United States v. Donald Clay

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 15a0726n.06

Case No. 14-5946
FILED
UNITED STATES COURT OF APPEALS Oct 30, 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 EASTERN DISTRICT OF
v. ) KENTUCKY
)
DONALD DEMIL CLAY, ) OPINION
)
Defendant-Appellant. )

Before: CLAY and SUTTON, Circuit Judges; and WATSON, District Judge.

MICHAEL H. WATSON, District Judge. Defendant-Appellant Donald Demil Clay

(“Clay”) was convicted of one count of Possession with Intent to Distribute Cocaine, a Schedule

II Controlled Substance, in violation of 21 U.S.C. § 841(a)(1); one count of Possession of a

Firearm in Furtherance of Drug Trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and one

count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). Clay appeals

his convictions, arguing that: (1) the district court erred by denying his motion to suppress, and

(2) a rational jury could not have convicted him of possessing a firearm in furtherance of a drug-

trafficking crime. For the following reasons, we AFFIRM.

I. Facts

Clay and his live-in girlfriend, Kendra Mitchell (“Mitchell”), resided at an apartment in

Frankfort, Kentucky (“the apartment”), starting around Valentine’s Day of 2013. While Mitchell

stored clothes and other personal belongings at the apartment, she did not spend every night

The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 14-5946, United States v. Clay

there. When Mitchell did not stay at the apartment, she would stay at her grandmother’s

residence. The apartment had a living room, a kitchen, one bedroom (where Mitchell would

sometimes stay with Clay), and two closets, one of which was locked whenever Clay was not

present. Mitchell testified that aside from the locked closet, she had access to the entire

apartment. She also used Clay’s van.

Neither Clay nor Mitchell was the lessee of the apartment. Clay owed past rent payments

to the apartment’s management company, Peach Rentals, so Clay’s friend, Shawn Gross

(“Gross”), agreed to lease the apartment in his own name and pay rent to Peach Rentals with

cash provided by Clay. Clay never gave Mitchell a key to the apartment despite promising to do

so; however, Mitchell claimed to have never been locked out.

Mitchell and Clay apparently fought often and early on April 23, 2013, Mitchell and Clay

began to argue. Clay told Mitchell to leave the apartment. Mitchell began walking toward the

exit when Clay knocked her down several times and scratched her face. Neighbors heard

Mitchell’s screams for help and saw Mitchell and Clay struggling at the apartment’s doorway.

The neighbors told Clay to get off of Mitchell and threatened to call the police. Clay fled.

Mitchell went to her grandmother’s residence and called the Frankfort, Kentucky, police. This

all occurred before 7:00 a.m.

Sergeant Chris Quire (“Sergeant Quire”) responded to Mitchell’s call and asked her to

come down to the station. At the station, Mitchell told Sergeant Quire that Clay had assaulted

her and that she was tired of his violence and wanted to speak to the police about drugs and a gun

he stored at the apartment. Mitchell informed Sergeant Quire that Clay’s violence generally

correlated with his drinking and substance abuse. She also told Sergeant Quire that she lived at

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No. 14-5946, United States v. Clay

the apartment with Clay, that she stored clothes and other personal belongings there, and that she

shared a van with Clay, which she described to Sergeant Quire. She also told him that Clay

stored a gun and drugs in the apartment’s closet. It was disputed whether Mitchell told Sergeant

Quire that the closet was locked during this interview, or whether the police discovered that fact

when they searched the apartment. Mitchell also told Sergeant Quire that, during her struggle

with Clay, Clay had told her to leave and that she lost a cell phone somewhere near the

apartment.

Sergeant Quire’s supervisor, Lieutenant Stephen Sutton (“Lieutenant Sutton”), also spoke

with Mitchell that morning. Mitchell told Lieutenant Sutton about the assault, that she had lived

at the apartment for the last several months, and that Clay stored drugs and a gun at the

apartment. Mitchell told Lieutenant Sutton that she wanted to press charges against Clay for the

assault and to help the police obtain Clay’s drugs and gun. Lieutenant Sutton testified that

Mitchell also told him she wanted to retrieve some clothing from the apartment. Both officers

noted that Mitchell was clearly shaken, and her face was bruised.

Mitchell prepared a written statement in which she wrote that she had “lived [at the

apartment] with [Clay] since February 2013.” R. 25 at 55. Mitchell signed a form consenting to

the search of the apartment. On that form, however, she listed her contact address as her

grandmother’s residence.

Mitchell did not inform Sergeant Quire or Lieutenant Sutton that Gross was the true

leaseholder of the apartment or that she did not have a key to the apartment. Mitchell later

testified that she did not consider herself to have the right to reenter the apartment at that time

but that she did not express her belief to the officers.

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No. 14-5946, United States v. Clay

At approximately 8:00 a.m., Lieutenant Sutton dispatched the first unit of officers to the

apartment to search for Clay. Lieutenant Sutton followed. Sergeant Quire and Mitchell left the

station closer to 8:30 a.m. After all of the officers arrived at the apartment, Lieutenant Sutton

and other officers entered the building while Sergeant Quire remained outside with Mitchell.

Sergeant Quire reported that Mitchell was very upset, crying, and emotional, and that Mitchell

stated, “‘I can’t believe I’m doing this. I never thought I would be on this side.’” Id. at 66.

Sergeant Quire reported seeing the van described by Mitchell in the parking lot. Both Lieutenant

Sutton and Sergeant Quire reported seeing a broken cell phone between the front door of the

apartment and the parking lot.

After Lieutenant Sutton and the other officers attempted to knock and announce their

presence, the police opened the door using a key provided by John Goode (“Goode”), a building

maintenance person. While one officer guarded the entrance, the remaining officers, including

Lieutenant Sutton, conducted a cursory search of the apartment. The police observed drug

paraphernalia on the bedroom dresser and a white powdery residue (suspected and later

confirmed to be cocaine) on top of the entertainment console. The police encountered the locked

closet and asked Goode and Mitchell about the lock. Goode said that it was not a standard

feature of the apartment and Mitchell said that Clay had installed it a few days earlier.

Around 9:00 a.m., Lieutenant Sutton ordered an officer to guard the apartment entrance

and Sergeant Quire to go back to the police station to draft a search warrant for the apartment

and the locked closet. Sergeant Quire, along with Detective Robert Courtney (“Detective

Courtney”) and Sergeant Mike Frazee (“Sergeant Frazee”), drafted a warrant application to

search the apartment. After a Special Circuit Court Judge signed the warrant, Lieutenant Sutton,

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No. 14-5946, United States v. Clay

Detective Courtney, and Sergeant Frazee searched the entire apartment, took photographs, and

logged evidence. Goode assisted in removing the closet door cleanly to allow the police access.

The police recovered the following, all of which was entered into evidence at trial: On the

locked closet’s top shelf was a purple Crown Royal bag with approximately 82.59 grams of

cocaine, split into three equal parts of around twenty-seven grams each, as well as a black leather

bag with a loaded Jennings Model, Bryco .380 semi-automatic handgun, which sat in front of a

cordless hand drill. In a dresser in the bedroom, the police found evidence in two drawers. In

the first drawer, the police seized drug paraphernalia as well as a shoe box with baggies and

rubber bands, two sets of digital scales, and two cell phones. The second drawer contained

paperwork, cash, and two more cell phones. Underneath a couch cushion, the police located an

additional 16.93 grams of cocaine. The police collected a total of 100.87 grams of cocaine and

over $500 cash.

II. Procedural History

Clay moved to suppress the evidence obtained as a result of the searches. The district

court judge referred the motion to a magistrate judge for a report and recommendation (“R&R”).

The magistrate judge held an evidentiary hearing at which Mitchell, Sergeant Quire, Lieutenant

Sutton, Detective Courtney, Goode, Gross, and a representative from Peach Rentals testified, and

then issued an R&R concluding that Mitchell did not have actual authority to consent to a search

of the apartment but did have apparent authority to consent to the initial search. Therefore, he

found, the information obtained from the initial search was validly used and provided probable

cause to support the warrant application. Accordingly, the Magistrate Judge found the evidence

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No. 14-5946, United States v. Clay

obtained from the second search was also valid. After a de novo review, the district court judge

adopted the R&R, overruling Clay’s objections.

Thereafter, the district court held a three-day jury trial, after which the jury found Clay

guilty of all counts. The district court sentenced Clay to seventy (70) months’ imprisonment for

possession with the intent to distribute and seventy (70) months’ imprisonment for possession

of a firearm as a felon, to run concurrently, and sixty (60) months’ imprisonment for possession

of a firearm in furtherance of drug trafficking, to run consecutively, for a total of 130 months’

imprisonment.

Clay appeals the denial of his motion to suppress and his conviction.

III. Analysis

A. Denial of the Motion to Suppress

In an appeal of a denial of a motion to suppress, “we review the district court’s factual

findings for clear error and its legal conclusions de novo.” United States v. Hinojosa, 606 F.3d

875, 880 (6th Cir. 2010). “A factual finding is clearly erroneous when the reviewing court is left

with the definite and firm conviction that a mistake has been made.” United States v. Smith,

263 F.3d 571, 581 (6th Cir. 2001). “[T]he Court considers the evidence in the light most likely

to support the district court’s decision.” Id. (citation and internal quotation marks omitted).

Clay argues that: (1) since Mitchell had no authority to consent to the initial entry, the

initial entry was improper and the information obtained therefrom was ill-gotten; and (2) the

subsequent warrant purportedly giving the police authority to search the remainder of the

apartment and closet was invalid because it was based on evidence obtained from the illegal

initial entry. Specifically, Clay maintains that the police were unable to determine whether

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No. 14-5946, United States v. Clay

Mitchell had authority to consent to the initial search. He argues that, since Mitchell’s authority

was not clear, the police had a duty to clarify the apparent ambiguities but failed to do so. Clay

avers that because the initial search was therefore illegal, any information obtained as a result of

the search must be removed from the affidavit in support of the search warrant. He contends the

resulting affidavit lacked probable cause. Clay seems to alternatively argue that even if the

information was not omitted, the supporting affidavit still lacks the requisite showing of probable

cause. As a result of either alternative, Clay maintains that the evidence obtained from the

second search should have been suppressed. Clay asks us to reverse the district court’s decision,

order the information and evidence gained from both searches suppressed, and remand the case.

The Government maintains that the police reasonably relied upon Mitchell’s apparent

authority for their first entry into the apartment and that her apparent authority was clear. The

Government also argues that the subsequent search was authorized by a warrant based on

sufficient probable cause, not on unlawfully obtained information.

We therefore have two issues before us: (1) whether the first warrantless search was legal

based on consent from an individual with apparent authority, and (2) whether the subsequently

obtained search warrant was supported by probable cause such that the second search was also

legal.

1. Apparent Authority and the Initial Search

The Fourth Amendment to the United States Constitution guarantees protection against

unreasonable searches and prohibits a warrantless search of a person’s home. U.S. Const.

amend. IV; U.S. Const. amend. XIV (as applied to state officers). There are exceptions to the

warrant requirement, one of which is consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222

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No. 14-5946, United States v. Clay

(1973). “Valid consent may be given not only by the defendant but also by a third party . . . .”

United States v. Morgan, 435 F.3d 660, 663 (6th Cir. 2006) (citation and internal quotation

marks omitted). A warrantless entry and search does not violate the Fourth Amendment’s

prohibition so long as the third party consent is from one who possesses common authority over,

or other sufficient relationship to, the searched area. United States v. Matlock, 415 U.S. 164,

170–71 (1974); see also Illinois v. Rodriguez, 497 U.S. 177, 179, 181 (1990). Common

authority is the “mutual use of the property by persons generally having joint access or control

for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right

to permit the inspection in his own right and that the others have assumed the risk that one of

their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n.7.

Authority to consent can be actual or apparent.1 At issue here is apparent authority.

“Apparent authority is judged by an objective standard.” United States v. Gillis, 358 F.3d 386,

390 (6th Cir. 2004) (citing Rodriguez, 497 U.S. at 188–89). The question at issue is whether “the

facts available to the officer[s] at the moment warrant a man of reasonable caution in the belief

that the consenting party had authority over the premises[.]” Rodriguez, 497 U.S. at 188

(citation, ellipses, and internal quotation marks omitted). If so, the search is valid. Id. at 189. If

not, the search is unlawful unless actual authority existed. Id. at 188–89.

We have found that a defendant’s live-in girlfriend had apparent authority to consent to a

search of shared premises regardless of the fact that the couple lived together only part time,

1
The Government does not assert on appeal that Mitchell had actual authority, and, in fact, the
district court found that she did not. See R. 31 at 9–11; R. 36 at 13. Moreover, we need not
decide whether Mitchell had actual authority to consent to the search because we find that the
district court did not err in its determination that she had apparent authority to do so. See United
States v. Penney, 576 F.3d 297, 307 (6th Cir. 2009).
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No. 14-5946, United States v. Clay

Penney, 576 F.3d at 301, 307, that the couple lived together in a hotel room, United States v.

Purcell, 526 F.3d 953, 956, 963–65 (6th Cir. 2008) (finding that the girlfriend had apparent

authority only to allow the police to enter the room and search the common area and bags they

reasonably thought were shared), or that the relationship was tumultuous, Gillis, 358 F.3d at 388.

Factors we consider in determining whether a girlfriend had apparent authority include whether

she had a key, see United States v. Hudson, 405 F.3d 425, 442–43 (6th Cir. 2005), whether she

provided a detailed description of the premises and the location of drugs, Gillis, 358 F.3d at 391,

whether her name was on the lease, see id., and whether the police independently knew that she

lived with the defendant. Penney, 576 F.3d at 307–08; see also Gillis, 358 F.3d at 387–88, 391

(finding apparent authority even when the consenting girlfriend had two residences and the

defendant changed the locks on the exterior doors of the searched house); Penney, 576 F.3d at

309 (finding apparent authority even though the defendant had expressly asked the police to bar

the consenting girlfriend from the searched house).

In this case, the district court found that it was reasonable to believe that Mitchell had

apparent authority to consent to the initial search based on the fact that Mitchell told the officers

that she lived with Clay for several months, that her appearance corroborated her story that Clay

assaulted her that very morning, that she provided information as to the location of Clay’s drugs

and gun, and that she was willing to sign a consent form on which she declared the residence her

premises. R. 36 at 7, 12–13.

Clay claims that this information was insufficient to show her connection to the

apartment. Appellant Br. at 13. We disagree.

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No. 14-5946, United States v. Clay

The information available to the officers prior to the initial search of the apartment

demonstrates that Mitchell had apparent authority to consent to a search of the apartment. First,

Mitchell told the officers that she lived with Clay and stored her belongings there, that she had

spent the previous night at the apartment (a fact substantiated by the fact that she phoned the

police before 7:00 a.m.), that she had recently been victimized (a fact corroborated by the

scratches on her face), and that she shared a van with Clay (a fact corroborated when a van

matching Mitchell’s description was observed outside the apartment). She also provided a

detailed description of the apartment, including the specific location of where Clay stored his

gun and drugs.

Given these facts, we find the officers held a reasonable belief that Mitchell had authority

to consent to the initial search of the apartment. Despite being forced out of the apartment, the

information available to the officers corroborated Mitchell’s assertion that she lived there. Clay

allowed Mitchell to live with him, albeit intermittently, and in doing so, he assumed the risk that

Mitchell could permit unwanted visitors. The officers were “entitled to rely on this ‘assumption

of risk,’ and there [was] no burden on the police to eliminate the possibility of atypical shared

occupancy arrangements absent some ‘reason to doubt that the regular scheme [was] in place.’”

Pratt v. United States, 214 F. App’x 532, 535 (6th Cir. 2007) (quoting Georgia v. Randolph,

547 U.S. 103, 111–12 (2006)). Mitchell provided no such reason.

Clay’s arguments in favor of a contrary result are unavailing. First, Clay’s argument that

Gillis and Penney warrant a contrary conclusion fails because, like the consenting persons in

those cases, Mitchell provided the officers with corroborating information that established her

connection with the apartment, namely, a detailed description of its premises. See Gillis,

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No. 14-5946, United States v. Clay

358 F.3d at 388, 391 (finding the defendant’s girlfriend had apparent authority in part

because she was able to provide a detailed description of the searched house), Penney, 576 F.3d

at 309–10 (determining the defendant’s girlfriend had apparent authority to consent to the search

of unlocked, unopened containers based on her knowledge of where the drugs were located).

Second, Clay’s argument that the fact that Lieutenant Sutton knew that Mitchell did not

have a key to access the apartment and the fact that neither Clay’s nor Mitchell’s names were on

the lease called into question Mitchell’s apparent authority to consent, carries little weight.

Appellant Br. at 12 (citing United States v. Waller, 426 F.3d 838, 845 (6th Cir. 2005)). In

Waller, the Court ruled that, “if the circumstances make it unclear whether the property about to

be searched is subject to mutual use by the person giving consent, then warrantless entry is

unlawful without further inquiry.” 426 F.3d at 846 (citation and internal quotation marks

omitted) (finding a third-party host could not consent to the search of defendant’s overnight bag

when the police knew it was defendant’s bag and defendant was nearby to clarify ownership).

First, as an initial matter, Clay misrepresents what Lieutenant Sutton knew: he did not

know that Mitchell had never possessed a key, R. 25 at 158, and it is unclear whether Lieutenant

Sutton knew that Gross was the lessee of the apartment prior to the first search. 2

Second, the fact that Mitchell did not have a key is not conclusive. In this case,

Lieutenant Sutton testified that he believed that Mitchell’s priority upon leaving the apartment,

2
While neither party appears to contest the facts established by the district court, Clay argues
here that Peach Rentals informed Sutton prior to the initial search of the apartment that Gross
was the true lessee of the apartment. Sergeant Quire and Lieutenant Sutton testified that they did
not know that Clay was not the true lessee, R. 25 at 103, 158, and Peach Rentals’
representative’s testimony was unclear: she stated she informed someone in the morning but
could not confirm speaking to the police about the fact until the afternoon. Id. at 233–34.
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No. 14-5946, United States v. Clay

as a recent victim of domestic violence, was just that—her exit—not whether she had her key.

R. 25 at 166.

Third, while it is unclear when the officers learned Gross was the lessee of the apartment,

it is not the property interests that courts consider, rather, it is the “mutual use” by a person with

“common authority.” Waller, 426 F.3d at 845 (citing Matlock, 415 U.S. at 171 n.7) (emphasis in

original). Thus, although they shared an “atypical [living] arrangement,” Lieutenant Sutton had

no reason to doubt that Mitchell had access to the apartment equal to Clay. Randolph, 547 U.S.

at 112.

Accordingly, the rule established in Waller does not apply to this case. See id.

(discussing Rodriguez, 467 U.S. 177 (1990) (“[I]t would be unjustifiably impractical to require

the police to take affirmative steps to confirm the actual authority of a consenting individual

whose authority was apparent. . . .”)); see also Penney, 576 F.3d at 309 (“Lovers’ quarrels and

reconciliations are as much of a ‘reality in today’s world’ as is cohabitation without ‘legal

formalities,’ and the police cannot be faulted for not presuming that a particular quarrel put an

end to the couple’s relationship and living arrangements.”). Although the police could have

inquired into whether Mitchell had ever had a key and whether her name was on the lease, it was

apparent she had authority to consent to the first search: her status suggested she had mutual use

of the property and had common authority to come and go as she pleased regardless of whether

her name was on the lease.

In sum, given the totality of what the officers knew prior to the consented search of the

apartment, the officers reasonably relied on Mitchell’s apparent authority to conduct the initial

search of the apartment.

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No. 14-5946, United States v. Clay

2. Search Warrant and the Second Search

Clay argues the second search was illegal because the warrant was invalid.

“[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. “A finding of probable cause is a legal conclusion that the Court reviews de

novo.” United States v. Neal, 577 F. App’x 434, 439 (6th Cir. 2014) (citing United States v.

Martin, 526 F.3d 926, 936 (6th Cir. 2008)). To demonstrate probable cause, the application for a

warrant must include an affidavit that “indicate[s] a fair probability that evidence of a crime will

be located on the premises of the proposed search.” United States v. Dyer, 580 F.3d 386, 390

(6th Cir. 2009) (quoting United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005)). “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) (citing

United States v. One 1984 Cadillac, 888 F.2d 1133, 1135 (6th Cir. 1989)). We consider whether

probable cause exists in light of the totality of the circumstances. Dyer, 580 F.3d at 390.

In addition,

[W]hen the majority of the information in the affidavit comes from
confidential sources, . . . courts must consider the veracity,
reliability, and the basis of knowledge for that information as part
of the totality of the circumstances. While independent
corroboration of the confidential informant’s story is not a sine qua
non to a finding of probable cause, in the absence of any indicia of
the informants’ reliability, courts insist that the affidavit contain
substantial independent police corroboration.

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No. 14-5946, United States v. Clay

Id. at 390–91 (internal citations and quotations omitted). Even a known informant’s information

may require corroboration if an affidavit supplies little information concerning that informant’s

reliability. United States v. Woosley, 361 F.3d 924, 927 (6th Cir. 2004).

The warrant application in the present case was prepared primarily by investigating

officer Sergeant Quire. After describing the premises and the van described by Mitchell,

Sergeant Quire listed evidence to be seized, including drugs. In his account, Sergeant Quire

included the following information:

Officers of the Frankfort Police Department investigated a
domestic violence complaint at [the apartment’s address]. The
investigation led to the complainant of the domestic violence
complaint advising that CLAY, Dono Demil was involved in
trafficking in controlled substances from the subject premises. The
complainant, who lives in the apartment with Dono Demil Clay
and has done so since February, 2013, gave consent to search the
premises, and officers entered the premises and observed a locked
closet in the rear bedroom. There was no key available for this
locked closet. The complainant also advised that Clay usually
keeps a firearm in the closet and cocaine in the top dresser. The
security of the premises has been maintained until the same can be
searched pursuant to a search warrant. It is reasonably believed
based on the foregoing that search of the subject premises will
result in the collection of evidence of drug trafficking.

Affidavit, R. 23-2 (emphasis added). Sergeant Quire also reported Clay’s criminal history.

As stated above, Clay argues that because the first search was illegal the underlined text

of the quoted Affidavit must be excluded from consideration. However, because the initial

search was valid, the fruits of that search are also valid; therefore, the information gained

therefrom remains in the Affidavit. Accordingly, our review starts with whether the Affidavit, as

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No. 14-5946, United States v. Clay

written, contained sufficient information to permit the issuing judge to make an independent

determination of probable cause.

Clay argues that “[t]he information presented to the state court judge was only a

generalized representation by an unnamed person whose veracity the police had no cause or

capacity to affirm or corroborate.” Appellant Br. at 15. Clay claims that Mitchell was a

“completely unidentified” informant and that there was no indication of her reliability, but

concedes that the underlined provisions “provided some corroboration to that [information]

provided by [Mitchell] and buttressed her credibility.” Id. at 16–17.

Clay’s position that Mitchell was “completely unidentified” is misplaced. An affidavit

need not name a confidential informant but need only provide indicia of the informant’s

reliability to raise that person’s status above that of an anonymous, unidentified source. See

Dyer, 580 F.3d at 392 (“Because the informant witnessed the illegal activity on the premises

searched and was known to the officer writing the affidavit, there were sufficient indicia of

reliability without substantial independent police corroboration.”). In this case, while Mitchell is

not named in the Affidavit, the Affidavit contains indicia of her reliability, such that she rises

above an anonymous, unidentified source. See Illinois v. Gates, 462 U.S. 213, 233–34 (1983)

(“[I]f an unquestionably honest citizen comes forward with a report of criminal activity—which

if fabricated would subject him to criminal liability—we have found rigorous scrutiny of the

basis of his knowledge unnecessary.”). It is commonsensical to assume that when a person files

a domestic violence complaint and provides the officers with her address that the officers at the

very least know that person’s identity. The Affidavit states that the informant filed a domestic

violence complaint and gave the police what purported to be her address, i.e. the address of the

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No. 14-5946, United States v. Clay

apartment. R. 23-2 (“[t]he Complainant, who lives in the apartment . . .”); see United States v.

Johnson, 351 F.3d 254, 258 (6th Cir. 2003) (“Courts should review the sufficiency of the

affidavit in a commonsense, rather than hypertechnical manner.” (citations and internal quotation

marks omitted)). Thus, it is apparent that Mitchell was not an anonymous source. Beyond this,

the Affidavit contains information that corroborates Mitchell’s testimony. While an address does

not alone suggest criminal activity, see United States v. Hammond, 351 F.3d 765, 773 (6th Cir.

2003), more was provided here. The Affidavit contains information that relayed to the reviewing

Special Circuit Court Judge that the officers not only confirmed the address where Mitchell said

Clay lived and purportedly sold drugs, but also that a locked closet was located within the

apartment. The Affidavit also links the place to be searched (the closet and dresser) with

contraband (the gun and cocaine) and the person who provided that information (Mitchell).

Beyond this, Sergeant Quire included in the Affidavit that Clay had previously been

charged with trafficking a controlled substance. “‘[T]he application of this test [for probable

cause] is not fettered by the presumption of innocence embodied in the test for conviction.

Instead, a ‘person of reasonable caution’ would take into account predilections revealed by past

crimes or convictions as part of the inquiry into probable cause.’” Dyer, 580 F.3d at 392

(quoting United States v. Wagers, 452 F.3d 534, 541 (6th Cir. 2006)). So while “a defendant’s

criminal history is not dispositive, it is relevant to the probable cause inquiry.” Id. (internal

citation omitted). In this case, the basis for the Affidavit was to search the apartment for the

collection of evidence of drug trafficking, which is the exact charge listed in the Affidavit.

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No. 14-5946, United States v. Clay

In sum, given the above consideration of the totality of the circumstances, we find that

Clay did not demonstrate that the Affidavit was so lacking that there was no probable cause to

support the warrant.3

For the above reasons, we affirm the district court’s denial of Clay’s motion to suppress.

Given this finding, we need not address whether the good faith exception would apply. See id. at

393.

B. Jury Conviction

Clay also appeals his conviction of possession of a firearm in furtherance of drug

trafficking in violation of 18 U.S.C. § 924(c)(1), which states in relevant part:

(A) . . . [A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5
years[.]

18 U.S.C. § 924(c)(1)(A). At the close of the Government’s case, Clay moved for judgment of

acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that United States v. Leary,

422 F. App’x 502 (6th Cir. 2011) and United States v. Mackey, 265 F.3d 457 (6th Cir. 2001)

commanded a finding that the facts presented at trial were insufficient to sustain a § 924(c)

violation. R. 86 at 90–93. The district court denied the motion. Id. at 103.

We review Clay’s claim under the standard established in Jackson v. Virginia, 443 U.S.

307 (1979), and will uphold the jury verdict if, “viewing the evidence in the light most favorable

3
However, as the district court noted, this Affidavit was no model of excellence, and while we
believe this is the correct decision, it was a close call.
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No. 14-5946, United States v. Clay

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Id. “‘Circumstantial evidence alone is sufficient to sustain a conviction and such

evidence need not remove every reasonable hypothesis except that of guilt.’” Leary, 422 F.

App’x at 506 (quoting United States v. Fortson, 194 F.3d 730, 735 (6th Cir. 1999)); United

States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984) (holding, “our court on appeal will reverse a

judgment for insufficiency of evidence only if this judgment is not supported by substantial and

competent evidence upon the record as a whole, and . . . this rule applies whether the evidence is

direct or wholly circumstantial.”).

“In Mackey, we interpreted the ‘in furtherance of’ language as requiring a higher standard

of participation than the ‘during and in relation to’ language, holding that the government must

show that the ‘firearm was possessed to advance or promote the commission of the underlying

[drug trafficking] offense.’” United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004) (internal

citation omitted). By requiring the Government to provide specific facts that tie the defendant to

the firearm, “Congress intended a specific nexus between the gun and the crime charged.”

Mackey, 265 F.3d at 462. “[T]he firearm must be strategically located so that it is quickly and

easily available for use.” Id. Additional factors to consider are “whether the gun was loaded, the

type of weapon, the legality of its possession, the type of drug activity conducted, and the time

and circumstances under which the firearm was found.” Id.; see also United States v. Brown,

732 F.3d 569, 576 (6th Cir. 2013) (“We consider this non-exclusive list of six factors to help

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distinguish possession in furtherance of a crime from ‘innocent possession of a wall-mounted

antique or an unloaded hunting rifle locked in a cupboard.’” (quoting Mackey, 265 F.3d at 462)).

We thus consider each of the Mackey factors in turn and decide whether any rational trier

of fact could find that Clay placed the firearm in the closet to advance or promote his drug

dealing activity. See Mackey, 265 F.3d at 460–61.

The first consideration is whether the Government showed that the firearm was

“strategically located so that it is quickly and easily available for use.” Id. at 462. Mitchell

testified that Clay brought the firearm into the apartment when the couple moved in and that he

has always stored it on the top shelf of the closet in a leather bag. She further testified that Clay

only conducted drug sales from the cocaine stored in the closet and that Clay left the closet

“[u]nlocked most [of] the time[]” when Clay and she were in the apartment. R. 85 at 123. The

firearm was situated next to the cocaine and was strategically located on the same shelf so it was

quickly and easily accessible. See United States v. Ham, 628 F.3d 801, 804, 809 (6th Cir. 2011)

(finding that since the loaded gun was on top of an armoire situated just outside the closet where

the drugs were found, it was strategically located so that it was quickly and easily available for

use); United States v. Swafford, 385 F.3d 1026, 1027–29 (6th Cir. 2004) (finding a nexus

between the contraband and a loaded pistol within arm’s reach of the defendant when he was

arrested in the house even though the drugs for sale were located in makeshift garage behind the

house); see also Brown, 732 F.3d at 576–77 (“[T]he gun’s location under the mattress in the

bedroom constituted a strategic location: despite the bedroom’s second-floor location, . . . the

house was small enough so that someone on the first floor could retrieve the gun within ten to

fifteen seconds.”). The drugs and firearm were not only located on the same shelf but were also

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No. 14-5946, United States v. Clay

in a closet in Clay’s bedroom, next to where he slept, providing quick and easy access. See

United States v. Lopez-Beltran, No. 12-4080, slip op. at 7 (6th Cir. Nov. 6, 2013). The first

factor weighs in favor of Clay’s conviction.

Other considerations are whether the firearm was loaded, its type, and whether it was

possessed legally. Mackey, 265 F.3d at 462. In this case, it is undisputed that the firearm was

loaded and a Jennings Model Bryco .380 semi-automatic handgun. R. 85 at 43. Given that Clay

was a convicted felon at the time of possession, a fact stipulated to at trial, it was illegal for him

to possess the handgun. See 18 U.S.C. § 922(g)(1). All three of these factors support Clay’s

conviction because the firearm was a loaded, semi-automatic handgun and illegally possessed.

We next consider the type of drug activity involved. The jury heard testimony regarding

a considerable amount of cocaine recovered in Clay’s apartment with a street value of roughly

$10,000. R. 86 at 76. Clay stored eighty percent of the cocaine recovered from the apartment on

the top shelf of the closet. Just outside the closet, in the bedroom, the police recovered

significant evidence indicative of drug dealing: scales, baggies and rubber bands; numerous cell

phones; and small denominations of cash. R. 86 at 78–82. This factor also weighs in favor of

affirming Clay’s conviction.

The final Mackey consideration is the time and circumstances under which the firearm

was found. Mackey, 265 F.3d at 462. Here, the jury heard testimony that law enforcement found

the gun during the same search in which they found the cocaine, a consideration that also weighs

in favor of conviction. See Brown, 732 F.3d at 577.

Clay argues that there was no evidence that the gun was ever taken out of the leather bag

or that he ever used it. The inquiry is not whether it was used, however; it is whether Clay

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No. 14-5946, United States v. Clay

possessed it to advance or promote the underlying criminal act of drug trafficking. See Mackey,

265 F.3d at 461–62. The gun was located next to a significant amount of cocaine and it was

stored in a room where other items typical of dealing drugs were also stored. Cf. Leary, 422 F.

App’x at 513 (overturning the defendant’s conviction because there was “no evidence that the

sale or manufacture of drugs occurred within [the] apartment.”). Over 80 grams of cocaine were

found in the closet, cf. id. at 505 (noting the police only found 3.48 grams of crack cocaine), and,

perhaps most importantly, Mitchell testified that drug sales occurred in the apartment. R. 85 at

128–29.

Clay also argues that there was a zipper on the leather bag, but that does not affect the

analysis. See United States v. Case, 654 F. Supp. 2d 747, 752, 754 (E.D. Tenn. 2009) (finding

that the discovered firearm was possessed in furtherance of drug dealing even though it was

“wrapped in a cloth like material and tied at the top and bottom” because it was found within a

few feet of illegal drugs), aff’d, 503 F. App’x 463, 466–67 (6th Cir. 2012).

Therefore, upon full consideration of whether the firearm advanced, promoted, or

facilitated the crime, we believe that the evidence is sufficient to permit any rational trier of fact

to find beyond a reasonable doubt that it did. Thus, we affirm Clay’s conviction on the 18

U.S.C. § 924(c)(1)(A) count.

C. CONCLUSION

For the reasons stated above, we AFFIRM Clay’s convictions.

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