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Patrick Fisher: United States Court of Appeals Tenth Circuit
Patrick Fisher: United States Court of Appeals Tenth Circuit
NOV 17 1999
PUBLISH
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee/
Cross - Appellant,
v.
registration check on the Montana plates and learned that they were registered to
a different vehicle. While he was waiting for the registration check to be
completed, Gates observed that the defendant and Old Elk were reaching over and
under the seat and continued to look back at him. Once Gates learned that the van
did not have valid plates, he activated his emergency lights. The van continued at
the same speed for approximately two blocks while defendant and Old Elk
reached under and around the seat in a more exaggerated manner than they had
before.
After the van pulled over, Gates approached the van and explained to the
driver, Edward Notafraid, why he had stopped the vehicle. Cheney Springfield
and Mark Nomee were seated beside Notafraid in the front of the van. Old Elk
sat behind the passenger side of the van, while defendant sat behind the drivers
side of the van. A subsequent search of the van, pursuant to Notafraids
voluntary consent, revealed drugs, drug paraphernalia and a gun. Specifically,
Gates found a segment of PVC pipe and 19.68 grams of methamphetamine in a
shopping bag on the rear passenger side floor to the right of where Old Elk had
been sitting. Another officer found a Colt 9 millimeter semi-automatic pistol in a
womans drawstring purse on the rear floor directly in front of where defendant
had been seated.
After Gates discovered the methamphetamine, he asked the occupants of
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the van who the drugs belonged to. Notafraid, Cheney Springfield, Nomee and
Old Elk all stared at defendant, while defendant looked down. Shortly thereafter,
one of the officers recognized defendant as a convicted violent offender. The
officers eventually arrested all of the vans occupants and transported them to the
county jail. When Gates mirandized and questioned Old Elk at the scene, she
claimed that the drugs and the gun belonged to her. At the jail, she again claimed
that the drugs belonged to her.
One of the officers searched defendant at the jail and discovered trace
amounts of methamphetamine and five rounds of 9 millimeter ammunition. The
same type of ammunition was loaded in the gun found in the purse, and one of the
cartridges found in defendants pocket appeared, from ballistics review, to have
been cycled previously through the gun.
B. Probable Cause to Arrest
Defendant asserts that the district court erred in denying his motion to
suppress the evidence discovered after he was arrested. He claims the police did
not have probable cause to arrest him and, therefore, the ammunition and drugs
found on his person following his arrest should have been suppressed. In
reviewing the denial of a motion to suppress, we must accept the district courts
factual findings unless they are clearly erroneous and we view the evidence in the
light most favorable to the prevailing party.
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we review de novo the legal issue of whether the police had probable cause to
arrest defendant.
United States v. Dozal , 173 F.3d 787, 792 (10th Cir. 1999).
Probable cause to arrest exists when an officer has learned of facts and
circumstances through reasonably trustworthy information that would lead a
reasonable person to believe that an offense has been or is being committed by the
person arrested.
United States v.
Id.
While probable cause to arrest does not require facts sufficient to establish guilt,
[it] does require more than mere suspicion.
Id.
Defendant maintains that at the time of his arrest, the police had no
evidence that he was connected in any way to the drugs or the gun. He argues,
therefore, that the police arrested him solely because of his proximity to criminal
activity. We agree with defendant that nearness to the place of the arrest of a
co-conspirator or to the place of illegal activity is not sufficient to establish
probable cause.
the van as Officer Gates followed the vehicle, (2) defendant was a passenger in a
vehicle with invalid tags, (3) the police found drugs and a gun in defendants
vicinity within the van, (4) the other occupants of the van looked to defendant for
guidance and followed his lead, and (5) defendant was a violent felon. The
district court concluded that it was logical for the police to infer that defendants
furtive actions were attempts to conceal the contraband located near him in the
van. The district court also found that it was reasonable for the police to assume
defendant was tied to the contraband because the vans other occupants deferred
to him and he was a known violent criminal.
From the totality of the circumstances, we hold that the arresting officers
could reasonably infer a connection between defendant and the drugs and gun
found in the van. Thus, viewing the evidence in the light most favorable to the
government, we agree with the district court that the police had probable cause to
arrest defendant. Consequently, we affirm the district courts denial of
defendants motion to suppress.
C. Sufficiency of the Evidence
Defendant argues that the government introduced insufficient evidence at
trial to support his convictions for possession of narcotics with the intent to
distribute, carrying a firearm during a drug offense, and being a felon in
possession of a firearm. He asserts that no rational trier of fact could have found
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that he knowingly possessed the drugs and gun found in the van. Furthermore,
defendant claims that the government lacked sufficient evidence to convict him of
being a felon in possession of ammunition. He contends that the ammunition
found on his person was the fruit of an unlawful arrest and, therefore, was
inadmissible at trial.
We review sufficiency of the evidence claims de novo, asking only
whether, taking the evidence -- both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom -- in the light most favorable to the
government, a reasonable jury could find [Defendant] guilty beyond a reasonable
doubt. United States v. Jenkins , 175 F.3d 1208, 1215 (10th Cir.),
__ S. Ct. __, 1999 WL 623883 (1999) (quoting
cert. denied ,
1521, 1524-25 (10th Cir. 1996)). To determine whether the evidence is sufficient,
we consider the inferences that can be drawn from the evidence as a whole.
Id.
ownership, dominion or control over the object and premises where it is found.
Lazcano-Villalobos , 175 F.3d at 843. A defendants exclusive possession of the
object or premises may support an inference of constructive possession, but
joint occupancy of the object or premises cannot sustain such an inference.
Id.
government must offer evidence that supports at least a plausible inference [that
defendant] knew of the contraband.
Id.
Here, defendant jointly occupied the van with four other occupants.
Nevertheless, ample evidence exists from which a jury could have found
defendant knew of the drugs and gun in the vehicle. First, defendant engaged in
furtive actions in the rear of the van as Officer Gates followed the vehicle.
Second, both the drugs and the gun were found in the rear of the van close to
where defendant had been seated. Third, the police found trace amounts of
methamphetamine in defendants jacket. Fourth, the gun was a 9 millimeter colt
pistol and the police found five rounds of 9 millimeter ammunition on the
defendant. Finally, one of the bullets defendant was carrying appeared to have
been cycled previously through the gun.
Thus, viewing the evidence in the light most favorable to the government,
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(1998); United States v. Gosling , 39 F.3d 1140, 1142-43 (10th Cir. 1994). Thus,
under the ACCA and the United States Sentencing Guidelines, escape is always a
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violent crime. It is irrelevant whether the escape actually involved any violence
or whether defendant was convicted under a state statute that defines escape as a
nonviolent offense. Accordingly, we remand this case. On remand, the district
court shall apply the armed career criminal guidelines pursuant to 18 U.S.C.
924(e) when calculating defendants sentence.
AFFIRMED IN PART and REVERSED IN PART.
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and
United States
v. Adkins , No. 98-3322 (10th Cir. Nov. 12, 1999) (McKay, J., concurring). I do
not believe that under the Armed Career Criminal Act, 18 U.S.C. 924(e), and
the United States Sentencing Guidelines, escape is necessarily always a violent
crime. I believe we should use more care before sweeping into law a statutory
interpretation which the text does not support.
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