U.S. v. Kelley

• Decision Date: 20 January 1993
• Docket Number: No. 91-4879,91-4879
• Parties: 37 Fed. R. Evid. Serv. 1092 UNITED STATES of America, Plaintiff-Appellee, v. Daniel Michael KELLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1464

981 F.2d 1464

37 Fed. R. Evid. Serv. 1092

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Michael KELLEY, Defendant-Appellant.

No. 91-4879.

United States Court of Appeals,

Fifth Circuit.

Jan. 20, 1993.

Claude LeMasters, Beaumont, TX (Court-appointed), for defendant-appellant.

Paul E. Naman, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, TX, for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before JOLLY and DeMOSS, Circuit Judges, and SCHWARTZ ^*, District Judge.

E. GRADY JOLLY, Circuit Judge:

Daniel Michael Kelley was convicted for possession of cocaine with intent to distribute, using and carrying a firearm during and in relation to the drug trafficking crime, and possession of a firearm as a convicted felon. He appeals, contending that the district court erred in denying his motion to suppress. He also complains of prosecutorial misconduct, errors in evidentiary rulings, and misapplication of the Sentencing Guidelines. Finding no reversible error, we AFFIRM.

I

On November 9, 1990, Kelley and Sondra Andrews drove Andrews's car from Butler, Alabama, to Houston, Texas. They spent the night at a motel in Houston, and left the following day, headed east on Interstate 10 toward Beaumont. As the vehicle approached Beaumont, two Beaumont police officers, Froman and LaChance, observed that Andrews was seated near the middle of the front seat. They began to follow the vehicle, and observed that Kelley was not wearing a seatbelt, because the buckle was hanging down over his left shoulder. The officers decided to stop the vehicle for the seatbelt violation.

Andrews and Kelley both testified that Kelley got out of the car and walked back to the police car, but the officers testified that they approached Andrews's vehicle while Kelley and Andrews were both still inside the vehicle. In any event, Kelley presented his driver's license to the officers at their request. Froman asked Kelley to step to the rear of the vehicle, while LaChance questioned Andrews. When asked about the reason for their trip to Houston, Andrews and Kelley gave inconsistent answers. Based on that fact, as well as the apparent nervousness of both Kelley and Andrews, the officers decided to ask for consent to search the vehicle. Andrews signed a consent form for the search.

During the search, Officer Froman found a loaded .38 caliber revolver in the glove compartment. On the right floorboard was a blue canvas bag containing approximately $4,000 in currency. In the trunk, he found a loaded .45 caliber pistol, and a soft body armor ballistics vest. While the officers were questioning Andrews about these items, Kelley fled on foot into the wooded area across the interstate. Froman unsuccessfully pursued him, and Kelley remained free until apprehended in Alabama approximately six months later.

After Kelley fled, Andrews was arrested for unlawful carrying of weapons, and was placed in the back seat of the police car to await the arrival of a female officer to perform a body frisk. Later, after she had been taken to jail, Andrews told the officers that, immediately before the stop, Kelley had handed her a bag of cocaine and told her to hide it in her pants, and she had complied. When she was placed in the back seat of the patrol car, she took the cocaine out of her pants and hid it under the front passenger seat. A search of the police car later that evening resulted in the discovery of approximately ten ounces of cocaine underneath the front seat behind which Andrews had been sitting.

II

Kelley was charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). The district court denied his motion to suppress the evidence seized in the search of Andrews's automobile.

Andrews entered into a plea agreement and testified against Kelley at the suppression hearing and at trial. The jury found Kelley guilty on all three counts. He was sentenced to 240 months on the cocaine possession count, to run concurrently with a sentence of 327 months on the felon-in-possession count. He was also sentenced to a consecutive term of 60 months imprisonment on the firearm count. He filed a timely notice of appeal.

III

Kelley contends that the district court erred in denying his motion to suppress. He further contends that the district court erred in admitting evidence of his flight from the scene of the search, in ruling that an expunged conviction under the Youthful Offender Act was admissible, in overruling his objection to the prosecutor's closing argument, and in applying the Sentencing Guidelines.

A

Kelley contends that the evidence seized in the search of the car should have been suppressed, because the valid stop for seatbelt violations became an illegal detention when the police officers conducted an investigation that was not reasonably related to the justification for the stop. He further contends that Andrews's consent was involuntary, because it was the product of the allegedly illegal detention. ¹

(1)

"The proponent of a motion to suppress has the burden of proving, by a preponderance of evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights." United States v. Smith, 978 F.2d 171, 176 (5th Cir.1992). We review the district court's findings of underlying facts for clear error; questions of law are reviewed de novo. Id. In evaluating the legality of investigatory stops, we consider (1) whether the officer's action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968).

Kelley acknowledges that United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (en banc), forecloses the contention, which he made to the district court, that the stop for seatbelt violations was a mere pretext to allow the officers to search for drugs or weapons. Accordingly, he now concedes that the stop was justified at its inception. However, he contends that the investigation conducted by the officers was not reasonably related in scope to the purpose of the stop. According to Kelley, once the officers obtained his driver's license, they should have issued a citation or a warning and refrained from any further questioning or investigation. ² He urges us to adopt the rationale of two cases from the Tenth Circuit, which has expressly rejected Causey. ³

In United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), an officer stopped the defendant and his wife for seatbelt violations. While writing a warning for the seatbelt violation, the officer asked the defendant "whether his wife was employed, where he was headed, where he worked, when he got married, and if they were carrying any large sums of money." Id. at 1514. After completing the warning and handing it to the defendant, but without advising the defendant that he was free to leave, the officer asked the defendant if they were carrying weapons or contraband. The defendant replied that they were not hiding anything and that the officer was free to look. Id. The defendant signed a consent to search form. During the search, the officer found five kilograms of cocaine and $45,000 cash. Id.

The Tenth Circuit held that the seizure was unreasonable, stating:

An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.

Id. at 1519 (citations and internal quotations omitted). The court, however, remanded the case to the district court for findings of fact on the issue of consent. Id. at 1520.

In United States v. Walker, 933 F.2d 812 (10th Cir.), reh'g denied, 941 F.2d 1086 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992), the defendant was stopped for speeding. After confirming that the vehicle was not stolen, the officer obtained the defendant's driver's license and vehicle registration. Id. at 813-14. Upon discovering that the vehicle was registered in a different name, the officer questioned the defendant and received satisfactory information that he was a permissive operator. Id. at 814. The defendant appeared to be nervous, so the officer asked whether he was carrying any weapons, open containers of alcohol, drugs or drug paraphernalia. Id. The defendant replied that he was not, but stated that he had $1600 in the glove compartment and $150 in his pocket. Id. The officer then obtained the defendant's consent to search the vehicle, and discovered 86 kilograms of cocaine. Id.

The Tenth Circuit held that the initial stop was valid, but that the continued detention and questioning unrelated to the traffic violation were unreasonable. Id. at 816. In its opinion denying the government's motion for rehearing, the court stated:

We think that this type of questioning--about matters unrelated to the reason for the stop--would naturally engender fear and resentment in otherwise law-abiding citizens who expect to be detained briefly for the purpose of receiving a traffic citation.

941 F.2d at 1088. Relying on Guzman, the court remanded the case to the district court for findings on the issue of the voluntariness of the defendant's consent. 933 F.2d at 817-18. ⁴

Kelley maintains that the officers'...