United States v. Davis

• Citation: 726 F.3d 434
• Decision Date: 09 August 2013
• Docket Number: No. 12–1486.,12–1486.
• Parties: UNITED STATES of America v. Terrell DAVIS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

726 F.3d 434

UNITED STATES of America

v.Terrell DAVIS, Appellant.

No. 12–1486.

United States Court of Appeals,Third Circuit.

Argued March 21, 2013.

Filed: Aug. 9, 2013.

Andrew J. Schell [argued], Office of United States Attorney, Philadelphia, PA, for Appellee.

Christopher G. Furlong [argued], Media, PA, for Appellant–Davis.

Mark E. Cedrone [argued], Philadelphia, PA, for Appellant–Blackshear. ¹

Before: McKEE, Chief Judge, SMITH, and GREENAWAY, JR., Circuit Judges.

OPINION

SMITH, Circuit Judge.

Police arrested Terrell Davis after finding him in a Jeep with nearly a kilo of cocaine in the backseat. The arrest led to a conviction for possession with intent to distribute. As evidence that Davis recognized the cocaine in the Jeep, the government proved at trial that he had two prior convictions for possessing cocaine. Yet the government never proved that the cocaine from his past was similar in appearance, quantity, or form. We acknowledge that some of our cases admitting prior criminal acts under Federal Rule of Evidence 404(b) have been expansive. But our expansiveness is finite, and this case crosses the line. We will vacate Davis's conviction and remand.

I

The events at issue took place on a wintry afternoon over two years ago. Two Philadelphia police officers were patrolling near 5100 Market Street—roughly four miles west of Independence Hall and the Liberty Bell. This is a dangerous part of the city where drug deals and robberies are commonplace. Officer Clifford Gilliam parked his patrol car, and Officer Shawn Witherspoon joined him on foot. On the opposite side of the street, the officers spotted a black Jeep Grand Cherokee, later determined to be from Enterprise Rent–A–Car. Inside were two men, Terrell Davis and Jamar Blackshear. The Jeep's engine was running but nothing seemed amiss.

After a period of time, Davis and Blackshear began to act suspiciously. They reached toward each other with “body motions [that] were consistent with the exchanging of narcotics in a narcotics transaction.” B.A. 8.² The officers exited their patrol car and approached the Jeep. Upon noticing the officers, Davis and Blackshear had “expressions of shock on their faces,” B.A. 8, and they tossed something into the backseat. They exited the Jeep and quickly walked away—so quickly, in fact, that Blackshear did not bother closing his door. Officer Gilliam stopped Blackshear and patted him down to search for weapons. He instead found a wad of cash in his pocket. In the meantime, Officer Witherspoon stopped Davis and patted him down. He found a similar amount of cash.

Everything indicated to the officers that this was a drug deal: the suspicious movements, the hurried departures, the wads of cash, and the neighborhood itself. Knowing that guns often accompany drug deals, the officers decided to search the Jeep for weapons—and to see if there were any other occupants. Officer Witherspoon tried to look through the tinted rear window, but it was too dark. So he opened the already-ajar driver's door and saw a handgun wedged between the driver's seat and the middle console. At that point, the officers arrested Davis and Blackshear and placed them in the patrol car.

The handgun was not the only item in the Jeep. Officer Witherspoon returned and spotted an opaque shopping bag in the backseat. It was open and contained a white substance. The officers requested a drug-detection dog, which alerted to the presence of drugs. The officers obtained a warrant and recovered ten cell phones, a pair of binoculars, and two shopping bags with roughly 740 grams of cocaine distributed among nine smaller Ziploc bags. The cocaine itself was compressed into the shape of a brick and had a street value over $75,000.

Davis and Blackshear were charged with possessing a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1) and with possessing a firearm in furtherance of a drug-trafficking crime under 18 U.S.C. § 924(c). They were also charged with aiding and abetting under 18 U.S.C. § 2.

Davis and Blackshear filed a motion to suppress all evidence from the Jeep. They argued that because the Jeep's front driver's side window was tinted, the officers could not have seen the alleged reaching, gawking, and tossing—and so they could not have had any cause for suspicion in the first place. The District Court inspected the Jeep and discovered that the window was in fact tinted. The Court nonetheless denied the suppression motion. It credited the testimony of the officers who said that the window had been tint-free on the day of the arrests eight months earlier. It also credited the testimony of an Enterprise employee who said that neither Enterprise nor the manufacturer had tinted the windows and that since the arrests over fifty people had rented the Jeep.

The defendants then pursued separate paths. Blackshear pled guilty but reserved the right to appeal the denial of his suppression motion. He received two consecutive sixty-month sentences plus four years of supervised release. Davis opted for a jury trial. As the trial approached, the government asked permission to introduce Davis's two prior convictions for possessing cocaine. The District Court consented, stating that the convictions were admissible under Federal Rule of Evidence 404(b) to show that Davis recognized the drugs in the Jeep. At trial, the jury heard testimony from a range of witnesses, including Officers Gilliam and Witherspoon; Keith Festus, the owner of a nearby cell-phone store; and a narcotics expert. The jury ultimately found Davis guilty of the drug crime but not guilty of the gun crime. He received a seventy-eight-month sentence plus four years of supervised release.

Davis raises four issues on appeal: the denial of his suppression motion, the admission of his prior convictions, and two other evidentiary issues.³

II

Davis's first argument is that the officers illegally stopped him after he exited the Jeep. This would make the cocaine inadmissible as the product of an illegal seizure. “Where a motion to suppress has been denied, we review the order for clear error as to the underlying facts, but exercise plenary review as to its legality in the light of the court's properly found facts.” United States v. Brownlee, 454 F.3d 131, 137 (3d Cir.2006) (quotation marks omitted). The District Court rejected Davis's constitutional argument, and with good reason.⁴

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. The general rule is that a search or seizure is unreasonable if the police lack either probable cause or a warrant—though courts have created several exceptions to the warrant requirement. See Kentucky v. King, ––– U.S. ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (noting that the ultimate touchstone is “reasonableness”). Over the past few decades, the Supreme Court has created a broad exception to both requirements: “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This exception also allows officers to search the passenger area of a vehicle without probable cause or a warrant if they conduct a lawful stop and reasonably believe that the suspect is dangerous and has a weapon inside. See Michigan v. Long, 463 U.S. 1032, 1049–50, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

Davis's constitutional argument turns on whether the officers had a reasonable suspicion when they first stopped him. And that turns on whether the front driver's side window was tinted at the time of the arrests—for if it was, the officers could not have seen through it, and they would have lacked any reason to suspect an illicit transaction. Though the District Court inspected the window at the suppression hearing and saw that it was tinted, the Court found that it was not tinted on the day of the arrests eight months earlier.

That finding was not clearly erroneous. For one thing, Officers Gilliam and Witherspoon both testified that the front driver's side window, unlike the rear window, was tint-free when they saw the Jeep. And an Enterprise employee testified that neither Enterprise nor the manufacturer had tinted the window and that over fifty people had rented the car between the arrests and the hearing. He also said that another renter could have been responsible for the tint. “Anybody could have put it on.” J.A. 325. This testimony supports the District Court's finding. To be sure, the police took a picture of the Jeep on the day of the arrests, and the front and rear windows appear to have the same tint. But the picture was taken at night in low lighting. Davis also points to a witness who testified at the suppression hearing that the window “probably was a little tinted.” J.A. 385. But the District Court found that his testimony was not “particularly credible” for “a number of reasons.” B.A. 6 n. 3.

The record thus contains no evidence that plainly contradicts the officers' testimony. And “when the district court's decision is based on testimony that is coherent and plausible, not internally inconsistent and not contradicted by external evidence, there can almost never be a finding of clear error.” United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.1997). As a result, the District Court did not clearly err when it found that the window was tint-free.

Nor did the District Court err in concluding that the officers had a reasonable suspicion to stop Davis. The officers observed odd behavior through the front window—an exchange, shocked expressions, and tossing motions. Davis and Blackshear rapidly left the car and began walking away, the latter failing to close the car door. And the activity took place in a high-crime area. The officers thus had a reasonable...