60 F.3d 672 (10th Cir. 1995), 93-3316, United States v. Hill

Docket Nº:93-3316.
Citation:60 F.3d 672
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas C. HILL, Defendant-Appellant.
Case Date:July 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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60 F.3d 672 (10th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas C. HILL, Defendant-Appellant.

No. 93-3316.

United States Court of Appeals, Tenth Circuit

July 10, 1995

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Robin D. Fowler, Asst. U.S. Atty., Kansas City, KS (Randall K. Rathbun, U.S. Atty., Kansas City, KS, with her on the brief), for plaintiff-appellee.

Charles D. Dedmon, Asst. Federal Public Defender, Topeka, KS (David J. Phillips, Federal Public Defender, Topeka, KS, with him on the brief), for defendant-appellant.

Before TACHA, LOGAN, and EBEL, Circuit Judges.

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EBEL, Circuit Judge.

Defendant-Appellant Thomas C. Hill ("Hill") appeals his jury conviction on one count of possession of cocaine base in violation of 21 U.S.C. Sec. 844, and one count of possessing a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). Hill argues that the district court erred: (1) by admitting witness testimony that Hill was a "dope dealer"; (2) by admitting evidence under Fed.R.Evid. 404(b) that Hill had been in possession of cocaine base on two prior occasions; and (3) by denying Hill's motion to suppress evidence obtained during the traffic stop that forms the basis of this case. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and, for the reasons set forth below, AFFIRM Hill's convictions on both counts.

BACKGROUND

On March 24, 1993, Officer Shawn Noblitt of the Wichita Police Department was on patrol with a civilian observer, Sherri Harris. After witnessing a car turn left without using a turn signal, Officer Noblitt turned on his lights and siren to stop the car and cite the driver for a traffic violation. The car continued for approximately two and a half blocks, slowly drifting between the lane and the curb before pulling to the side of the road. There were three individuals in the car's front seat: the driver, James Gassaway; the middle passenger, Marquiz Alford; and the defendant Hill, on the passenger's side.

When the vehicle finally stopped, Noblitt parked his patrol car behind it. Harris remained in Noblitt's patrol car while Noblitt exited to speak to the passengers in the stopped vehicle. While approaching the parked car from behind, Officer Noblitt noticed that neither the driver nor Hill were wearing their shoulder safety belts, which is also a traffic infraction. Noblitt also noticed Alford and Hill talking, and watched Hill reach toward the passenger side window. This activity, along with the car's failure immediately to pull over, concerned Noblitt and prompted him to instruct all three passengers to keep their hands on the dashboard where he could see them. Although Noblitt repeated this instruction several times, Hill failed to comply.

After speaking with the driver, who was unable to produce a driver's license, Officer Noblitt walked around the vehicle to the passenger side in order to cite Hill for failing to wear a safety belt. Hill told Noblitt his name, although Hill carried no identification, and Noblitt believed he recognized the name from the police "Interwatch Bulletin," which alerts officers to individuals with outstanding warrants. He also thought he recognized Hill from a previous domestic disturbance call. Based on these beliefs, Hill's refusal to remain still or keep his hands in Noblitt's view as directed, and a need to separate Hill from the car's other occupants for safety purposes, Officer Noblitt ordered Hill out of the car in order to issue the safety belt citation.

As Hill was exiting the car, he told Officer Noblitt that he had a gun hidden at his waistline. Noblitt called for backup assistance, confiscated the weapon, and placed Hill in handcuffs. While trying to confiscate the gun, Officer Noblitt noticed that Hill had his right hand "cupped" away from Noblitt's view.

At that point, Officer Noblitt noticed for the first time a plastic bag containing a white substance, later determined to be cocaine base, lying at Hill's feet. As Noblitt was moving Hill to his patrol car, Noblitt found a second bag that also contained cocaine base about three feet behind the vehicle on the passenger's side. Noblitt's passenger, Harris, testified that from her vantage point in Noblitt's patrol car, about eight feet behind the stopped vehicle, she had seen Hill throw that second bag out the passenger window while Noblitt was initially speaking to the vehicle's driver.

Hill was subsequently indicted and tried for possessing cocaine base and for possessing a firearm in relation to a drug trafficking offense. Because the original jury was unable to reach a verdict, Hill's first prosecution ended in a mistrial. At retrial, a second jury convicted Hill of both counts. Hill appeals those convictions here.

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ANALYSIS

Hill argues that his convictions should be set aside because the district court improperly admitted three pieces of evidence: (1) witness testimony that Hill was a "dope dealer"; (2) officers' testimony that Hill had been arrested in possession of cocaine base on two prior occasions; and (3) evidence obtained after Officer Noblitt ordered Hill to step out of the car, including Hill's admission that he was carrying a firearm, the firearm itself, and the bag of cocaine base found at Hill's feet. 1 We address each piece of evidence in turn.

I.

Admitting Witness Testimony That Hill Is A "Dope Dealer."

Hill first challenges the district court's admission of testimony by witness Marquiz Alford, the passenger who was seated between Hill and the driver. Alford testified that he had known Hill for about four years, that Hill had a lot of money, and that he believed Hill obtained that money working as "a dope dealer." Hill argues on appeal that Alford's characterization of Hill as "a dope dealer" was improperly admitted under Fed.R.Evid. 404(b).

Because Hill failed contemporaneously to object to this testimony at trial, however, he has not properly preserved this argument for review. 2 See Fed.R.Evid. 103(a); United States v. Deluzio, 454 F.2d 711, 713 (10th Cir.), cert. denied, 407 U.S. 922, 92 S.Ct. 2467, 32 L.Ed.2d 808 (1972). It appears that Hill did object to this testimony for "lack of foundation" in a motion for acquittal or new trial after his conviction. That objection, however, does not make up for the failure to object when the evidence was proffered at trial. See Joseph v. Terminix Int'l Co., 17 F.3d 1282, 1286 (10th Cir.1994). Absent such a contemporaneous objection at trial, we review the admission of Alford's statement only for "plain error." Deluzio, 454 F.2d at 713. We reverse only if admitting the statement placed the underlying fairness of the entire trial in doubt, Joseph, 17 F.3d at 1286, or if it affected one of the defendant's substantial rights, see Fed.R.Evid. 103(a) & (d). We conclude that the admission of Alford's statement did not constitute an error of such magnitude.

The statement was an isolated remark in the context of an entire trial. See Deluzio, 454 F.2d at 713 (holding that improper evidence of nonrelated crimes was "not so inflammatory or frequent so as to constitute plain error"). Hill cross-examined and recross-examined Alford at trial. And the judge provided the jury with written instructions not to consider evidence "related to possible unlawful acts by the defendant other than the specific offenses charged ... as proof that the defendant is guilty of the offense charged." Accordingly, we find that admitting Alford's statement does not constitute reversible "plain error."

II.

Admitting Prior Acts Evidence Under Fed.R.Evid. 404(b).

Hill also argues that the district court erred in admitting police officers' testimony that Hill had possessed cocaine base during two prior arrests for which Hill was never formally charged. The first prior possession was described by Officer Noland Keahey, who testified that on December 13th, 1992, he had found Hill asleep in a vehicle parked on the side of the interstate. Keahey explained that a computer check had shown that Hill's driver's license had been suspended and that there was an outstanding warrant for Hill's arrest. While executing the arrest, Keahey had discovered a clear plastic

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bag containing cocaine base on the vehicle's seat about 12 inches from Hill's side.

The second prior possession was described by Detective James Whittredge, a Wichita police officer assigned to narcotics investigations, who testified that on January 5, 1992, he had found Hill in a motel room, to which Whittredge had been voluntarily admitted by the woman to whom the room was registered. Whittredge testified, without explanation, that Hill had consented to a pat-down search for weapons. During the pat-down, Hill had attempted to keep the left pocket of his coat away from Officer Whittredge's reach. Whittredge then searched the coat pocket and found three clear plastic bags containing cocaine and cocaine base.

Over Hill's objections before and during trial, the district court admitted these officers' testimony under Fed.R.Evid. 404(b) to show Hill's "knowledge" or "intent" with respect to the current cocaine base possession charge. Hill argues, first, that the court misapplied Rules 404(b) and 403, because these prior possessions were either irrelevant to show knowledge or intent, or their prejudicial impact substantially outweighed their probative force. Second, Hill argues that even if relevant and probative, evidence of these past possessions should have been suppressed as products of unconstitutional searches and seizures. Hill properly preserved these arguments for appeal, and we review them in turn.

A. Application of Fed.R.Evid. 404(b) and 403.

The admission of evidence under Fed.R.Evid. 404(b) is subject to review under an abuse of discretion...

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