United States v. Rondrick Gray

Case: 10-11150 Document: 00511744663 Page: 1 Date Filed: 02/01/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 1, 2012

No. 10-11150

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

RONDRICK LAMAR GRAY,

Defendant–Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

“The overriding function of the Fourth Amendment is to protect personal

privacy and dignity against unwarranted intrusion by the State.” Schmerber v.

California, 384 U.S. 757, 767 (1966). This case forces us to balance this

fundamental interest in a person’s bodily integrity and dignity against the

significant need of law enforcement officers to unearth evidence of crime.

Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic

examination under sedation pursuant to a warrant obtained on the police’s belief

that he was concealing crack cocaine in his rectum. Weighing the competing

interests, we find that the search was unreasonable but that the evidence should

not be suppressed because the police acted in good-faith reliance on a valid

search warrant. Accordingly, we AFFIRM.

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I. FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 2010, a confidential informant told San Angelo Police

Department (“SAPD”) Detective Hank Hethcock that Rondrick Gray was in

possession of and selling crack cocaine. Based on the information about Gray’s

vehicle, SAPD Officers Garza and Elrod stopped Gray’s vehicle and arrested him

on outstanding warrants. At the time of the stop (around 3 p.m.), Gray was

driving with a passenger, Selah Simmons, who was taken into custody as well.

Simmons told SAPD Sergeant Dornhecker that as the police were approaching

Gray’s vehicle during the traffic stop, Gray threw a plastic bag containing what

she believed to be crack cocaine at her and asked her to conceal it, which

Simmons refused to do. SAPD officers conducted a search of Gray’s vehicle for

the drugs but found nothing. Garza conducted a search of Gray, which also did

not turn up any drugs. A K-9 unit arrived, and a drug dog alerted on the center

console area of Gray’s vehicle, but no drugs were found.

Gray was taken to the jail, where upon his arrival a strip search was

conducted. Garza, who witnessed the strip search of Gray, described Gray as

“not fully cooperative.” Gray was placed into the general population of the jail,

during which time he was not observed. While Gray was being searched and

booked at the jail, SAPD officers did an extensive, two-hour search of Gray’s

vehicle, which also turned up nothing.

Gray was eventually taken out of the general population and strip-

searched a second time with Garza and Elrod watching. As a part of his strip

search, he was instructed to squat, pull his buttocks apart, and cough, in order

to dislodge anything that may be concealed in the anus. Gray was described as

“being evasive,” because he would only “slightly bend at the knees and give a

faint cough.” In addition to the two strip searches, SAPD did a second search of

the scene where they stopped Gray, and jail personnel conducted strip searches

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of all inmates who were in Gray’s holding cell with him. None of these searches

turned up any drugs or other contraband.

At this point, Hethcock presented Gray with some options of how to

proceed: Gray could undergo a third strip search, he could be placed in a cell

with a waterless toilet, or he could consent to a rectal x-ray examination. Gray

did not consent to any of these options. Based on all of these events and his

education, training, and experience, Hethcock believed that the “only place”

Gray could be concealing the crack cocaine that the police suspected him of

possessing was in his rectum. Hethcock informed Gray that the police would

seek a search warrant to try to uncover the drugs. By 10:15 p.m., Gray posted

a bond on his traffic warrants and was released. SAPD, however, detained Gray

for thirty minutes while waiting to secure the search warrant. At about 10:45

p.m., over seven hours after Gray’s initial arrest, a state judge signed the search

warrant, and Gray was taken to the hospital for the search.

The state judge found probable cause for a search based on Hethcock’s

affidavit. The judge ordered Gray to be presented to a “qualified medical

technician to examine [Gray] for the concealment of controlled substances and

to remove said controlled substances from his body in accordance with

recognized accepted medical procedure as described in [Hethcock’s] affidavit.”

Hethcock’s affidavit, while it did state that the police suspected Gray of

concealing crack cocaine in his “anal cavity,” did not describe the medical

procedure to be performed at all. The only limitation on the procedure was the

same as in the warrant itself—“in accordance with recognized medical

procedures.”

At the hospital, the first procedure performed was an x-ray using a

portable x-ray machine. Gray was, according to Hethcock, uncooperative with

the x-ray technician and as a result, the technician was unable to “get a good

picture with the portable x-ray.” The next procedure attempted was another x-

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ray but this time using a stationary machine. At first, Gray was asked to do a

standing x-ray, but Gray “refused to stay where he was told.” The medical staff

then tried to x-ray Gray while he was lying down, but Gray would not lie still.

Eventually, the x-ray technician obtained a useable picture. From his review,

he noticed something that he thought could either be a gas pocket or a foreign

object but could not decide which. Hethcock took the x-ray to Dr. Roland

Heidenhofer, a staff physician at the hospital, who also could not discern

whether the anomaly was a gas pocket or a foreign object. Heidenhofer then

went to Gray’s room and informed Gray that he was going to perform a digital

rectal examination on him. Though Hethcock described Gray as “evasive and

uncooperative” during the digital exam, Heidenhofer was able to perform the

digital exam to some extent. From that examination, however, he was unable

to determine if there was an object in Gray’s rectum.

After failing to determine anything from either the x-rays or the digital

exam, Heidenhofer consulted with Dr. Emmette Flynn, the hospital’s Trauma

Medical Director. Flynn believed that the best next step was to perform a

proctoscopic examination of Gray’s rectum. In such an examination, the

proctoscope, essentially an illuminated tube, is inserted across the anal canal

and into the rectum. The rectum is then filled with air, or insufflated, so that

the interior can be examined. When the rectum is insufflated, the walls are

distended, which permits a more thorough evaluation of the wall of the rectum

and objects within the rectal vault. Flynn stated that he did not ask for Gray’s

consent for the proctoscopic exam and that at the time he made the decision, he

had not reviewed the search warrant or Gray’s medical history. For Gray’s

proctoscopic exam, two sedatives (Versed and Etomidate) were administered to

Gray intravenously. Though the doctors later testified at the suppression

hearing that the risks associated with the sedatives were low, Gray was placed

on a number of monitors to measure Gray’s cardiovascular status during the

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examination. The sedatives carry with them a risk of respiratory depression or

arrest. Proctoscopy also has associated risks, including pain and potential anal

bleeding or perforation. Flynn admitted that proctoscopic exams are usually not

conducted on uncooperative patients. At the time that the doctors decided to

perform the proctoscopic exam, there were other less intrusive means available

to try to recover the suspected drugs, including a cathartic or an enema—neither

of which would have involved sedation.

During the proctoscopy, Flynn was unable to completely visualize the

rectal vault due to a “substantial amount of fecal debris.” He did, however,

intermittently see and feel something different from the other contents of the

rectum. Flynn removed the scope and performed a second digital rectal

examination, during which Flynn removed a plastic bag from Gray’s rectal

cavity. Flynn placed the plastic bag into a biohazard bag provided by the

emergency department, and handed the bag to an SAPD officer. Subsequent

testing revealed the contents of the bag recovered from Gray’s rectum to be 9.62

grams of cocaine base.

The Government indicted Gray for possession of crack cocaine with intent

to distribute. Gray moved to suppress the crack cocaine recovered during the

proctoscopic examination. After a suppression hearing, the district court found

the exclusionary rule inapplicable because the police had relied in good faith on

a valid search warrant in recovering the crack cocaine and that, regardless, the

crack cocaine would have been inevitably discovered. Overall, the district court

found that “the search and seizure of Gray’s person was reasonable considering

the manner and means and justification for the search and seizure.”

The Government proceeded to trial, which focused on Gray’s intent to

distribute. During the course of the trial, the Government introduced four

photographs showing Gray posing with a gun. The district court admitted the

photographs over Gray’s objections on authentication, prior bad acts, prejudicial

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effect, and Confrontation Clause grounds. At the close of evidence, Gray moved

unsuccessfully for a judgment of acquittal. The jury convicted Gray of possession

of five grams or more of crack cocaine with intent to distribute. The district

court sentenced Gray to the statutory mandatory minimum under the pre-Fair

Sentencing Act regime—ten years imprisonment and eight years of supervised

release. Gray timely appealed (1) whether the district court should have

suppressed the crack cocaine recovered from Gray’s rectum because the search

was unreasonable and (2) whether the district court erred in admitting the four

photographs of Gray posing with a gun.1

II. DISCUSSION

A. Seizure of the Crack Cocaine

“When the district court denies a motion to suppress, we review factual

findings for clear error and conclusions of law de novo.” United States v. Payne,

341 F.3d 393, 399 (5th Cir. 2003) (citation omitted). “Evidence is considered in

the light most favorable to the prevailing party. The ultimate conclusion about

the constitutionality of the law enforcement conduct is reviewed de novo.”

United States v. Roberts, 612 F.3d 306, 309 (5th Cir. 2010) (internal quotation

marks and citations omitted). This “ultimate conclusion,” which is reviewed de

novo, includes “the sufficiency of the warrant or the reasonableness of an officer’s

reliance on a warrant” for purposes of the good faith exception. United States v.

Allen, 625 F.3d 830, 834 (5th Cir. 2010).

1

Gray also appealed his sentence and argued that the Fair Sentencing Act of 2010 (“FSA”)

should apply retroactively where, as here, the defendant committed the illegal conduct prior to the

enactment of the FSA but was not sentenced until after the FSA went into effect. This argument is

foreclosed by our recent holding in United States v. Tickles, 661 F.3d 212 (5th Cir. 2011). Gray’s counsel

conceded this point at oral argument. Oral Argument at 0:19, available at

http://www.ca5.uscourts.gov/OralArgRecordings/10/10-11150_12-7-2011.wma. In Tickles, we surveyed

the existing case law on the retroactivity of the FSA and concluded that “the penalties prescribed by the

FSA do not apply to federal criminal sentencing for illegal conduct that preceded the FSA’s enactment.”

Tickles, 661 F.3d at 215.

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1. Purposes of the Exclusionary Rule and the Good Faith

Exception

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court stated

that the exclusionary rule is “a judicially created remedy,” id. at 906, designed

to deter police misconduct, id. at 918. Therefore, where a police officer “acting

with objective good faith has obtained a search warrant from a judge or

magistrate and acted within its scope,” id. at 920, “the marginal or nonexistent

benefits produced by suppressing evidence obtained in objectively reasonable

reliance on a subsequently invalidated search warrant cannot justify the

substantial costs of exclusion.” Id. at 922. We have held that “[t]he good faith

exception applies unless one of the four exceptions to it is present.” United

States v. Foy, 28 F.3d 464, 473 (5th Cir. 1994).

Those exceptions are: “(1) If the issuing magistrate/judge was misled

by information in an affidavit that the affiant knew was false or

would have known except for reckless disregard of the truth; (2)

where the issuing magistrate/judge wholly abandoned his or her

judicial role; (3) where the warrant is based on an affidavit so

lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable; and (4) where the warrant is so

facially deficient in failing to particularize the place to be searched

or the things to be seized that the executing officers cannot

reasonably presume it to be valid.”

Id. at 473 n.20 (quoting United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th

Cir. 1992). In deciding on the applicability of the good faith exception, the

“evidence should be suppressed ‘only if it can be said that the law enforcement

officer had knowledge, or may properly be charged with knowledge, that the

search was unconstitutional under the Fourth Amendment.’” Allen, 625 F.3d at

836 (quoting Herring v. United States, 555 U.S. 135, 143 (2009)). That is to say,

the good faith exception applies unless “a reasonably well trained officer would

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have known that the search was illegal despite the magistrate’s authorization.”

Id. at 835 (quotation marks omitted).

2. Good-Faith-First Two-Step

To effectuate the purposes of the exclusionary rule and the good faith

exception in cases where we are asked to review the constitutionality of a seizure

conducted pursuant to a search warrant, we employ a two-step inquiry. Allen,

625 F.3d at 835 (citing United States v. Cherna, 184 F.3d 403, 407 (5th Cir.

1999)). First, we determine the applicability of the good faith exception to the

exclusionary rule. Id. (citing Leon, 468 U.S. at 920–21 (1984)). If the good faith

exception applies, we affirm the district court’s denial of the motion to suppress.

Id. If we find the good faith exception inapplicable, we “determine[] whether the

magistrate issuing the warrant had a ‘substantial basis for believing there was

probable cause for the search.’” Id. (quoting United States v. Davis, 226 F.3d 346,

351 (5th Cir. 2000)).

This case is different from Allen and the cases it cites because Gray’s

substantive challenge is not one claiming a lack of probable cause. Gray argues

that the proctoscopy violated his right to “‘personal privacy and dignity,’” as

delineated in Winston v. Lee, 470 U.S. 753, 760 (1985) (quoting Schmerber, 384

U.S. at 767 (1966)). There, the Supreme Court dealt with an appeal of a

permanent injunction issued by the district court enjoining the enforcement of

a state court search warrant that authorized surgery under general anesthesia

to retrieve a bullet that lodged in a suspect’s chest during a robbery. Id. at

756–57. The Court affirmed the injunction because it found the ordering of the

surgery to be unreasonable under the Fourth Amendment. Id. at 766. In so

doing, it stated that “[t]he reasonableness of surgical intrusions beneath the skin

depends on a case-by-case approach, in which the individual’s interests in

privacy and security are weighed against society’s interests in conducting the

procedure.” Id. at 760. The Court then elaborated a multi-factor balancing test,

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based on Schmerber, that guides the analysis of the reasonableness of a medical

procedure to obtain evidence. It noted that the “threshold requirements for . . .

surgical search and seizure” were probable cause and the issuance of a warrant.

Id. at 760–61. “Beyond these standards,” a court reviewing the issuance of a

warrant for medical searches should consider the “magnitude of the intrusion,”

defined as the “extent to which the procedure may threaten the safety or health

of the individual” and the “extent of the intrusion upon the individual’s dignitary

interests in personal privacy and bodily integrity.” Id. at 761 (emphasis added).

The countervailing consideration is “the community’s interest in fairly and

accurately determining guilt or innocence.” Id. at 762. Additionally, the Court

thought it noteworthy that the suspect was afforded “a full measure of

procedural protections,” id. at 763; in fact, the state court held two evidentiary

hearings before actually issuing the warrant, id. at 756–57.

Gray’s challenge is distinct from the normal probable cause challenge

because a probable cause determination considers only the police’s evidence and

not any additional countervailing liberty interest of the defendant. The

Government argues that this good-faith-first two-step ought to be employed

regardless of the substantive challenge. To be sure, the good-faith-first two-step

is grounded in the “[p]rinciples of judicial restraint.” United States v. Craig, 861

F.2d 818, 820 (5th Cir. 1988). But unwavering adherence to good-faith-first is

not mandated by our precedent.2 Quite the opposite, we depart from good-faith-

2

The current framework is essentially a reverse of the familiar Saucier approach to

qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (prescribing that courts

should first consider the constitutional-violation prong before turning to the objective-

reasonableness prong when deciding questions of qualified immunity), overruled in part by

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that it was no longer mandatory for

courts to decide the constitutional-violation prong first); see also Groh v. Ramirez, 540 U.S.

551, 565 n.8 (2004) (describing the inquiry for good faith under the Fourth Amendment as the

same as the objective-reasonableness prong under qualified immunity). The good-faith-first

two-step goes one step further than Pearson does and mandates never reaching the

constitutional violation until deciding that the officers were not objectively reasonable.

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first when discussion by this court of the underlying substantive challenge will

give “substantial guidance to lower courts and law enforcement officials.” Id. at

821. Because, in our view, this is a case where “resolution” of the substantive

challenge “is necessary to guide future action by law enforcement officers and

magistrates,” Illinois v. Gates, 462 U.S. 213, 265 41983) (White, J., concurring

in the judgment), we find “compelling reasons” to justify departure from our

normal good-faith-first approach. Craig, 861 F.2d at 821; see also United States

v. Husband, 312 F.3d 247, 256 (7th Cir. 2002) (declining to reach the question

of the good faith exception’s applicability to warrants authorizing medical

procedure searches).

a. Reasonableness of the Search

Applying the Winston factors to the present case, the magnitude/danger

of the proctoscopy appears to be slight. Though the testimony reveals that there

was some risk of respiratory depression or arrest associated with the sedatives

administered and risk of anal bleeding or perforation associated with the use of

the proctoscope, these risks were low in the hospital setting where the

proctoscopy occurred. The risks here are obviously greater than the blood draw

found permissible in Schmerber, 384 U.S. at 771 (allowing a blood draw to

determine the blood alcohol level of a drunk driver), but they do not seem to rise

to the level of the risks associated with the surgery found unreasonable in

Winston, 470 U.S. 763–65.

On the extent of the intrusion factor, Gray argues that “[s]hy of full-on

exploratory surgery [like in Winston], it is hard to imagine a more demeaning

Compare Allen, 625 F.3d at 835, with Pearson, 555 U.S. at 236 (“Although we now hold that

the Saucier protocol should not be regarded as mandatory in all cases, we continue to

recognize that it is often beneficial.”). Unwavering adherence to good-faith-first will stagnate

constitutional law in this area by completely shielding from review the magistrate’s initial

determination of whether to issue a medical procedures warrant. Cf. Saucier, 533 U.S. at 201.

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and intrusive invasion of Gray’s interests” in personal privacy and bodily

integrity. Br. of Defendant–Appellant at 29. This is an understatement: the

proctoscopy here was a greater affront to Gray’s dignitary interest than full-on

exploratory surgery. Though sedated, Gray was conscious throughout the entire

procedure. Moreover, the procedure targeted an area of the body that is highly

personal and private. In our society, the though of medical technicians, under

the direction of police officers, involuntarily sedating and anally probing a

conscious person is jarring. Such a procedure is degrading to the person being

probed—both from his perspective and society’s. This type of search resembles

the physical vaginal cavity search that the First Circuit encountered in

Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991). There, the First Circuit said,

[t]he invasion here was extreme, constituting a drastic and total

intrusion of the personal privacy and security values shielded by the

fourth amendment [sic] from unreasonable searches. Searches of

this nature instinctively give us cause for concern as they implicate

and threaten the highest degree of dignity that we are entrusted to

protect.

Id. at 811. In taking both of the individual interests into account, the magnitude

of the intrusion from the proctoscopy was minimal, but the extent of intrusion

from the proctoscopy was great.

Society’s interest here, like in Winston, is “of great importance.” Winston,

470 U.S. at 762. The interest is even greater than in Winston, where there was

other evidence of guilt, id., because the crack cocaine that Hethcock believed

Gray was concealing in his anal cavity was the only direct evidence of Gray’s

possession. Unlike in Schmerber or Winston, however, there were other

available avenues for obtaining this evidence, such as a cathartic or an enema.

Such alternatives militate against society’s great interest “in conducting the

procedure” used in this case—proctoscopy. Id. at 760 (emphasis added).

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When balancing these interests and comparing them to our benchmarks

of the permissible Schmerber blood draw and the impermissible Winston

surgery, the medical danger here is slightly greater than in the former but

nowhere near the danger of the latter. As to the dignitary interest, this is one

of the greatest dignitary intrusions that could flow from a medical

procedure—involuntary sedation for an anal probe where the person remains

conscious. The last consideration is society’s interests, which are not as great as

in Schmerber but greater than in Winston. On balance, we find the proctoscopic

search unreasonable due to the exceeding affront to Gray’s dignitary interest

and society’s diminished interest in that specific procedure in light of other less

invasive means.

b. Good Faith

As stated above, the good faith exception applies unless one of the four

exceptions to it applies. Foy, 28 F.3d at 473. In this case, none of the exceptions

to the good faith exception applies. The magistrate was neither misled nor

abandoned his judicial role. The warrant was not so devoid of probable cause

nor so lacking in particularity to say that “a reasonably well trained officer

would have known that the search was illegal.” Allen, 625 F.3d at 835. Where,

as here, the magistrate issues a warrant that is more particularized than a

search of the suspect’s “person,” see United States v. Nelson, 36 F.3d 758, 760–61

(8th Cir. 1994),3 the warrant will not likely have any of the deficiencies identified

by this court as a basis for not applying the good faith exception. That is to say

a warrant, like the one at issue, that authorizes a medical procedure search of

3

In Nelson, the Eighth Circuit found that the warrant failed the particularity

requirement of the Warrant Clause because a “search warrant for appellant’s ‘person’ was not

sufficient to authorize a body cavity search.” 36 F.3d at 760. It also found that the good faith

exception was inapplicable because “even if we agree that the officers could have reasonably

believed that the warrant included authorization for a body cavity search, there is no

objectively reasonable basis for the officers’ mistaken belief that the authorization contained

in the warrant extended to the endoscopy.” Id. at 761 (internal quotation marks omitted).

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a specific area of the body but does not prescribe any off-limits procedures will

be subject to good faith unless the police misled the magistrate, the magistrate

abandoned her judicial role, or the warrant so clearly lacked probable cause.

None of those situations exists in this case. This fact is of great concern to us

because it seems that even if the magistrate were to authorize a medical

procedure search that would violate the Fourth Amendment, like the general

surgery found impermissible in Winston, there is no remedy for such a violation;

the police officer’s reliance on that warrant would be objectively reasonable. See

Leon, 468 U.S. at 916; see also United States v. Husband, 226 F.3d 626, 636 (7th

Cir. 2000) (Easterbrook, J., dissenting). Therefore, although we hold that the

seizure is permissible under the good faith exception, we urge warrant-issuing

magistrates to cabin the search warrant more than the “recognized medical

procedure” language in this warrant. Additionally, we encourage magistrates,

where feasible, to hold a hearing like in Winston to allow for more careful

consideration of the competing interests at stake in each one of these medical

procedure search cases. As the Court noted in Winston,

[t]he Fourth Amendment is a vital safeguard of the right of the

citizen to be free from unreasonable governmental intrusions into

any area in which he has a reasonable expectation of privacy.

[W]hen the State seeks to intrude upon an area in which our society

recognizes a significantly heightened privacy interest, a more

substantial justification is required to make the search “reasonable.”

470 U.S. at 767.

B. Admission of the Photographs

Evidentiary rulings by the district court are reviewed for abuse of

discretion, subject to harmless error review. United States v. Jackson, 636 F.3d

687, 692 (5th Cir. 2011). “A trial court abuses its discretion when its ruling is

based on an erroneous view of the law or a clearly erroneous assessment of the

evidence.” Id. (internal quotation marks omitted). Gray challenges the

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admission of four photographs that depict him posing with a gun. He contends

that these photographs were erroneously admitted because they were (1) not

properly authenticated and (2) unfairly prejudicial.

1. Authentication

Federal Rule of Evidence 901(a) provides that “authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” This standard is not a “burdensome one,” Jackson, 636 F.3d at 693, as

we do not “require conclusive proof of authenticity before allowing the admission

of disputed evidence.” United States v. Watkins, 591 F.3d 780, 787 (5th Cir.

2009). The Government used SAPD Detective Rodney Black to authenticate the

photographs. He testified that the photographs were downloaded from

Simmons’s cell phone, which she authorized him to do, and that the pictures

“appeared to be Mr. Gray holding a handgun or revolver.” While usually a

witness with personal knowledge would need to testify that the photographs

accurately depict the scene at the time of their taking, see Kenneth S. Broun, 1

McCormick on Evidence § 52 (6th ed. 2006), here, the Government was not

seeking to prove anything relating to the time that the pictures were taken, but

rather that these were pictures of Gray holding a gun. Therefore, Black did not

need to testify that the photographs were a true and accurate depiction of

anything more than Gray holding a gun. Black had sufficient personal

knowledge to testify that the photographs depicted Gray holing a gun. See

United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989) (“Rule 901

does not limit the type of evidence allowed to authenticate a document.”).

2. Prejudice

Gray also argues that it was error for the trial court to admit the

photographs of him posing with a gun because of the minimal probative value

of the photographs and the significant danger of unfair prejudice. The

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Government argues that the photographs showing Gray with a gun is probative

of Gray’s intent to distribute the crack cocaine recovered from his person because

“firearms are tools of the [drug] trade.” See United States v. Martinez, 808 F.2d

1050, 1056–57 (5th Cir. 1987) (internal quotation marks omitted). Martinez, like

the other cases the Government cites to, held that guns recovered from the same

location where drugs were found is probative of intent.4 These cases do not

support the conclusion that the fact that Gray held a gun (perhaps legally) in a

photograph was probative of Gray’s intent to distribute the crack cocaine found

in him. There was no probative value to the photographs, and therefore, the

district court abused its discretion through its admission of the evidence. See

United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994) (where evidence has

no probative value, admission is clear error).

A finding that the district court abused its discretion in admitting the non-

probative photographs does not, however, end our inquiry. We must consider

whether their admission was harmless error. Jackson, 636 F.3d at 692. Absent

the photographs, the evidence relating to Gray’s intent is the amount of the

cocaine (street value of just over one thousand dollars) and the way the crack

cocaine was divided (some in dealer sizes and other smaller pieces in user sizes).

There is “substantial evidence” supporting Gray's conviction, such that the

outcome of the case would not be affected by the error. See United States v.

Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). Therefore, there is no

reversible error based on the admission of the four photographs.

4

See United States v. Townsend, 1999 WL 427597, at *9 (unpublished) (introduction

of forty-one guns found at defendant’s home where the police also found crack cocaine not

unduly prejudicial); United States v. Gonzales, 9 F.3d 103, at *2 (1993) (per curiam)

(introduction of a gun found in the defendant’s car, which the police had seen the defendant

run from carrying drugs, was not unduly prejudicial); Martinez, 808 F.3d at 1057 (introduction

of guns found in defendant’s car when he was arrested on drug-related charges was not unduly

prejudicial).

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Case: 10-11150 Document: 00511744663 Page: 16 Date Filed: 02/01/2012

No. 10-11150

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s admission of the

crack cocaine and the four photographs of Gray posing with a gun.

AFFIRMED.

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