United States v. Long

• Decision Date: 31 August 2017
• Docket Number: No. 16-1419.,16-1419.
• Citation: 870 F.3d 792
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rashawn LONG, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

870 F.3d 792

UNITED STATES of America, Plaintiff–Appellee,

v.Rashawn LONG, Defendant–Appellant.

No. 16-1419.

United States Court of Appeals, Eighth Circuit.

Submitted: June 9, 2017

Filed: August 31, 2017

Susan M. Hunt, Law Office of Susan M. Hunt, Kansas City, MO, argued, for appellant.

Jeffrey Q. McCarther, Asst. U.S. Atty., U.S. Atty., Kansas City, MO, argued (Thomas M. Larson, Acting U.S. Atty., Philip M. Koppe, Asst. U.S. Atty., on the brief), for appellee.

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Rashawn Long was convicted by a jury of one count of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Long was sentenced to 360 months' imprisonment. He appeals, arguing the district court¹ erred by failing to suppress evidence discovered during an inventory search. He also argues the district court erred in calculating his criminal history. We affirm Long's convictions and sentence.

I.

On October 26, 2013, Long parked his car in Valerie McCoy's yard and left it there. McCoy called the Kansas City, Missouri police at approximately 8:20 am. When officers arrived, McCoy explained that a black male parked the car in her yard, knocked on the door, and left when she did not answer. The officers found a 2013 silver Avenger parked in McCoy's yard, ran the license plate number, and learned it was a rental car. After an unsuccessful attempt to contact the rental company, the officers called a tow truck to remove the car from McCoy's property.

After the officers ordered the tow truck, Long ran towards them. Long gave the officers his name, told the officers the name of the person who rented the car, and explained that he had parked the car in McCoy's yard. The officers handcuffed and frisked Long and asked if they could look in the car. Long said it would be okay but that the keys were at a nearby house. Officers ran Long's name and a computer search revealed two outstanding warrants for his arrest. Believing these warrants were out of Kansas City, Missouri, the officers placed Long in a patrol vehicle. Soon after, the officers learned the warrants were out of Kansas City, Kansas, and were non-extraditable. The officers did not, however, remove Long's handcuffs or release him from the patrol vehicle.

Officer Ballowe, one of the first officers on the scene, asked the patrol vehicle driver to continue holding Long so he could "determine if there was anything illegal in the car." Around this time, Sergeant Hamilton, a member of the Kansas City Police Department's illegal firearms squad, arrived at the scene. He was called to the scene because he was investigating Long as a possible suspect in several homicides and had asked to be notified any time Long had an encounter with police. Sergeant Hamilton was with Officer Ballowe for the entire vehicle search.

Because the car was locked, the tow truck driver used a "slim jim" to open the car door. On the passenger seat of the car, Officer Ballowe found a backpack containing pepper spray, a taser, and a coke can. The coke can felt hard and solid so Officer Ballowe twisted the top of the can and discovered a bag containing a white powder. At this point, Sergeant Hamilton told Officer Ballowe to stop the inventory search in order to obtain a search warrant.

A field test of the substance revealed that the powder was not cocaine and had an extremely weak reaction for amphetamines. Long was placed under arrest, the vehicle was towed, and Long was issued a ticket for illegally parking the vehicle.

After obtaining the search warrant, officers discovered a camcorder in the car. The camcorder contained clips of Long with a Glock pistol. Additionally, the white powder was tested and determined to be 2–(Methylamino)–1–phenyl–1–butanone (buphedrone), a Schedule I controlled substance. Long was subsequently indicted for possession with intent to distribute a controlled substance and possession of a firearm by a felon.

Before trial, Long moved to suppress the evidence against him. Following a suppression hearing, the magistrate judge recommended denying the motion to suppress, finding that the vehicle search was a valid inventory search and assuming, without deciding, that Long had standing to challenge the search. The district court adopted that recommendation.

Long was convicted of both counts at trial. The initial Presentence Investigation Report ("PSR") calculated a Guidelines range of 92–115 months, based on an offense level of 26 and a criminal history category of IV. Long objected to the PSR's computation of criminal history points. Specifically, the PSR assessed three criminal history points for Long's prior Missouri conviction for second-degree murder, pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 4A1.1(a). The PSR assessed an additional point for Long's Missouri conviction for armed criminal action,² pursuant to U.S.S.G. § 4A1.1(e). Long argued that his conviction for armed criminal action is not a crime of violence and, thus, he should not be assessed the additional criminal history point. At sentencing, the district court concluded that armed criminal action is a crime of violence and that Long's Guidelines range was 92–115 months' imprisonment. The district court concluded an upward variance was appropriate based on the 18 U.S.C. § 3553(a) factors and sentenced Long to 360 months' imprisonment.

II.

On appeal, Long asserts the district court erred in denying his motion to suppress. Long also contends that the Missouri offense of armed criminal action is not a crime of violence and, thus, the district court erred in assessing a criminal history point for that conviction. Alternatively, Long argues his sentence is substantively unreasonable.

A.

"This Court reviews the facts supporting a district court's denial of a motion to suppress for clear error and reviews its legal conclusions de novo." United States v. Cotton, 782 F.3d 392, 395 (8th Cir. 2015). "This court will affirm the district court's denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008) (quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006) ).

Long argues that the district court should have suppressed the evidence discovered during the search of his vehicle because the inventory search prior to towing his vehicle was unconstitutional. The government contends that Long lacks standing to challenge the legality of the search and, alternatively, that the inventory search was proper.

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. In order to challenge evidence obtained in an unreasonable search, however, "[t]he defendant moving to suppress bears the burden of proving he had a legitimate expectation of privacy that was violated by the challenged search." United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (per curiam). In the rental car context, we have held that a driver of a rental vehicle does not have standing to challenge a search of the vehicle unless he can show he was the authorized driver, i.e. the renter or lessee, or had the permission of the authorized driver. United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998) ; Muhammad, 58 F.3d at 355. The driver must make an "affirmative showing of consensual possession to satisfy the standing requirements." Muhammad, 58 F.3d at 355.

At the suppression hearing, Long presented the testimony of Latasha Phillips, the renter of the 2013 Avenger Long parked in McCoy's yard. Phillips testified that she rented the car for her friend Roger to drive. She did not, however, put Roger's name on the rental contract as an authorized driver. She further testified that she did not restrict what Roger could do with the car or who Roger could let use the car. Phillips stated Roger told her that he allowed Long to drive the car but her testimony was unclear whether she learned that Long was driving the car before or after the search at issue in this case.

Long contends that Phillips's testimony establishes that he had consensual possession of the rental car and, thus, that he has standing to challenge the search. This case, however, is not so straightforward because, unlike this circuit's precedent, any permission Long had to drive the vehicle was not given directly from Phillips, the authorized driver. Rather, Roger, a driver not authorized by the lessor but permitted by the lessee to drive the car, gave Long permission to drive the vehicle and Phillips did not object. Stated differently, Roger acted as a "middleman" between the authorized driver and Long.

This circuit has not yet determined whether a defendant can make an affirmative showing of consensual possession when permission to drive a rental car is not given directly from a contractually authorized driver.³ We now hold that there is no reasonable expectation of privacy based on such an attenuated relationship between an authorized driver and an unauthorized driver. As a result, Long, an unauthorized-driver-once-removed, with only indirect permission from the authorized driver to drive the vehicle, does not have standing to challenge the search of the vehicle. Thus, the district court did not err in denying Long's motion to suppress the evidence discovered during the search.

B.

Long also argues the district court erred in assessing an additional criminal-history point because his prior conviction for armed criminal action is not a "crime of violence." We review a district court's determination that a prior conviction is a crime of violence under the Guidelines de novo. United States v. Maid, 772 F.3d 1118, 1120 (8th Cir. 2014).

Pursuant to U.S.S.G. § 4A1.1(e), a sentencing court "[a]dd[s...