United States v. Davis , 383 F. App'x 269 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5160
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOSES LIRAN DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00343-F-1)
Argued: May 14, 2010 Decided: June 15, 2010
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: William Lee Davis, III, Lumberton, North Carolina, for
Appellant. William Miller Gilmore, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Moses Liran Davis of narcotics and
firearms offenses. On appeal, Davis challenges the denial of
his motion to suppress, certain evidentiary rulings, the jury
instructions, and the sufficiency of the evidence. We affirm.
I.
Davis’s arrest resulted from an undercover operation
designed to apprehend Christian Angel McDuffie, a suspected drug
dealer. Detective Chad Hines of the Wake County Special
Response Team (“SRT”), working undercover, had purchased drugs
from McDuffie on two prior occasions. McDuffie agreed to meet
Detective Hines at a BP gas station in Raleigh, North Carolina,
for a third drug transaction on May 19, 2007. The SRT planned
to arrest McDuffie after the drugs and money changed hands, and
several SRT officers waited in a van parked close to Detective
Hines’s vehicle, ready to effectuate the “takedown.”
The situation grew more dangerous than the officers had
anticipated when McDuffie told Detective Hines that, because his
regular supplier could not provide him with drugs, he would
arrive at the BP station with his “boys.” McDuffie told
Detective Hines that his friends “didn’t deal with white
people,” but would come to the station with him and wait to
collect their share of the proceeds. At 7:22 p.m., McDuffie
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called to inform Detective Hines that he was on his way “with
his boys.” Detective Hines relayed all of this information to
the other officers at the scene.
A few minutes later, Detective Hines saw McDuffie’s white
Acura pull into the BP station parking lot. Detective Wade
Allen, who was sitting in the car with Detective Hines, saw
another car pull in “almost at the exact same time as the white
Acura.” Detective Hines communicated to the officers waiting in
the SRT van that the suspect had arrived, at which point those
officers also saw the second car pull into the parking lot.
Davis, the driver of the second car, backed his car into
the space next to the SRT van. (Davis’s car faced Detective
Hines’s vehicle, and the SRT van faced the opposite direction.)
From his parking spot, Davis had an unobstructed view of
Detective Hines’s car, where the drug sale between McDuffie and
Detective Hines would take place. Detective Aldolphus McGhee,
one of the SRT members waiting in the van, watched Davis for
approximately forty-five seconds, during which time Davis did
not “make any effort to pump gas or get services from the gas
station.” Detective McGhee testified that Davis’s behavior
struck him as unusual: “I found it peculiar and strange that he
was sitting in the car. He wasn’t going into the store. He
wasn’t motioning for his wallet or phone. He was just sitting
in the car observing the undercover vehicle, looking in that
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direction.” Because of McDuffie’s statements about his friends’
impending arrival, the close proximity in time of the two cars’
entry into the station, Davis’s post-parking behavior,
McDuffie’s statement that his friends would not deal with white
people, and Davis’s non-white race, the officers suspected that
the Davis was one of McDuffie’s drug-dealing “boys.”
While the SRT officers observed Davis, McDuffie left his
vehicle and walked to Detective Hines’s car, where he sold
Detective Hines $120 worth of powder cocaine. After they
completed the sale, some SRT officers emerged from the van to
arrest McDuffie, Detective Hines, and Detective Allen. Others
went to Davis’s car and, with their weapons drawn, “ordered him
out of the car and onto the ground.” Detective McGhee opened
the car door, pulled Davis out, placed him in handcuffs, and
then “looked back” at Davis’s car, where he saw a “bag of
marijuana in the [car] door.”
The officers then searched the car. They found marijuana
in the driver’s side door, a loaded .38 caliber pistol under the
driver’s side floor mat, cocaine and plastic baggies in a Crown
Royal bag in the glove compartment, crack cocaine and a Tanita
digital scale in the console, $320 in cash between the driver’s
seat and the pull-up parking brake, and a 9mm pistol with
obliterated serial numbers in the trunk.
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On November 20, 2007, a grand jury charged Davis with
possessing cocaine, cocaine base, and marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) (2006); being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924; and using and carrying a firearm during
and in relation to a drug trafficking crime, in violation of id.§ 924 (c)(1)(A).
Prior to trial, Davis moved to suppress the evidence found
in the car, contending that it constituted the fruit of an
illegal search. At the suppression hearing, the Government
presented testimony from officers at the scene. The Government
also moved to admit into evidence the written reports of some
officers who did not testify. Davis objected on hearsay
grounds.
Without relying on the written reports or admitting them
into evidence, the court denied Davis’s motion to suppress.
Although the court found that the police officers did not have
probable cause to arrest Davis at the moment they pulled him out
of his car, it concluded that they did have reasonable suspicion
to conduct an investigatory stop “in order to assure officer
safety in the wake of an executed drug transaction on the
scene.” The court further reasoned that this investigatory stop
permitted the officers to view “a bag of marijuana in plain
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sight in the door of Davis’s car” and thus provided “probable
cause to search the remainder of Davis’s car.”
At trial, the Government presented testimony describing the
McDuffie-Hines transaction, Davis’s appearance on the scene, the
investigative stop of Davis, and the evidence found in Davis’s
car. The defense presented no evidence.
The jury found Davis guilty on all counts, and the court
sentenced him to 420 months in prison.
Davis timely noted this appeal.
II.
Davis first challenges the district court’s order denying
his motion to suppress. “[W]e review a district court’s factual
findings for clear error and its legal determinations de novo.”
United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
When, as here, the district court has denied a motion to
suppress, we “construe the evidence in the light most favorable
to the government.” Id.A.
Generally, “a search or seizure without probable cause is
unreasonable and, thus, unconstitutional.” United States v.
Neely, 564 F.3d 346, 349 (4th Cir. 2009) (per curiam). The
district court did not find, and the Government does not argue,
that the police officers had probable cause to arrest Davis when
6
they pulled him from his car. Rather, the Government contends,
and the district court found, that the officers conducted a
legal investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1(1968).
Under Terry, “an officer may conduct a brief investigatory
stop where the officer has reasonable suspicion [but not
probable cause to believe] that criminal activity may be afoot.”
Perkins, 363 F.3d at 321. To satisfy the Fourth Amendment, a
temporary stop must be “justified at its inception” and
“reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry, 392 U.S.
at 20. The police may stop a suspect when they can “point to
specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that
intrusion.” Id. at 21. Courts must judge those facts “against
an objective standard: would the facts available to the officer
at the moment of the seizure or the search warrant a man of
reasonable caution in the belief that the action taken was
appropriate?” Id. at 21-22 (internal quotation marks omitted).
Applying that standard to this case, the officers had
reasonable suspicion to stop Davis. We have explained that
“factors which by themselves suggest only innocent conduct may
amount to reasonable suspicion when taken together,” and “our
determination of reasonable suspicion must give due weight to
7
common sense judgments reached by officers in light of their
experience and training.” Perkins, 363 F.3d at 321. In this
case, the police knew that McDuffie planned to bring his “boys”
to the drug sale, that those “boys” had provided drugs to
McDuffie and did not like white people, that a car had arrived
at roughly the same time as McDuffie’s car and been positioned
in viewing distance of the anticipated drug sale, and that the
car was driven by a non-white man who did not buy gas or enter
the gas station store. A reasonable police officer would also
have understood the close relationship between drugs and guns
and the possible danger inherent in a drug transaction.
Ultimately, “[a] determination that reasonable suspicion exists
. . . need not rule out the possibility of innocent conduct.”
United States v. Arvizu, 534 U.S. 266, 277 (2002). Although
Davis might have arrived at the BP gas station without nefarious
purpose, the officers reasonably could have suspected otherwise
from the circumstances of his arrival and his subsequent
actions.
Furthermore, the officers’ conduct in detaining Davis did
not transform the encounter from a Terry stop (requiring only
reasonable suspicion) to a full-scale arrest (requiring probable
cause). We have held that a Terry stop becomes a custodial
arrest not because of the degree to which officers restrict the
suspect’s liberty, or the means they employ to do so, but rather
8
as a result of the duration of the stop. See United States v.
Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995). Terry permits a
“brief but complete restriction of liberty” so long as the
restriction lasts “no longer than necessary to verify or dispel
the officer’s suspicion.” Id. at 1109 (emphasis added). We
have explicitly recognized that valid Terry stops may involve
“drawing weapons, handcuffing a suspect, placing a suspect in a
patrol car for questioning, or using or threatening to use
force,” particularly if the officers “reasonably suspect[] that
[the detainee is] armed and dangerous.” United States v.
Elston, 479 F.3d 314, 320 (4th Cir. 2007) (internal quotation
marks omitted). The specific circumstances of the detention
dictate whether the officers “exceed[ed] the limits of a Terry
stop.” Id.Davis’s detention occurred during a dangerous take-down
operation in which the arresting officers had to ensure not only
their own safety, but also that of two undercover officers, the
many patrons at the busy BP station, and the suspected drug
dealers. To minimize the risk of a shoot-out or physical
confrontation, they needed to restrain any potentially dangerous
persons until they could “verify or dispel” their suspicions
about them. Based on Davis’s behavior, the officers could have
reasonably suspected him of being McDuffie’s drug supplier.
They could have reasonably believed that Davis was dangerous,
9
had a gun at the ready (as indeed he did), and was in an ideal
location to use that gun to attack them. The officers were
entitled to restrain Davis for the brief period necessary to
ascertain whether he actually posed a threat.
B.
The SRT officers legally searched Davis’s vehicle. The
police “may search a car without a warrant as long as there is
probable cause to believe the car contains contraband.” United
States v. Carter, 300 F.3d 415, 422 (4th Cir. 2002) (per
curiam). After seeing the marijuana in the door, the police had
probable cause to search the passenger compartment. Cf. id. 1
The district court did not err in admitting the evidence the
police gathered from their search.
1
The police also searched the trunk of the car and found a
gun inside. Although probable cause to search one area of a car
does not necessarily extend to the rest of the car, see Carter,
300 F.3d at 422, the district court held -- without explanation
-- that the marijuana bag in the car door gave the police
probable cause to search the entire car, including the trunk.
Davis did not (and does not) specifically challenge the search
of the trunk. We need not now decide whether the officers had
probable cause to search the trunk. After finding a gun, drugs,
a digital scale, and cash in the passenger compartment, clearly
the police would have inevitably discovered the gun in the
trunk. See United States v. Lynn, 592 F.3d 572, 583 n.7 (4th
Cir. 2010) (upholding a trunk search because after the police
found drugs and drug paraphernalia in the passenger compartment,
they had probable cause to arrest the defendant and perform an
inventory search of the vehicle, which would “inevitably have
led the officers to discover the [contraband] in the trunk”).
10
III.
Davis also argues that the district court erred in several
of its evidentiary rulings. We “review the district court’s
evidentiary rulings for abuse of discretion.” United States v.
Delfino, 510 F.3d 468, 470 (4th Cir. 2007). “A district court
abuses its discretion when it acts arbitrarily or irrationally,
fails to consider judicially recognized factors constraining its
exercise of discretion, relies on erroneous factual or legal
premises, or commits an error of law.” Id.A.
Davis contends that the court erred in allowing the
Government to introduce as evidence at the suppression hearing
written reports prepared by officers who did not testify at the
hearing. Petr.’s Br. at 24. However, the district judge did
not admit the evidence at the hearing, but rather asked for
briefing on whether he should do so. In denying the motion to
suppress, the court never mentioned these reports. Instead, the
court solely relied on “the evidence offered [and] the testimony
received” at the suppression hearing, “and the court’s
determination as to the credibility of the witnesses.” Because
nothing in the record indicates that the district court ever
admitted the written reports, we cannot conclude that it abused
its discretion in doing so.
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B.
Davis also, albeit briefly, argues that the court abused
its discretion in admitting into evidence exhibits regarding the
McDuffie-Hines drug transaction. He maintains that this
evidence “was not relevant . . . and was prejudicial.” Petr.’s
Br. at 23. Specifically, Davis objects to Government Exhibits
26 and 26A, which consist of photographs of the cocaine from the
McDuffie-Hines drug sale, and the cocaine itself. 2
“‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401.
“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
The cocaine from the McDuffie transaction placed in context
the discovery of Davis’s contraband and connected Davis to drug-
2
Davis also objects to Government exhibits that consist of
photographs of the gas station and photographs of the items
seized from Davis and his car, as well as the actual items. The
district court did not err in admitting this evidence. As we
have explained, the police properly conducted the search and
seizure, and the court did not err in denying Davis’s motion to
suppress.
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selling activity (thereby negating the argument that he
possessed the drugs in his car merely for personal use).
Further, the court instructed the jury that the cocaine was “not
to be attributed to the possession of Mr. Davis for any reason”
and elaborated that “the charge against Mr. Davis doesn’t relate
to [the McDuffie] charge.” We presume that jurors follow the
instructions that the court gives them. United States v.
Williams, 461 F.3d 441, 451 (4th Cir. 2006). Accordingly, the
district court did not abuse its discretion in admitting this
evidence.
IV.
Davis additionally contends that the district court erred
in refusing to give a jury instruction on the lesser-included
offense of simple possession. We review “a district court’s
decision whether to give a jury instruction for abuse of
discretion.” United States v. Kennedy, 372 F.3d 686, 698 (4th
Cir. 2004).
Davis argues that the relatively small amount of cocaine
involved (4.1 grams) produces a fair inference of simple
possession and therefore entitles him to a lesser-included
offense instruction. Petr.’s Br at 27-28. Our holding in
United States v. Wright, 131 F.3d 1111 (4th Cir. 1997)
forecloses his argument. In Wright, the police found the
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defendant with 3.25 grams of crack cocaine. Id. at 1112. The
district court denied the defendant’s request for a simple
possession instruction. Id. We affirmed, explaining that
[a] defendant is not entitled to a lesser-included
offense instruction as a matter of course. In order
to receive a lesser-included offense instruction, the
proof of the element that differentiates the two
offenses must be sufficiently in dispute that the jury
could rationally find the defendant guilty of the
lesser offense but not guilty of the greater offense.
. . . For an element to be placed sufficiently in
dispute so as to warrant a lesser-included offense
instruction, one of two conditions must be satisfied.
Either the testimony on the distinguishing element
must be sharply conflicting, or the conclusion as to
the lesser offense must be fairly inferable from the
evidence presented.
Id. (internal quotation marks and citation omitted).
Like Wright, Davis did not produce “sharply conflicting”
testimony as to the “distinguishing element,” Davis’s intent in
possessing the drugs. Rather, he “presented no evidence from
which a reasonable jury could find that [his] intent was to
possess the cocaine for personal use.” Id. No one testified at
trial that Davis used drugs or possessed the cocaine “for any
purpose other than distribution.” Id.Furthermore, again like Wright, Davis did not demonstrate
that possession was fairly inferable from the evidence, given
that the amount of cocaine “is simply insufficient alone to
require the lesser-included offense instruction requested.” Id.
at 1113. In Wright, the police found the defendant with
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cocaine, a razor blade with cocaine residue, and cash; we
concluded that “[f]rom none of this evidence could a jury fairly
infer that [the defendant] possessed his crack for personal use
only.” Id. Similarly, the police found Davis with guns, a
scale, plastic baggies, cocaine, and cash, and no witness
testified that Davis used cocaine. The evidence simply did not
provide a fair inference of simple possession.
Thus, the district court did not err in denying the request
for a lesser-included offense instruction.
V.
Finally, Davis argues that the district court erred in
denying his motion for judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29. We consider de novo a district
court’s denial of a Rule 29 motion. United States v. Alerre,
430 F.3d 681, 693 (4th Cir. 2005). “In reviewing the
sufficiency of the evidence following a conviction, this court
views the evidence and the reasonable inferences to be drawn
therefrom in the light most favorable to the Government.”
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)
(internal quotation marks omitted). If “any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt,” the appellant’s sufficiency challenge
fails. Id. (internal quotation marks omitted).
15
The district court did not err in denying the Rule 29
motion as to Count One -- possessing cocaine, cocaine base, and
marijuana with the intent to distribute, in violation of 21
U.S.C. § 841(a)(1). “To convict a defendant of possession with
the intent to distribute, the government must prove: (1)
possession of a narcotic controlled substance; (2) knowledge of
the possession; and (3) the intent to distribute.” United
States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). The
prosecution presented evidence that Davis knowingly possessed
drugs, drug trafficking paraphernalia including digital scales
and plastic bags with the corners torn off, $320 in $20 bills,
and two guns. Petr.’s Br. at 30. Detectives testified as to
the connection between those items and narcotic distribution.
That evidence provided a sufficient basis for a reasonable juror
to find possession with intent to distribute.
The district court also did not err in denying the Rule 29
motion as to Count Two -- being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Davis
stipulated to being a felon, and the prosecution presented
evidence that Davis knowingly possessed two firearms.
Nor did the district court err in denying the Rule 29
motion as to Count Three -- using and carrying a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924 (c)(1)(A). Section 924(c) “requires the government
16
to present evidence indicating that the possession of a firearm
furthered, advanced, or helped forward a drug trafficking
crime.” Lomax, 293 F.3d at 705. Although “whether the firearm
served such a purpose is ultimately a factual question,” this
court has noted several ways a firearm could further or advance
drug trafficking, including protection and intimidation. Id.In this case, the SRT officers found one of the guns underneath
the driver’s side floor mat, at Davis’s feet. The jury could
reasonably infer that the presence of an illegally possessed and
easy-to-reach gun alongside indicia of drug distribution showed
that the gun furthered Davis’s drug trafficking.
In sum, the district court did not err in denying Davis’s
Rule 29 motion.
VI.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED
17