U.S. v. Davis
| Decision Date | 09 August 2006 |
| Docket Number | No. 05-4449.,05-4449. |
| Citation | 457 F.3d 817 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Billy D. DAVIS, also known as Lil Spook, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James M. Davis, argued, Omaha, NE, for appellant.
Nancy A. Svoboda, argued, Asst. U.S. Attorney, Omaha, NE, for appellee.
Before BYE, LAY, and RILEY, Circuit Judges.
A jury found Billy D. Davis guilty of conspiracy to distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. § 846. On appeal, Davis challenges the district court's1 denial of his motion to suppress evidence seized pursuant to a traffic stop and subsequent search of his person. Davis also argues the district court committed several evidentiary errors, including: (1) admitting evidence regarding the seizure of crack cocaine under Federal Rule of Evidence 404(b); (2) refusing to admit Davis' proposed expert testimony on sentencing; and (3) admitting hearsay testimony under the coconspirator exception. Finally, Davis raises several objections to the 360 month sentence imposed by the district court. For the reasons set forth below, we affirm.
At trial, the government's case-in-chief relied upon the testimony of two Omaha Police Department officers and four cooperating witnesses. Davis had two witnesses refute parts of the government's case and testified on his own behalf.
Officer Jeffrey Gassaway of the Omaha Police Department was the first witness for the government. Officer Gassaway testified that while he had repeated contact with Davis during the course of his work, the police discovered Davis' involvement in the instant conspiracy during the investigation, arrest, and prosecution of a large number of individuals involved in similar narcotics cases.2 Officer Gassaway also testified about the events following a traffic stop on February 12, 2001. The driver of the vehicle remained in the car while three passengers ran into a residence. After receiving permission from the owner to search the residence, officers found the occupants of the vehicle inside and a small baggie containing crack cocaine behind a downstairs toilet. The officers took hand swabs of the vehicle's occupants, and Davis' tested positive for crack cocaine. However, one of the other passengers of the vehicle claimed the crack belonged to him. The district court admitted the testimony of these events, over Davis' objection, pursuant to Federal Rule of Evidence 404(b).
Officer David Rieck of the Omaha Police Department testified that he stopped a vehicle in which Davis was a passenger on October 12, 2001, because the driver failed to signal a turn. As Officer Rieck turned on his lights to execute the stop, he saw an individual in the backseat, later identified as Davis, make "furtive movements." Officer Rieck testified it appeared Davis "raise[d] his torso up off the right rear seat, and his hand goes behind him as if he's placing something either under him, under the seat, or somewhere on his person." These movements suggested to Officer Rieck that Davis was trying to conceal something.
After informing the driver he was under arrest for driving with a suspended license, Officer Rieck asked the passengers to exit the vehicle so it could be searched. As Davis exited the vehicle, Officer Rieck requested, and received, permission to search Davis' person. Officer Rieck testified that when he swept Davis' buttocks area, he felt a rock or marble-like object. The officers handcuffed Davis, placed him in a police cruiser, and drove him approximately half a block to a police assembly building. Davis became very upset and began thrashing his body, requiring several officers to restrain him. At the police assembly building, Officer Rieck sought permission from his sergeant to conduct a strip search on Davis. However, a strip search was not necessary because, due to Davis' thrashing, his baggy pants and underwear had fallen below his waist. Officer Rieck then saw the tip of a plastic bag protruding from Davis' buttocks and retrieved it.
The government also presented the testimony of four cooperating witnesses, all of whom were serving lengthy prison terms for crack cocaine conspiracies. These witnesses recounted the details of various drug deals in which Davis played a part.3 Victor Henderson, one of the cooperating witnesses, testified that he bought crack cocaine from Davis on two separate occasions through an intermediary. Both times, Henderson waited in a car while Parish Swift went inside a $.99 cent store. Henderson testified he lost sight of Swift when he entered the store, but when Swift returned he had crack cocaine and stated he bought it from Davis. Davis objected to this testimony as hearsay. The district court allowed the statement to come into evidence under the coconspirator exception to the hearsay rule.
Davis testified on his own behalf, admitting that he sold marijuana and used crack cocaine, but denying that he ever sold cocaine. Davis also denied knowing two of the cooperating witnesses who testified against him. Marcus Brown testified on behalf of Davis, stating he observed Officer Gassaway harassing Davis at a local festival. Parish Swift also testified, denying he ever bought crack cocaine from Davis on behalf of Victor Henderson. The district court denied Davis' request to call the Federal Public Defender for the District of Nebraska to provide expert testimony about the sentencing guidelines, statutory minimum sentences, and substantial assistance.
The jury found Davis guilty of conspiracy to distribute or possess with intent to distribute 50 grams or more of crack cocaine. The presentence investigation report held Davis accountable for 2.47 kilograms of crack cocaine, setting his offense level at 38. With a criminal history category of VI, the advisory guidelines range was 360 months to life in prison. Davis objected to the presentence investigation report's calculation of drug quantity, arguing the attributed amount was based upon mere speculation and contending that the drug quantity should have been found by the jury. The district court adopted the findings of the presentence investigation report and sentenced Davis to 360 months' imprisonment, at the low end of the advisory guidelines range.
Davis first argues the district court erred by refusing to suppress crack cocaine found on Davis' person during the search conducted by Officer Rieck on October 12, 2001. When considering a denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Esquivias, 416 F.3d 696, 699 (8th Cir.2005).
Law enforcement officers may briefly detain an individual for investigative purposes if they have a reasonable and articulable suspicion of criminal activity. United States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir.2005) (citing Terry v. Ohio, 392 U.S. 1, 25-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In determining whether reasonable suspicion exists, we consider the totality of the circumstances in light of the officers' experience and specialized training. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). During a Terry stop, an officer who has reason to believe the detained individual may be armed and dangerous may conduct a pat-down search for weapons to ensure officer safety. Bustos-Torres, 396 F.3d at 943.
During the course of the lawful traffic stop, Officer Rieck saw Davis rise off the seat and place his hand behind his back as if he were placing something underneath or behind him. Officer Rieck testified this behavior was unusual and raised suspicion that Davis was attempting to hide something. Suspicious behavior by a passenger during a traffic stop may reasonably warrant a pat-down of the individual. See United States v. Moorefield, 111 F.3d 10, 13-14 (3d Cir.1997) (collecting cases); see also United States v. Malone, 49 F.3d 393, 397 (8th Cir.1995); United States v. Woodall, 938 F.2d 834, 837 (8th Cir.1991). Moreover, the district court concluded, and Davis concedes, Officer Rieck received Davis' consent to search his person.4 We conclude that either of these grounds support the search of Davis at the scene.
As Officer Rieck swept Davis' buttocks area, he felt a hard, marble-like substance and suspected Davis was attempting to conceal narcotics. While Davis concedes Officer Rieck had the right to execute the traffic stop and conduct the pat-down, he argues that once Officer Rieck determined he was unarmed there was no legal authority to place him in handcuffs, transport him to the police assembly building, and further search him. We disagree. Davis' suspicious behavior during the traffic stop and Officer Rieck's subsequent discovery of what he believed to be narcotics in Davis' buttocks area gave Officer Rieck probable cause to believe Davis was attempting to conceal narcotics. See Bustos-Torres, 396 F.3d at 944-45; United States v. Williams, 139 F.3d 628, 630 (8th Cir.1998); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir.1994); United States v. Hughes, 15 F.3d 798, 802 (8th Cir.1994). The officers had probable cause to arrest Davis, transport him to the police assembly building, and remove the crack cocaine from his person as a search incident to arrest. See United States v. Mendoza, 421 F.3d 663, 667-68 (8th Cir.2005). Therefore, the district court properly denied Davis' motion to suppress.
Officer Gassaway testified he found crack cocaine behind a toilet in a residence Davis and two other men entered following the initiation of a traffic stop on February 12, 2001. Davis objects to the admission of this testimony, arguing it was irrelevant and prejudicial because one of...
To continue reading
Request your trial
-
United States v. Cowan
...may be armed and dangerous may conduct a pat-down search for weapons to ensure officer safety.’ ” (quoting United States v. Davis, 457 F.3d 817, 822 (8th Cir.2006))). The officers were executing a warrant at a place of suspected drug trafficking where weapons may have been present, and the ......
-
United States v. Young
...of discretion, ‘keeping in mind that its discretion is particularly broad in a conspiracy trial.’ ” Id. (quoting United States v. Davis, 457 F.3d 817, 824–25 (8th Cir.2006)). Federal Rule of Evidence 801(d)(2)(E) provides that a coconspirator's out-of-court statement is not hearsay if the s......
-
State v. Robinson
...of what he believed to be narcotics in [Defendant's] buttocks,” Detective Tisdale had “probable cause to arrest” Defendant. U.S. v. Davis, 457 F.3d 817, 823 (8th Cir.2006), cert. denied,549 U.S. 1258, 127 S.Ct. 1386, 167 L.Ed.2d 169 (2007) (citations omitted). Thus, Judge Bridges did not er......
-
U.S. v. Stewart
...as though “he were either concealing or retrieving something” contributed to reasonableness of officer's suspicion); United States v. Davis, 457 F.3d 817, 822 (8th Cir.2006) (holding that officer's observation, during traffic stop, of passenger “ris[ing] off the seat and plac[ing] his hand ......