United States v. James Braden, Jr.

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Michael J. Melloy and Bobby E. Shepherd AUTHORING JUDGE:Michael J. Melloy (PUBLISHED) [4484536] [15-3958]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3958
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Stephen Braden, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 21, 2016
Filed: December 29, 2016
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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
James Braden, Jr. was convicted by a jury of one count of possession with the
intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c). Braden was sentenced to 75 months’ imprisonment. Braden

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appeals, arguing the district court1 erred by failing to suppress a statement he made
to officers when the officers arrived to execute a search warrant and before he was
given Miranda warnings.2 Braden also argues the district court erred by finding that
the warrant was supported by probable cause. Finally, Braden argues the district
court erred by denying a motion to set aside the verdict due to an officer’s testimony
that drug cases often involve the presence of firearms. We affirm.
I.
On June 17, 2014, Braden’s twelve-year-old son went to the Hayti, Missouri
police department to report that his father, Braden, was a drug dealer and was in
possession of marijuana and firearms. Officer Shane Wiseman interviewed the boy.
Braden’s son provided detailed information about where his father stored the
marijuana and firearms, including a map showing the layout of the home and where
the items were located.
After interviewing the boy, Officer Wiseman contacted the Pemiscot County
Prosecuting Attorney’s Office, which directed Officer Wiseman to contact the
Southeast Missouri Drug Task Force. Officer Wiseman contacted Task Force Officer
Eddie Holloway. Officer Holloway came to the police department, and Braden’s son
voluntarily repeated the information he had provided to Officer Wiseman.
Following his interview with Braden’s son, Officer Holloway prepared an
affidavit for a search warrant. The affidavit included detailed information about the

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, adopting the Report and Recommendation of the
Honorable Abbie Crites-Leoni, United States Magistrate Judge for the Eastern
District of Missouri.
2

Miranda v. Arizona, 384 U.S. 436 (1966).
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home and the evidence to be seized. The affidavit identified the source of the
information as a confidential juvenile informant and described Officer Holloway’s
belief as to the reliability of the information. Though the affidavit did not indicate
the relationship between the informant and Braden, Officer Holloway informed the
judge reviewing the affidavit that the confidential source was Braden’s son. The
judge found that the affidavit established probable cause and issued a search warrant.
Officer Holloway, Officer Wiseman, and other officers executed the search
warrant. Braden’s son, who was outside when the officers arrived, went inside to get
Braden. Braden met the officers outside, was placed in handcuffs, and was informed
that the officers had a search warrant. Without giving Braden Miranda warnings,
Officer Wiseman asked if there was marijuana in the house. Braden responded that
there was “weed in the house, but you’ll have to go find it.”
As Officer Holloway approached the home, he was able to smell marijuana.
Inside the home, the officers searched a closet in Braden’s bedroom, where they
found a storage container with approximately 12 pounds of marijuana. Near the
storage container, the officers found a Ruger 9mm semi-automatic pistol and $11,000
in cash. On a shelf in the closet, officers found a box of 9mm ammunition and a box
of .22 caliber ammunition. On and inside a dresser in Braden’s bedroom, the officers
found a bowl with marijuana residue, two digital weighing scales, and three gallonsized bags with marijuana. In the kitchen, the officers found a loaded .22 caliber
pistol and a notebook with entries consistent with drug transactions. Finally, the
officers found an unloaded .22 caliber rifle in a storage room. When officers
searched Braden’s person, they found $1,770 in cash.
After he was charged, Braden moved to suppress the evidence resulting from
the search of his home, arguing that the search was unreasonable. The magistrate
judge recommended denying the motion, finding that the search warrant was
supported by probable cause or, alternatively, that even if probable cause were
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lacking, the officers acted in objective good-faith reliance on the validity of the
search warrant. Braden did not object to the magistrate judge’s findings, and the
district court subsequently adopted the magistrate judge’s recommendation.
At trial, Officer Holloway testified as both an expert and a lay witness. Officer
Holloway testified about the items recovered from Braden’s home and about his
experience in the field as a narcotics detective. Braden did not object to Officer
Holloway’s status as an expert. During his testimony, Officer Holloway stated that
“Ninety-nine percent of all drug dealers carry guns with them to protect their dope
and money.” During cross-examination, he clarified that “99 percent somewhere
down the line” involve firearms. Braden did not object to this testimony.
After trial, Braden filed a motion to set aside the verdict, arguing that Officer
Holloway gave false and misleading testimony when he testified that “ninety-nine
percent” of drug dealers carry guns. The district court denied the motion, finding that
Officer Holloway’s testimony was not misleading because, on cross-examination, he
qualified his statement by saying that “somewhere down the line,” drug transactions
involve firearms. Braden was subsequently sentenced to 75 months’ imprisonment.
II.
Braden makes three arguments on appeal. First, Braden argues the district
court erred by failing to suppress Braden’s statement to the officers outside his home
sua sponte. Second, Braden argues the district court erred by denying his motion to
suppress the evidence seized during the search of his home. Finally, Braden argues
Officer Holloway’s testimony was false and misleading and should not have been
allowed at trial.

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A. Braden’s Incriminating Statement
Braden argues that his response to Officer Wiseman’s question that there was
“weed in the house” should have been suppressed because he was not informed of his
Miranda rights. Braden’s motion to suppress did not address this statement, and he
made no objection to Officer Holloway’s testimony regarding his statement. Thus,
Braden did not properly preserve this issue for appeal. See United States v. Udey,
748 F.2d 1231, 1240 (8th Cir. 1984). As a result, we review this claim only for plain
error. Fed. R. Crim. P. 52(b); Udey, 748 F.2d at 1240.
“To obtain relief under a plain-error standard of review, the party seeking
relief must show that (1) there was an error, (2) the error is clear or obvious under
current law, (3) the error affected the party’s substantial rights, and (4) the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Iceman, 821 F.3d 979, 983–84 (8th Cir. 2016) (quoting United States
v. Melton, 738 F.3d 903, 905 (8th Cir. 2013)). An error must be prejudicial to have
affected a party’s substantial rights. United States v. Callahan, 800 F.3d 422, 426
(8th Cir. 2015). Braden has the burden to prove that the error “affected the outcome
of the district court proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725,
734 (1993)).
Braden has not met his burden of proving that the outcome of his trial would
have been different if his statement to the officers had been suppressed. Braden
argues that because his statement was admitted, he was unable to present a defense
that the marijuana did not belong to him and that he did not have knowledge of the
drugs. However, there was overwhelming evidence presented at trial by which a jury
could convict Braden. This evidence includes the fact that Braden was the only
person in the home when the officers executed the search warrant and the officers
were able to smell the marijuana before they entered. Further, the storage container
with 12 pounds of marijuana was located in a closet with men’s clothing inside
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Braden’s bedroom. The bowl with marijuana residue and one of the scales was
located on the dresser in Braden’s bedroom, and the second scale and three gallonsized bags of marijuana were in a drawer of that dresser that contained men’s clothing
and underwear. Based on this evidence, Braden has not shown that the outcome of
his trial would have been different if his statement had been suppressed. Thus, the
district court’s failure to suppress Braden’s statement sua sponte was not plain error.
B. Invalid Warrant
Before trial, Braden moved to suppress the evidence discovered in his home
as having been discovered pursuant to an invalid warrant. The district court denied
the motion and Braden appeals. Braden argues that the search warrant was invalid
because it was not supported by probable cause. “This Court reviews the facts
supporting a district court’s denial of a motion to suppress for clear error and reviews
its legal conclusions de novo.” United States v. Cotton, 782 F.3d 392, 395 (8th Cir.
2015). “This court will affirm the district court’s denial of a motion to suppress
evidence unless it is unsupported by substantial evidence, based on an erroneous
interpretation of applicable law, or, based on the entire record, it is clear a mistake
was made.” United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008) (quoting
United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006)).
The Fourth Amendment requires that a warrant be supported by probable cause.
U.S. Const. amend. IV. Probable cause exists when, “given all the circumstances set
forth in the affidavit . . . , including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983).
Officer Holloway’s affidavit provided sufficient probable cause to issue a
warrant to search Braden’s home. The informant’s basis of knowledge was
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particularly strong that officers would find marijuana and firearms in the home
because the informant lived in the home and observed Braden with the marijuana and
firearms. See United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005); United
States v. Ellison, 793 F.2d 942, 946 (8th Cir. 1986) (noting that the informants’
reliability was supported by their “first-hand knowledge of the matters and objects
described in the affidavit by their having lived . . . in the compound”). Additionally,
the informant provided a detailed description of the contraband, including where it
was located within the home. See Solomon, 432 F.3d at 827; United States v.
Jackson, 898 F.2d 79, 81 (8th Cir. 1990) (finding probable cause based, in part, on
“the richness and detail of a first hand observation” of an informant’s tip).
Braden argues that it was unreasonable for the judge reviewing the warrant
application to issue the search warrant on the basis of information supplied by his
son. Braden suggests that the probable cause determination should consider
undesirable consequences that may result from the execution of a warrant.
Specifically, Braden argues that the judge should have considered the fact that the
informant was a juvenile and the suspect’s son. However, probable cause requires
only a showing that “there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Gates, 462 U.S. at 238. That the informant was
Braden’s son does not disqualify the son as a credible informant or disprove the
existence of probable cause. And, because Braden’s son provided detailed
information to the officers in person, the officers could assess his credibility.
Solomon, 432 F.3d at 827–28 (noting that the informant was reliable because she met
with law enforcement, the officers were able to assess her credibility because the
informant gave the tip in person, and the informant could be held responsible if the
allegations were false). Because the affidavit demonstrated the informant’s reliability
and basis of knowledge and included specific details about the evidence to be seized,
it created a fair probability that evidence would be found. Thus, the search warrant
was supported by probable cause and the district court did not err by denying
Braden’s motion to suppress.
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C. Officer Holloway’s Testimony
Finally, Braden argues that the district court erred by allowing Officer
Holloway’s testimony regarding the correlation between firearms and drugs. Officer
Holloway testified that, in drug transactions, “99 percent somewhere down the line”
involve firearms. Braden did not object to this testimony at trial. After trial, Braden
filed a motion to set aside the verdict based on false and misleading testimony,
claiming that Officer Holloway’s testimony was false because Officer Holloway had
previously arrested three people for possession of drugs with intent to distribute
where no gun was found on the scene. On appeal, it is unclear whether Braden is
appealing the admission of Officer Holloway’s testimony or the denial of Braden’s
motion to set aside the verdict.
If Braden is appealing the admission of the testimony, his claim is reviewed for
plain error, as he did not object to the testimony at trial. Braden has not met his
burden of proof under the plain error test, as set forth above. First, the admission of
the testimony was not an error. The fact that not all drug arrests produce firearms
does not mean that Officer Holloway’s testimony was false. Rather, it is consistent
with the fact that Officer Holloway did not say that all drug arrests produce firearms
but, rather, that somewhere in the chain of drug trafficking, firearms are involved.
“We have repeatedly held that ‘a district court has discretion to allow law
enforcement officials to testify as experts concerning the modus operandi of drug
dealers in areas concerning activities which are not something with which most jurors
are familiar.’” United States v. Gill, 513 F.3d 836, 847 (8th Cir. 2008) (quoting
United States v. Urbina, 431 F.3d 305, 311 (8th Cir. 2005)). “Further, we have
specifically found no abuse of discretion in admitting expert testimony from drug
agents regarding the use of firearms as tools of the drug trade.” Id.
The testimony Braden challenges is similar to the testimony challenged in Gill.
In Gill, a DEA agent testified to the link between firearms and drug trafficking based
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on the agent’s five years of experience and his involvement in more than one hundred
drug investigations. Id. In the present case, Officer Holloway testified as both an
expert and lay witness. He had thirteen years of experience as a law enforcement
officer, including eight years specializing as a narcotics detective. Braden asserts
that, in addition to being false, there was a gap between Officer Holloway’s statement
about the link between firearms and drug trafficking and the evidence presented at
trial. However, as this court in Gill held, “[t]his argument goes to the weight to be
accorded the testimony, not its admissibility.” Id.
Second, even if admitting this evidence were an error, it did not affect Braden’s
substantial rights. Braden cannot show that the admission of Officer Holloway’s
testimony affected the outcome of trial. At trial, the prosecution presented substantial
evidence of Braden’s guilt independent of Officer Holloway’s statement. This
evidence included the fact that one of the guns was found in close proximity to 12
pounds of marijuana inside a closet in Braden’s bedroom. Such a quantity of
marijuana is consistent with distribution. Further, a second gun was located near the
notebook containing entries consistent with drug trafficking. As a result, based on
these facts and the facts discussed above, the admission of Officer Holloway’s
testimony, if it were in error, did not affect Braden’s substantial rights. Thus, there
was no plain error.
We would reach the same result addressing Braden’s claim as an appeal from
the district court’s denial of his motion to set aside the verdict. It appears that
Braden’s motion, though using other words, was a motion for a new trial, as the relief
requested on appeal is a remand for a retrial. Motions for a new trial will only be
granted if “a serious miscarriage of justice may have occurred.” United States v.
Fetters, 698 F.3d 653, 656 (8th Cir. 2012) (quoting United States v. Rice, 449 F.3d
887, 893 (8th Cir. 2006)). For the reasons just stated, Braden cannot meet this
standard.

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III.
For the foregoing reasons, the judgment of the district court is affirmed.
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