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United States of America v. andre Davis

February 25, 2011



The opinion of the court was delivered by: Tymkovich, Circuit Judge.


Elisabeth A. Shumaker

Clerk of Court



Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Andre Davis was arrested in Kansas during a traffic stop after a search of his rental car revealed a bag containing cocaine. Prior to trial, the government gave notice pursuant to 21 U.S.C. § 851 it intended to use two prior convictions to enhance Davis's sentence upon conviction. One conviction did not qualify for sentencing enhancement because it occurredin Indiana after Davis's arrest in Kansas, but the other, although it listed the wrong case number, was used to enhance Davis's sentence to a mandatory minimum of 240 months' imprisonment. At trial, pursuant to Federal Rule of Evidence, 404(b) the government also used Davis's subsequent arrest in Indiana as evidence of his motive or intent to commit drug trafficking in Kansas.

Davis was convicted of various drug possession and distribution charges, and appeals three decisions of the district court. Davis argues the district court erred in (1) denying his motion to suppress the search of his car; (2) imposing an enhanced sentence because of improper notice of a prior conviction under 21 U.S.C. § 851; and (3) admitting evidence of his drug arrest in Indiana to prove motive or intent in violation of Rule 404(b). We conclude the district court did not err in finding reasonable suspicion justified the detention and that Davis's subsequent consent to the search was voluntary; the erroneous information in the government's notice of prior convictions did not prejudice Davis; and the evidence of another, similar crime was admissible to show motive or intent.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we AFFIRM.

I. Background

Kansas state troopers stopped a rental car driven by Myron Wynn, in which Davis and Kericka Kirkland were passengers. After questioning Davis and Wynn separately, the troopers recognized they provided inconsistent statements regarding their travel plans and the rental car. Davis and Wynn also appeared abnormally nervous, and a criminal history check revealed Davis's prior record for dealing cocaine. The troopers issued a warning ticket to Wynn and requested consent to search the vehicle, which he refused. They requested consent from Davis, who initially refused, but later consented to the search. The troopers searched the vehicle and located a bag containing cocaine. They placed Davis, Wynn, and Kirkland under arrest. Davis filed a motion to suppress the evidence discovered during the search of the vehicle, arguing the troopers lacked reasonable suspicion to detain him beyond the time necessary to conduct a traffic stop and failed to obtain valid consent to search the vehicle. The district court held an evidentiary hearing and denied the motion.

Prior to trial, the government filed an information notifying Davis the government would seek an enhanced sentence upon his conviction based upon his two prior felony drug convictions in Indiana. However, one conviction occurred after Davis's arrest in this case and thus did not qualify as a prior conviction for enhancement. For the other prior conviction, which qualified for the sentencing enhancement, the government listed the incorrect case number. In his objections to the presentencing report and at his sentencing hearing, Davis objected to the adequacy of the notice in the information, but not based upon the erroneous case number. The district court rejected Davis's arguments and found the information was adequate to give Davis proper notice that he faced an enhanced sentence. Davis was sentenced to the statutory mandatory minimum of 240 months' imprisonment, which was to run concurrently with a forty-five year Indiana state sentence Davis was already serving.

Also prior to trial, Davis filed a motion in limine to exclude evidence the government planned to introduce at trial. The evidence was based on a drug related arrest that occurred in Indiana after the traffic stop and arrest in this case. In that case, Davis was found inside a house during the execution of a search warrant, holding the keys to a rental car that was later found to contain a bag of cocaine. The government offered the subsequent drug arrest as evidence of Davis's knowledge, intent, and lack of mistake or accident on the basis it would demonstrate Davis's subsequent cocaine possession in a rental car. Davis moved to exclude the evidence arguing the probative value of the evidence would be outweighed by substantial prejudice to Davis. The district court denied the motionand allowed the evidence under Rule 404(b) to show knowledge, intent, and lack of mistake or accident.

II. Discussion

Davis raises a series of challenges to his trial and sentencing. He contends the district court erred by (1) denying his motion to suppress, (2) imposing a twenty-year mandatory minimum sentence pursuant to 21 U.S.C. § 851, and

(3) admitting evidence of subsequent bad acts pursuant to Federal Rule of Evidence 404(b). We discuss each in turn.

A. Motion to Suppress

Davis first argues the district court erred by denying his motion to suppress because the troopers (1) lacked reasonable suspicion to detain Davis beyond the scope and duration of the traffic stop, and (2) failed to obtain valid consent from Davis to search the vehicle.

When reviewing the denial of a motion to suppress, we accept the district court's factual findings unless clearly erroneous and view the evidence in the light most favorable to the government. United States v. Gregoire, 425 F.3d 872, 875 (10th Cir. 2005). We review de novo reasonableness under the Fourth Amendment. Id.

1. The Traffic Stop

In the morning of April 9, 2003, a Kansas Highway Patrol trooper stopped a rental car Davis was traveling in for speeding. The trooper spoke to the driver, Myron Wynn, and warned him he was speeding and needed to slow down.*fn1

Davis and Kericka Kirkland, another passenger, were seated in the front and back passenger seats, respectively. The trooper requested Wynn's driver's license and registration and questioned him about his travel itinerary. Wynn claimed he was coming from "Vegas." R., Vol. 3, Doc. 191 at 69. The trooper also requested identification from Davis and Kirkland as well as the rental agreement for the vehicle. He then returned to his patrol car.

Once back in the patrol car, the trooper radioed another officer, disclosing that he stopped a driver who appeared so nervous he was "ready to jump out of his pants." Id. at 84. The trooper also requested assistance at the traffic stop. He ran a criminal history check on Davis, Wynn, and Kirkland and waited for backup. After the second trooper arrived, the troopers discussed why Wynn would have rented a car in Los Angeles-as indicated on the car rental agreement-if he was coming from Las Vegas. The rental agreement stated the car was rented at 10 P.M. on April 7, 2003 at the Los Angeles International Airport (LAX) and was due to be returned on April 10, 2003 in Indianapolis, Indiana. The stop occurred around 7:45 A.M. on April 9, 2003, approximately thirty-six hours after the car was rented. The troopers recognized the inconsistency between the rental agreement and Wynn's statement. They decided to continue questioning Wynn as well as Davis because his name was on the rental agreement.

The trooper who initiated the stop again approached the vehicle, requested Wynn step out of the vehicle, and questioned him regarding his travel itinerary. Wynn replied all three had traveled from Indianapolis to Las Vegas, stayed there for approximately two days, and now were returning to Indianapolis. Wynn said they had driven a different rental car to Las Vegas, which was then stolen and required them to rent another vehicle. When asked if Las Vegas was the only city they had visited, Wynn replied Las Vegas was where they were gambling. Wynn then returned to the vehicle.

The trooper then asked Davis to exit the vehicle and questioned him in front of the patrol car about his travel itinerary and the car rental. Davis claimed they had driven out to California in a rental car Kirkland had rented from Budget in Indianapolis with another individual, Robert Day. Davis explained they had driven from Indianapolis to Harbor City, California, then back through Las Vegas, and their first rental car had been stolen in Harbor City. The trooper inquired where Davis had rented their current vehicle, and Davis stated he rented it somewhere in California. Davis hesitated to say exactly where he had rented the vehicle but finally claimed he rented it in Harbor City. The trooper then retrieved the rental car paperwork and showed Davis it listed the vehicle as rented at LAX. Davis explained he was confused between the airport and Harbor City because the car was stolen in Harbor City and thus he had to rent a car at LAX. Davis appeared nervous and agitated during the questioning and several times corrected or modified his answers.

The trooper returned to his patrol car, where the second trooper had remained, and discussed the situation with him. They proceeded to look for "Arbor City" on a map of California and could not locate it. The trooper believed Davis had said he rented the car in "Arbor City" rather than "Harbor City." The second trooper located "Harbor City" on the map, which is in the southern part of Los Angeles and approximately fifteen miles south of LAX. During this time, dispatch reported to the troopers that Davis had a prior record for dealing cocaine.

The trooper issued a warning ticket to Wynn, returned the rental papers and documents collected from Wynn, Davis, and Kirkland, and told Wynn they were "free to go." R., Vol. 3, Doc. 191 at 29. He then asked Wynn if he had anything illegal in the vehicle and if he could search the vehicle. Wynn declined consent saying he was ready to leave. The trooper asked Davis if he had anything illegal in the vehicle, and Davis replied he did not. The trooper again said they were free to leave but requested to search the vehicle. Davis declined consent for the search.

Before Davis departed, the trooper requested a canine unit and decided the second trooper and he should pat down the passengers for weapons. Davis asked how long it would take for the canine unit to arrive. The trooper replied it would arrive in approximately thirty minutes. Davis then asked how long it would take the troopers to search the vehicle by hand. The trooper informed him it would take five to ten minutes. Davis then consented to the search of the vehicle. Before initiating the search, the trooper inquired again to clarify and confirm Davis consented to the search. ...

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