, Senior District Judge. Alexis Perez appeals his

conviction and sentence for five heroin offenses. The district court sentenced Defendant to

240 months of imprisonment. For the following reasons, we AFFIRM Defendant’s

convictions and sentence.

                            I.    PROCEDURAL BACKGROUND

       On June 27, 2012, the Government indicted Defendant, along with eleven other co-

defendants,1 for (I) conspiracy to possess with intent to distribute heroin, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(A); (II) & (III) possession with intent to distribute heroin, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); (IV) possession with intent to distribute

heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); and (V) aiding and abetting


  The Honorable Arthur J. Tarnow, United States Senior District Judge for the Eastern District of
Michigan, sitting by designation.
1
  State law enforcement originally indicted Defendant in 2009 for the conduct underlying in
Counts II, III, and IV.
No. 14-3794
United States v. Perez

possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B);

(IX) use of a communication facility to facilitate a drug trafficking offense, in violation of

21 U.S.C. § 843(b).

         Defendant filed a pro se motion to suppress the evidence and statements collected

during the search and seizure at the residence on the ground that the warrant’s subject was

never named or positively identified, but only referred to by an alias. The district court

construed three additional grounds: (1) there was no probable cause to search the residence

or Defendant’s person; (2) the police unconstitutionally detained Defendant while executing

the search warrant; and (3) Defendant’s statements were taken in violation of Miranda. The

district court denied the motion except as to one self-incriminating statement made to

Detective Greg Wilson. A jury subsequently convicted Defendant and the district court

sentenced him pursuant to an enhanced minimum.

                              II.    FACTUAL BACKGROUND

         In April 2009, the Mahoning Valley Task Force began investigating a suspected

drug dealer known as “Scar.” When Hassan Floyd was arrested on drug trafficking and

RICO charges, he offered to cooperate with police and provide information about “Scar.”

With Floyd’s assistance, the Task Force executed two controlled buys, on May 8, 2009 and

May 12, 2009. In both instances, Floyd purchased small quantities of heroin from “Scar.”

         After failing to learn the dealer’s legal name, Officer Randall Williams applied for

and received a search warrant for (1) “‘FNU’ ‘LNU’ 2 AKA ‘Scar’ male, Hispanic 5' 10"

185 lbs. with black hair,” and (2) the “premises known as 2211 Glenwood Avenue.”




2
    “FNU LNU” indicates “first name unknown, last name unknown.
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       Police executed both the personal and residential components of the search warrant

on May 14, 2009. While preparing to execute the search warrant for the Glenwood

residence, law enforcement maintained surveillance on 2211 Glenwood Avenue. Before

police executed the warrant, surveillance witnessed a man and a woman exit the residence.

Id. The woman (later identified as Rachel Diaz, Perez’s girlfriend) entered the driver’s seat

of a gray vehicle, and the male (later identified as Perez) sat in the passenger seat.

       Police, including Officer Williams, started to follow the vehicle after it was

“[a] couple of blocks” away from the residence. The car first went to Gina’s Drive-Thru,

located north of the Glenwood residence, and the police continued to follow as it traveled

southbound on Glenwood Avenue back toward the premises at issue. At this point, police

were executing a search warrant at the residence and official vehicles were visibly around

the house. At this point, surveillance observed Defendant’s car turn away from the residence

and onto Lake Drive. Defendant was driving away from the residence when the police

stopped the vehicle. The police justified the stop on the basis of the warrant for “Scar’s”

person, not on any purported traffic violation.

       During the traffic stop, officers took Perez out of the car, patted him down, and

handcuffed him. During the search, the police confiscated money, keys, and cell phones

found on Perez’s person. The police called the phone number used to set up the controlled

buys with “Scar,” and one of the confiscated phones rang. After the search, police placed

Perez, still handcuffed, in the back of a police cruiser. At trial, police testified that Perez

was not free to leave, but that he was not under arrest at this point.

       Both Perez and Rachel Diaz were driven back to the Glenwood residence. Police had

already begun their search of the Glenwood residence when Officer Williams arrived with


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United States v. Perez

Perez. Initially, police held Perez on the porch for ten to fifteen minutes. They then

transferred Perez to the room where they were collecting and cataloguing inventory. Officer

Robin Lees explained that his department purposely “seat[s] the suspect in the

investigation” in the area where the evidence acquired during the execution of the search

warrant is assembled. Law enforcement did not read Perez his Miranda rights. At this point,

Perez allegedly made his first incriminating statement: that the heroin the police found in

the house belonged to him.

       Officer Lees testified that Defendant became loud and belligerent in the inventory

room, so he transferred Perez to the Mahoning Valley Task Force Office. During the

transport, Defendant made further incriminating admissions. He confessed that the heroin at

the Glenwood residence belonged to him and that he sold heroin because a disability

prevented him from working.

       At the task force office, Lees placed Defendant in an interview room. Lees did not

activate the room’s audio and video recording systems. Perez then made another

incriminating statement. Specifically, he talked about his heroin connections to New York

and his practice of only selling to adult customers. At some point, Detective Greg Wilson

arrived and entered the interview room. Defendant asked Detective Wilson about Rachel

Diaz and insisted she did not know about the heroin trafficking. At no point did officers

read Defendant his Miranda warnings.

       Several years after state law enforcement arrested Defendant, the federal law

enforcement became involved in this case through the investigation of suspected drug dealer

John Perdue. The FBI learned that Perdue bought heroin from Tyrone Gilbert. This

investigation led to a search of a home on Brentwood Avenue that belonged to John Helms,


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No. 14-3794
United States v. Perez

Gilbert’s uncle. Law enforcement found three individuals in the home: Helms, Defendant,

and Sylvester Cox. When police entered the home, Helms “sprang up,” “ran towards the

dining room area,” and barricaded himself in the bathroom with multiple packages of

heroin. Perez was in a bedroom in the northwest of the house. He had no drugs on his

person, and cooperated with officers during the search.

       Following the search of his home, Helms attempted to persuade his nephew to claim

ownership of the drugs. When that failed, he unsuccessfully attempted to convince

Defendant to do the same.

       In 2012, a federal grand jury indicted Defendant, Gilbert, Perdue, Helms, and eight

other codefendants. Perez proceeded pro se throughout a substantial portion of the pre-trial

period. One month before trial, Defendant elected to have standby counsel officially

represent him.

       The Government introduced Defendant’s incriminating statements at trial several

times. Floyd, Gilbert, and Helms all cooperated with the Government and testified against

Defendant. Additionally, although this case involved only drug related crimes, Agent Guy

Hunneyman testified many times about the involvement of Perez’s codefendants in violent

gang related crimes, including the murder of a conspirator.

       The jury convicted Defendant on all counts. Defendant proceeded to sentencing pro

se. The prosecution filed an Information to trigger an enhanced mandatory minimum under

21 U.S.C. § 851. Defendant disputed the constitutionality of applying the enhanced

minimum without submitting the fact of a prior conviction to the jury. The judge applied the

mandatory minimum sentence and sentenced Defendant to two hundred and forty months of

incarceration (20 years). Defendant now appeals his conviction and sentence.


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United States v. Perez

                                       III.   ANALYSIS

                                                   A.

          First, Defendant argues that the warrant related to the May 14, 2009 search of his

person on Lake Drive violated the Fourth Amendment’s particularity requirement by failing

to include the target’s name or other basic identifying information; that Officer Williams’

purported knowledge of “Scar’s” identity is irrelevant; and that upholding the validity of the

warrant would usurp the neutral magistrate’s role. Defendant argues that for these reasons,

the district court should have suppressed the evidence seized as a result of the search of his

person.

     “The grant or denial of a motion to suppress is a mixed question of fact and law. On

appeal, we review the district court's findings of fact for clear error and its conclusions of

law de novo.” United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007). In reviewing the

district court’s findings of fact, the Court takes the evidence in the light most favorable to

the Government. United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). This Court

reviews de novo a district court’s determination of particularity. United States v. Richards,

659 F.3d 527, 536 (6th Cir. 2011).

     First, the Court must decide the scope of the information that it may consider in its

particularity analysis. Particularity is a facial requirement of the warrant itself and the

Fourth Amendment requires particularity in the warrant, not in the supporting

documents. Groh v. Ramirez, 540 U.S. 551, 557 (2004). The Fourth Amendment, however,

does not prohibit a warrant from incorporating the content of other documents by reference.

Id. In order to use an affidavit or supporting document, the warrant must incorporate the




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United States v. Perez

affidavit by reference and the affidavit had to have been attached to the warrant. Id., at 557–

58.


      The warrant at issue here only contains boilerplate language referring to the affidavit

supporting the warrant, stating: “Affidavit having been made before me by Sergeant Randall

Williams . . . I am satisfied that the Affidavit(s) and any recorded testimony establish

probable cause . . .” R. 332-6. In Groh, the Supreme Court rejected materially similar

language as failing to incorporate the affidavit by reference. Id. at 554–55 (“The warrant

did not incorporate by reference the itemized list contained in the application. It did,

however, recite that the Magistrate was satisfied that the affidavit established probable

cause to believe that contraband was concealed on the premises, and that sufficient grounds

existed for the warrant’s issuance.”). A warrant’s lack of incorporation by reference alone is

sufficient to conclude that the Court may not utilize the affidavit. However, here the record

does not establish—and the Government does not allege—that Officer Williams’s affidavit

was attached to the warrant during the May 14, 2009 search. Although the Government

relies on Officer Williams’ affidavit, the Court may not utilize the affidavit in its

particularity analysis.


      Next, the Court must decide whether the information contained in the warrant alone is

sufficiently particular. “The Fourth Amendment requires warrants to ‘particularly describe

the place to be searched, and the persons or things to be seized.’” United States v. Gardiner,

463 F.3d 445, 471 (6th Cir. 2006) (internal citation omitted). “The warrant must enable the

searcher to reasonably ascertain and identify the things which are authorized to be

seized.” Id. In a warrant, “a description is valid if it is as specific as the circumstances and



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United States v. Perez

the nature of the activity under investigation permit.” United States v. Hanna, 661 F.3d

271, 286 (6th Cir. 2011) (internal citation and punctuation omitted).


     The district court concluded that the original single search warrant actually functioned

as two separate warrants, given that Defendant was stopped not in the immediate vicinity of

the place to be searched. R. 268. Therefore, only the information pertaining to Defendant’s

person—and not any of the enumerated items3—are relevant to our particularity inquiry

here. The warrant referred to Defendant by the alias by which police knew him—“Scar”—

and provided a description of his height, weight, ethnicity, and hair color.


     The Government contrasts the facts of two cases to illustrate why the warrant here was

sufficiently particular. In United States v. Doe, 703 F.2d 745 (3d Cir. 1983), the Third

Circuit held that a warrant did not sufficiently describe a person where the description was

“John Doe a/k/a Ed.” In United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971), the Third

Circuit upheld a warrant where the description was “John Doe, a white male with black

wavy hair and stocky build observed using the telephone in Apartment 4-C 1806 Patricia

Lane, East McKeesport, PA.” The facts here are more similar to those in Doe than in

Ferrone, even though the warrant here also included a physical description of the target and

a place where he could be found.


     The use of such fictitious names or aliases in warrants, without more, violates the

requirements of the Fourth Amendment. United States v. Swanner, 237 F. Supp. 69, 71


3
  “Search warrants are not directed at persons; they authorize the search of ‘place[s]’ and the
seizure of ‘things’” and persons. Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978); see also
United States v. Pinson, 321 F.3d 558, 564 (6th Cir. 2003). The search warrant here originally
gave police probable cause to search a place—211 Glenwood Avenue—for a list of things, as
well as a person known only as “Scar.”
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United States v. Perez

(E.D. Tenn. 1964) (emphasis supplied). Some further description of the person intended to

be designated by the warrant is required. Id. “Where a name that would reasonably identify

the subject to be arrested cannot be provided, then some other means reasonable to the

circumstances must be used to assist in the identification of the subject of the warrant.” Id.


     The warrant here satisfies the Fourth Amendment’s particularity requirement because

it contains both Defendant’s alias and a physical description of him. This description does

not violate the rule in Swanner that a warrant may not contain only a suspect’s alias. The

description is “as specific as the circumstances and the nature of the activity under

investigation permit.” Hanna, 661 F.3d at 286. Therefore, the warrant did not usurp the role

of the neutral magistrate.


     Defendant argues that the warrant for his person effectively had no geographical

limitation. This is a mischaracterization both of how the warrant was written and how the

police executed it. The police were following Defendant from Gina’s Drive-Thru. Taking

the evidence in the light most favorable to the Government, as we must, Defendant was on

his way back to the residence, but changed course upon observing police executing a search

warrant of the residence. Hill, 195 F.3d at 264. The evidence indicates that police would

have seized and searched Defendant at the residence had he not attempted to evade the

police. If we are to accept Defendant’s argument that the warrant had no geographical

limitation, that would be tantamount to saying a suspect can affect the constitutionality of a

warrant by fleeing. The particular facts of this case, whereby police maintained constant

surveillance of a suspect reasonably described in a warrant, who leaves the premises to be

searched and then is obviously returning to those premises, support the validity of the

warrant here.

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United States v. Perez

     Defendant argues that the warrant was not “as specific as possible given the

circumstances.” Specifically, Defendant argues that the warrant could have noted his

approximate age, eye color, hair length, facial hair, distinguishing features, or the presence

or absence of tattoos or earrings. As to distinguishing features, including tattoos and

earrings, the lack of their notation most likely indicates their absence. It could also indicate

that the police had not noticed any such features. There is no requirement that the warrant

must be completely accurate. Eye color is not a trait that is easily observable from a

distance. Approximate age is not necessarily an easy estimation; the inclusion of an

incorrect guess could make the warrant misleading. Hair length and facial hair are mutable

features and, therefore, minimally useful for the purposes and protections of a warrant. In

short, there is no indication that the warrant was not “as specific as the circumstances and

the nature of the activity under investigation permit.” Hanna, 661 F.3d at 286.


     Finally, on a policy note, the exclusionary rule is designed to deter police misconduct

rather than to punish the errors of judges and magistrates. Leon, 468 U.S. at 916. There is no

indication that the police committed misconduct when they relied on the warrant to stop

Defendant. The police had maintained uninterrupted surveillance of Defendant since he had

left the place described in the warrant and attempted to follow him back to the residence.

Defendant, however, attempted to evade the search upon observing police searching the

residence, which caused police to stop him. In fact, the police’s placement of a call to the

number “Scar” utilized to traffic heroin upon recovery of a cellular telephone from

Defendant’s person indicates that the police wanted to ensure they had stopped the

warrant’s target. Because the warrant was sufficiently particular, we need not address the

parties’ arguments regarding the good faith exception to the exclusionary rule.

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                                                B.


     Second, Defendant argues that the police violated his Fourth Amendment rights when

they transferred him from the stop location on Lake Drive to the Glenwood residence and

continued to detain him. Defendant relies on United States v. Bailey, 133 S. Ct. 1031 (2013)

to argue that Michigan v. Summers, 452 U.S. 692 (1981) does not justify his continued

detention.

     The Court in Summers held that police may detain occupants of a premises upon

which they are executing a search warrant without any particular suspicion that the

occupants were involved in criminal activity. Id., at 705. The Court clarified that Summers

does not apply “to the detention of recent occupants beyond the immediate vicinity of the

premises to be searched.” Bailey, 133 S. Ct. at 1041. Defendant was not initially detained

within the immediate vicinity of the Glenwood residence. Summers, therefore, does not

justify Defendant’s detention.

     The Government argues that Bailey is materially distinguishable from the facts here

because the warrant in Bailey did not describe the defendant detained. In Bailey, the police

merely followed a former occupant of the premises they planned to search. Here, the

warrant particularly described Defendant as a specific person to be searched.

     Defendant argues that even if the warrant for his person is valid, his continued

detention without arrest violates the scope limitations of the Fourth Amendment. The Fourth

Amendment limits the scope of detention for suspects who are not under arrest. See Terry v.

Ohio, 392 U.S. 1 (1968). Although parties dispute whether Defendant was under arrest

when police transported him to the Glenwood residence, whether a defendant was “in

custody” is a mixed question of fact and law, so we review the issue de novo. Thompson v.

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United States v. Perez

Keohane, 516 U.S. 99, 112 (1995). Two discrete inquiries are essential to the determination

of whether a defendant is in custody: first, what were the circumstances surrounding the

detention; and second, given those circumstances, would a reasonable person have felt he or

she was not at liberty to terminate the interrogation and leave. Thompson, 516 U.S. at 112.

Here, Defendant was in handcuffs, placed in a police car, and transported. A reasonable

person would not have felt free to leave. Defendant was in custody and the police properly

detained him because they had probable cause to do so.

                                                 C.

     Third, Defendant argues that the police violated his Miranda rights by interrogating

him without apprising him of his rights. Specifically, Defendant argues that the police

interrogated him when they placed him in the inventory room while they executed the

search at the Glenwood residence so that he was entitled to Miranda warnings. Suspects

who are subject to a custodial interrogation are entitled to be apprised of their constitutional

rights. United States v. Salvo, 133 F.3d 943, 948 (6th Cir. 1998).

     Defendant relies on Combs v. Wingo, 465 F.2d 96 (6th Cir. 1972) to stand for the

proposition that placing him in the inventory room constituted an improper interrogation.

However, the facts of Combs are different from the facts here. In Combs, a murder suspect

self-surrendered to the police. Id at 97. An officer Mirandized the defendant and asked him

if he would like to make a statement. Id. The defendant said he would like to make a

statement, but that he would like to speak to an attorney first. Id. The officer then proceeded

to show him the ballistics report from the murder. Id at 98.

     Combs does not stand for the proposition that merely placing a defendant in an

inventory room during a search constitutes a functional interrogation. In Combs, the police


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United States v. Perez

also admitted to showing the defendant the ballistics report in order to break down the

defendant’s will and elicit a confession.

     Although Defendant argues that the police could have placed him somewhere else

during the search, that is different from arguing that eliciting an incriminating statement was

the only possible reason for keeping him in the inventory room. In fact, an officer testified

that keeping detainees in the inventory room was the usual procedure. Because the police

did not interrogate Defendant by placing him in the inventory room, he was not entitled to

Miranda warnings.

     Defendant also argues that Officer Lees violated Defendant’s Miranda rights by

engaging in tactics that the Supreme Court recognizes as functional interrogation. First,

Defendant relies on United States v. Soto, 953 F.2d 263 (6th Cir. 1992) to argue that Lees’

positing Defendant’s guilt as a fact violated Miranda. Lees, however, testified that he told

Defendant that he preferred that Defendant remain silent. Lees further testified that he only

spoke to Defendant during the five to ten minute ride to respond to Defendant’s questions

and that Defendant made several voluntary statements. Next, Defendant argues that Lees

improperly removed him from the house and his girlfriend. However, Lees testified that he

removed Defendant from the house because he had become loud and belligerent.

     Courts do not hold police accountable for the unforeseeable results of their words or

actions. Rhode Island v. Innis, 446 U.S. 291, 301–02 (1980). The definition of interrogation,

therefore, only extends to words or actions on the part of officers that they should have

known were reasonably likely to elicit an incriminating response. Id. Officer Lees was not

the investigator on this case. He explained that he was transporting Defendant to finalize

paperwork for the arrest and not for questioning. He responded to Defendant’s questions


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United States v. Perez

during a short car ride without asking him any questions. Lees is not accountable for

Defendant’s incriminating responses because they were voluntary except for the statement

properly excluded by the district court.

                                                 D.

     Fourth, Defendant argues that Agent Hunneyman’s trial testimony about gang

violence was irrelevant and unduly prejudicial to Defendant. This Court reviews

evidentiary rulings to which there was no objection for plain error. Plain error is established

upon showing that there was an error, that it is obvious, that if affected Defendant’s

substantial rights, and that it seriously affects the fairness or integrity of judicial

proceedings. United States v. Barnett, 398 F.3d 516, 525–27 (6th Cir. 2005).

     Agent Hunneyman testified that he became familiar with Defendant as a result of

investigating violent gang activity. Without any objection from Defendant, the district court

sua sponte instructed the jury that Defendant was not charged with any violent crimes and

that the case was not about a violent crime.

     To satisfy the substantial rights prong of plain error review, “the defendant must make

a specific showing of prejudice.” United States v. Fraser, 448 F.3d 833, 842 (6th Cir. 2006).

Defendant argues that his substantial rights were affected because testimony alleging gang

affliation prejudiced the jury. Indeed, Honeyman’s testimony was improperly before the

jury. The error is not reversible, however, because there is evidence sufficient to overcome

any prejudice to convict Defendant. Defendant has, therefore, failed to show that his

substantial rights were affected.




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                                               E.

     Lastly, Defendant argues that the district court violated his Sixth Amendment rights

when it applied an enhanced mandatory minimum sentence without submitting the fact of

his prior conviction to a jury. Because Defendant did not raise this argument before the

district court, we review his Sixth Amendment argument under a plain error standard.

United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008)

     In Alleyne v. United States, 133 S. Ct. 2151 (2013), the Court held that any fact—other

than that of a prior conviction—that increases a mandatory minimum sentence is an element

that must be submitted to a jury and found beyond a reasonable doubt. However, Alleyne

did not overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that a

judge may find, based on a preponderance of evidence, the fact of a prior conviction. This

Court recently held that it must apply Almendarez-Torres until the Supreme Court overrules

it. See United States v. Nagy, 760 F.3d 485, 488–89 (6th Cir. 2014). Consequently, we are

bound to hold that the district court did not commit plain error when it made a judicial

finding that a preponderance of the evidence supported enhancing Defendant’s mandatory

minimum sentence.

     For the foregoing reasons, we AFFIRM Defendant’s conviction and sentence.




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