United States v. Dent , 258 F. App'x 626 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 7, 2007
No. 07-60051 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERNEST CHARLES DENT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 2:05-CR-19-ALL
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
Charles Dent was convicted of being a felon in possession of a firearm after
a one-day jury trial. Before trial, he moved to suppress the firearm and other ev-
idence found at the scene. The district court denied the motion. Dent appeals
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-60051
that decision and the admission of evidence regarding fingerprints on the fire-
arm. Finding no error, we affirm.
I.
Dent, a convicted felon, was a passenger in his friend Twilly Curry’s car
when Officer Mark Mitchell pulled the car over for making an illegal turn. Mit-
chell testified that as he approached the vehicle, he noticed Dent trying to hide
something in the back seat. He therefore asked the two to step out of the car to
perform a protective pat-down, which did not uncover anything.
Mitchell, according to his usual practice, asked Curry whether he could
search the vehicle. Curry consented out of Dent’s hearing. A search of the car
uncovered a loaded .357 handgun wrapped in cloth inside a purse belonging to
Dent’s wife. Mitchell called for assistance, and Detective Mark Nobles arrived.
While Nobles spoke to Curry, Mitchell read Dent his Miranda rights. Although
Mitchell does not recall Dent’s admitting ownership of the gun, Nobles testified
to Dent’s on-scene confession.
Dent was transported to the police station, where Nobles obtained a three-
page statement from him. The statement was usual practice for the police de-
partment and consisted of a computer-generated form with a series of questions
to be asked by the officer and typed responses. One of the questions was “DO
YOU WANT TO CALL A LAWYER?” Nobles entered “YES.” Nobles testified at
trial this was a typographical error, and he should have entered “NO.” The next
question was “DO YOU KNOW THAT YOU DO NOT HAVE TO MAKE ANY
STATEMENT TO US AND THAT ANYTHING YOU SAY MAY BE USED
AGAINST YOU?” Dent answered “YES.” The questions continued, and Dent
agreed to make a statement even though he was informed that he was not ob-
liged to do so. Dent’s statement was “I had the gun in my wife’s purse and had
taken it with me. The gun was mine.”
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No. 07-60051
Based on his confession, Dent was indicted and tried. Before trial, he
moved to suppress evidence of the handgun, which the court denied. The jury
found him guilty.
II.
Dent appeals the denial of his motion to suppress the gun. “When review-
ing a district court’s ruling on a motion to suppress, this court reviews questions
of law de novo and factual findings for clear error. We view the evidence in the
light most favorable to the party who prevailed in the district court.” United
States v. Barrera, 464 F.3d 496, 498 (5th Cir. 2006) (citations omitted), cert.
denied, 127 S. Ct. 2247 (2007).
A.
Routine traffic stops are analyzed under Terry v. Ohio, 392 U.S. 1 (1968).
United States v. Zucco, 71 F.3d 188, 190 (5th Cir. 1995). “Under this analysis we
must determine the reasonableness of the search or seizure by asking ‘whether
the officer’s action was justified at its inception, and whether it was reasonably
related in scope to the circumstances which justified the interference in the first
place.’” Id. (quoting Terry, 392 U.S. at 19).
Dent argues that Mitchell did not have probable cause to make the traffic
stop. Mitchell stopped Curry’s car pursuant to a Mississippi law that provides
that “[n]o person shall turn a vehicle from a direct course upon a highway unless
and until such movement can be made with reasonable safety and then only . . .
after giving an appropriate signal . . . in the event any other vehicle may be af-
fected by such movement.” MISS. CODE ANN. § 63-3-707.
Dent does not claim Curry used his left turn signal when making the turn;
rather, he alleges the turn signal is required only when another vehicle could be
affected by the turn. Because Mitchell testified at the hearing that the failure
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No. 07-60051
to use the turn signal did not affect him and that he could not recall whether
others were at the intersection such that they could be affected, Dent argues that
the left turn signal was not required.
Dent misreads the statute and mischaracterizes the officer’s testimony.
First, the statute requires only that another vehicle “may be affected” by the
turn. Second, Mitchell testified that although the turn may not have affected
him, it might have affected others, because it occurred at a busy intersection.
Dent does not deny that description of the intersection; instead, he asks us to de-
termine that Curry’s turn did not affect anyone. The statute does not require
such a finding, and the traffic stop, pursuant to a perceived violation of Missis-
sippi law, was valid. See Zucco, 71 F.3d at 190.
B.
Dent argues that Mitchell did not have reasonable suspicion to search the
car. As a passenger, Dent has no standing to challenge the search of the con-
tents. United States v. Roberson, 6 F.3d 1088, 1093 (5th Cir. 1993).
C.
Dent claims his written confession is legally defective because he was de-
nied his Fifth Amendment right to counsel. In his motion to suppress, however,
he argued that the written statement should be suppressed because it was ob-
tained in violation of the Sixth Amendment. The district court found that Dent’s
Sixth Amendment rights had not been violated. Dent does not raise the Sixth
Amendment argument on appeal; rather, he challenges the confession on Fifth
Amendment grounds. The Fifth Amendment argument is waived. FED. R. CRIM.
P. 12(e); United States v. Chavez-Valencia, 116 F.3d 127, 129 (5th Cir. 1997)
(stating that “the failure to raise a suppression issue at trial forecloses a defen-
dant from raising the issue for the first time on appeal”).
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No. 07-60051
D.
Dent claims he did not confess at the scene of the traffic stop. The district
court held that this was a question of fact, because although Dent allegedly
made the confession to Mitchell, the latter could not recall it. In fact, Mitchell
testified that he asked Dent no questions about the gun’s ownership. The gov-
ernment relies on Nobles’s testimony that he overheard Dent confess to Mitchell.
The government’s argument is unpersuasive. Nevertheless, as Dent admits, his
claim is not dispositive. He brings this argument primarily to use in the event
we find his written confession defective, which we do not.
III.
Dent urges that the district court erred in allowing evidence of fingerprint
analysis performed on the handgun. We review evidentiary issues under an
abuse of discretion standard. United States v. Yi, 460 F.3d 623, 634 (5th Cir.
2006). Even where a district court has abused its discretion, we reverse only if
the defendant is prejudiced. Id. If a party does not properly object to the admis-
sion of evidence, we review for plain error. United States v. Holmes, 406 F.3d
337, 347 (5th Cir. 2005).
At trial, Nobles and Joe Frank, a Special Agent with the Bureau of Alco-
hol, Tobacco and Firearms, testified that no fingerprints were found on the hand-
gun. Dent’s counsel objected that this was hearsay because neither had per-
formed the fingerprint analysis. On appeal, Dent maintains that objection and
further alleges that the admission of that evidence violates his Sixth Amend-
ment confrontation rights.
The problem with Dent’s claims is that his lawyer invited the questioning.
During the cross-examination of Mitchell, Dent’s attorney, showing the officer
the handgun, asked what the results of the fingerprint analysis were. Mitchell
testified that he did not know. It was only later, when Nobles and Frank were
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No. 07-60051
on direct examination, that Dent’s counsel objected to the evidence.
The parties dispute the effectiveness of the objection. Assuming arguendo
that the objection was effective, any error in admitting the testimony was harm-
less. If anything, by testifying that Dent’s fingerprints were not on the handgun,
Nobles and Frank helped Dent’s case.
AFFIRMED.
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