750 F.3d 1186 (10th Cir. 2014), 13-3037, United States v. Davis

Docket Nº:13-3037
Citation:750 F.3d 1186
Opinion Judge:KELLY, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK R. DAVIS, Defendant - Appellant
Attorney:Howard Pincus, Assistant Federal Public Defender, (Virginia L. Grady, Federal Public Defender, Interim, and Warren R. Williamson, Federal Public Defender, Interim, with him on the briefs) Denver, Colorado, for Defendant - Appellant. James A. Brown, Assistant United States Attorney, (Barry R. Gris...
Judge Panel:Before KELLY, BALDOCK, and HARTZ, Circuit Judges. HARTZ, Circuit Judge, concurring. HARTZ, Circuit Judge, concurring:
Case Date:May 07, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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750 F.3d 1186 (10th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MARK R. DAVIS, Defendant - Appellant

No. 13-3037

United States Court of Appeals, Tenth Circuit

May 7, 2014

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 2:11-CR-20020-CM-2).

Howard Pincus, Assistant Federal Public Defender, (Virginia L. Grady, Federal Public Defender, Interim, and Warren R. Williamson, Federal Public Defender, Interim, with him on the briefs) Denver, Colorado, for Defendant - Appellant.

James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with him on the brief) Topeka, Kansas, for Plaintiff - Appellee.

Before KELLY, BALDOCK, and HARTZ, Circuit Judges. HARTZ, Circuit Judge, concurring.

OPINION

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KELLY, Circuit Judge.

Defendant-Appellant Mark R. Davis was convicted by a jury of robbery, 18 U.S.C. § 1951 (Count 20), use of a firearm during a robbery, 18 U.S.C. § 924(c) (Count 21), and being a felon in possession of a firearm, 18 U.S.C. § 922(g) (Count 23). He was sentenced to 96 months' imprisonment on the robbery count, 180 months' imprisonment on the felon-in-possession count, consecutive to the robbery count, and 84 months' imprisonment on the use-of-a-firearm count, consecutive to the other two counts, for a total of 360 months. I R. 105-106. He also was sentenced to three years' supervised release on each count running concurrently. Id. On appeal, he challenges (1) the denial of his motion to suppress evidence seized from a car in which he was a passenger, (2) the jury instructions insofar as they allowed the jury to convict him of aiding and abetting

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without the requisite knowledge or participation, and (3) sufficiency of the evidence concerning a substantial effect on interstate commerce. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

On March 3, 2011, police were notified that someone just robbed the RadioShack in Overland Park, Kansas. II R. 404-05. FBI agents later stopped a gray Nissan Sentra on 71 Highway in Kansas City, Missouri, and arrested the occupants--the driver, Abasi S. Baker, and the passenger, Mr. Davis. Id. at 98, 451-54. In the car, agents found clothing matching the description of the robbers, a gun, and a bag containing $261, which was a little less than the amount stolen. Id. at 456, 462, 469-72, 825. Mr. Baker and Mr. Davis were separately tried and convicted of robbery and firearms offenses.1 How agents were able to locate the car containing Mr. Davis is at issue in this appeal.

The car belonged to neither Mr. Davis nor Mr. Baker but rather Mr. Baker's girlfriend, although Mr. Baker drove it also. Id. at 262-63. An investigation into armed robberies around Kansas City, Kansas, in early 2011 led police to suspect that the robbers were using the car owned by Mr. Baker's girlfriend. On March 2, 2011, without a warrant, agents installed a Global-Positioning-System (GPS) tracking device to the rear bumper of the car while it was parked at an apartment in Kansas City, Missouri. Id. at 574-75. The day before, agents obtained a search warrant to track the GPS signal given off by Mr. Baker's cell phone. Id. at 678-79.

Around 7:20 p.m. on March 3, 2011, Special Agent John Hauger received emails relaying GPS coordinates from the car and Mr. Baker's phone. Id. at 688-89. The coordinates put the car and phone in the area of 75th Street and Metcalf Avenue in Overland Park, Kansas. Id. Agent Hauger called the Overland Park Police Department and learned that, sure enough, the RadioShack at 75th and Metcalf had been robbed at 7:18 p.m. Id. at 689. A scramble ensued. Using a combination of GPS coordinates from the car and phone, visual observations, and knowledge that Mr. Baker resided near 71 Highway, agents were able to locate and stop the car containing Mr. Baker and Mr. Davis. Id. at 486-92, 695-700.

In police interviews, Mr. Davis confessed that he knew Mr. Baker planned to rob the RadioShack. Id. at 579. Mr. Davis contended that Mr. Baker entered the store while he remained in the car, id., and that he saw Mr. Baker pull a gun from his waistband after exiting the RadioShack and re-entering the car, id. at 543. The government charged Mr. Davis with robbery, using or carrying a firearm during a robbery, being a felon in possession of a firearm, and aiding and abetting those offenses, 18 U.S.C. § § 1951, 924(c)(1)(A)(ii), 922(g)(1), 2. I R. 42-46.

In the district court, Mr. Davis moved to suppress the evidence found in the car arguing that, under subsequently decided United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the warrantless attachment and use of the GPS device to locate and seize the car violated the Fourth Amendment. I R. 50; II R. 89-90. The district court denied Mr. Davis's motion, finding that (1) the stop was legal because, " even without the GPS" device on the car, agents had more than enough information to locate the car and reasonable suspicion to stop it; (2) Mr. Davis lacked standing to challenge the search of the car; and (3) agents attached

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the GPS device to the car with the then-objectively reasonable good-faith belief that their conduct was lawful. II R. 100-04.

At trial, the government proceeded on the theory that Mr. Davis entered the RadioShack and robbed it at gunpoint. II R. 1018-19, 1034. The defense contended that Mr. Baker entered the store while Mr. Davis remained in the car as an unwitting accomplice, lacking knowledge of Mr. Baker's plan to rob the store and brandish a gun. Id. at 1024. The government maintained that, even if it was Mr. Baker who entered the store, the evidence permitted the jury to find Mr. Davis guilty of the robbery and firearms offenses as an aider and abettor. Id. at 1014, 1035. The district court instructed on the elements of each count in the indictment. Doc. 142, at 12-14. It also instructed on aiding and abetting. Id. at 20. Specifically, the court informed the jury that, to be an aider and abettor, a defendant must " consciously share[] the other person's knowledge of the underlying criminal act and intend[] to help him or her." Id. Defense counsel did not object to this instruction. II R. 1004-05.

The jury returned a general verdict against Mr. Davis, convicting him of robbing the RadioShack, using or carrying a firearm during that robbery, and being a felon in possession of a firearm. I R. 91-92. While appeal was pending, the United States Supreme Court decided United States v. Rosemond, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), which addresses the elements of aiding and abetting a § 924(c) offense.

Discussion

A. Motion to Suppress

When reviewing the denial of a motion to suppress, we review questions of law, such as whether a defendant has standing to challenge a search, de novo. United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001). Although the district court offered three grounds for denying Mr. Davis's motion, we need only address standing.2

United Sates v. Jones settled that the attachment of a GPS device to a car, and subsequent use of that device to monitor the car's movements, is a " search," 132 S.Ct. at 949, and that installing such a device without a warrant potentially violates the Fourth Amendment.3 As the party seeking suppression, Mr. Davis must demonstrate that it was his Fourth Amendment rights that were violated in this regard. See Rakas v. Illinois, 439 U.S. 128, 130 n.1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This is because " Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Id. at 133-34

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(quoting Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)). Although this principle is often called " standing," the idea that personal Fourth Amendment rights must be at stake " is more properly subsumed under substantive Fourth Amendment doctrine." Id. at 139; United States v. Erwin,...

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