United States v. Smith, 14–2846.

• Decision Date: 19 June 2015
• Docket Number: No. 14–2846.,14–2846.
• Citation: 789 F.3d 923
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Mario Ronrico SMITH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

789 F.3d 923

UNITED STATES of America, Plaintiff–Appellee

v.Mario Ronrico SMITH, Defendant–Appellant.

No. 14–2846.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2015.

Filed: June 19, 2015.

Mark K. McCulloch, Brownstone, P.A., Winter Park, FL, argued, for appellant.

Amber M. Brennan, Asst. U.S. Atty., Minneapolis, MN, argued (Andrew M. Luger, U.S. Atty., on the brief), for appellee.

Before WOLLMAN and COLLOTON, Circuit Judges, and WHITE,¹ District Judge.

Opinion

WHITE, District Judge.

Mario Ronrico Smith (“Smith”) was charged with possession with intent to distribute cocaine; using and carrying a firearm during a drug trafficking crime; and being a felon in possession of a firearm. Smith filed pretrial motions seeking to suppress evidence and dismiss the case, which motions the district court² denied. A jury returned a verdict of guilty on all three counts. The district court denied Smith's motions for judgment of acquittal and for a new trial, and the court sentenced Smith to 280 months imprisonment followed by eight years of supervised release. On appeal, Smith argues that the officer lacked a reasonable suspicion to expand the traffic stop to a search. Smith also contends that the evidence at trial was insufficient for the jury to convict Smith. Further, Smith argues that the district court erred in admitting evidence of Smith's prior conviction and in allowing the government to present “expert” testimony at trial. We affirm.

During the late evening of December 4, 2011, Crystal Police Officer Timothy Tourville was on routine traffic patrol. At around 11:51 p.m., Officer Tourville observed a blue Dodge Charger speeding at 41 miles per hour in a 30 mile an hour zone. Officer Tourville initiated a traffic stop, approached the Charger, and asked the driver to provide a driver's license and proof of insurance. The driver provided a Minnesota driver's license identifying himself as Mario Ronrico Smith. Officer Tourville asked Smith what he was doing in the area, and Smith replied that he had “a girl down the road.”

While speaking with Smith, Officer Tourville noticed a “slight odor of marijuana” coming from inside the car. Officer Tourville returned to the squad car, conducted a check on Smith's driver's license, and called for back up to assist him based on his detection of a marijuana odor. Officer Tourville returned to the Charger and informed Smith that he could smell marijuana coming from the car. He asked permission to search the Charger, and Smith stated that he would not consent because the vehicle belonged to his aunt. In an attempt to build a rapport with Smith and obtain Smith's consent to search the car, Officer Tourville asked Smith if he had a job. Smith responded that he worked for Prestige Autos performing detail work.

Officer Tourville spoke with Smith for about 1 ½ minutes, then returned to his car to call for a K–9 unit to conduct a dog sniff outside the vehicle. Officer Tourville and the back up officer, Officer Mason Barland, waited for the K–9 unit, which arrived within a few minutes. As the K–9 unit approached, Smith sped away from the scene in the Charger. The K–9 unit arrived 17 minutes after the initial traffic stop and 11 minutes after Officer Tourville requested Smith's permission to search the Charger.

Smith led the officers on a high-speed chase that lasted several minutes. Officer Barland eventually moved close enough to perform a “PIT” maneuver, forcing the vehicle to spin out and stall. Smith then exited the vehicle, jumped over a fence, and ran across the Interstate highway. Officer Tourville pursued Smith on foot, but Smith escaped into a residential neighborhood. Officer Tourville retained possession of Smith's driver's license.

The Charger was towed to the police garage and placed in a secure evidence area. Search of the vehicle pursuant to a search warrant revealed two rectangular, brick-shaped packages wrapped in black electrical tape. The Drug Enforcement Administration laboratory tested the packages, which were found to contain approximately one kilogram of cocaine each. Other evidence found in the car included $6,000 in U.S. currency in the center console and a Glock .40 caliber hand gun with 12 live rounds of ammunition in the glove compartment. A blue duffle bag contained clothing items and three prescription pill bottles prescribed to Smith. In addition, officers located a wallet containing credit cards, insurance cards, and membership cards in Smith's name. The officer also found three cell phones, one with a number assigned to Smith, and a partially consumed bottle of Mountain Dew.

A crime scene investigator processed the Charger and the evidence located inside. A forensic scientist tested the DNA and found the DNA profile from the Mountain Dew bottle matched the profile of a known sample of DNA collected from Smith. The forensic scientist also concluded that Smith could not be excluded as a person contributing to DNA found on the gun.

At the time of the incident, Smith was on supervised release as a result of a prior conviction for distribution of controlled substances. His probation officer, Officer Charisse Alston, last heard from Smith on December 1, 2011, when Smith sought permission to travel to New York from December 5 to December 12, 2011. Officer Alston attempted to follow-up with Smith on December 3 and 4 but was unable to reach him. During the period Officer Alston supervised Smith, she confirmed that Smith lived at the location stated on his driver's license, worked at Prestige Autos, and had a cell phone number matching one of the phones recovered from the Charger.

On May 17, 2013, Smith was arrested in Chicago, Illinois. He was indicted on one count of possession with intent to distribute cocaine, in violation 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), one count of use and carrying of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Smith filed a pre-trial motion to suppress, arguing that the faint smell of marijuana was insufficient to extend the detention of Smith. The district court adopted the magistrate judge's report and recommendation denying the motion to suppress.³

At trial, Denis Otterness, a police sergeant with the City of Bloomington, testified as an expert witness on drug trafficking, and specifically on the packaging of the cocaine found in the Charger, which was designed to mask odor and avoid drug detection dogs. Officer Otterness also testified that the amount of cocaine found in the Charger was an amount purchased for distribution, not personal use, and that the use of firearms was customary in narcotics sales.

Smith filed a motion in limine to exclude Officer Otterness' testimony as irrelevant and cumulative. The district court denied the motion and allowed Officer Otterness to testify as an expert. The district court also admitted evidence of Smith's 2002 conviction for possession with intent to distribute 77 grams of cocaine, finding the evidence relevant because it fit a pattern of intent or knowledge under Rule 404(b). The district court gave a limiting instruction to the jurors indicating that the prior conviction was not evidence that he committed such an act in this case, merely evidence on the issues of knowledge and intent.

At the close of the trial, Smith filed a motion for judgment of acquittal, arguing that Officer Tourville, a rookie cop, could not identify the physical characteristics of the driver other than the driver's license, and that the physical evidence collected and tested failed to tie Smith to the vehicle or its contents.

Smith appeals the district court's denial of his motion to suppress evidence. Smith also appeals the district court's evidentiary rulings allowing the admission of Smith's 2002 conviction of a drug crime and permitting Officer Otterness to testify as an expert. Finally, Smith appeals the district court's denial of his motion for judgment of acquittal and motion for new trial, arguing that the identification evidence of Smith as the driver of the Charger was insufficient to support a jury verdict.

I.

Smith first argues that the district court erred in denying his motion to suppress the evidence retrieved from the Charger because the evidence was illegally obtained as a result of an improperly prolonged detention following a routine traffic stop. Smith contends that the “very faint” smell of marijuana was merely a hunch and was insufficient to prolong the traffic stop. Thus, he argues, suppression of the evidence seized from the car was the appropriate remedy. “We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials.” United States v. Clutter, 674 F.3d 980, 982 (8th Cir.2012).

A law enforcement officer may detain a person for investigation without probable cause to arrest when the officer “has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). “If, during a traffic stop, an officer develops a reasonable, articulable suspicion that a vehicle is carrying contraband, he has ‘justification for a greater intrusion unrelated to the traffic offense.’ ” United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir.1994) (quoting United States v. Cummins, 920 F.2d 498, 502 (8th Cir.1990) ). “Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances.” United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994). “To be reasonable, the suspicion must be more than an ‘inchoate and unparticularized suspicion or “hunch...