United States v. Bates , 453 F. App'x 839 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
January 5, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-7042
v. (D.C. No. 6:10-CR-00003-RAW-2)
(E.D. Okla.)
DREW SAMUEL BATES,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Drew Samuel Bates appeals from a possession with intent to distribute
cocaine base conviction. He argues that (1) the district court erred in denying his
motion to suppress; (2) there was insufficient evidence to convict him; and (3) his
trial counsel was ineffective. We affirm. 1
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Our jurisdiction derives from 28 U.S.C. § 1291.
B ACKGROUND
On the morning of December 10, 2009, Oklahoma Highway Patrol Trooper
Vern Roland stopped a car driven by Rodney Ledell Carter after observing the
vehicle change lanes without signaling. As Roland walked up to the vehicle, he
smelled “an overwhelming odor of green or raw marijuana.” R., Vol. II at 35.
Neither Carter nor his passenger, Bates, could produce a driver’s license.
Trooper Alan Murray, who had also witnessed the car change lanes without
signaling, arrived on the scene with his drug sniffing dog, Duffy. Murray also
detected the odor of marijuana emanating from the car and Duffy alerted to the
presence of narcotics. After placing Carter and Bates in the back seat of Roland’s
vehicle the troopers searched the vehicle. Behind the passenger seat of Carter’s
vehicle the troopers found a black duffle bag containing scented drier sheets and a
box of laundry detergent that appeared to have been opened and resealed. Inside
the box they found Ziploc bags filled with over three kilograms of a substance
that field-tested positive for cocaine. They also found “loose-laying marijuana”
and “a marijuana cigar blunt” in the vehicle. Id. at 58.
As the search progressed the patrol car’s dashboard camera recorded it and
also recorded the conversation between Carter and Bates, who were in the back
seat of the patrol car. As the troopers were closing in on the hidden cocaine,
Carter and Bates discussed the search:
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[Carter]: Drew [Bates] just chill.
[Bates]: Oh I am, you know.
[Bates]: Probably smell it.
[Carter]: That’s why I told you to get that cologne.
[Bates]: Umm hmm. I thought we was going to stop off at the
store cause I had to pee.
[Carter]: Damn he, I sure hope he don’t . . . [PAUSE]. It must be
time to pray.
[Bates]: [MOAN]
...
[Carter]: Looks like [unintelligible] go down, shit.
[Bates]: Did he open it up?
[Carter]: He ain’t opened it, but he, he got it out. [PAUSE]. He
opening it Drew.
[Bates]: Damn.
[Carter]: That’s it fool.
Addendum of Exs., Ex. 9 at 10 (capitalizations in original).
The troopers arrested Carter and Bates, and had the vehicle towed from the
scene. Inside Bates’s pocket, the troopers found $1,190 in cash.
Carter and Bates were indicted on a charge of possessing with intent to
distribute fifty grams or more of crack cocaine. Both unsuccessfully moved to
suppress the evidence recovered from the traffic stop. Ultimately, Carter pleaded
guilty; Bates went to trial.
At the suppression hearing and trial Roland and Murray testified regarding
the traffic stop. Agent Brian Epps of the Drug Enforcement Administration
testified to having examined the vehicle shortly after it was towed away. He
could smell the odor of marijuana both outside and inside the car. Additionally,
at trial, he recounted statements made by Bates during an interview on the day he
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was arrested. According to Agent Epps, Bates stated Carter “was like a brother to
him,” and he had taken several trips with Carter from Dallas to Tulsa. R., Vol. II
at 294. Bates explained Carter had called him on December 9 to invite him on
another trip to Tulsa. Bates“knew what Carter was involved in.” Id. at 295.
Bates also told Agent Epps that his (Bates’s) fingerprints might be on the
detergent box and the duffel bag was his.
Carter testified for the prosecution. He stated the black bag in which the
cocaine was ultimately located belonged to Bates, Bates put it in the car, and he
“guess[ed] [Bates] put [the detergent box] in [the bag],” id. at 267, but someone
else put the cocaine in the box. According to Carter, the purpose of every trip
they made to Tulsa was to deliver narcotics. While there, they would stay in a
hotel for several days and gamble, and he would use Bates’ I.D. to cash his
winnings. Further, he stated Bates knew what he (Carter) was doing, Bates
“wanted to be there,” id. at 273, and had on at least one occasion accompanied
him to the delivery point.
Bates testified in his defense, stating he had accompanied Carter on four
trips from Dallas to Tulsa for fun and gambling. Because Carter lacked an I.D.,
Bates would rent the hotel rooms, collect Carter’s gambling winnings, and pay the
taxes on them. He denied attending any deliveries with Carter, but “had [his]
suspicions” about what Carter was doing given that he owned several houses and
numerous cars despite never working. Id. at 328. Bates further stated he moved a
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box of detergent while preparing breakfast before leaving with Carter, but it was a
different brand than the one found in Carter’s car. Bates denied owning the black
duffel bag that contained the resealed detergent box, and stated he did not know
drugs were in the car.
The jury convicted. Shortly thereafter Bates filed a pro se “Motion for
Mistrial & Motion for Ineffective Assistance of Counsel & Motion to Dismiss.”
R., Vol. I at 145. The district court referred the ineffective-assistance issue to a
magistrate judge and denied the remaining motions. After conducting an
evidentiary hearing, where Bates was represented by new counsel, the magistrate
recommended that the motion be denied. Bates did not object. The district judge
accepted the recommendation and sentenced Bates to 190 months’ imprisonment.
D ISCUSSION
I. Motion to Suppress
“In reviewing the district court’s denial of a motion to suppress, we review
the court’s factual findings for clear error and view the evidence in the light most
favorable to the government.” United States v. Worthon, 520 F.3d 1173, 1178
(10th Cir. 2008). We review de novo the reasonableness of a search or a seizure
under the Fourth Amendment. Id. “The credibility of witnesses, the weight
accorded to evidence, and the reasonable inferences drawn therefrom fall within
the province of the district court.” Id.
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Bates contends there are “serious questions of credibility as to [] Roland’s
reason for the [traffic] stop.” Aplt. Br. at 14. There is no video of the traffic
violation and Roland’s testimony varied concerning the length of time his
dashboard camera was operating.
“Whether a traffic stop is valid under the Fourth Amendment turns on
whether this particular officer had reasonable suspicion that this particular
motorist violated any one of the multitude of applicable traffic and equipment
regulations of the jurisdiction.” United States v. Vercher, 358 F.3d 1257, 1261
(10th Cir. 2004) (quotation omitted). Both Roland and Murray testified to having
witnessed Carter’s vehicle change lanes without signaling, a traffic offense. As
Bates does not challenge Murray’s testimony we conclude the initial stop of
Carter’s vehicle was legitimate.
Bates next claims the stop was not reasonably related in duration and scope
to the circumstances that justified the stop. He complains that instead of writing
Carter a ticket for the unsignaled lane change, “Roland had [] Murray come to
the scene for the purpose of having [Duffy] sniff the vehicle.” Aplt. Br. at 15.
Thus, Bates frames the issue as “whether the intention of [] Roland was to give a
warning ticket or to search the vehicle for drugs.” Id. at 15-16.
The argument fails for two reasons. First, an officer’s subjective motives
for the stop are irrelevant; “[w]e look only at whether the stop was objectively
justified,” United States v. Kitchell, 653 F.3d 1206, 1216 (10th Cir. 2011)
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(quotation omitted), and here it was. Second, a “traffic stop may be expanded
beyond its original purpose if during the initial stop the detaining officer acquires
reasonable suspicion of criminal activity, that is to say the officer must acquire a
particularized and objective basis for suspecting the particular person stopped of
criminal activity.” Id. at 1217-18 (quotation omitted). Here, neither Carter nor
Bates could legally operate the vehicle, as they both lacked a driver’s license.
Moreover, Roland detected the odor of marijuana when he approached the
vehicle—an observation confirmed by Murray, and later, Epps. There was
reasonable suspicion for the continued detention of Carter and Bates.
Finally, Bates “question[s] whether the smell of marijuana constitutes
probable cause to search the subject vehicle.” Aplt. Br. at 16. We have clearly
stated it does. See United States v. Johnson, 630 F.3d 970, 974 (10th Cir. 2010).
Additionally, Duffy alerted to the presence of narcotics. A positive alert by a
certified drug dog generally provides probable cause for officers to search a
vehicle. See United States v. Parada, 577 F.3d 1275, 1282 (10th Cir. 2009).
The district court properly denied Bates’s motion to suppress.
II. Sufficiency of the Evidence
Bates claims there was no evidence he “knew what was in the soap box” or
did anything “to make the venture succeed.” Aplt. Br. at 19. We review
sufficiency-of-the-evidence claims de novo, “ask[ing] whether a reasonable jury
could find a defendant guilty beyond a reasonable doubt, viewing the evidence in
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the light most favorable to the government and drawing reasonable inferences
therefrom.” United States v. Vigil, 523 F.3d 1258, 1262 (10th Cir. 2008).
“However, we do not weigh conflicting evidence or consider witness credibility,
and the fact that prosecution and defense witnesses presented conflicting or
differing accounts at trial does not necessarily render the evidence insufficient.”
United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011) (citation omitted).
To prove possession with intent to distribute under 21 U.S.C. § 841(a), the
government must prove the defendant “(1) possessed a controlled substance,
(2) knew he possessed a controlled substance, and (3) intended to distribute the
controlled substance.” United States v. Burkley, 513 F.3d 1183, 1189 (10th Cir.
2008) (quotation omitted).
Both Carter and Epps attributed ownership of the duffel bag containing the
box of cocaine to Bates. According to Carter, Bates put the bag in the car and he
(Carter) “guess[ed]” it was Bates who put the detergent box in the bag. R., Vol.
II at 267. This latter point was supported by Epps, who related Bates’s statement
that his fingerprints might be on the box. And the bag and cocaine were found
behind Bates’s seat. The evidence was sufficient to prove Bates’s possession of
the cocaine.
Regarding Bates’s knowledge of the cocaine, the audio captured by
Roland’s dashboard camera clearly demonstrates Bates’s knowledge of the
contents of the box. He is heard discussing with Carter his role concealing the
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narcotics’ smell, asking Carter whether the troopers opened the box, and then
cursing when told they had found the contraband.
Finally, Bates’s intent to distribute is demonstrated by the large quantity of
cocaine (over three kilograms), the use of scented sheets in the duffel bag to mask
the odor, and the presence of $1,190 in cash found in his pocket when he was
arrested. See United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000) (“Facts
that can go toward proving that a defendant possessed drugs with the intent to
distribute include: (1) the amount of the drugs; (2) the way they are packaged;
(3) the presence of cash; and (4) the presence of firearms.”). Further, Bates
admitted to Epps that he (Bates) “knew what Carter was involved in,” R, Vol. II
at 295, and had accompanied him in the past from Dallas to Tulsa. In addition,
Carter testified he was, indeed, trafficking cocaine, the only purpose of the trips
was trafficking, and Bates had even accompanied him on one occasion to the
delivery point.
The evidence against Bates was strong. It was clearly sufficient to convict
him of possessing cocaine with intent to distribute.
III. Ineffective Assistance of Counsel
Generally, ineffective assistance claims must be brought on collateral
review “so that a factual record enabling effective appellate review may be
developed in the district court.” United States v. Hamilton, 510 F.3d 1209, 1213
(10th Cir. 2007). But when the claims are sufficiently developed at the district
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court level, direct appellate review is appropriate. Id. Here, the claims were
adequately addressed below: the magistrate judge held an evidentiary hearing and
issued a detailed report and recommendation (R&R), which was adopted by the
district judge.
Bates was notified that failure to object to the R&R would preclude
appellate review. He did not object. Under the firm waiver rule, “[t]he failure
to timely object to a magistrate’s recommendations waives appellate review of
both factual and legal questions.” Duffield v. Jackson, 545 F.3d 1234, 1237
(10th Cir. 2008) (quotation omitted). Although the rule “may be suspended when
the interests of justice warrant, or when the aggrieved party makes the onerous
showing required to demonstrate plain error,” Wardell v. Duncan, 470 F.3d 954,
958 (10th Cir. 2006) (quotation and citation omitted), neither exception applies
here.
AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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