993 F.2d 431 (5th Cir. 1993), 92-4822, United States v. Shabazz

Docket Nº:92-4822
Citation:993 F.2d 431
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mateen Yusuf SHABAZZ, a/k/a Edward L. Eberhart, a/k/a Edward Wallace, and Keith Lamar Parker, Defendants-Appellants.
Case Date:June 04, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 431

993 F.2d 431 (5th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mateen Yusuf SHABAZZ, a/k/a Edward L. Eberhart, a/k/a Edward

Wallace, and Keith Lamar Parker, Defendants-Appellants.

No. 92-4822

United States Court of Appeals, Fifth Circuit

June 4, 1993

Page 432

[Copyrighted Material Omitted]

Page 433

Harold Laine, Jr., Beaumont, TX (Court appointed), for Shabazz.

Clayton Mayfield, Beaumont, TX (Court appointed), for Parker.

Melissa Baldo, Asst. U.S. Atty., Bob Wortha, U.S. Atty., Beaumont, TX, for U.S.

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

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Mateen Yusuf Shabazz (Shabazz) and Keith Lamar Parker (Parker) were convicted on drug possession charges. They argue that evidence discovered in a warrantless search of the car in which they were traveling should have been suppressed, that the trial court erroneously failed to submit a "mere presence" jury instruction, and that their convictions rest on insufficient evidence. We affirm.

Facts and Proceedings Below

On July 10, 1991, Shabazz and Parker were traveling in a 1976 Chevrolet Malibu on Interstate 10 in Beaumont, Texas, when they were pulled over by two officers of the Beaumont Police Department for exceeding the speed limit. Officer Gerald LaChance approached Shabazz, who had been driving the car, and asked him to step to the rear of the vehicle with his driver's license. Shabazz complied and produced what turned out to be a false driver's license bearing the name Edward (or Edwin) L. Wallace. Parker remained in the vehicle. While running a computer check on Shabazz's license, the officers questioned Shabazz and Parker individually. Comparing notes, the police officers determined that Shabazz and Parker had given conflicting answers concerning their recent whereabouts. Shabazz had said that he and Parker had been visiting Parker's sister in Houston, where they had been for a week, since the Fourth of July. Parker, on the other hand, had said that they had only been in Houston since the eighth, just two days prior to the stop.

Based upon the conflict in their stories, and Officer Froman's belief that Parker seemed nervous, the officers decided to seek consent to search the car. Because Parker had represented himself as the owner of the car, he was asked if he would consent to a search of the vehicle. Parker gave both written and oral consent to a search.

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During the search, Officer LaChance discovered a Phillips-head screwdriver on the front floorboard of the driver's side of the car. He also observed that the screws in the front driver's side air conditioner vent had shiny nicks on them and appeared to be loose. Using the screwdriver, Officer LaChance loosened the screws. The vent thereupon fell open and out of it tumbled a number of plastic baggies, which contained over 300 grams of crack cocaine and over 100 grams of powder cocaine. Shabazz and Parker were immediately arrested.

A grand jury returned a two-count indictment against Shabazz and Parker charging them with possession with intent to distribute cocaine and possession with intent to distribute a cocaine mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a). A jury trial was held in the Eastern District of Texas and defendants were convicted on both counts. The court sentenced Parker to 216 months' imprisonment, to be followed by 5 years of supervised release, and a $100 special assessment. Shabazz received a 192 month sentence, 5 years of supervised release, and a $100 special assessment. Parker and Shabazz now appeal their convictions.

Discussion

Appellants raise three arguments on appeal. They argue that the trial court erred by failing to suppress the evidence found in the search of the automobile, that the court erred by failing to give the jury a "mere presence" instruction, and that the evidence was insufficient to prove that they knowingly possessed the cocaine. We will address these issues in turn.

I. Suppression of Evidence

Prior to trial, appellants 1 moved to suppress the evidence found in the search of the automobile as the fruits of a Fourth Amendment violation. Following an evidentiary hearing, the district court denied the motion. On appeal, we review the district court's findings of fact for clear error; conclusions of law are examined de novo. See United States v. Coleman, 969 F.2d 126, 129 (5th Cir.1992). The evidence is viewed most favorably to the party prevailing below, except where such a view is inconsistent with the trial court's findings or is clearly erroneous considering the evidence as a whole. Id. See also United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984).

The Fourth Amendment prohibits unreasonable searches and seizures. There is no question but that the stopping of a vehicle and the detention of its occupants is a "seizure" within the meaning of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). It is clear that, as in the case of pedestrians, searches and seizures of motorists who are merely suspected of criminal activity are to be analyzed under the framework established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (applying Terry analysis to stop of vehicles suspected of transporting drugs); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (applying Terry analysis to stop of a vehicle suspected of transporting aliens). 2 Of course, in this case appellants were not merely suspected of illegal behavior, but were actually observed by the stopping officer committing an offense, a Class C misdemeanor, and were stopped on

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that basis. A routine traffic stop is a limited seizure that closely resembles an investigative detention. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) ("the usual traffic stop is more analogous to a so-called 'Terry stop' than to a formal arrest" for Miranda warning purposes). Also, both the Supreme Court and the Fifth Circuit have used Terry to analyze cases in which motorists were stopped for violating traffic laws. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (stop for expired license plate); United States v. Kelley, 981 F.2d 1464 (5th Cir.), cert. denied, ---- U.S. ----, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993) (stop for seat belt violation); United States v. Lee, 898 F.2d 1034, 1040 (5th Cir.1990), cert. denied, --- U.S. ----, 113 S.Ct. 1057, 122 L.Ed.2d 363 (1993) (stop for speeding).

Under Terry, the judicial inquiry into the reasonableness of a search or seizure "is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19, 88 S.Ct. at 1879.

A.

Appellants do not argue, nor could they, that the initial stop of their vehicle for speeding was improper. This is so whether or not Terry applies. See United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987) (en banc); United States v. Basey, 816 F.2d 980, 990 (5th Cir.1987). 3 Appellants do argue, however, that when the officers interrogated them about their visit to Houston, the detention exceeded the reasonable scope of the stop's original purpose and thus violated Terry 's second prong. Appellants rely principally upon the Tenth Circuit's decision in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988). In Guzman, a New Mexico police officer stopped Guzman, the driver of a rented Cadillac with Florida plates, and his wife for seat belt violations. Guzman gave the officer his license, registration, and car rental agreement. The officer reviewed the documents and concluded that they were in order. At this point, rather than issue a warning or a citation, the officer investigated further by examining the odometer and extensively questioning the motorists. His suspicions aroused, the officer asked if the two were carrying contraband. Guzman denied the allegation and invited the officer to search the car. The search revealed cocaine concealed in the car, whereupon Guzman and his wife were arrested. The Guzman court held that the officer's actions violated the Fourth Amendment:

"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. 864 F.2d at 1519.

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The reasoning of Guzman was apparently applied by this Court in the similar case of United States v. Kelley, supra. As in Guzman, the motorists in Kelley were stopped for seat belt violations and, subsequent to questioning by police officers, were discovered to be in possession of drugs. 4 "We do not disagree with the Tenth Circuit," said Kelley, "that, under appropriate circumstances, excessive questioning about matters wholly unrelated to the purpose of a routine traffic stop may violate the Fourth Amendment." 981 F.2d at 1470.

The Fourth Amendment injury found in Guzman and assumed arguendo in Kelley 5 was a violation of Terry 's second prong: that the scope of a search must be reasonably related to its...

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