United States v. Johnson , 57 F. App'x 875 ( 2002 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 01-2704
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID JOHNSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Circuit Judge,
B. Fletcher,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Paul M. Glickman for appellant.
Cynthia A. Young, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
December 20, 2002
*
Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
B. FLETCHER, Senior Circuit Judge. David Johnson appeals
his conviction on three felony counts. A jury found him guilty of
possession of crack cocaine with the intent to distribute, being a
felon in possession of a firearm and ammunition, and being a felon
in possession of a firearm in furtherance of a drug trafficking
crime. He argues that the trial court should have suppressed
evidence obtained from a search of his car, and should not have
allowed the prosecution to cross-examine him regarding his prior
felony convictions. Because we find that the search of his car was
proper, and that the court's error in allowing him to be cross-
examined on his prior convictions was harmless, we affirm.
I. FACTS
Appellant Johnson was driving a rental car in a high
crime area in Roxbury at 2:30 a.m. The car stopped for 90 seconds
in the middle of a street. Plainclothes officers Lewis and Streat
waited behind it in an unmarked car for about 60 seconds. The
officers testified that the car's dome lights were on, and that
both occupants were using cell phones. Johnson's car continued
down the street and turned into a narrow private driveway, where it
stopped. Its motor was running, its brake lights were on, and both
occupants were talking on cell phones. The parties dispute whether
Johnson's door was open or closed at this time.
The officers approached the vehicle on foot to conduct a
"Field Interrogation Observation Report" ("FIO") -- a threshold
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inquiry to see if there was some problem, otherwise referred to as
a Terry stop. They had made many arrests in the area, and because
a car parked in the middle of a street was unusual, they sought to
question the occupants to ensure that everything was all right.
The officers testified that they typically conducted an FIO when
stopping an individual or a car in a high crime area. Unknown to
the officers, the driveway led to the residence of Johnson's
passenger, Calhoun. No obstacles blocked the officers' access to
the driveway, and they entered it.
Officer Lewis stood behind the driver's side of the car
for 30 to 45 seconds, before Johnson saw him. Lewis identified
himself as an officer and asked for Johnson's license and
registration. The beam of his flashlight then illuminated a bundle
of bags of crack cocaine in the map compartment of Johnson's door.
Lewis testified that after he ordered Johnson out of the car,
Johnson turned off the ignition and transferred the keys to his
left hand. As Johnson tried to reach under the driver's seat with
his right hand, Lewis pulled him away. A handgun was later found
under the seat. Johnson claimed that he had merely been putting
away his wallet. Johnson reached further under the seat, and Lewis
pulled him out of the car. A struggle ensued as Lewis tried to
keep Johnson from reentering the car. Calhoun, the car's
passenger, exited the car, entered the yard, and unleashed a pit
bull on Officer Streat. Streat held the dog at bay at gunpoint
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until Calhoun returned it to the yard, and then Streat and Calhoun
struggled as well. These struggles ended only when backup units
arrived.
At trial, over Johnson's timely and renewed objections,
the government cross-examined Johnson about at least five of his
prior drug-related convictions. Before taking the stand, Johnson
moved in limine to suppress this evidence, and the trial judge
stated that he would let the prosecution use "whatever should come
in under the rule." He required the prosecution to provide a list
of the convictions it intended to use along with citations
authorizing their admissibility to help him rule as to whether they
did address credibility. He noted that he always went back and
looked at Rule 609 due to its number of layers. When Johnson again
moved to suppress this evidence prior to his taking the stand, the
trial judge demurred, saying that the prosecutor had done "just
what I asked him to, be specific about what was going to be
offered." When Johnson once more moved to suppress just prior to
his cross-examination, the trial judge accepted the prosecutor's
advice that Rule 609 did not require him to find explicitly on the
record that the probative value of the evidence exceeded its
prejudicial effect, but that he could do so implicitly. He then
cut short Johnson's objections, ruling "Okay, I think I understand
and I am going to let them in." Johnson was sentenced to 262
months in jail on the first two counts, with a 60 month sentence
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for the third count to be served consecutively.
II. LEGAL ANALYSIS
A. Jurisdiction
This court has jurisdiction pursuant to 28 U.S.C. § 1291.
B. Motion to Suppress Evidence from Search
1. Standard of review
Factual findings underlying a district court's denial of
a motion to suppress evidence are reviewed for clear error, and its
determinations of law are reviewed de novo. U.S. v. Marenghi, 109
F.3d 28, 31 (1st Cir. 1997).
2. Merits of the motion to suppress
The officers did not know that the driveway where the car
stood led to Calhoun's residence. Further, the car was clearly not
within the residence's curtilage. In light of the stop in the
middle of the street late at night, the officers had a reasonable
and articulable basis to conduct a Terry stop. While Johnson
asserts that the officers had no right to leave the public street
and enter a driveway to do so, if a reasonable expectation of
privacy could be asserted here, it would belong only to Calhoun,
who resided at the property. See Minnesota v. Carter, 525 U.S. 83,
88-91 (1998). Johnson had no standing to claim a privacy interest.
The trial court found that Johnson's car door was open
when Officer Lewis approached the car, and that this allowed Lewis
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to see the bags of crack cocaine in the pocket of the car door.
This finding was not clear error. Upon his seeing the bags, Lewis
had probable cause to arrest Johnson, and then to search the car,
where the officers found the gun. The bags of crack cocaine and
the gun, therefore, are not subject to suppression.
C. Motion to Suppress Evidence of Prior Felony Convictions
1. Standard of review
We review whether the probative value of a prior
conviction outweighs its prejudicial effect for abuse of
discretion. United States v. Tracy, 36 F.3d 187, 193 (1st Cir.
1994).
2. Violation of Fed. R. Evid. 609(a)(1)
Johnson asserts that the court violated Federal Rule of
Evidence 609 by admitting evidence about his prior convictions of
felonies despite his offer to stipulate to the fact of felony
status. He relies on Old Chief v. United States, 519 U.S. 172, 191
(1997). Assuming arguendo that this argument has merit, we hold
that any erroneous admission of evidence was harmless. "[A]
nonconstitutional evidentiary issue will be treated as harmless if
it is highly probable that the evidence did not contribute to the
verdict." United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998)
(quoting United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.
1997)). Here, Officer Lewis's testimony was straightforward,
believable, and damning. Johnson's testimony -- that he didn't
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know that the drugs and gun were in the car, that he kept slipping
when still in the car and did not intend to reach for the gun or
fight Officer Lewis -- was not credible. Had the trial judge ruled
optimally, the jury would still have known that Johnson had been
convicted of several felonies, but not the nature of those
felonies. At best, from Johnson's perspective, jurors would have
known that he had been convicted of a felony. Given the other
evidence, we cannot say that the jury was appreciably less likely
to have acquitted Johnson had it not known the nature of his prior
convictions.
III. CONCLUSION
The trial court correctly admitted evidence obtained from
the search of Johnson's car. The officers had a reasonable and
articulable suspicion to warrant their approaching the car in the
driveway, and probable cause for arrest once they viewed the bags
of crack cocaine in the car's open door. Even though the trial
court may have erred in allowing cross-examination on Johnson's
prior felony convictions, any trial court error was harmless given
the overwhelming evidence against Johnson. Accordingly, we affirm
appellant Johnson's convictions on both charges.
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