United States v. Davis , 909 F.3d 9 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1692
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH DAVIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
Joshua L. Gordon for appellant.
Scott W. Murray, United States Attorney, with whom Seth R.
Aframe, Assistant United States Attorney, was on brief, for
appellee.
November 20, 2018
STAHL, Circuit Judge. Defendant Joseph Davis was
convicted after a two-day bench trial of one count of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Davis raises two issues in this appeal. First, he
contends that the district court erred in denying his motion to
suppress the handgun in question, which he claims was discovered
during an unconstitutional search of his vehicle. Judge Joseph A.
DiClerico, Jr., denied that motion and conducted Davis's first
trial. That trial was held before a jury, which deadlocked on the
sole charge. Davis was then retried in a bench trial held before
Judge Landya B. McCafferty, who found him guilty. Davis argues
that his conviction was not supported by sufficient evidence of
his knowing and intentional possession of the weapon. After
careful consideration, we affirm both the denial of the suppression
motion and Davis's conviction.
I. Factual Background and Prior Proceedings
We summarize the facts in two parts. First, we describe
those events relevant to Davis's arrest and the subsequent search
of the car, which are recounted "as the trial court found them,
consistent with record support." United States v. Andrade, 551
F.3d 103, 106 (1st Cir. 2008) (quotation marks and citation
omitted). We then recite the facts related specifically to Davis's
conviction for possession of a firearm by a felon, which are taken
"from the trial transcript and present[ed] [] in the light most
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favorable to the judgment of the court . . . ." United States v.
Grace, 367 F.3d 29, 31 (1st Cir. 2004). The procedural facts are
undisputed.
A.
The events at issue stem from Davis's arrest in the early
hours of July 2, 2016. Davis, a musician, performed at a Hampton,
New Hampshire, bar on the evening of July 1, 2016. Davis left the
bar following the show but, needing to use the restroom, attempted
to return a short while later and was rebuffed on the basis of the
bar's no-reentry policy. Instead, Davis obtained the keys to his
then-fiancée's vehicle (the "Vehicle") from his brother and,
without anyone else in the car, drove a short distance in search
of a restroom.
Three officers of the Hampton Police Department ("HPD"),
Detective Robinson, and Officers Zigler and Hood, in two separate
police vehicles, observed the Vehicle leaving the bar and watched
it travel, without headlights on, to a nearby parking lot. Once
there, Davis stopped the Vehicle perpendicularly across a
designated handicap parking spot. At that point, the police
officers pulled into the lot behind the Vehicle, activated their
emergency lights, and approached on foot.
As he neared the Vehicle, Robinson observed a number of
potential signs that Davis was driving under the influence of
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alcohol and/or marijuana.1 Robinson informed Davis that he had
been driving without his headlights on and inquired whether he had
consumed any alcohol that evening. While Davis attributed his
erratic driving to his urgent need to use the restroom, Robinson
suspected that Davis was impaired and took Davis's license to his
cruiser to conduct a background check. Zigler and Hood remained
with Davis and the Vehicle.
After the background check indicated that the Vehicle
was not registered to Davis, Robinson requested that he step out
of the Vehicle. Davis appeared to have difficulty walking, and
admitted to having had several drinks at the bar following his
performance. Zigler also noted a bottle of alcohol in the car
door as Davis opened it. Davis failed two of three "field
sobriety" tests administered by the officers, and Robinson
arrested him on suspicion of driving while intoxicated.2 The
officers then handcuffed Davis and placed him in one of the police
vehicles.
Following Davis's arrest, the police officers contacted
a tow truck to remove the Vehicle. The HPD has a "Motor Vehicle
Inventory Search Policy" that dictates guidelines for "conducting
1 Specifically, Robinson testified that he noted the smell of
alcohol and marijuana coming from the Vehicle and saw on the
console several disposable cups partially filled with liquid.
2 Davis has not contested the legality of his arrest in this
appeal, and he did not do so below.
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a search . . . for the purpose of making an inventory of the
contents of a motor vehicle [directed to be] towed by the members
of the [HPD]." Under that policy, officers are required to conduct
an inventory search whenever, inter alia,
1. The vehicle is being towed under orders of
a department member when the owner or
custodian of the vehicle is under arrest.
2. The vehicle is towed under orders of a
department member because the driver of the
vehicle is under arrest and the owner or
custodian is not present . . . .
. . .
6. The vehicle is illegally parked and is a
hazard to traffic if allowed to remain.
Robinson and Zigler testified that, when a driver is arrested for
driving under the influence, HPD policy calls for the vehicle to
be towed. However, both officers also stated that they sometimes
permit an unimpaired, licensed person authorized by the arrestee
to take the vehicle themselves in order to save the arrestee the
cost of a tow. In this instance, the officers stated that two
individuals came forward at the scene of the arrest and identified
themselves as Davis's friends but refused Robinson's offer that
they take the Vehicle away on Davis's behalf.3
3 At the suppression hearing, Aaron Bruton testified that he
was one of the individuals who approached the officers. He stated
that he had not directly refused to take the Vehicle, but that he
did seek to contact the Vehicle's owner and others for that
purpose.
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While waiting for the tow truck, Zigler entered the
Vehicle to seize the bottle and cups in plain view.4 Zigler then
conducted an "inventory search" of the Vehicle as required by the
policy quoted above, adding several items to an inventory form but
leaving them in the Vehicle's locked trunk.5
At some point after finishing the inventory search,
Zigler reached into the Vehicle to place the keys in the ignition
for retrieval by the tow truck operator. While doing so, Zigler
for the first time saw a handgun located between the driver's seat
and the center console. Zigler removed the weapon from the Vehicle
and noted that it was loaded and had the safety turned off. After
unloading it and securing the safety, Zigler brought the handgun
to the police station. Zigler testified that he took the weapon
both out of concern for public safety and out of reluctance to
leave an item of value in the Vehicle.
On October 19, 2016, Davis was charged with being a felon
in possession of a firearm in the District of New Hampshire.6 On
November 23, 2016, he moved to suppress the handgun on the basis
4 Zigler also seized a jar that he believed contained
marijuana. Neither that seizure nor that of the alcohol and cups
are at issue in this appeal.
5 Specifically, Zigler discovered and noted on the inventory
sheet a purse and wallet that belonged to Davis's fiancée.
6 Davis was originally charged with several state crimes as
well, but those charges were dropped.
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that the search of the Vehicle resulting in its discovery was
unconstitutional. The district court held two days of hearings,
and ultimately denied Davis's motion on the basis that the handgun
in question was discovered pursuant to the community caretaking
exception. In doing so, the court credited testimony from Robinson
and Zigler that the Vehicle was illegally parked and posed a
traffic hazard, and that no viable, willing drivers presented
themselves to remove the Vehicle at the time of Davis's arrest.
The district court also credited Zigler's testimony that, when he
discovered the handgun in the Vehicle, he was reaching back into
the car to place the keys in the ignition for the purpose of
facilitating the tow, rather than acting for an investigatory
purpose.
B.
Davis's first trial, conducted before a jury with Judge
DiClerico presiding, began in January 2017 and resulted in a
mistrial as the jury hung on the sole charge. The parties then
consented to a bench trial, which took place on March 9 and 10,
2017.7
All three police officers testified in the government's
case-in-chief and provided additional details regarding the night
of Davis's arrest. Both Robinson and Zigler testified that, while
7 Following the mistrial, Judge DiClerico recused himself
from further participation in the case.
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Davis was in the Vehicle and being questioned, they observed that
Davis repeatedly moved his right hand towards his right pocket or
hip. Those officers testified that they viewed this movement as
potential "indexing," or subconscious gesturing towards an item
that Davis wished to conceal. In this instance, Robinson and
Zigler stated that Davis appeared to be "indexing" in the direction
of the Vehicle's center console, which contained cups partially
filled with liquid and, as Zigler later discovered, the handgun at
issue. Those officers also testified that, while he was in the
Vehicle, Davis threw the scarf or bandana that he was wearing8 over
the center console, partially obscuring the console and the area
where Zigler subsequently found the handgun. Both Robinson and
Zigler testified that, in their opinion, these actions
demonstrated that Davis was aware of the handgun and was attempting
to prevent the officers from discovering it.
Robinson and Zigler also testified about Davis's actions
at the police station. According to both officers, when Zigler
initially confronted Davis with the handgun, Davis first asserted
that he had a permit for the weapon, then quickly corrected himself
and stated that his fiancée had a permit for it. Moreover,
Robinson and Zigler indicated that when Davis overheard them
discussing the potential for charging him with being a felon in
8
Davis testified that he wore the scarf as part of an outfit
for his performance earlier in the evening.
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possession, he protested "something along the lines [of], whoa,
you can't charge me with being in possession of [the handgun], I
was just driving [the car]." Again, Zigler and Robinson stated
that these comments suggest that Davis "seemed to know that, yes,
he knew about the weapon[,] he knew that it belonged to his wife[9]
. . . [and] he knew that there was a weapon there."10
After the court denied his motion for acquittal pursuant
to Rule 29 of the Federal Rules of Criminal Procedure, Davis
testified in his own defense. He stated that both the weapon and
the Vehicle belonged to his fiancée and that he had no knowledge
that his fiancée owned the weapon or that it was in the Vehicle
prior to his arrest. He also indicated that his fiancée generally
did not permit others to operate the Vehicle, but that he had
regular access to it for tasks such as bringing his fiancée's
daughter to and from school and running errands outside of the
home.
Davis testified that, on the day of his arrest, his
fiancée drove the Vehicle from Manchester to Hampton while he sat
9
Zigler's reference to Davis's "wife" appears to be mistaken,
as Davis and his fiancée were not married until September of 2016.
10
Of note, in his testimony, Hood stated that he recalled
Davis stating only that the handgun belonged to his "girlfriend,"
without specific reference to a permit. Hood did not recall Davis
stating that he had a permit for the handgun or that he was only
driving with the handgun, nor did he recall seeing Davis
"indexing."
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in the passenger seat. Upon arrival, Davis stated that several
other individuals assisted in unloading music equipment from the
Vehicle, and that his fiancée left the keys to the Vehicle behind
to allow them to do so.
While he generally corroborated the officers' narrative
of his arrest, Davis contested a number of Robinson's and Zigler's
claims. Davis testified that he removed his scarf only once he
had stepped out of the Vehicle and stated that he threw it onto
the driver's seat without any purpose to hide either the cups or
handgun. He denied stating that he had a permit for the weapon
and indicated that his statement that his fiancée had a permit for
the weapon was phrased speculatively. He also testified that, on
hearing about the potential felon-in-possession charge, he
protested only that he was not in possession of the handgun and
did not make any statement suggesting that he knew it was in the
Vehicle.
At the close of evidence, the court delivered its verdict
from the bench, finding Davis guilty of knowing11 possession and
elaborating on its reasoning. The court opened by noting that
"if I . . . looked just at the government's case without your
11The court noted that only knowing possession was in dispute,
as the parties stipulated to the other two elements of the felon-
in-possession charge —— previous conviction of a felony and passing
of the weapon through interstate commerce —— at trial. Those
elements are not at issue in this appeal.
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testimony, I may well not have found the evidence sufficient to
convict." The court continued, however, that it did not credit
Davis's testimony on several potentially exculpatory points. The
court particularly emphasized its disbelief of Davis's claimed
unawareness that his fiancée owned the weapon, finding that
assertion to be contradicted by his admitted statement to police
that she had a permit for the weapon, the fact that the weapon was
loaded and ready to fire when found, and his extended time with
his fiancée in the Vehicle earlier in the day. From this, the
court stated that "[b]ecause I found your testimony incredible, I
do not believe your ultimate denial; that is, that you did not
know of the gun's presence next to you in the car." Further, the
court credited the officers' testimony that Davis was "indexing"
and had attempted to conceal the area of the handgun with his
scarf, and found that this testimony supported the conclusion that
he had knowing possession of the weapon. Based on this evidence,
the court concluded the charge was proven beyond a reasonable
doubt.
Following his conviction, the court sentenced Davis to,
inter alia, 50 months' incarceration. This timely appeal followed.
II. Discussion
Davis raises two issues on appeal. First, he argues
that the district court erred in denying his motion to suppress
the weapon, which he contends was the fruit of an unlawful search.
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Second, he claims that the evidence adduced at trial was
insufficient to sustain the verdict against him. We address these
claims in order.
A.
Davis raises two arguments in support of his contention
that the search of the Vehicle was unconstitutional. His first
point is a compound one: Davis claims that the impoundment was
unconstitutional because it was left to police discretion and, if
the impoundment was unconstitutional, then Zigler's entry into the
vehicle to put the keys in the ignition in furtherance of the
impoundment (which resulted in seizure of the handgun) was also
unconstitutional. Second, Davis separately contends that Zigler's
entry into the Vehicle to put the keys in the ignition was pretext
for an unconstitutional investigatory search.
In reviewing the denial of a motion to suppress, the
court accepts the district court's "factual findings to the extent
that they are not clearly erroneous," and "review[s] its legal
conclusions de novo." United States v. Sanchez, 612 F.3d 1, 4
(1st Cir. 2010).
As to Davis's first argument, we conclude that the
officers' decision to impound the Vehicle was constitutional.
Vehicle impoundments by police are viewed through the lens of the
"community caretaking" exception to the Fourth Amendment's warrant
requirement. United States v. Coccia, 446 F.3d 233, 238 (1st Cir.
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2006). "The community caretaking exception recognizes that the
police perform a multitude of community functions apart from
investigating crime[,]" including, as relevant here, "remov[ing]
vehicles that impede traffic or threaten public safety and
convenience." Id. (citing S. Dakota v. Opperman, 428 U.S. 364,
368-69 (1976)); see also Sanchez, 612 F.3d at 7 (Lynch, C.J.,
concurring) ("Courts have regularly upheld warrantless vehicle
impoundments when police are acting not as investigators but as
community caretakers, responsible for protecting public safety and
preventing hazards by removing vehicles that impede traffic, risk
vandalism, or create inconvenience."). In order to comport with
the Fourth Amendment, decisions to impound a vehicle must be
"reasonable under the circumstances," considering "all the facts
and circumstances of a given case." Coccia, 446 F.3d at 239.
Under this evaluation, "[c]ourts have upheld the impoundment of a
car from the lot associated with the arrest location when
accompanied by such circumstances as threats of vandalism, parking
restrictions, police liability concerns, or the inability of the
defendant or another later to move the car." Jaynes v. Mitchell,
824 F.3d 187, 197 (1st Cir. 2016) (quotation marks and citation
omitted). Where impoundment is reasonable under the
circumstances, the fact that police may also have an investigatory
motive or "alternative[,] . . . less intrusive means" of addressing
the vehicle does not render the seizure impermissible. Boudreau
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v. Lussier, 901 F.3d 65, 72 (1st Cir. 2018) (quoting United States
v. Rodriguez-Morales, 929 F.2d 780, 786 (1st Cir. 1991)).
Likewise, while the existence of standardized procedures are
relevant to that evaluation, "explicit criteria" are not required
where "the police have solid, noninvestigatory reasons for
impounding a car." Rodriguez-Morales, 929 F.2d at 787.
Once a vehicle is impounded, the Fourth Amendment
further permits police to conduct an "inventory search" to identify
the contents of the vehicle without first obtaining a warrant.
See Jaynes, 824 F.3d at 197; see generally Florida v. Wells,
495 U.S. 1 (1990). The purpose of that exception is "to protect
an owner's property while it is in the custody of the police, to
insure against claims of lost, stolen, or vandalized property, and
to guard the police from danger." Colorado v. Bertine,
479 U.S. 367, 372 (1987).
Davis's argument fails when tested against these
standards. The standard for vehicle impoundments explicitly
contemplates room for police discretion based on the
circumstances. See, e.g., Rodriguez-Morales, 929 F.2d at 787("[Officers] must be free to follow 'sound police procedure,' that
is, to choose freely among the available options, so long as the
option is within the universe of reasonable choices." (internal
citation omitted)). And the police decision to impound the Vehicle
was otherwise "reasonable under the circumstances." Coccia, 446
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F.3d at 239. The arresting officers' testimony, credited by the
district court, indicates that the police believed the Vehicle
could pose a potential public safety hazard and no other driver
was evidently present to move the Vehicle for Davis. Other
decisions in this circuit have repeatedly upheld impoundments
under similar circumstances as reasonable. See Jaynes, 824 F.3d
at 197 ("With Jaynes detained for an indeterminate period at the
police station, and with no one immediately forthcoming to take
possession, the police could reasonably enough have concluded that
the car, which, incidentally, would have incurred a parking
violation eventually, needed to be moved."); Coccia, 446 F.3d at
240 (concluding impoundment was reasonable based on, inter alia,
the need to preserve contents of the vehicle and lack of obvious
alternative means of removing the vehicle). Given the
circumstances as described in the officers' credited testimony,
including that the Vehicle was parked perpendicularly across a
handicap parking spot (an obvious hazard), they acted reasonably
in seizing the Vehicle following Davis's arrest.
Finally, Davis's alternative argument that the handgun
should be suppressed because it was discovered and seized after
the inventory search was completed is unavailing. The fact that
the weapon was not found during an inventory search does not end
our inquiry: the relevant question under the Fourth Amendment is
whether a challenged search or seizure was "reasonable." See,
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e.g., Terry v. Ohio, 392 U.S. 1, 19 (1968) ("[T]he central inquiry
under the Fourth Amendment [is] the reasonableness in all the
circumstances of the particular government invasion of a citizen's
personal security."). The district court supportably credited
Zigler's testimony that (1) he reentered the Vehicle only to
facilitate the towing and, by extension, to safeguard the seized
Vehicle; and (2) he seized the weapon for the purposes of
preserving Davis's valuable property and protecting public safety.
The court's credibility determination disposes of Davis's claim,
as these purposes fit neatly within the bases for treating other
police exercises of their community caretaking function as
"reasonable." Cf. Bertine, 479 U.S. at 372 (stating that the
reasonableness of warrantless inventory searches is based on their
non-investigative purposes of "protect[ing] an owner's property
while it is in the custody of the police, [] insur[ing] against
claims of lost, stolen, or vandalized property, and [] guard[ing]
the police from danger"); Jaynes, 824 F.3d at 197 (stating that
the reasonableness of impoundments is based, in part, on "policy
liability concerns"). Accordingly, we see no basis on which to
suppress the handgun.
B.
Davis next contends that there is insufficient evidence
of his knowledge of the handgun, arguing that his knowledge of and
intent to control the weapon were not proven beyond a reasonable
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doubt. In particular, Davis points to the short duration of time
during which he was in the Vehicle and the fact that he did not
own the weapon. He also asserts that the inferences drawn by the
district court in announcing its verdict were not "rational[]
factfinding." In response, the Government notes testimony by the
arresting officers, credited by the court, that Davis attempted to
conceal the weapon and made statements at the police station that
indicated familiarity with the weapon, and the court's conclusion
that Davis's testimony on various exculpatory details was not
credible.
This court recently summarized the standard for
evaluating convictions resulting from a bench trial:
We review a bench trial conviction de novo,
examining the facts and inferences in the
light most favorable to the verdict. The
ultimate question is whether any rational
trier of fact could have found the essential
elements of the crime beyond a reasonable
doubt. This court need not believe that no
verdict other than a guilty verdict could
sensibly be reached, but must only satisfy
itself that the guilty verdict finds support
in a plausible rendition of the record.
United States v. O'Donnell, 840 F.3d 15, 18 (1st Cir. 2016)
(internal quotation marks, citations, and alterations omitted).
In a firearms case, the Government may satisfy its burden
to show knowing possession by showing that the defendant had
"constructive possession" of the weapon. United States v. Wight,
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968 F.2d 1393, 1398 (1st Cir. 1992). "Constructive possession
'exists when a person knowingly has the power and intention at a
given time to exercise dominion or control over the area where the
contraband is found.'" United States v. Robinson, 473 F.3d 387,
398–99 (1st Cir. 2007) (quoting United States v. McLean, 409 F.3d
492, 501 (1st Cir. 2005)). In the context of firearms, this "may
be established by showing that the person knows (or has reason to
know) that the firearm is within easy reach, so that he can take
actual possession of it virtually at will." Id. at 399 (quotation
marks and citation omitted). The actual knowledge and intent to
control required by this standard may be proven by circumstantial
evidence. See United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir.
2014). "[M]ere presence with or proximity to weapons . . . is
insufficient to circumstantially establish constructive
possession," and must be connected with "some action, some word,
or some conduct that links the individual to the contraband and
indicates that he had some stake in it, some power over it."
United States v. Fernandez-Jorge, 894 F.3d 36, 43-44 (1st Cir.
2018) (internal quotation marks and citations omitted).
"[E]vidence of an individual's control over the area where the
contraband is found," however, is "valid circumstantial evidence
of constructive possession." Id. at 44 (internal quotation marks
and citation omitted).
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Viewed in the light most favorable to the verdict, the
evidence at trial supports the reasonable inference that Davis
constructively possessed the weapon at issue. Contrary to Davis's
assertion, the conviction was not based solely on his "mere
presence with or proximity to" the handgun, but was supported by
"conduct that link[ed Davis] to the contraband and indicate[d]
that he had some stake in it, some power over it." Id. at 43-44(internal quotation marks and citation omitted). The court's
conclusion is supported by circumstances permitting an inference
that Davis was aware of the weapon's placement: he enjoyed a close
relationship with the Vehicle's owner and had regular access to
the car, and his post-arrest statements that he or his fiancée had
a permit for the weapon and that he was "only driving" with it
could reasonably be interpreted as demonstrating his awareness of
both the handgun's existence and its presence in the Vehicle. See
Robinson, 473 F.3d at 399 (finding the defendant's relationship
with driver, access to keys, and post-arrest statements suggesting
knowledge of weapon were circumstantial evidence of unlawful
possession). Likewise, Davis's apparently furtive actions in the
Vehicle could be reasonably interpreted as suggesting that he was
aware of the weapon even before it was noticed or raised to his
attention by the arresting officers. Taken together, these facts
support the reasonable inference that Davis knew of the weapon's
presence and intended to exercise dominion and control over the
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weapon at the time of his arrest. Id. ("Constructive possession
of a firearm may be established by showing that the person knows
(or has reason to know) that the firearm is within easy reach, so
that he can take actual possession of it virtually at will."
(quotation marks and citation omitted)).
Moreover, the district court did not err in concluding
that Davis's perceived lack of credibility bolstered its finding
of guilt. Davis argues that, given the district court's concession
that the evidence prior to his testimony might not have supported
a guilty verdict, it was irrational for the court to put him in a
worse position based on his denials of those facts. This argument
misunderstands the district court's position. The district court
did not simply discount Davis's testimony but found that his
incredible declarations suggested consciousness of guilt. It is
a "well-settled principle that false exculpatory statements are
evidence —— often strong evidence —— of guilt." Al-Adahi v. Obama,
613 F.3d 1102, 1107 (D.C. Cir. 2010); cf. also Ridolfi, 768 F.3d
at 63 (discussing how probative value of defendant's false
statements to police following arrest supported conviction). The
district judge espoused precisely this principle, stating
"[b]ecause I found your testimony incredible, I do not believe
your ultimate denial; that is, that you did not know of the gun's
presence next to you in the car."
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Accordingly, we conclude that the district court based
its verdict on sufficient evidence and find no error in Davis's
conviction.
III. Conclusion
For the foregoing reasons, the district court's order
denying the motion to suppress and Davis's conviction are AFFIRMED.
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