United States v. McCall, 081211 FED6, 09-6095

Docket Nº:09-6095
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM MCCALL, Defendant-Appellant.
Judge Panel:Before: MOORE and GIBBONS, Circuit Judges; BORMAN, District Judge. KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
Case Date:August 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

WILLIAM MCCALL, Defendant-Appellant.

No. 09-6095

United States Court of Appeals, Sixth Circuit

August 12, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Before: MOORE and GIBBONS, Circuit Judges; BORMAN, District Judge. [*]

JULIA SMITH GIBBONS, Circuit Judge.

Defendant–appellant William McCall appeals his conviction and sentence for conspiracy and possession with intent to distribute methamphetamine. McCall argues that the district court erred (1) by denying his motion to suppress the evidence seized during a warrantless search of the automobile he was driving, and (2) by applying a two-level firearm enhancement to his Sentencing Guidelines offense level during sentencing. For the reasons that follow, we affirm the district court.

I.

On the morning of May 15, 2008, Mark Hollis, a drug interdiction officer for the Johnson City Police Department pulled over a red 1993 Pontiac, which was following the vehicle in front of it too closely. The car was driven by McCall, who testified that he was returning to Wytheville, Virginia, after having traveled to North Carolina. McCall had borrowed the car from Susan Teaster, a family friend; Teaster had acquired the Pontiac from Honeycutt Towing, which had taken possession of the car following a traffic stop and the failure of the original owner to reclaim it.

Hollis took McCall's license and then noticed two rifles in the back seat of the Pontiac. When he inquired about them, McCall told Hollis that he had recently purchased the rifles from a friend and that Hollis should feel free to "run them." Hollis went back to his police cruiser and began to enter McCall's license information. Hollis also called for assistance from his fellow officer, Patrick Muncey, as was his custom when weapons were present during a traffic stop.

Before Muncey could arrive, Hollis approached McCall again to ask for his social security number. Hollis then returned to his cruiser and finished the paperwork. Just as he was printing off the ticket, Muncey arrived. Hollis told Muncey that he had observed two rifles in the Pontiac and did not want to approach McCall alone again, so the two of them approached McCall together. Hollis gave McCall back his paperwork and driver's license and issued a warning citation while Muncey stood across from him on the opposite side of the car.

Although Hollis later testified that McCall was free to go, he never said that to McCall. Instead, Hollis asked if he could run the guns, and McCall said he had no objection. Hollis then asked McCall to step out of the Pontiac and to permit him to do a brief pat-down search, to which McCall acquiesced. Once he was out of the car and had been searched, McCall started to hand the guns to Hollis, but Hollis told McCall to step back with Muncey. While McCall and Muncey waited in front of Hollis's cruiser, Hollis seized the guns, radioed in information about them, then took them back to his cruiser to "get them out of the way."

At some point during this exchange, prior to placing the guns in his cruiser, Hollis claims to have asked for and received consent from McCall to search the Pontiac. First, Hollis asked if there were any illegal narcotics or large sums of cash in the car, and McCall replied, "no." Then, Hollis asked if he could search the vehicle, to which McCall replied that there was nothing illegal in the car. Hollis repeated his request to search the vehicle, stating, "Do you have a problem with me searching the vehicle?" Hollis testified at the suppression hearing that McCall said "No, sir, " while McCall testified at trial that he said, "I guess you can."

Hollis had a microphone on his person that could have clarified what was said, but according to Hollis that microphone "didn't pick up the consent to search the car." Muncey, however, did have a functioning microphone, and he testified at the suppression hearing—after listening to his tape—that McCall said "No, sir." In his Report and Recommendation following the suppression hearing, the magistrate judge noted that Hollis's microphone had problems but found there was nothing suspicious about this.

While searching McCall's vehicle, Hollis inspected the center console and noticed that the plastic covering of the console was loose. Hollis put his finger underneath the loose plastic covering, lifted it up, looked inside, and observed a black object wrapped in electrical tape. Inside the object were two bags filled with a substance later determined to be methamphetamine. After a field test indicated the presence of illegal drugs, Hollis placed McCall under arrest, read him the Miranda warning, searched his pockets, and called another unit to come and transport him.

Adam Lunceford arrived to transport McCall to the station. Lunceford searched McCall and found a small bag of methamphetamine in his side pocket. Tests revealed—and the parties stipulated—that the three bags found in McCall's possession contained 206.6 grams of substance which was 36.6% pure methamphetamine, yielding 81.8 grams of methamphetamine.

McCall was transported to the police station where he was questioned. The officers testified that McCall offered to purchase 20 grams of methamphetamine from someone in North Carolina if they would drop the charges. McCall disputed their testimony.

After questioning, McCall was put into a holding cell with other prisoners, one of whom was Ronnie Frost. At trial, Frost testified that he and McCall had conversations about McCall's activities. Frost testified that McCall told him about his illegal drug activities, the guns in his car, and his trial strategy. Of relevance to this case, Frost testified that McCall told him he planned to trade the guns for methamphetamine. McCall insisted at trial that these conversations never took place.

Prior to trial McCall moved to suppress the evidence obtained during the search of his vehicle and in his subsequent interview with the police. The magistrate judge held an evidentiary hearing on October 3, 2008. The magistrate judge found that McCall voluntarily gave consent to search his vehicle and that the console cover was loose, giving Hollis reason to lift the console with his finger. Lifting the loose cover, the magistrate found, did not constitute a "dismantling" of the car, as McCall had argued.

After McCall objected to the magistrate's Report and Recommendation, the district court found that (1) the stop was extended because McCall both suggested and consented to Hollis's running information on the guns; (2) McCall's consent, which the district court found was undisputed, was knowing and voluntary; and (3) Hollis's search did not exceed the scope of McCall's consent. The district court therefore adopted the report, overruled McCall's objections, and denied McCall's motion to suppress.

At trial, McCall's theory of the case was that the drugs had been left in the car by the previous owner. McCall testified on his own behalf. The government countered with Frost's testimony as well as testimony from DEA agents that the methamphetamine was "very moist" and "hadn't had time to dry out, " when it would be impossible for methamphetamine to still be moist after fourteen months in a car. DEA agents also testified that drug traffickers use guns for protection and sometimes trade guns for other guns, cars, and drugs. The jury found McCall guilty.

At sentencing, in relevant part, the probation officer recommended that McCall's offense level be increased two levels because a dangerous weapon was possessed. McCall objected, arguing that the evidence presented at trial in no way demonstrated that the two firearms were connected to the offense. At the sentencing hearing, McCall's attorney emphasized that the guns were hunting guns, that there was no ammunition, and that Frost's testimony was incredible, rendering it "clearly improbable . . . that those guns in any way related to the drug offense." The government responded that the burden is on McCall to show that the guns were not related to drug trafficking, which he had not shown, and that it had reached its burden through Frost's testimony that McCall planned to trade the guns for drugs.

Despite finding Frost not very credible, the district court agreed with the government, applied the enhancement for possession of a dangerous weapon, and sentenced McCall to 210 months' imprisonment.

II.

When reviewing the denial of a motion to suppress, this court reviews the district court's factual findings for clear error and its legal conclusions de novo. United States v. Simpson, 520 F.3d 531, 534 (6th Cir. 2008). Under the clearly erroneous standard, a reviewing court "will not reverse a lower court's finding of fact simply because it would have decided the case differently. Rather . . . [the] reviewing court must ask whether on the entire evidence it is left with the definite and firm conviction that a mistake has been committed." United States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (internal quotations and citations omitted). In this instance the evidence is therefore reviewed in the light most favorable to the district court's decision and the government's position. See United States v. Shamaeizadeh, 80 F.3d 1131, 1135 (6th Cir. 1996); United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc).

A.

McCall's first argument challenging the district court's decision not to suppress the evidence is that the district court erroneously failed to make a finding on whether he gave consent. McCall quotes his objections to the magistrate's Report and Recommendation, in which he stated: "In his motion to suppress and supplemental motion to suppress, defendant disputed the claim that he provided consent to the search of the automobile he was driving on May 15, 2008. . . . Respectfully, the...

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