United States v. Samuel Turner , 934 F.3d 794 ( 2019 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-2262
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Samuel Turner
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of Nebraska - Lincoln
    ____________
    Submitted: May 15, 2019
    Filed: August 16, 2019
    ____________
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
    ____________
    MELLOY, Circuit Judge.
    At approximately 11:30 p.m. on August 9, 2017, a dispatcher alerted Lincoln
    Police Department (“LPD”) Officer Christopher Monico to a possible disturbance
    near the trailer court where Defendant Samuel Turner lives. As Monico drove
    through Turner’s trailer court looking for a suspect, Monico observed a woman
    standing next to a cluster of mailboxes and stopped to talk to her. The woman was
    Kimberlie Bridges, an acquaintance of Turner’s and the mother of his child. Officer
    Craig Price arrived on the scene shortly thereafter to serve as backup.
    While Monico and Price were talking to Bridges, Turner walked over to them.
    As Turner approached, Monico shined a flashlight on Turner and asked him about the
    reported disturbance. Turner asked Monico to lower the flashlight because it was in
    his face. As Monico did so, he saw that Turner was standing on what looked like a
    bag containing a large quantity of methamphetamine.
    Monico ordered Turner and Bridges to place their hands on a nearby vehicle.
    Turner did not comply. The officers approached Turner. As they did, Turner reached
    down, touched the bag of methamphetamine, and attempted to grab it. The officers
    physically seized him and, after some resistance, handcuffed him and placed him in
    a cruiser. As they did, Turner stated that the “dope” was not his.
    A second bag of methamphetamine was discovered near Bridges. Price secured
    the bag. He and Monico arrested Bridges. They then searched Turner and found,
    among other things, a cell phone, which Turner said was his.
    A few days later, Monico asked Officer Corey Weinmaster to process Turner’s
    cell phone pursuant to a search warrant. Weinmaster extracted information from the
    phone, including photographs and text messages. The photographs included one of
    Turner, two of cash in different denominations, and a screenshot of a text-message
    conversation between two people. The conversation ended with a message that said,
    in part, “[S]am said you better bring him his money stop playing games with ppl.”
    The text messages included one sent from Turner’s phone which told the recipient to
    pick up a pool and to “[b]ring that money.” A second outgoing message made a
    reference to the intended recipient exchanging sexual favors for “dope.” A third
    outgoing message said, “Hey this is sam calling see if you got that money.”
    -2-
    Turner was indicted on October 17, 2017, and charged with knowingly and
    intentionally possessing with intent to distribute five or more grams of
    methamphetamine in violation of 21 U.S.C. § 841(a)(1). He subsequently pled not
    guilty at an initial appearance.
    Turner filed a motion “to suppress [his] stop and subsequent arrest.” He
    claimed that Monico and Price lacked a reasonable suspicion to detain and question
    him when they stopped near his house to investigate the disturbance. A magistrate
    judge conducted a suppression hearing, finding that: (1) the officers had not seized
    Turner when they questioned him about the disturbance; and (2) they had a right to
    detain Turner when they found what looked like a bag of methamphetamine under his
    foot. The district court,1 at the magistrate judge’s recommendation, denied the
    motion.
    Turner also filed a motion requesting that the court issue a subpoena duces
    tecum. Turner sought “investigative reports and materials prepared by [the LPD]”
    about “calls” officers made to his “home at the time of his arrest,” “calls” they made
    at his home over “the two days prior” to his arrest, and “calls” they made “to [his]
    trailer court or [the] immediately surrounding area.” Turner claimed that the reports
    would provide “exculpatory evidence” because they would show that he had not been
    trafficking drugs and that someone else may have dropped the bag of
    methamphetamine. The district court denied Turner’s motion for a subpoena after a
    hearing.
    The district court then held a three-day jury trial in February 2018. Monico and
    Price testified about the events of August 9, 2017, as described above. A forensic
    scientist testified that the bag found under Turner’s foot contained more than thirty
    1
    The Honorable Richard G. Kopf, United States District Judge for the District
    of Nebraska.
    -3-
    grams of actual methamphetamine. Weinmaster described how he extracted materials
    from Turner’s phone and what he extracted. Over Turner’s objections—Turner
    claimed that the exhibits consisted of inadmissible hearsay and were not properly
    authenticated—the photographs and text messages were admitted into evidence.
    Weinmaster stated that by looking at the exhibits alone, he could not tell whether the
    pictures originated on Turner’s phone or were sent to it. Weinmaster could, however,
    tell that the text messages had been sent from the phone. He and two officers from
    the LPD’s drug unit testified that the photographs and text messages were significant
    because they contained images and language often found on drug dealers’ phones.
    Other officers described an interview they conducted with Turner after he was
    arrested and had waived his rights under Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    The officers described how Turner confessed to being a methamphetamine user and
    told them that they might find evidence of people contacting him about drugs on his
    cell phone. Yet another officer testified that the amount of methamphetamine found
    under Turner’s foot was “a seller quantity of methamphetamine.”
    At the conclusion of the government’s evidence, Turner moved to dismiss, but
    the district court denied his motion. Turner called witnesses who did not materially
    refute the evidence proffered by the government2 and then moved for a judgment of
    acquittal. The district court denied the motion and instructed the jury. The jury
    deliberated and returned with a guilty verdict. A few months later, the district court
    sentenced Turner to 360 months’ imprisonment and eight years of supervised release.
    Turner timely appealed.
    2
    One of Turner’s witnesses did offer an exculpatory explanation for the text
    that referred to picking up a pool. The witness’s testimony, however, did not
    contradict Monico’s and Price’s description of events the night Turner was arrested
    nor any of the other testimonies given.
    -4-
    Turner argues that the district court erred in denying his motion to suppress.
    After de novo review, see United States v. Hayden, 
    759 F.3d 842
    , 846 (8th Cir.
    2014), we disagree. An officer may generally approach an individual and ask him
    questions, even when the officer does not have a basis for suspecting that the
    individual has committed or is committing a crime, so long as the officer “do[es] not
    convey a message that compliance with [his] request[] is required.” United States v.
    Cook, 
    842 F.3d 597
    , 600 (8th Cir. 2016) (quoting Florida v. Bostick, 
    501 U.S. 429
    ,
    435 (1991)). Furthermore, if in the process of questioning the individual the officer
    develops a reasonable suspicion or probable cause to believe that a crime is being
    committed by that individual, the officer may take further, reasonable action to
    confirm or dispel that suspicion or probable cause. See 
    Hayden, 759 F.3d at 847
    (holding that officers did not violate the Fourth Amendment when they seized and
    searched a man after a consensual encounter because they had developed a
    “reasonable suspicion that criminal activity was afoot”). That is exactly what
    happened here. Moreover, nothing in the record suggests Officers Monico and Price
    did anything while they were questioning Turner to convey the message that his
    compliance was required. Cf. 
    id. (“[S]hining a
    flashlight to illuminate a person in the
    darkness is not a coercive act that communicates an official order to stop or
    comply.”). Consequently, the district court did not err in denying Turner’s motion
    to suppress.
    Turner likewise argues that the district court erred in denying his motion for
    a subpoena duces tecum. We review such denials for an abuse of discretion. United
    States v. Bailey, 
    700 F.3d 1149
    , 1152 (8th Cir. 2012). A party requesting a subpoena
    duces tecum “must identify the documents [requested] with adequate specificity and
    show that the documents are relevant and admissible.” United States v. Bradford, 
    806 F.3d 1151
    , 1155 (8th Cir. 2015). Turner did not identify the specific reports he
    sought in his motion for a subpoena. Instead, he broadly asked for “investigative
    reports and materials” about police “calls” to his “home at the time of” and “for the
    two days prior” to his arrest as well as to the “trailer court or [the] immediately
    -5-
    surrounding area.” We hold, therefore, that the district court did not abuse its
    discretion in denying the motion.
    Turner argues that the district court erred in admitting the text messages and
    photographs extracted from his phone into evidence. He claims that they lacked
    foundation because they were not properly authenticated. He also claims that they
    contain inadmissable hearsay. “[W]e review a district court’s evidentiary rulings for
    an abuse of discretion.” United States v. Guzman, 
    926 F.3d 991
    , 999 (8th Cir. 2019).
    Regarding Turner’s authentication argument, we hold that the government met
    its burden of “produc[ing] evidence sufficient to support a finding” that the items
    were what the government claimed they were (i.e., text messages and photographs
    from Turner’s phone). Fed. R. Evid. 901(a). Turner said the phone was his. The text
    messages and photographs were extracted from the phone. Officer Weinmaster
    testified about the extraction process. And at least one of the texts said “this is sam.”
    These factors together provide a rational basis for believing that the text messages
    and photographs were Turner’s, which is all that is required to clear the low bar for
    authenticating evidence, see United States v. Needham, 
    852 F.3d 830
    , 836 (8th Cir.
    2017) (“The party authenticating the exhibit need only prove a rational basis for that
    party’s claim that the document is what it is asserted to be.” (internal quotation marks
    and citation omitted)).
    Regarding Turner’s hearsay argument, we hold that the text messages and the
    photographs of Turner and the cash do not contain inadmissible hearsay. The text
    messages contain statements by an opposing party, which means they are not hearsay.
    See Fed. R. Evid. 801(d)(2). The photographs of Turner and the cash are images, not
    statements, so they too are not hearsay. See 
    id. 801(c) (“‘Hearsay’
    means a statement
    that: (1) the declarant does not make while testifying at the current trial or hearing;
    and (2) a party offers in evidence to prove the truth of the matter asserted in the
    statement.” (emphasis added)); 
    id. 801(a) (defining
    the term “statement”).
    -6-
    Moreover, even assuming for the sake of argument that the screenshot of the
    text-message conversation contains inadmissible hearsay, we hold that admitting it
    was harmless. See 
    Needham, 852 F.3d at 837
    (holding that the admission of certain
    screenshots “would have been harmless and could not have substantially influenced
    the jury’s verdict . . . because of the overwhelming evidence provided by the
    government of [the defendant’s] guilt” (internal quotation marks and citation
    omitted)). The government produced overwhelming evidence that Turner possessed
    five or more grams of methamphetamine with the intent to distribute. We therefore
    decline to reverse on evidentiary grounds.
    For similar reasons, we also hold that the jury’s verdict was supported by
    sufficient evidence. See 8th Cir. R. 47B. Accordingly, we affirm the judgment of the
    district court.
    ______________________________
    -7-
    

Document Info

Docket Number: 18-2262

Citation Numbers: 934 F.3d 794

Filed Date: 8/16/2019

Precedential Status: Precedential

Modified Date: 1/12/2023