United States v. Lyons ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40715
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PAUL ANTHONY LYONS,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 1:99-CR-170
March 30, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Paul Anthony Lyons was convicted following a bench trial for
being a felon in possession of a firearm. Lyons was sentenced to
a 96-month term of imprisonment and a three-year period of
supervised release. Lewis appeals his conviction and we affirm.
FACTS AND PROCEDURAL HISTORY
At the trial, Paul Arvizo, a narcotics detective with the
Port Arthur Police Department, testified that he had received
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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information that marijuana was being sold out of a residence at
6255 Jade Avenue, in Port Arthur, Texas, by a person named Jerry
and that a black male named Paul Lyons had been bringing
marijuana to the residence. Arvizo understood that Lyons had
three or four different vehicles, including a blue Chevy Suburban
and a small grey or blue pickup truck, and that Lyons did not use
the same vehicle each time he made a delivery. Arviso had been
told that the pickup truck was low to the ground, a "low rider."
Arvizo had also learned where Lyons lived.1 The information was
provided to Arvizo by three confidential informants. Arvizo had
used one of these informants in the past and that informant had
given him accurate information.
On May 20, 1999, Arvizo, Port Arthur Police Department
Sergeant Pat Powell and Port Arthur Police Department Detective
Shawn Peron went to the Jade Street residence in an unmarked
white truck and asked permission to conduct a search. Arvizo and
Peron were wearing tactical gear, with visible police badges, a
web belt with a gun and gun holster. Powell was in plain
clothes. A resident, Mary Kay Bennett, answered the door and
gave the officers permission to come in. A sandwich baggie of
marijuana was in plain view on a shelf in the living room. Other
evidence of marijuana was found in the house.
1
Arviso had also been advised that Lyons had gone to
Houston to get the marijuana; that Lyons also owned a Chevy
Blazer; that Lyons also delivered marijuana to another residence;
and that Lyons had fled from an interdiction unit in a high-speed
chase in Beaumont and had burned the vehicle involved in the
incident. Arviso had verified this information.
2
While the officers were searching the house, a grey Izuzu
pickup truck pulled up to the house. Officer Powell began
speaking with Lyons, who was driving the truck. After Lyons
entered the house and stated that he needed to use the bathroom,
Arvizo asked for his name and address, which Lyons provided.
Powell confirmed that he had seen Lyons drive up in the grey
pickup truck. Lyons could produce neither his drivers license
nor proof of insurance, both of which are required by law in
order to operate a motor vehicle. Arvizo decided to run a check
for outstanding warrants and to determine whether Lyons had a
valid driver's license. Arvizo had decided that Lyons could not
leave driving the truck until it was determined that Lyons had a
valid driver's license.
After Arvizo advised Powell that Lyons was one of his
suspects, Powell asked for permission to search the truck, which
Lyons refused to give. Arvizo told Lyons that he was not free to
leave because Arvizo had not finished his criminal investigation
and had not yet run a check for outstanding warrants and for a
valid driver's license. Lyons had not been told that he was
under arrest at that time.
Before Arvizo could use the radio to initiate the warrant
and driver's license check, Lyons stated that he thought he might
have a driver's license in the truck. Arvizo and Lyons walked
over to the truck. Lyons opened the driver's door, pulled out a
daily planner, and handed Arvizo a driver's license. When he did
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this, Lyons leaned over and locked the passenger door. Peron was
standing on that side of the vehicle.
The identification confirmed that Lyons was Arvizo's
suspect. Arvizo informed Powell of that fact and, speaking over
the bed of the truck, told Peron that Lyons was the person who
was suspected of transporting marijuana to the house. At that
point, Lyons was sitting in the driver's seat with his legs out
of the truck. Lyons pulled his legs into the vehicle, closed the
door, began to roll up the window, and put his key in the
ignition. Arvizo leaned into the vehicle and put his hand on
Lyons's right hand in order to prevent him from turning the
ignition switch. Lyons briefly resisted and attempted to start
the vehicle. Finally, he gave up and exited the truck.
Lyons was placed under arrest for evading detention. Arvizo
reached under the driver's seat and found a plastic bag
containing five one-ounce packages of marijuana. The vehicle was
transported to the mid-county police office. Lyons was taken to
the mid-county jail and booked with possession of marijuana. An
inventory search of the vehicle was conducted, and an unloaded
gun was found under the driver's seat in the area where the
marijuana had been found. The gun was a Rossi model 33 .38
Special Revolver.
The defense presented testimony showing that the gun
belonged to Lyons's wife and that she had placed the gun under
the driver's seat of the Izuzu after retrieving it unloaded from
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the Police Department evidence room.2 Ms. Lyons stated that she
had forgotten about the gun and that she had not told Lyons that
the gun was in the truck. Ms. Lyons stated that she was unaware
that it was illegal for Lyons to possess a gun. Ms. Lyons
admitted on cross examination that Lyons had prompted her to go
and retrieve the gun. She stated that she first informed Lyons
that the gun was in the truck after the truck was seized, which
prompted Lyons to call Detective Arvizo to inquire about the gun.
Prior to the trial, Lyons had moved to suppress evidence of
the gun. After hearing the evidence, the district court denied
the motion to suppress, assigning reasons. The district court
found that, although the question was close, circumstantial
evidence established beyond a reasonable doubt that Lyons knew
the gun was in the truck.
DISCUSSION
A. Motion to suppress
Lyons contends that the seizure, detention, and warrantless
search of Lyons and the pickup truck were unreasonable and that
the district court erred in denying the motion to suppress.
Police officers may briefly detain individuals . . . if
they have a reasonable suspicion that criminal activity
is afoot. The Fourth Amendment requires only some
minimum level of objective justification for the
2
The gun was evidence in an assault case in which Paul
Lyons was the suspect. Ms. Lyons testified that the gun had been
taken from her home by police when the police responded to an
incident in which she had complained that Lyons had followed her
out of the house and fired a gun in the air as she was leaving to
go to her mother's house following an argument with Lyons. It
turned out that the gun had not been discharged. Ms. Lyons
denied that there had been a second gun in the house.
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officers' actions--but more than a hunch--measured in
light of the totality of the circumstances. Reasonable
suspicion must be supported by particular and
articulable facts, which, taken together with rational
inferences from those facts, reasonably warrant an
intrusion.
United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994)
(en banc) (internal citations omitted); see Terry v. Ohio, 392
U.S. 1, 30 (1968). "To determine if a seizure has exceeded the
scope of a permissible Terry stop, [this court] must undertake a
two-step inquiry: (1) whether the officer's action was justified
at its inception; and (2) whether it was reasonably related in
scope to the circumstances that justified the interference in the
first place." United States v. Jones, 234 F.3d 234, 240 (5th
Cir. 2000).
The district court's determination of the objective
reasonableness of a Terry stop is a conclusion of law which this
court reviews de novo. Michelletti, 13 F.3d at 841. The
evidence is viewed in the light most favorable to the government
as the prevailing party. Id.
Lyons was not detained until after the officers had
developed a reasonable suspicion that Lyons was the person whom
the confidential informant had identified by name as the supplier
of marijuana to the house. See United States v. Cooper, 43 F.3d
140, 146 (5th Cir. 1995) (no detention where officers had merely
boarded a bus and had asked passengers for identification). In
addition to the fact that Lyons had identified himself using the
name supplied by the confidential informant, the tip was
corroborated by the description of Lyons's truck, the fact that
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marijuana was found in the house packaged for sale, the fact that
Lyons had driven up to the house, and by Lyons's suspicious
behavior in attempting to leave before Arvizo had concluded his
inquiry. See United States v. Rodriguez, 835 F.2d 1090, 1092
(5th Cir. 1988) ("When law enforcement officials corroborate the
details of an anonymous informant's tip, the tip can give rise to
a reasonable articulable suspicion."); cf. United States v. Roch,
5 F.3d 894, 898-99 (5th Cir. 1993) (confidential informant's tip
which was insufficiently detailed did not give rise to reasonable
suspicion; discussing cases).
Here, the Terry stop was justified at its inception, and the
officers' actions were reasonably related in scope to the
circumstances which justified the interference. See Jones, 234
F.3d at 240. We therefore affirm the district court's ruling.
B. Sufficiency of the Evidence
Lyons contends that the evidence presented by the Government
was insufficient to prove beyond a reasonable doubt that he had
knowingly possessed the gun. The standard of review in assessing
a challenge to the sufficiency of the evidence in a criminal case
is whether a “reasonable trier of fact could have found that the
evidence established guilt beyond a reasonable doubt.”3 United
States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc),
aff’d on other grounds, 462 U.S. 356 (1983); see Jackson v.
Virginia, 443 U.S. 307, 319 (1979). In evaluating the
3
This standard applies because Lyons timely moved for
judgment of acquittal. United States v. Landry, 903 F.2d 334,
338 (5th Cir. 1990).
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sufficiency of the evidence, we view all evidence and all
reasonable inferences drawn from it in the light most favorable
to the Government. Glasser v. United States, 315 U.S. 60, 80
(1942).
To obtain a conviction for possession of a firearm by a
felon under § 922(g)(1), the Government must prove beyond a
reasonable doubt that the defendant had been "convicted of a
felony and that he knowingly possessed a firearm . . . in or
affecting interstate commerce." United States v. Jones, 133 F.3d
358, 362 (5th Cir. 1998). The question presented in this case is
whether Lyons had knowing possession of the firearm.
Possession of a firearm may be actual or constructive.
United States v. Speer, 30 F.3d 605, 612 (5th Cir. 1994).
"Constructive possession is the exercise of, or the power or
right to exercise dominion and control over the item at issue[.]"
Id. (internal quotation and citations omitted). Constructive
possession may be proven with circumstantial evidence. United
States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992). The court
applies "a common sense, fact-specific approach" to a
determination whether constructive possession exists. United
States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).
Constructive possession may be inferred from the fact that
the defendant exercised dominion or control over a vehicle in
which the weapon was found. United States v. Knezek, 964 F.2d
394, 400 (5th Cir. 1992); see Jones, 133 F.3d at 362. Mere
dominion over a vehicle, however, is insufficient to establish
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constructive possession where the evidence suggests that someone
else exercised dominion or control over the contraband. See
United States v. Crain, 33 F.3d 480, 487 (5th Cir. 1994); see
also Wright, 24 F.3d at 735; cf. United States v. Prudhome, 13
F.3d 147, 149 (5th Cir. 1994) (constructive possession by driver
found where gun was under driver's seat and matching ammunition
was found on driver). Also, where the contraband is hidden,
"additional circumstantial evidence that is suspicious in nature
or demonstrates guilty knowledge is required." United States v.
Jones, 185 F.3d 459, 464 (5th Cir. 1999), cert. denied, 121 S.
Ct. 125 (2000).
The Government argues that knowing possession may be
inferred: from Lyons's knowing possession of the same firearm
several months prior to his arrest; from the fact that Lyons
reminded his wife to retrieve the gun from the police evidence
department; from the fact that Lyons was in control of the
vehicle and was the only person to drive the vehicle on the day
of his arrest; from Lyons's nervousness and attempt to flee; from
Lyons's questioning of Arvizo regarding the gun three days after
his arrest; and from the fact that Lyons had concealed marijuana
under the driver's seat in close proximity to the hidden gun.
As an appellate court, it is not our task to weigh the
evidence or determine the credibility of witnesses. United
States v. Ybarra, 70 F.2d 362, 364 (5th Cir. 1995). Viewing all
the evidence in the light most favorable to the government and
deferring to all reasonable inferences drawn by the district
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court, we conclude that the evidence is sufficient to sustain
Lyons’s conviction.
Based on the foregoing, we affirm the district court’s
denial of Lyons’s motion to suppress evidence and the conviction.
AFFIRMED.
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