U.S. v. Franklin

• Decision Date: 22 February 1984
• Docket Number: No. 83-1286,83-1286
• Parties: , 15 Fed. R. Evid. Serv. 174 UNITED STATES of America, Appellee, v. Cornelius FRANKLIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 994

728 F.2d 994

80 A.L.R.Fed. 385, 15 Fed. R. Evid. Serv. 174

UNITED STATES of America, Appellee, v. Cornelius FRANKLIN, Appellant.

No. 83-1286.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1983.

Decided Feb. 22, 1984.

Thomas E. Dittmeier, U.S. Atty., Larry D. Hale, Asst. U.S. Atty., St. Louis, Mo., for appellee.

John E. Bell, St. Louis, Mo., for appellant.

Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and DUMBAULD, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Cornelius Franklin appeals from a final judgment entered in the District Court ¹ for the Eastern District of Missouri after a non-jury trial on stipulated facts finding him guilty of one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The district court sentenced Franklin to three years imprisonment followed by three years of special parole. For reversal Franklin argues that the district court erred in (1) finding that the custodial arrest for minor traffic violations and the search incident thereto was lawful, (2) admitting into evidence Detective Thomure's testimony concerning the average dosage unit of cocaine, and (3) finding the evidence sufficient to establish the element of intent to distribute. For the reasons discussed below, we reverse and remand for resentencing for possession only.

At approximately 6:50 a.m. on August 31, 1982, St. Louis Police Officer Steven Olish, a ten-year veteran of the St. Louis Police Department, was on patrol in the City of St. Louis. While in his patrol vehicle at the intersection of Hodiamont, Skinker and Horton Streets, Officer Olish observed a 1960 Thunderbird drive through a red light traffic signal. Officer Olish followed the Thunderbird and signaled its driver to pull over. Both vehicles stopped a short distance away. Officer Olish immediately radioed in his location and the Thunderbird's license plate number, but received no information that the license or car was stolen or in any way suspicious.

Franklin, the driver of the Thunderbird, got out of his car and walked toward Officer Olish's patrol car. He was dressed in his St. Louis City Fire Department uniform. Franklin apologized to Officer Olish, explaining that he was in a hurry and would get in trouble if he was late for work.

Upon request, Franklin produced a Missouri state identification card and a Missouri Officer Olish then placed Franklin under formal arrest, even though the traffic violations were normally considered "release on street" offenses. Franklin was not advised of his rights at this time. Statements made after his arrest were subsequently suppressed.

driver's license bearing his name. The driver's license had expired, and the photograph on the license had been completely burned off. Officer Olish asked Franklin about the ownership and registration of the Thunderbird and whether he had another driver's license. Franklin stated that he had owned the Thunderbird for a couple of months and that he did not have an additional driver's license. Officer Olish noted, however, that the car had Kentucky plates, no Missouri state inspection sticker and no appropriate St. Louis City or County permit.

During a pat-down search for weapons Officer Olish felt a bulge in Franklin's left sock. Officer Olish retrieved two clear plastic bags containing a white powdery substance, which was later identified as 35 grams of 42% pure cocaine (14 grams of 100% pure cocaine). Upon finding the cocaine, Olish told Franklin that he was under arrest for narcotics violations and at that time advised him of his constitutional rights. Over Franklin's objection, it was stipulated that a narcotics agent would testify that the average dosage unit of cocaine was approximately one-quarter of a gram. Further, it was stipulated that the amount of cocaine seized had an approximate street value of $3,000.00.

ARREST

Franklin first argues that the custodial arrest for minor traffic violations was unlawful and therefore the evidence found in the search incident to arrest should have been suppressed. Franklin challenges the authority of an officer to make a formal arrest for traffic violations characterized as "release on street" offenses for which a summons is ordinarily issued on the scene. In support of this argument Franklin primarily relies on Mo.Ann.R. 37.09 (Vernon 1981) ² and various provisions of the St. Louis Metropolitan Police Department's General Order Concerning Traffic Stops. ³

A lawful arrest based on probable cause justifies a warrantless search of the arrestee for either weapons or evidence. Michigan v. DeFillippo, 443 U.S. 31, 40, 99 S.Ct. 2627, 2633, 61 L.Ed.2d 343 (1979); United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973); Adams v. Williams, 407 U.S. 143, 148-49, 92 S.Ct. 1921, 1924-1925, 32 L.Ed.2d 612 (1972). ⁴ The constitutional reasonableness of an arrest and search incident thereto is not affected by the absence of a police regulation requiring that a police officer take a person into custody for the particular offense or departmental policy establishing the conditions under which a full body search should be conducted. Gustafson v. Florida, 414 U.S. 260, 265, 94 S.Ct. 488, 491, 38 L.Ed.2d 456 (1973). Thus, the validity of a discretionary full custody arrest and full-scale body search of an offender arrested for a minor traffic violation has been upheld. Id.

After a careful examination of the regulations at issue, we conclude that Officer Olish was not prohibited from arresting Franklin for various state and local traffic violations. The language of the relevant provisions is permissive, vesting the officer with the discretionary authority to evaluate the situation and determine whether or not to adhere to formal arrest procedures.

Officer Olish personally observed Franklin violate several traffic regulations. Franklin also failed to adequately explain the absence of Missouri license plates, a Missouri vehicle inspection sticker, and an appropriate city or county permit. We hold that Officer Olish's discretionary full custody arrest of Franklin was based on probable cause and thus the arrest and search incident thereto were constitutionally permissible under the fourth amendment. ⁵

EXPERT TESTIMONY

Franklin also argues that the district court erred in admitting into evidence Detective Thomure's testimony concerning the average dosage unit of cocaine. This testimony was relevant to the issue of intent to distribute. It is undisputed that the average dosage unit of cocaine is not information within the common knowledge of lay In light of our disposition of the intent to distribute issue on other grounds, we do not decide whether the district court's decision to admit Thomure's testimony as expert witness testimony was "manifestly erroneous." ⁷ We note, however, that although experience may qualify an individual as an expert witness, Thomure had been assigned to the narcotics enforcement team for only ten months ⁸ and there was no showing that he had received special training about dosage units as a member of the enforcement team.

                persons.  The district court therefore admitted Thomure's testimony as expert testimony pursuant to Fed.R.Evid. 702. 6   Franklin argues that the district court abused its discretion in finding Thomure qualified as an expert because there was no stipulation about Thomure's qualifications as an expert.  Thomure did testify that he had been a city police officer for seven and one-half years and had been assigned to the narcotics enforcement team for ten months
                

SUFFICIENCY OF THE EVIDENCE

Finally, Franklin argues that the evidence was insufficient as a matter of law to establish the requisite intent to distribute. Franklin does not dispute that he knowingly and intentionally had in his possession approximately 35 grams of 42% pure cocaine at the time of his arrest. In order to establish a violation of 21 U.S.C. Sec. 841(a)(1), the government must also prove that Franklin had the "specific" intent to distribute the controlled substance.

This court's role in reviewing a criminal conviction is limited. Taking the view most favorable to the government, we must affirm the conviction if supported by substantial evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Hutchinson, 488 F.2d 484, 489 (8th Cir.1973), cert. denied, 417 U.S. 915 (1974). The government offered no direct evidence of distribution. The district court inferred intent to distribute cocaine from the quantity of cocaine involved. Intent to distribute may be established by circumstantial evidence. United States v. Hollman, 541 F.2d 196, 199 (8th Cir.1976). Intent to distribute a controlled substance has been inferred solely from possession of a large quantity of the substance. See United States v. Koua Thao, 712 F.2d 369, 371 (8th Cir.1983) (154.74 grams of opium); United States v. DeLeon, 641 F.2d 330, 335 (5th Cir.1981) (294 grams of cocaine); United States v. Grayson, 625 F.2d 66, 67 (5th Cir.1980) (413.1 grams of 74% pure cocaine); United States v. Love, 599 F.2d 107, 109 (5th Cir.) (26 pounds of marijuana), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 312 (1979); United States v. Edwards, 602 F.2d 458, 470 (1st Cir.1979) (200 grams of heroin); United States v. Smith, 595 F.2d 1176, 1181 (9th Cir.1979) (360 grams of heroin); United States v. Hill, 589 F.2d 1344, 1350 (8th Cir.) (625,000 dosage units of a diet pill), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979); United States v. Muckenthaler, 584 F.2d 240, 247 (8th Cir.1978) (147.09 grams of cocaine); United States v. Powell, 564 F.2d 256, 259 (8th Cir.1977) (50 ounces of heroin), cert. denied, 435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 495 (1978); United States v. Echols, 477 F.2d 37, 40 (8th Cir.) (199.73 grams of cocaine), cert. denied, 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58 (1973); ...