U.S. v. Kelly

• Decision Date: 28 January 2010
• Docket Number: No. 08-4982.,08-4982.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David KELLY, Jr., a/k/a Panama, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

592 F.3d 586

UNITED STATES of America, Plaintiff-Appellee, v. David KELLY, Jr., a/k/a Panama, Defendant-Appellant.

No. 08-4982.

United States Court of Appeals, Fourth Circuit.

Argued: December 3, 2009.

Decided: January 28, 2010.

ARGUED: Jon Michael Babineau, Riddick Babineau, PC, Suffolk, Virginia, for Appellant. Sherrie Scott Capotosto, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge SHEDD and Judge AGEE joined.

OPINION

WILKINSON, Circuit Judge:

We are asked to review David Kelly's convictions for conspiracy to distribute and possess with intent to distribute drugs and three counts of drug possession with intent to distribute. Kelly's principal claim is that the police violated the Fourth Amendment by conducting a warrantless search of an automobile parked on the street in front of his residence. He contends that the automobile exception to the warrant requirement does not apply here because the police were armed, had the only two individuals at his residence under arrest, and possessed the key to the ignition— thus eliminating any immediate threat that the vehicle would be driven away.

We reject Kelly's attempt to create an exception to the automobile exception. The exception, as carefully crafted by the Supreme Court, does not have an exigency requirement apart from the inherent mobility of the automobile. Consequently, if the police have probable cause, the justification to conduct a warrantless search does not vanish once the police have established some degree of control over the automobile. After careful consideration, we also reject Kelly's other claims and affirm his convictions.

I.

A.

Federal agents and local narcotics investigators conducted a year-long investigation into the drug dealing activities of David Kelly and other co-conspirators. During the investigation, they learned that Kelly had distributed multiple kilograms of cocaine in and around Hampton Roads, Virginia and that his main cocaine supplier was a Hispanic male from New York City. In addition, they learned that Kelly drove several vehicles, including a dark green Lexus sedan.

On September 19, 2006, a federal magistrate issued arrest warrants for Kelly and two of his co-conspirators. The magistrate also issued search warrants for Kelly's residence and a commercial building he owned. The warrant for his residence did not refer to any of his vehicles.

On September 20, 2006, a police officer conducted surveillance at Kelly's residence from 5:00 a.m. until 8:00 p.m. in preparation for the execution of the warrants. She spotted three vehicles owned by Kelly and his girlfriend: two Chevrolet sports utility vehicles parked in the lot of the residence and an Infiniti parked along the street. There was no sign, however, of Kelly or the Lexus at any point that day. On the morning of September 21, the officer resumed her surveillance and immediately noticed that Kelly's Lexus was parked on the street in front of the residence. She also saw Kelly come out of the residence to jump-start the Infiniti, which his girlfriend then drove away.

Around noon of that day, a search team executed the warrant at Kelly's residence. Once inside, the team arrested Kelly and a man whom they unexpectedly discovered. The man identified himself as Jose Jiminez and told the police that he was from New York City. In his possession was a bag containing travel items, such as underwear, soap, and toothpaste. Based on these facts, the officers immediately suspected that Jiminez was Kelly's cocaine supplier and that the two of them had arrived the previous night in the Lexus.

After waiving his Miranda rights, Kelly was placed in a police cruiser and questioned by the officers. Kelly initially denied that there were any drugs in either the residence or his three vehicles parked outside. But after learning that a K-9 unit was on its way, Kelly nodded his head "yes" when asked if there was cocaine in the vehicles. He did not, however, specify which of the three vehicles contained the cocaine.

Subsequently, the K-9 unit arrived at the residence. A specially trained officer led a drug detection dog around the Lexus, and the dog alerted positively by turning its head and scratching at the driver's door. Using Kelly's car keys to open the vehicle, the officers searched the passenger compartment but did not find any drugs. They then searched the trunk and discovered a backpack containing five kilograms of cocaine and 856 tablets of ecstasy. The dog also alerted on Kelly's two sports utility vehicles, and the officers processed all three vehicles for forfeiture under Virginia state law.

B.

On March 7, 2007, a grand jury returned an indictment against Kelly and two co-defendants, both of whom subsequently pled guilty to various charges. Kelly was charged with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of possession with intent to distribute ecstasy in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Prior to trial, Kelly moved to suppress the evidence seized from his Lexus, claiming that the warrantless search of the vehicle violated the Fourth Amendment. Following a suppression hearing, the district court denied the motion. It held that the automobile exception to the warrant requirement applied and that the police had probable cause to search the vehicle, including its trunk, based on the totality of the circumstances. It stressed three factors supporting probable cause: (1) the presence of an individual that fit the description of Kelly's cocaine supplier, (2) Kelly's admission that there was cocaine in the vehicles, and (3) the drug detection dog's positive alert on the Lexus.

Kelly pled not guilty, and a jury trial began on May 13, 2008. The government put on evidence that Kelly had been involved in a drug conspiracy since sometime around 2000. Several cooperating co-conspirators testified that they personally purchased cocaine from Kelly, set up cocaine deals between Kelly and others, or otherwise witnessed Kelly distributing cocaine. Notably, Jose Jiminez explained that he brokered deals for cocaine and, on one occasion, ecstasy between Kelly and suppliers in New York City. Jiminez testified that he would travel to Virginia, stay at Kelly's residence while Kelly distributed the drugs, and then transport some of the money back to New York City to pay the suppliers. The last of these drug deals, Jiminez testified, ended when the police arrested him and Kelly at Kelly's residence. The government then presented witnesses and evidence regarding the seizure of drugs from the Lexus in 2006.

On May 16, 2008, the jury convicted Kelly of all counts. Subsequently, the district court imposed a sentence of life imprisonment, ten years supervised release, and a special assessment of $400.

On appeal, Kelly challenges the district court's denial of his motion to suppress the evidence seized from the Lexus. He also appeals the district court's denial of his motion for a mistrial based on prosecutorial misconduct and challenges the sufficiency of the evidence introduced at trial. We address each claim in turn and set forth additional facts as they become necessary.

II.

A.

We first address the district court's denial of Kelly's motion to suppress. Kelly challenges both elements of the district court's holding: that (1) the automobile exception to the warrant requirement applies here and (2) the police had probable cause to search the Lexus, including its trunk. We review the district court's legal determinations de novo and its factual determinations for clear error. Because the district court denied Kelly's motion, we construe the evidence in the light most favorable to the government. United States v. Branch, 537 F.3d 328, 337 (4th Cir.2008).

We begin our analysis with a brief review of the law governing automobile searches. The Fourth Amendment generally requires the police to obtain a warrant before conducting a search. There is a well-established exception to this requirement, however, for automobile searches. See, e.g., Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Under this exception, "[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam). The scope of a search pursuant to this exception is as broad as a magistrate could authorize. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157 72 L.Ed.2d 572 (1982). Thus, once police have probable cause, they may search "every part of the vehicle and its contents that may conceal the object of the search." Id.

There are two justifications for the automobile exception. The Supreme Court's early cases were based on the mobility of the automobile. Unlike homes or other structures, cars "can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Carroll, 267 U.S. at 153, 45 S.Ct. 280. This rationale for the automobile exception is not one whose utility has diminished with time. Carroll, the seminal case, was decided in 1925, and the speeds at which automobiles are capable of traveling have only increased since that day. See Scott v. Harris, 550 U.S. 372, 375, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (describing a car chase "at speeds exceeding 85 miles per hour").

More recent cases provide a second justification for the exception. "Besides the element of mobility, less rigorous warrant...