United States of America v. Maurice A. Johnson

*The Honorable Walter Herbert Rice, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0406P (6th Cir.)
File Name: 03a0406p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICE A. JOHNSON,
Defendant-Appellant.
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No. 02-5540
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 01-00117—R. Leon Jordan, District Judge.
Argued: August 7, 2003
Decided and Filed: November 14, 2003
Before: BOGGS, Chief Judge; SILER, Circuit Judge; and
RICE, District Judge.*
_________________
COUNSEL
ARGUED: Paula R. Voss, FEDERAL DEFENDER
SERVICES, Knoxville, Tennessee, for Appellant. F. M.
2 United States v. Johnson No. 02-5540
Hamilton III, ASSISTANT UNITED STATES ATTORNEY,
Knoxville, Tennessee, for Appellee. ON BRIEF: Paula R.
Voss, FEDERAL DEFENDER SERVICES, Knoxville,
Tennessee, for Appellant. David C. Jennings, ASSISTANT
UNITED STATES ATTORNEY, Knoxville, Tennessee, for
Appellee.
_________________
OPINION
_________________
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
owner of these drugs. The state police had obtained a search
warrant for the residence of Hennis Tracy, Johnson’s half-
sister, based upon surveillance of that residence and the
statements of a confidential informant. Upon execution of the
warrant, the police had discovered drugs at the residence, but
not Johnson. The police coaxed Johnson back to the premises
of the search by threatening to arrest Tracy if he did not
confess to owning the drugs. Johnson did so and eventually
pleaded guilty to possession with intent to distribute. On
appeal, he challenges the validity of search warrant and the
voluntariness of his confession. We affirm.
I
On or about January 7, 2001, the Monroe County,
Tennessee, police department began a surveillance of Tracy’s
residence. The primary target of the surveillance was
Johnson, Tracy’s half-brother. Johnson himself had no
permanent residence but rather stayed for periods of days at
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
six or eight cars at a time, were observed. Some of these

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

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No. 02-5540 United States v. Johnson 5
in a commonsense, rather than hypertechnical manner.”
Greene, 250 F.3d at 479 (citing Allen, 211 F.3d at 973; and
Davidson, 936 F.2d at 859). “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 (citing
Davidson, 936 F.2d at 859). “Probable cause is defined as
reasonable grounds for belief, supported by less than prima
facie proof but more than mere suspicion.” United States v.
Bennett, 905 F.2d 931, 934 (6th Cir. 1990).
The affidavit in the present case was given by one of the
investigating officers. After recounting the averring officer’s
professional history, the affidavit summarizes the facts on
which to base the search warrant as follows:
On Tuesday, January 9, 2001, your affiant met with the
proven credible and reliable source of information who
within the past 72 hours has observed a quantity of crack
cocaine stored inside [the Tracy residence]. The
informant overheard conversations about crack cocaine,
weights, and prices and was present when crack cocaine
was purchased at the residence. The crack cocaine is
being sold from the residence by Maurice Johnson, who
does not reside at this residence, but frequents this
residence with friends and relatives. Your affiant and
other agents have conducted surveillance on this
residence and have observed numerous vehicles, as many
as six or eight at a time at the residence, some of which
would stay for only short periods of time. Some of the
vehicles which were observed by your affiant to come
and go from the residence are known to your affiant to
have a history of drug charges. . . . This confidential
reliable informant is a creditable source of information
who has proven reliable in the past and by facts
contained in this affidavit. This informant has conducted
at least four (4) controlled purchases of narcotics for your
affiant which all have led to successful discovery.
6 United States v. Johnson No. 02-5540
This statement of facts was followed by a listing of evidence
to be seized, including drugs.
Against the district court’s conclusion that this affidavit
was sufficient to support a search warrant, Johnson here raises
a long series of meritless objections. Johnson complains that
the warrant did not name the confidential informant.
However, a warrant need not name a confidential informant,
but merely provide indicia of reliability. This the affidavit
does by stating that the confidential informant had previously
provided information leading to successful discovery.
Johnson objects that the affidavit merely claims “successful
discovery,” not resulting arrest and conviction. This
objection misses the point of the claim which is to indicate
reliability or truthfulness and not usefulness. Even if, through
reasons that may not have been related to the informant, all
previous successful searches based on his statements had not
led to successful prosecutions, this would by itself not have
thrown any doubt on the reliability or truthfulness of the
informant. The mere fact that contraband was discovered
where he claimed it was going to be discovered is sufficient
indicia of his reliability. Johnson claims that the police
surveillance of the residence could not have confirmed the
reliability of the informant because the surveillance had
started before the informant gave his statements. However,
there is no logical reason why observations made prior to the
statement should not be able to support the reliability of a
statement made after the observations. Moreover, we note
that the surveillance continued after the informant made his
statements.
Johnson also criticizes the form of the affidavit on various
technical grounds. The affidavit does not quote the informant
directly and hence does not indicate exactly what the
informant said. The affidavit did not state what quantities of
drugs were observed and therefore leaves open the possibility
that merely non-prosecutable trace amounts were present.
The affidavit does not make clear the source of the statement
that Johnson was a drug dealer. The informant merely claims

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No. 02-5540 United States v. Johnson 7
to have been present during the drug transactions and does not
state that he actually witnessed the transactions or had
witnessed Johnson buying or selling drugs. However, all of
these objections are most charitably described as
hypertechnical. The affidavit clearly implies what
information was received from the informant by reciting facts,
which could not have been known directly to the averring
officer, immediately following the mention of the informant.
If an informant claims to be present during a drug sale, the
common-sense interpretation of that claim is that the
informant witnessed the transaction and that the transaction
involved quantities of drugs larger than trace amounts.
Johnson’s objection to the lack of more explicit identification
of his person in the affidavit also misses the mark. The
affidavit merely needed to support the conclusion that
contraband or evidence could be found at the Tracy residence.
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
purpose.
Johnson raises two more spurious objections. He claims
that because the informant claimed to have observed
contraband only within three days of his statement and the
search warrant itself was only issued the day after the
statement, the information was stale. For this proposition,
Johnson cites United States v. Spikes, 158 F.3d 913, 923 (6th
Cir. 1998)). However, in Spikes this court upheld a search of
a drug distribution facility based on information ranging in
age between four years and ten days. Id. at 924. In our case,
the information was at most four days old at the time of the
search, so there is no grounds for a staleness challenge.
Johnson also claims that the affidavit was overbroad in
requesting authorization to search “all individuals and
vehicles . . . present at the execution of the search warrant.”
However, the contraband here was not found pursuant to
these possibly overbroad specifications, but within the
confines of the house. As Johnson does not allege that this
part of the warrant was overbroad, the issue is moot. See
United States v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993)
8 United States v. Johnson No. 02-5540
(holding that “infirmity of part of a warrant requires the
suppression of evidence seized pursuant to that part of the
warrant . . . , but does not require the suppression of anything
described in the valid portions of the warrant.” (quoting
United States v. LeBron, 729 F.2d 537 n.2 (8th Cir. 1984))).
The United States argues that even if the warrant was
defective, Johnson lacks standing to challenge its validity, an
issue not reached by the district court. However, as we
conclude that the search was made pursuant to a valid
warrant, and therefore constitutional, regardless of whether
Johnson had standing to challenge it, we need not and do not
here resolve the much closer question of whether Johnson had
a legitimate expectation of privacy in the Tracy residence.
III
Johnson challenges the admissibility of his confession on
the grounds that it was not voluntarily made and hence
obtained in violation of the Due Process Clause. “In
determining whether a confession has been elicited by means
that are unconstitutional, this court looks to the totality of the
circumstances concerning whether a defendant’s will was
overborne in a particular case.” United States v. Mahan, 190
F.3d 416, 422 (6th Cir. 1999) (quoting Ledbetter v. Edwards,
35 F.3d 1062, 1067 (6th Cir. 1994)) (internal quotation marks
omitted). “In determining the voluntariness of a confession,
a reviewing court will not disturb the trial court’s findings
concerning specific events surrounding the confession unless
clear error appears on the record.” United States v. Wrice,
954 F.2d 406, 410-11 (6th Cir. 1992). “When a defendant
claims that a confession was coerced, the government bears
the burden of proving by a preponderance of the evidence that
the confession was in fact voluntary. This Court has
established three requirements for a finding that a confession
was involuntary due to police coercion: (i) the police activity
was objectively coercive; (ii) the coercion in question was
sufficient to overbear the defendant’s will; and (iii) the
alleged police misconduct was the crucial motivating factor

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

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No. 02-5540 United States v. Johnson 11
1In this context, an illusory promise is a statem ent in the form of a
promise, but lacking its substance in that it does not actually commit the
police to undertake or refrain from any particular course of action.
his federal charges, carrying sentences of up to forty years in
prison, while state charges were not discussed); United States
v. (Hazel) Little, 12 F.3d 215, 1993 WL 501570, at *5 (6th
Cir. 1993) (table) (distinguishing Williams on the grounds
that promises of leniency made during plea negotiations in the
presence of counsel were not coercive, even if they might
have been if made by police officers during the investigation).
From these cases we deduce the rule that promises of
leniency may be coercive if they are broken or illusory.1
Here, the promise was not to prosecute Tracy if Johnson
turned himself in. This was not an illusory promise as it
actually committed the police to undertake a specific course
of action in return for Johnson’s cooperation, as surely
Johnson would be arguing here if the police had prosecuted
Tracy. Moreover, the promise was not broken because the
police in fact did not prosecute Tracy. Therefore the promise
of leniency for Tracy was not coercive under the
Williams line of cases.
A second line of cases concerns promises of leniency and
threats of prosecution to third parties. The factual situation in
Finch was as follows:
Upon entering the [defendant’s residence], the officers
discovered the defendant’s mother . . . close enough to
the door to hear the officers knock and yell. The
defendant was discovered, along with a female
companion, in a bedroom at the rear of the house. The
defendant was told that the officers had a warrant to
search for cocaine. All three of the occupants denied that
there was any cocaine in the house. Whereupon,
defendant was told that if any cocaine were discovered,
all three persons in the house could be arrested unless
12 United States v. Johnson No. 02-5540
2That it is this determination–whether the execution of the threat
would have been lawful–which is dispositive, we find confirmed in one
of our unpublished o pinions. United States v. Dillard, 983 F.2d 1069,
1992 WL 3 61373, at *3 (6th C ir. 199 2) (tab le) (concluding that threat to
arrest defendant’s mother was not coercive because the police had
probable cause to arrest mother).
one person admitted sole ownership. The defendant then
directed the officers to the garage, where he showed them
a quantity of crack cocaine hidden on top of a beam. . . .
[T]he defendant was placed under arrest and advised of
his rights. The other occupants of the house were not
arrested.
998 F.2d at 355. We reasoned that “[c]oercion may involve
psychological threats as well as physical threats. Specifically,
threats to arrest members of a suspect’s family may cause a
confession to be involuntary.” Id. at 356 (citing Rogers v.
Richmond, 365 U.S. 534 (1961) (finding coercion where
prisoner confessed under threat that his wife would otherwise
be taken in for questioning)).
At the time the threat was made, the police had no basis
for concluding (1) that either [mother or girlfriend] had
knowledge of the existence of cocaine in the house;
(2) that either woman had knowledge that Finch was
involved in the distribution of cocaine; (3) that a
conspiracy existed; (4) that either woman was in
constructive possession of the cocaine for which the
police were searching; or (5) that either woman was an
aider or abettor. Furthermore, the context of the threat is
not such that it may be found to have been conditioned
upon any fact except finding cocaine.
Finch, 998 F.2d at 356. From these facts we concluded that
“there was no probable cause to arrest the women and
therefore, no legal basis existed for threatening to do so.”
Ibid. On this basis we concluded that Finch’s confession was
involuntary and had to be suppressed.2

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No. 02-5540 United States v. Johnson 13
3Johnson attempts to raise the issue that he was not mirand ized at all.
However, the officers testified that he was and he did not testify to the
contrary, nor does his counsel here make the factual 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
waiver was not knowingly, voluntarily and intelligently made beca use he
did not sign a waiver form listing his rights, he offers no authority, and
Therefore the question whether the threat to prosecute
Tracy was coercive turns on the issue of whether the threat
could have been lawfully executed. Whether the police could
have lawfully arrested Tracy in turn depends on whether the
investigating officers had probable cause to suspect Tracy of
criminal involvement. Johnson, citing the superficial
similarities between his circumstances and the circumstances
in Finch, urges us to reach the same conclusion as we did
there. However, in contrast to Finch, here there existed a
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
14 United States v. Johnson No. 02-5540
none can be found, for the proposition that a written waiver is necessary
to establish a knowing, intellige nt and voluntary waiver of Miranda
rights.”)
former statement were inadmissible, as obtained outside the
strictures that the rule of Miranda places on custodial
interrogations, the latter statement would still be admissible.
See Oregon v. Elstad, 470 U.S. 298, 318 (1985).
IV
For the foregoing reasons, we AFFIRM the denial of
Johnson’s suppression motion.

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