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United States v. Scott

United States Court of Appeals, Eighth Circuit

April 1, 2016

United States of America, Plaintiff - Appellee
v.
Jerry D. Scott, Defendant - Appellant

         Submitted September 25, 2015

          Appeal from United States District Court for the Western District of Missouri - Kansas City.

         For United States of America, Plaintiff - Appellee: Philip M. Koppe, Assistant U.S. Attorney, William L. Meiners, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Kansas City, MO.

         For Jerry D. Scott, Defendant - Appellant: Ronna Ann Holloman-Hughes, Assistant Federal Public Defender, Rebecca L. Kurz, FEDERAL PUBLIC DEFENDER'S OFFICE, Kansas City, MO.

         Jerry D. Scott, Defendant - Appellant, Pro se, Leavenworth, KS.

         Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.

          OPINION

         KELLY, Circuit Judge.

         Jerry Scott appeals his conviction and sentence on several drug and firearms charges following a jury trial. He argues that five of the six convictions must be overturned because they were based on evidence obtained by police from two vehicle searches--one conducted on May 12, 2010, and the other on March 26, 2012--that he contends were illegal. He also argues there was insufficient evidence presented at trial to support three of the six convictions. Finally, he claims that the sentence imposed by the district court was both substantively unreasonable and unconstitutional. Exercising jurisdiction over his appeal under 28 U.S.C. § 1291, and finding no reversible error, we affirm the judgment of the district court.[1]

         I.

         Scott was charged in a seven-count indictment. Counts 4-6 were based on evidence obtained from a May 12, 2010, search of his vehicle: possession with intent to distribute PCP in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(C), being a felon in possession of a firearm in violation of 18 U.S.C. § § 922(g)(1) and 924(e), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Counts 1-3 were based on evidence obtained from a March 26, 2012, search of his vehicle: possession with intent to distribute PCP in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(C), being a felon in possession of a firearm in violation of 18 U.S.C § § 922(g)(1) and 924(e), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Finally, Count 7 was based on an August 20, 2010, search of a house: possession with intent to distribute PCP in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(C). Prior to trial, Scott moved to suppress the evidence obtained from both the May 12, 2010, and the March 26, 2012, vehicle searches. Both motions were denied after an evidentiary hearing.

         At the conclusion of trial, Scott was acquitted on Count 6 (possession of a firearm in furtherance of a drug trafficking crime) and convicted of the lesser included offense of simple possession of PCP on Count 4, but was convicted on all the remaining counts.

         A. May 12, 2010, Search

         While on patrol the night of May 12, 2010, Kansas City Police Officer Mark McKenney saw a red Dodge Shelby Charger parked by the side of the road. In later testimony about the events of that night, McKenney said that he approached the Dodge from behind in his patrol car and, when he was about five to ten feet away, saw that its windows were down and smelled what he believed to be PCP. Nevertheless, instead of stopping, McKenney circled the block. When he returned, he found that the Dodge was gone.

         Shortly afterwards, McKenney saw the same Shelby Charger again--and this time he pulled the car over. He approached the driver's side window and told the two men inside the car that they had been illegally parked when he had first passed. (In fact, they hadn't been: McKenney said he only told them they were to keep them calm.) He proceeded to ask the men something to the effect of, " Are you smoking that wet now?" " Wet" refers to PCP, and McKenney testified that he asked them if they were smoking it because he had smelled the odor of PCP and marijuana as he walked up to their window.[2] The two men in the car said no, they were just smoking marijuana. McKenney also reported seeing " green leafy residue" that he thought looked like marijuana on both their laps when he approached the car.

         McKenney obtained identification from the two men in the car and found that the driver of the vehicle was Jerry Scott and the passenger was a man named Andre Christian. McKenney ran their names through the police car computer and discovered that Christian had three outstanding warrants, while Scott was listed as having engaged in aggressive acts toward law enforcement in the past. By that point, other officers had arrived, and McKenney asked one of the assisting officers to arrest Christian and put him in handcuffs. He also decided to have the Dodge towed, since the car was rented and he believed that having drugs in the car violated the rental agreement. He asked another officer to shine a flashlight on the door to help him locate the car's vehicle identification number. As they checked the door, both officers saw a gun in the door's side pocket. At that point, Scott was arrested. Before the car was towed, the officers searched the car and found two vials of PCP.

         After charges were filed against him, Scott moved to suppress the evidence obtained in the May 2010 search. A magistrate judge held an evidentiary hearing and issued a report and recommendation, recommending that the motion be denied. Scott objected, arguing that a dashboard camera video showed that Scott's car window was rolled up during McKenney's first approach, not down as McKenney testified, and thus McKenney could not have detected an odor emanating from the car. On review, the district court watched the video and noted that " while it is not totally clear, there appears to be a reflection from street lights and/or lights from the patrol car, on the area of the passenger window that Officer McKenney testified was down. The reflection appears to indicate that at the time the image was captured, the window was at least partially up." Nevertheless, the district court concluded that " even if the window was raised as Officer McKenney passed, that does not dictate, by itself, whether Officer McKenney's testimony as a whole is truthful or not." The district court then adopted all of the magistrate judge's credibility findings, including McKenney's claim that he smelled PCP as he drove past the vehicle. It also adopted the magistrate judge's ultimate recommendation that the motion to suppress should be denied.

         Scott's challenge to the May 12, 2010, search of his car turns on a factual issue: did McKenney smell PCP when he first passed Scott's car, or did he simply stop Scott based on a hunch that he was involved in illegal activity? If it was the former, reasonable suspicion existed to stop the car. See United States v. Gipp, 147 F.3d 680, 685 (8th Cir. 1998) (finding reasonable suspicion to investigate further when police officer smelled odor of marijuana coming from defendant's car). And after Scott and his passenger admitted smoking marijuana, police would have had probable cause to believe that the car contained contraband, see United States v. McCarty, 612 F.3d 1020, 1026 (8th Cir. 2010), permitting them to make a warrantless search of the car under the " automobile exception" to the warrant requirement, see Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam).[3] If, on the other hand, McKenney had simply been acting on a " mere hunch," he would not have been permitted to pull Scott over, Navarette v. California, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014), and the evidence resulting from the stop would have to be suppressed.

         The magistrate judge who held the evidentiary hearing believed McKenney when he testified that he smelled PCP when he first approached Scott's car, and the district court adopted all of the magistrate judge's factual findings. On appeal, we review those findings of fact for clear error, and so long as a factual finding is " based upon 'a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.'" United States v. Mendoza, 677 ...


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