United States v. Galloway

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
DARIUS LAMONT GALLOWAY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00036-F)
Argued: March 18, 2008 Decided: April 17, 2008
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, WILLIAMS, Chief
Judge, and HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Anne Margaret Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellant. Debra Carroll Graves, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: George
E. B. Holding, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant. Thomas P.
McNamara, Federal Public Defender, Stephen C. Gordon, Assistant
Federal Public Defender, Eric J. Brignac, Research and Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The government appeals the district court’s order suppressing
several inculpatory statements made by defendant Darius Lamont
Galloway (Defendant) following his warrantless arrest on various
drug and gun charges. Pursuant to Defendant’s motion, the district
court suppressed the post-arrest inculpatory statements based upon
its legal conclusion that the police officers lacked probable cause
to arrest Defendant, and therefore, Defendant’s post-arrest
inculpatory statements were suppressible as fruits of the poisonous
tree.
Because we conclude probable cause supported Defendant’s
arrest, we hold Defendant’s post-arrest inculpatory statements were
not suppressible as fruits of the poisonous tree. Accordingly, we
vacate the district court’s suppression order and remand for
further proceedings consistent with this opinion.
I.
The following facts are largely derived from the district
court’s suppression order, none of which we find clearly erroneous.
In January 2006, Detective Heath Little of the Columbus County,
North Carolina Sheriff’s Department (Detective Little) received a
telephone call from a man named Brent Best (Best). At the time,
Detective Little had known Best for five to six years, and Best had
proven to be a reliable informant to law enforcement in the past
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regarding illegal drug trafficking activity in the area. During
the call, Best informed Detective Little that Defendant had been
selling illegal drugs from his (Best’s) home, located at 578 Spring
Hill Drive, Whiteville, North Carolina. In addition to Best’s tip
concerning Defendant’s illegal drug trafficking, a second
informant, this one confidential and unidentified, contacted
Detective Little and confirmed that Defendant had been selling
illegal drugs at Best’s residence.1
Although Detective Little promptly passed on this information
regarding Defendant to his immediate supervisor, Sergeant Steve
Worthington (Sergeant Worthington), Detective Little did not act
upon it until the early afternoon of February 2, 2006, when he and
Sergeant Worthington paid a visit to Best’s residence. The visit
was prompted by Detective Little witnessing Defendant earlier that
same morning driving a Honda Accord following directly behind Best,
who was driving a white Toyota truck.
Upon arriving at Best’s residence, a single wide mobile home
located in an open field, Detective Little and Sergeant Worthington
saw Best’s white Toyota truck and Defendant’s Honda Accord parked
in the backyard. Defendant was seated in the passenger side of
Best’s truck with the door open, his right foot on the ground, and
1
Defendant was familiar to Detective Little, because Detective
Little had previously arrested Defendant in December 2004 on
charges undisclosed in the record. During a suppression hearing
concerning such charges, Defendant alleged that Detective Little
had used excessive force during the arrest.
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moving his hands near the floorboard of the truck. The officers
saw a third individual, John Ford, standing in the front yard of
Best’s residence. Detective Little exited the vehicle and
approached Best, while Sergeant Worthington exited the vehicle and
approached Defendant. Neither officer spoke with Ford.
Best consented to a search of his residence and his white
Toyota truck. Detective Little and Best then entered the
residence, where Detective Little noticed a strong odor of
marijuana. Detective Little asked Best whether there were any
illegal drugs in the residence or if marijuana had recently been
used. Best responded in the negative to both questions. Upon
searching the residence, Detective Little found scales and a box of
plastic bags.
When Sergeant Worthington approached Defendant, he explained
that the officers were there to conduct an investigation regarding
possible illegal drug trafficking. Sergeant Worthington, who knew
Defendant from their high school days, walked toward the rear of
Best’s residence. As they did so, Defendant explained that he
needed to set things straight and wanted to speak with Detective
Little. At the same time, Defendant denied having any illegal
drugs on his person or in his Honda Accord.
Sergeant Worthington and Defendant then entered Best’s
residence, where Detective Little and Best were still located. The
officers then asked Best to step outside, which he did. Sergeant
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Worthington also went outside to search Best’s white Toyota truck.
At this point, Defendant spontaneously told Detective Little that
he wanted to do the right thing and desired to work with law
enforcement officers to set someone up. Defendant appeared nervous
and was sweating. A consensual search of Defendant’s vehicle
turned up no contraband.
Meanwhile, Sergeant Worthington searched Best’s white Toyota
truck and found a paper bag containing marijuana on the dashboard
and a holstered handgun under the front passenger seat where
Defendant had been sitting and moving his hands around when the
officers pulled up at Best’s residence. Armed with this newly
discovered contraband, Sergeant Worthington went back inside Best’s
residence, whereupon he showed the contraband to both Detective
Little and Defendant. As soon as Defendant saw the paper bag
containing the marijuana and the holstered handgun, he shook his
head and reiterated that he wanted to make things right and
cooperate with law enforcement.
At this point, Sergeant Worthington placed Defendant in
handcuffs, but told him that he was not under arrest. Sergeant
Worthington then went back outside to finish searching Best’s white
Toyota truck. The search uncovered yet more evidence of illegal
drug trafficking activity under the front passenger seat.
Specifically, Sergeant Worthington found a Crown Royal bag
containing cocaine base (crack) and cocaine powder.
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Thereafter, the officers arrested Defendant and Mirandized
him. See Miranda v. Arizona, 384 U.S. 436 (1966). After signing
a written waiver of rights form, Defendant made inculpatory
statements, including admissions that he purchased the illegal
drugs found during the search of Best’s white Toyota truck from an
individual named Big Mike in Robeson County and that he had a deal
with Big Mike on a weekly basis where he would buy “what they call
a big eight, which is four and a half ounces of cocaine.” (J.A.
37).
At the time of the June 2007 suppression hearing in this case,
Detective Little had been employed by the Columbus County Sheriff’s
Office for seven years, and had been a narcotics detective for four
years. Sergeant Worthington had been employed by the Columbus
County Sheriff’s Office for eight years and had been conducting
narcotics investigations for approximately six years.
A federal grand jury charged Defendant by superseding
indictment with possession of fifty grams or more of a mixture
containing crack and unspecified quantities of cocaine and
marijuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1); possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1); and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A).
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Defendant moved to suppress his post-arrest inculpatory
statements on the ground that such statements constituted the
tainted fruits of his unlawful arrest in violation of the Fourth
Amendment. Following the filing of further motion papers and an
evidentiary hearing on the matter, the district court granted
Defendant’s suppression motion and denied the government’s
subsequent motion for reconsideration. The district court
concluded that Defendant’s arrest was not supported by probable
cause. First, the district court concluded that the tips provided
to Detective Little by Best and the other confidential informant,
which tips the district court characterized as vague, were “not
substantially corroborated by the officers’ observations and did
not establish probable cause.” (J.A. 83). The district court
emphasized that the illegal drugs and holstered handgun were found
in Best’s white Toyota truck and concluded that “[i]t was not
reasonable to believe that [Defendant] had possessed [the]
narcotics and [the] firearm.” (J.A. 84). Additionally, the
district court reasoned that Defendant’s “nervousness and comments
regarding his desire to ‘do the right thing’” could be explained by
his “prior interaction with Detective Little.” (J.A. 84).
Ultimately, the district court concluded: “Under the totality of
the circumstances, the officers’ assumption [that Defendant
possessed the illegal drugs and the holstered firearm] did not
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amount to probable cause to arrest [Defendant] for actual or
constructive possession of the firearm and narcotics.” Id.The government now appeals the district court’s order granting
Defendant’s motion to suppress his post-arrest inculpatory
statements, seeking vacature of such order and a remand for further
proceedings.
II.
The Fourth Amendment to the United States Constitution
provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.” U.S. Const. amend. IV. Under well
settled case law, Defendant’s warrantless arrest at issue in this
appeal was permissible under the Fourth Amendment if probable cause
existed for the officers to reasonably believe that he had
committed a felony. Maryland v. Pringle, 540 U.S. 366, 370 (2003);
Wong Sun v. United States, 371 U.S. 471, 479 (1963).
Here, Defendant’s warrantless arrest was premised upon his
possession of the holstered handgun found under the passenger seat
of Best’s white Toyota truck in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(c)(1)(A), his possession of the same firearm
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while in his status as a convicted felon, id. § 922(g)(1), and his
possession of the illegal drugs found under the passenger seat of
Best’s white Toyota truck, and in the paper bag on the dash board,
with the intent to distribute, 21 U.S.C. § 841(a)(1). On appeal,
the government does not dispute that if probable cause to arrest
Defendant was lacking, his post-arrest inculpatory statements were
suppressible as tainted fruits of the poisonous tree. See United
States v. McCraw, 920 F.2d 224, 227 (4th Cir. 1990) (admissibility
of post-arrest inculpatory statements by defendant are dependent
upon legality of defendant’s arrest). Thus, the sole issue in this
appeal is whether probable cause existed to arrest Defendant. In
reviewing a district court’s decision regarding a motion to
suppress, we review legal conclusions de novo and factual findings
for clear error. United States v. Brown, 401 F.3d 588, 592 (4th
Cir. 2005).
At least with respect to the § 922(g)(1) offense and the 21
U.S.C. § 841(a)(1) offense, each can be proven under the theory of
constructive possession.2 United States v. Singleton, 441 F.3d
290, 295-96 (4th Cir. 2006) (possession under § 841(a)(1) can be
actual or constructive); United States v. Scott, 424 F.3d 431, 435
(4th Cir. 2005) (possession under § 922(g)(1) can be actual or
constructive). A person has constructive possession of an item as
2
We have not yet decided in a published opinion whether a
constructive possession instruction can be given on a § 924(c)(1)
charge.
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opposed to actual possession of an item if he knows of its presence
and exercises or has the power to exercise dominion or control over
it. Scott, 424 F.3d at 435. Intent to distribute may be inferred
if the amount of illegal drugs found in the defendant’s possession
exceeds an amount normally associated with personal consumption.
United States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993).
Whether probable cause existed for Defendant’s warrantless
arrest depends upon the totality of the circumstances surrounding
his arrest. Illinois v. Gates, 462 U.S. 213, 230-32 (1983); Taylor
v. Waters, 81 F.3d 429, 434 (4th Cir. 1996). “‘[P]robable cause’
to justify an arrest means facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing,
or is about to commit an offense.” Michigan v. DeFillippo, 443
U.S. 31, 37 (1979); see also United States v. Gray, 137 F.3d 765,
769 (4th Cir. 1998). While probable cause is a higher standard
than reasonable suspicion, it is a lesser standard than the one
necessary to convict, i.e., beyond a reasonable doubt. See Wong
Sun, 371 U.S. at 479.
Determining whether the information surrounding an arrest is
sufficient to establish probable cause is an individualized and
fact-specific inquiry. Id. Additionally, law enforcement officers
are permitted “to draw on their own experience and specialized
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training to make inferences from and deductions about the
cumulative information available to them that might well elude an
untrained person.” United States v. Arvizu, 534 U.S. 266, 273
(2002) (internal quotation marks omitted). “[E]ven ‘seemingly
innocent activity’ when placed in the context of surrounding
circumstances,” can give rise to probable cause. United States v.
Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (citation omitted).
This means that courts cannot engage “in the sort of ‘divide-and-
conquer analysis’ that treats each action by a defendant in
isolation, finds each of them to be possibly innocent, and thus
picks apart an officer’s reasonable assessments.” United States v.
Perkins, 363 F.3d 317, 327 (4th Cir. 2004).
Moreover, despite the individualized and fact-specific nature
of the probable cause inquiry, we must be mindful that probable
cause is an objective standard, with the subjective intentions of
the arresting officer or officers being immaterial in determining
whether his or their actions were reasonable for Fourth Amendment
purposes. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“Our
cases make clear that an arresting officer’s state of mind (except
for the facts that he knows) is irrelevant to the existence of
probable cause.”). The reason for this rule is that “evenhanded
law enforcement is best achieved by the application of objective
standards of conduct, rather than standards that depend upon the
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subjective state of mind of the officer.” Horton v. California,
496 U.S. 128, 138 (1990).
We hold the district court committed reversible error in
concluding that Defendant’s arrest was not supported by probable
cause. The factual findings of the district court, when viewed
through the eyes of trained law enforcement officers and in the
totality of the circumstances, amount to probable cause that
Defendant had committed at least one felony crime, for example,
possession with intent to distribute cocaine: (1) within the few
weeks leading up to Defendant’s arrest on February 2, 2006,
Detective Little received a telephone tip from a known, reliable
informant (i.e., Best), whom Detective Little had known for five to
six years, that Defendant had been selling illegal drugs from his
(the reliable informant’s) residence at 578 Spring Hill Drive in
Whiteville, North Carolina; (2) after Detective Little’s
conversation with the known, reliable informant, but before
Defendant’s arrest in this case, a second informant, this one
confidential and unidentified, also told Detective Little that
Defendant had been selling illegal drugs at the known, reliable
informant’s residence; (3) on the morning of February 2, 2006,
Detective Little witnessed Defendant driving a Honda Accord while
immediately following a white Toyota truck driven by the known,
reliable informant; (4) when, in the early afternoon of the same
day, Detective Little and Sergeant Worthington arrived at the
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residence of the known, reliable informant in an unmarked police
car, the officers saw both the white Toyota truck and the Honda
Accord parked in the backyard; (5) the officers also saw Defendant
seated in the passenger side of the white Toyota truck, with the
door open, his right foot on the ground, and moving his hands
around near the floorboard; (6) the known, reliable informant was
standing in the yard with another man (John Ford); (7) with the
permission of the known, reliable informant, Detective Little
entered Best’s residence and smelled a strong odor of marijuana,
thus confirming the presence of illegal drugs; (8) upon a
consensual search of the reliable informant’s residence, Detective
Little found scales and a box of plastic bags, items commonly used
in packaging illegal drugs for retail distribution; (9) Sergeant
Worthington told Defendant that he and Detective Little were there
to conduct an investigation into possible drug trafficking; (10) a
short time later, Defendant told Detective Little that he wanted to
do the right thing and desired to set someone up; (11) although a
consensual search of Defendant’s vehicle turned up no evidence of
illegal drug trafficking, a consensual search of the known,
reliable informant’s white Toyota truck revealed a holstered
handgun and a Crown Royal bag containing crack and powder cocaine
under the same front passenger seat in which Defendant had been
sitting when the officers arrived on the scene; (12) a consensual
search of the white Toyota truck also revealed a paper bag
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containing marijuana located on the dashboard; and (13) after
Defendant was shown the paper bag containing marijuana and the
holstered handgun, “he shook his head and reiterated that he wanted
to make things right and cooperate with law enforcement,” (J.A.
82).
Without question, Supreme Court and Fourth Circuit precedent
support the legal conclusion that, at a minimum, probable cause to
arrest Defendant for illegal drug trafficking existed in this case.
Under the circumstances at the time of Defendant’s arrest, a
reasonable law enforcement officer in the position of Detective
Little would consider the initial tip from Best that Defendant was
engaging in illegal drug trafficking at 578 Spring Hill Drive in
Whiteville, North Carolina reasonably trustworthy. Hunter v.
Bryant, 502 U.S. 224, 228 (1991) (probable cause to arrest is
measured at the moment the arrest occurs). Best was known to
Detective Little, thus Best’s reputation could be assessed, and
Best could be held responsible for false allegations. Florida v.
J.L., 529 U.S. 266, 270 (2000) (known informant’s reputation can be
assessed and can be held responsible if allegations turn out to be
fabricated). Moreover, Best had proven to be a reliable source of
information about illegal drug trafficking activity in the past.
Id.; United States v. Bynum, 293 F.3d 192, 197 (4th Cir. 2002)
(“The Supreme Court has repeatedly recognized that a proven,
reliable informant is entitled to far more credence than an
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unknown, anonymous tipster.”). And finally, because Best was
reporting that Defendant’s drug trafficking took place in his
(Best’s) own home, it was obvious to the arresting officers that
Best’s report of Defendant’s drug trafficking was based upon
personal knowledge, which is inherently more reliable than a report
based upon hearsay. Cf. Perkins, 363 F.3d at 325 (need to focus on
predictive information in order to corroborate an anonymous tip
does not exist in case where anonymous tipster was clearly in a
position to know about reported activity that gave rise to
officer’s reasonable suspicion).
Moreover, in several significant respects, the officers
corroborated Best and the unidentified, confidential informant’s
tips regarding Defendant’s illegal drug trafficking activities at
Best’s residence. Specifically, the officers: (1) corroborated a
relationship connection between Defendant and Best based upon
Detective Little observing Defendant following Best’s white Toyota
truck on the morning of February 2, 2006, and then both officers
observing Defendant at Best’s residence in the early afternoon of
the same day; (2) corroborated Defendant’s connection to illegal
drug trafficking by discovering illegal drugs and a holstered
handgun, typically used in drug trafficking, under the passenger
seat of Best’s white Toyota truck when the officers had minutes
earlier observed Defendant sitting in the passenger seat of the
same truck with his right foot on the ground while moving his hands
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around in the floorboard; (3) corroborated Defendant’s connection
to illegal drug trafficking by discovering scales and plastic
baggies, tools of the illegal drug trafficking trade, in Best’s
residence, where Best and the unidentified confidential informant
reported that Defendant had been conducting his illegal drug
trafficking activities; and (4) corroborated Defendant’s connection
to illegal drug trafficking when Defendant told Detective Little
that he wanted to do the right thing and desired to set up someone.
This last point of corroboration is extremely important in the
common sense analysis inherent in determining the existence of
probable cause. Common sense dictates the fact that Defendant
voluntarily stood-at-the-ready to conduct an undercover sting
operation in order for law enforcement officers to catch others
involved in illegal drug trafficking in the surrounding area is
compelling evidence of Defendant’s connection to the same world.
Obviously, an offer to set up others in an undercover sting
operation shows consciousness of guilt. See United States v. Levy,
578 F.2d 896 (2d Cir. 1978) (testimony concerning offers by
defendant, arrested on drug charges, to cooperate in the future
evidenced consciousness of guilt and was relevant to prove charge
against him); see also Illinois v. Hart, 828 N.E.2d 260, 269 (Ill.
2005) (citing Levy with approval).
In our view, the district court went astray in two significant
respects. First, the district court essentially ignored the import
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of all the above listed evidence showing corroboration of the
informants’ tips. Second, the district court engaged “in the sort
of ‘divide-and-conquer analysis’ that treats each action by a
defendant in isolation, finds each of them to be possibly innocent,
and thus picks apart an officer’s reasonable assessments.”
Perkins, 363 F.3d at 327. For example, the district court
concluded that “given Galloway’s prior interaction with Detective
Little, it was not reasonable to believe that Galloway’s
nervousness and comments regarding his desire to ‘do the right
thing’ suggested that Galloway had possessed a firearm and
narcotics at Best’s residence.”3 (J.A. 84). The conclusion
incorrectly ignores the fact that when Defendant told Detective
Little that he wanted to do the right thing he did so while also
informing Detective Little that he wanted to set up someone. The
district court obviously erroneously ignored the critical context
of Defendant’s desire to do the right thing, which context shows
Defendant’s consciousness of guilt. See United States v.
Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (“[E]ven ‘seemingly
innocent activity’ when placed in the context of surrounding
circumstances,” can give rise to probable cause.) (citation
omitted). No other explanation makes sense.
3
The prior interaction reference refers to Defendant’s prior
allegation that Detective Little had used excessive force against
him.
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Defendant makes two primary arguments in defense of the
district court’s granting of his suppression motion. First,
Defendant argues that probable cause to arrest him could not have
existed because the officers failed to conduct further
investigation in order to determine whether the holstered handgun
and/or the illegal drugs found in Best’s white Toyota truck
belonged to Best or Ford. This argument is without merit, because
once probable cause to arrest a suspect is established, an officer
is not required to continue to investigate for exculpatory evidence
before arresting such suspect. Cortez v. McCauley, 478 F.3d 1108,
1121 n.18 (10th Cir. 2007); McKinney v. Richland County Sheriff’s
Dept., 431 F.3d 415, 418-19 (4th Cir. 2005) (“The fact that [the
officer] did not conduct a more thorough investigation before
seeking the arrest warrant does not negate the probable cause
established by the victim’s identification.”); Curley v. Village of
Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“We observed that once a
police officer has a reasonable basis for believing there is
probable cause, he is not required to explore and eliminate every
theoretically plausible claim of innocence before making an arrest.
Although a better procedure may have been for the officers to
investigate plaintiff’s version of events more completely, the
arresting officer does not have to prove plaintiff’s version wrong
before arresting him.”) (internal alteration, internal citation and
internal quotation marks omitted)); Kelley v. Myler, 149 F.3d 641,
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647 (7th Cir. 1998) (“The inquiry is whether an officer has
reasonable grounds on which to act, not whether it was reasonable
to conduct further investigation.”).
Defendant’s other primary argument is that the Fourth
Circuit’s decision in United States v. Blue, 957 F.2d 106 (4th Cir.
1992), mandated the granting of his motion to suppress. Defendant
is clearly wrong. Blue, in fact, supports our holding that
probable cause to arrest Defendant existed in this case because
Blue was a sufficiency-of-the-evidence case as opposed to a
probable-cause case. In Blue, a police officer, who was conducting
nighttime surveillance of a house for possible illegal drug
activity, saw two men leave the house and enter a parked car on the
street. Id. at 107. As the car drove by, the officer noticed that
neither occupant was wearing a seatbelt, in violation of North
Carolina law. Id. The officer pulled over the car in a well lit
area, allegedly to investigate the seatbelt violation. Id. As he
left his car, the officer saw the shoulder of the passenger,
defendant Herbert Blue, “dip as if the passenger were reaching
under the seat with his right hand.” Id. After the driver and
defendant Blue exited the car, the officer searched defendant Blue
for any weapons, “at which time he discovered a needle, a syringe,
and a small amount of heroin, and therefore placed Blue under
arrest.” Id. A consensual search of the car revealed a loaded
handgun under the passenger seat. Id. Both the driver and
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defendant Blue denied knowledge or ownership of the handgun. Id.The car did not belong to defendant Blue, and there was no evidence
that defendant Blue had ever before been in the car. Id. at 108.
Defendant Blue was charged with, inter alia, possession of a
firearm by a convicted felon, and the jury convicted him. Id. On
appeal, defendant Blue challenged the sufficiency of the evidence
to support his § 922(g)(1) conviction. The government had relied
on two pieces of evidence to support its case: (1) the officer’s
testimony that defendant Blue’s shoulder dipped as he approached
the vehicle, and (2) the discovery of the handgun under the
passenger seat. Id. The Fourth Circuit concluded that this
evidence was insufficient to support defendant Blue’s § 922(g)(1)
conviction:
Beyond [the officer’s] claim that he saw Blue’s
shoulder dip and the discovery of the pistol underneath
the passenger seat, the government did not substantiate
its case against Blue. It did not produce fingerprints
or any other physical evidence which would link Blue with
the gun. The government introduced no evidence
demonstrating that Blue owned the gun or testimony that
Blue had been seen with the gun. The car in which the
gun was found did not belong to Blue; in fact, no
evidence indicated that Blue had ever been in that car
before. Without more evidence than that proffered by the
government, we cannot sustain Blue’s conviction.
Id.
Of particular relevance in the present appeal, the Blue court
went on to declare that, while it remained convinced that Blue’s
shoulder dip alone did not transform Blue from a mere passenger in
the car to a possessor of whatever was discovered underneath the
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seat in which he is sitting: “In reaching this decision, we
emphasize that the facts of this case fall outside, but just
barely, the realm of the quantum of evidence necessary to support
a finding of constructive possession.” Id. at 108. (emphasis
added). This statement by the Blue court is notable, because not
only was the burden of proof in Blue (i.e., beyond reasonable
doubt) far more onerous than the probable cause standard at issue
in the present appeal, additional circumstances pointing to
Defendant’s involvement in drug trafficking, such as the
information from the reliable, known informant and Defendant’s
multiple offers of cooperation with law enforcement, exist in the
present appeal, which did not exist in Blue.
In sum, we: (1) vacate the district court’s orders which,
when taken together, granted Defendant’s suppression motion; and
(2) remand this case for further proceedings consistent with this
opinion.
VACATED AND REMANDED
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