U.S. v. Richards, 91-3617

• Decision Date: 22 June 1992
• Docket Number: No. 91-3617,91-3617
• Citation: 967 F.2d 1189
• Parties: 35 Fed. R. Evid. Serv. 1286 UNITED STATES of America, Appellee, v. Charles W. RICHARDS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1189

967 F.2d 1189

35 Fed. R. Evid. Serv. 1286

UNITED STATES of America, Appellee, v. Charles W. RICHARDS, Appellant.

No. 91-3617.

United States Court of Appeals,

Eighth Circuit.

Submitted April 13, 1992.

Decided June 22, 1992.

R. Steven Brown, Federal Public Defender, Springfield, Mo. (argued), for appellant.

Richard E. Monroe, Asst. U.S. Atty., Springfield, Mo. (argued), for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and EISELE, ^* Senior District Judge.

BOWMAN, Circuit Judge.

Charles W. Richards was indicted on one count of knowingly transporting, or causing to be transported, firearms in interstate commerce in violation of 18 U.S.C. § 922(g)(1) (1988), he previously having been convicted of three or more felonies classified as violent felonies by 18 U.S.C. § 924(e)(2)(B) (1988). After a plea of not guilty, Richards was tried before a jury in the District Court ¹ and found guilty. The court sentenced him to 240 months in prison to be followed by three years of supervised release.

Richards appeals only his conviction. He argues that the District Court erred in (1) denying his motion to suppress evidence seized during a search of his automobile, (2) admitting certain evidence over his objection that it was inadmissible as evidence of prior bad acts, (3) excluding certain testimony proffered by him under Rule 804(b)(3) of the Federal Rules of Evidence, (4) denying his motion for judgment of acquittal based on the insufficiency of the government's evidence, and (5) denying his motion for a new trial based on newly discovered evidence. We affirm the conviction.

I.

Richards and a female passenger, Rachel Harp, were stopped by a Missouri highway patrolman in Greene County, Missouri, in February 1991. Richards and Harp were on their way from Arizona to Illinois. The patrolman, who had been traveling in the opposite direction, observed Richards make an erratic driving maneuver that the patrolman considered a traffic violation. The officer reversed his direction, pursued Richards and, in doing so, observed Richards run off the road onto the shoulder. This second maneuver led the patrolman to believe Richards may have been drinking. The patrolman then signaled Richards to stop and Richards pulled his car off the road.

Richards identified himself to the patrolman and accompanied him to the officer's car while a check was run on his license and registration. Harp remained in Richards' vehicle, apparently asleep. While in the patrol car, the officer noted that Richards was unusually nervous. When asked why, Richards responded that he recently had been released from an Illinois penitentiary where he had been serving time for burglary.

The officer then asked for Richards' consent to a search of his car, which Richards refused. Additional officers were called to the scene and one of the officers went to Richards' car to ask Harp to step outside. In doing so, the officer noticed a box of .22 caliber shells sitting on the console inside Richards' car. After seeing the shells, the officers searched the passenger compartment looking for weapons. They discovered several burn holes in the carpet on the driver's side of the compartment and a small amount of marijuana. At this point, Richards and Harp were placed under arrest for possession of marijuana.

The patrolmen searched Harp's purse incident to her arrest and discovered a loaded handgun. Richards was searched incident to his arrest and the patrolmen discovered a slip of paper listing various pharmaceutical drugs. The patrolmen then searched the trunk of Richards' car and discovered pharmaceutical drugs (in their original boxes) matching the list from Richards' pocket, burglary tools, and a black nylon bag containing three baggies of marijuana, drug paraphernalia, two more loaded handguns, and additional ammunition. Because Richards and Harp were under arrest, and because the vehicle potentially was subject to forfeiture, the car was towed to the highway patrol headquarters where its contents were inventoried.

In due course, Richards was indicted, tried, found guilty, and sentenced, as set forth at the beginning of this opinion. We now consider the issues he raises in this direct appeal of his conviction.

II.

Richards first argues that the District Court erred in denying his motion to suppress the evidence seized during the warrantless search of his automobile.

In reviewing the district court's determination on a motion to suppress, we will affirm unless we find the decision "lacks the support of substantial evidence, it evolves from an erroneous view of the applicable law, or upon considering the entire record we are left with a definite and firm conviction that a mistake has been made."

United States v. Pantazis, 816 F.2d 361, 363 (8th Cir.1987) (quoting United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985)).

Richards contends his motion to suppress should have been granted because the initial stop of his automobile for a traffic violation was pretextual, and therefore the ensuing search was unconstitutional. Pretextual stops are unreasonable under the fourth amendment. United States v. Woodall, 938 F.2d 834, 836 (8th Cir.1991). Evidence obtained as a result of a pretextual stop therefore is subject to suppression. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). This Court also has held, however, that whether a particular stop was pretextual is a question of fact. United States v. Portwood, 857 F.2d 1221, 1223 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2073, 104 L.Ed.2d 638 (1989). "We will not disturb the district court's finding that this search was not pretextual unless it is clearly erroneous." Id. This determination is to be made under a " 'standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.' " United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)), cert. denied, --- U.S. ----, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991).

Having considered the evidence presented at the suppression hearing in this case, we are satisfied the District Court's finding that the stop was not pretextual is not clearly erroneous. The patrolman testified that he observed Richards' vehicle make a swerving lane change, cutting off another vehicle entering the divided highway. The officer turned his patrol car around, followed Richards, and observed him drift momentarily off the road and onto the right shoulder. These actions, the officer believed, constituted a traffic violation and suggested that the driver may have been drinking. Accordingly, the patrolman signaled Richards to stop. "When an officer observes a traffic offense--however minor--he has probable cause to stop the driver of the vehicle." Cummins, 920 F.2d at 500.

Richards further contends that, even if the stop was constitutionally permissible, the evidence must be suppressed because the ensuing search of his car was unreasonable. We disagree. The officer asked Richards for his license and registration and asked him to accompany the officer to the patrol car. These requests were reasonably related to a stop for a traffic violation. Cf. id. at 502 (officer's questioning of suspect as to why he committed a traffic violation is reasonably related to the purpose of the stop). The officer then learned that Richards was a recently released felon and noted that he appeared to be extraordinarily nervous. An officer returned to Richards' vehicle and asked Harp to get out. In doing so, the officer noticed the .22 cartridges sitting in plain view in the passenger compartment. He then made a limited sweep of the passenger compartment and discovered the marijuana. This limited search is permissible during a road-side stop, Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983), even though the occupants have been removed from the vehicle prior to the search. Cummins, 920 F.2d at 502.

The evidence recovered by this initial search gave sufficient probable cause to arrest Richards and Harp. They were searched incident to their arrest, and the gun in Harp's purse was discovered. The trunk of Richards' car also was searched for drugs and weapons. This search was justified as either incident to their arrest, Cummins, 920 F.2d at 502 (citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)), or as an inventory search. Id. (citing Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987)).

We are persuaded the District Court's factual findings are not clearly erroneous and the law was correctly applied. We therefore conclude that the District Court did not err in denying Richards' motion to suppress.

III.

Richards argues the District Court committed reversible error by allowing the admission of evidence of the burglary tools, marijuana, drug paraphernalia, and stolen pharmaceutical drugs recovered from the trunk of his car. Richards objected to this evidence as evidence of prior bad acts and asserted that it was inadmissible under Rule 404(b) of the Federal Rules of Evidence. ² The government responded that the evidence was relevant to show Richards' knowledge of, and dominion and control over, the firearms found in the trunk of his car. It was, and is, Richards' contention that he did not know that any of the three guns (one in Harp's purse and two in the trunk) were present and, therefore, he cannot be guilty of transporting them. By linking Richards to the other contents of the trunk, the government sought to raise the inference that he also knew of the handguns found there.

Where, as in this case, "it is made clear at the outset of the trial that the defendant's principal defense is a lack of knowledge or intent ... the government may take the defendant at his...