UNITED STATES of America, Plaintiff-Appellee, v. Nikos Delano DORSEY, Defendant-Appellant.
No. 04-30152.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 5, 2005. Filed Aug. 10, 2005.
418 F.3d 1038
AFFIRMED.
Jo Ann Farrington, Assistant United States Attorney, Anchorage, AK, for the plaintiff-appellee.
Before: CANBY, TALLMAN, and RAWLINSON, Circuit Judges.
TALLMAN, Circuit Judge:
Following a conditional guilty plea, Nikos Delano Dorsey was convicted of possession of cocaine base with intent to distribute, possession of a firearm during and in relation to a drug trafficking offense, and possession of a firearm in a school zone. He challenges his conviction and sentence. We affirm his conviction and remand his sentence for consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005).
I
The following description of the facts is drawn from the record of the prior proceedings, particularly the magistrate judge‘s findings of fact which were adopted by the district court.
A
The facts relevant to this appeal primarily took place on the grounds of Bartlett High School in Anchorage, Alaska. On September 2, 2003, while patrolling the school pursuant to a Memorandum of Understanding between the Anchorage Police Department and the school district, Officer Jason Schmidt encountered Dorsey on school grounds.
Officer Schmidt approached Dorsey, who was wearing a bandana and hat in violation of the school‘s posted dress policy, and asked him to remove his headgear. Dorsey refused, and a verbal confrontation between Dorsey and Officer Schmidt ensued. Although Dorsey eventually complied with Officer Schmidt‘s direction regarding his headgear, during the course of the dispute Dorsey told Officer Schmidt that he was not a student. Officer Schmidt then instructed Dorsey to leave the school campus. Dorsey initially refused to comply, but did eventually leave the building.
Officer Schmidt followed Dorsey to his car, which was parked in the fire lane outside of the school doors. Officer Clinton Peck, who had overheard much of the foregoing, joined him. They asked Dorsey to explain why he was at Bartlett. Dorsey replied that he wanted to pick up a student named Staphon Livingood, but was unable to identify Livingood‘s age, grade, or anything else about him. Subsequent investigation confirmed that no student named Staphon Livingood attended Bartlett High.
Officer Schmidt told Dorsey that he was not allowed on school property if he had no legitimate business there, and that if he did have legitimate business he needed to make arrangements through the school ahead of time. The officers warned Dorsey that if he returned to the property, he would be arrested for trespass. The officers then alerted the school staff to this incident. Assistant Principal Tina Johnson-Harris approved the officers’ decision to ask Dorsey to leave, and agreed that if Dorsey returned he should be treated as a trespasser.
B
Detective Nancy Potter reported to Officers Schmidt and Peck that she had seen a
At the end of the school day the next afternoon, Officers Schmidt and Peck saw a car speeding erratically through one of the school‘s parking lots; the car looked similar to the car Dorsey had driven the previous day. The officers pulled the car over; Dorsey was the driver. Officer Schmidt asked Dorsey to step out of the car and, as Dorsey did so, Officer Schmidt noticed the smell of marijuana and that Dorsey‘s eyes appeared bloodshot and watery. Officer Schmidt told Dorsey that he was under arrest and conducted a protective pat-down search. During the search, Dorsey pulled away from Officer Schmidt, so Schmidt handcuffed Dorsey and put him in the back of Officer Peck‘s patrol car.
Meanwhile, Officer Peck told Dorsey that he was going to move Dorsey‘s car, which was blocking traffic. As he did so, he noticed a strong marijuana smell inside Dorsey‘s car when moving it. After Dorsey had been placed in the back of Officer Peck‘s patrol car, Peck returned to Dorsey‘s car and briefly searched it. Officer Peck found money and cocaine base rocks in the console and a Glock pistol between the console and the seat. The officers then secured the car and transported Dorsey to a police substation, where Drug Unit detectives interviewed him.
C
Following the interview, the officers took Dorsey before a state court magistrate where Dorsey was arraigned. At the same time, the officers applied for a search warrant. The parties dispute whether the officers were ever placed under oath. The magistrate found that probable cause existed, and issued the warrant.
Dorsey‘s car was searched under the warrant. In between the seat and the console officers found a 9-mm Glock semiautomatic pistol with a loaded extended magazine and a jacketed hollow-point round in the chamber. Inside the console they found a baggie with eight individually wrapped bindles of crack cocaine, two more magazines, and about $400 in cash.
D
A federal grand jury indicted Dorsey on three counts. Count One charged him with possession of cocaine base with intent to distribute. See
Dorsey moved to suppress the evidence derived from his arrest but the district court, relying on the magistrate judge‘s recommendation, found that the arrest was supported by probable cause, that the initial search was incident to a lawful arrest, and that the second search was either a lawful inventory search or saved by the inevitable discovery doctrine. Dorsey also moved to dismiss the charge under the Gun-Free School Zones Act,
Dorsey pled guilty to the indictment, preserving his right to appeal. The district court determined the quantity of cocaine in Dorsey‘s possession. Dorsey was sentenced to a total of ninety-eight months
II
Dorsey challenges his arrest, the search of his car, and the admission of Detective Potter‘s statement at his pretrial suppression hearing. Whether Dorsey‘s arrest was supported by probable cause is a mixed question of law and fact that we review de novo. United States v. Nava, 363 F.3d 942, 944 (9th Cir.2004). We review the validity of a warrantless search de novo, and the underlying factual findings for clear error. United States v. Depew, 210 F.3d 1061, 1066 (9th Cir.2000). Alleged violations of the Confrontation Clause and the district court‘s interpretation of the hearsay rule are reviewed de novo. United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir.2002).
A
An arrest is constitutionally valid if the arresting officers had probable cause to make the arrest. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Officers have probable cause to make an arrest when:
at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.
Id. At the time that Dorsey was arrested for trespass, the officers knew that Dorsey had been warned not to come back to campus without a legitimate purpose, that Dorsey‘s previous explanation of his purpose had been a lie, that Detective Potter had reported seeing Dorsey the previous afternoon after he had been asked to leave, and that Dorsey was once again on campus.1
These facts are sufficient to cause a prudent person to believe that Dorsey had committed or was committing the crime of trespass. In Alaska, a person commits trespass if he “enters or remains unlawfully [] in or upon premises[.]”
A person can not be convicted under AS 11.46.350(a)(2) of “fail[ing] to leave” a public facility “after being lawfully directed to do so” unless the person fails to heed a reasonably contemporaneous directive to leave, or ... the person heeds the directive to leave but then returns to the public facility after only a short while.
Turney v. State, 922 P.2d 283, 288 (Alaska Ct.App.1996).2
They had reason to believe that he had returned within a time period “reasonably contemporaneous” to the time they asked Dorsey to leave because Detective Potter reported seeing someone matching Dorsey‘s description in the school parking lot later in the day on September 2, 2003. For purposes of establishing probable cause, the officers were justified in relying on Detective Potter‘s report. See United States v. Matlock, 415 U.S. 164, 172-73, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Furthermore, Officers Schmidt and Peck personally observed Dorsey at Bartlett the day after they had told him to leave.3 Although the state would need to prove that Dorsey had no legitimate purpose on campus to convict Dorsey of trespass, less is required to establish probable cause for his arrest. After Dorsey lied to the officers about his reason for being on campus (claiming to be picking up a fictitious student) the day before his arrest, even if Dorsey had expressed a seemingly legitimate purpose for once again being at Bartlett, the officers could have reasonably suspected him of trespass.
Reasonably prudent officers in the arresting officers’ position could have concluded that Dorsey had previously engaged in and was again committing trespass; the officers had probable cause for Dorsey‘s arrest. The district court correctly found that Dorsey‘s warrantless arrest was supported by probable cause.
B
Because Dorsey‘s arrest was supported by probable cause, the search of
C
Dorsey contends that the admission of Detective Potter‘s reported sighting of him violated the Confrontation Clause and the Federal Rules of Evidence (FRE) by allowing this “hearsay” testimony at the suppression hearing.
Detective Potter‘s statement was not hearsay in this context. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Instead, at the suppression hearing, Potter‘s statement was offered as evidence that Officers Schmidt and Peck had probable cause to arrest Dorsey. The magistrate correctly observed that Potter‘s statement “was not received or considered for the truth of the matter as to whether Dorsey had in fact trespassed since that ultimate issue would be decided by a different forum.” Potter‘s statement was offered to demonstrate that the officers were reasonable in believing that a crime had occurred; in that context, the statement was not hearsay because it was not offered for the truth of the matter asserted. Advisory Committee Notes to
No goal would have been served by requiring Detective Potter to testify personally at the suppression hearing. There was no contention that Potter had not made the statement, and her credibility was not at issue because whether Dorsey had actually returned to Bartlett when Potter said he did was immaterial to the inquiry at issue in the suppression hearing. Thus, because the truth of Detective Potter‘s report was not at issue, her statement was not hearsay. See Swirsky v. Carey, 376 F.3d 841, 852 (9th Cir.2004) (holding that evidence was not hearsay because it was not proffered for the truth of the content of the evidence); Calmat Co. v. U.S. Dep‘t of Labor, 364 F.3d 1117, 1124 (9th Cir.2004) (same). We uphold the ruling permitting testimony in the suppression hearing about Detective Potter‘s statement.
We next consider the district court‘s ruling on Dorsey‘s motion to dismiss Count Three of the indictment on the ground that the Gun-Free School Zone statute on which it is based,
In 1995, the Supreme Court found a prior version of
Incorporating a jurisdictional element into the offense has traditionally saved statutes from Commerce Clause challenges. See e.g., United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In Bass, the Supreme Court considered whether the statutory phrase “in commerce or affecting commerce” in a federal statute that imposed a penalty on any felon “who receives, possesses, or transports in commerce or affecting commerce ... any firearm” applied to “possesses” and “receives” as well as “transports.” Id. at 337, 339. In large part to avoid the federalism problems that would result from a broader construction, the Court interpreted the “in commerce or affecting commerce” language to be part of the offense that the government had to prove in each individual case. Id. at 349-50. Several years later, the Court revisited the same statute and clarified that the required nexus could be proven by demonstrating that the firearm had previously traveled in interstate commerce; the nexus did not need to be contemporaneous with the offense. Scarborough v. United States, 431 U.S. 563, 575-77, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).
The Lopez decision did not alter this rule that a jurisdictional element will bring a federal criminal statute within Congress‘s power under the Commerce Clause. In fact, Lopez rejected
Unlike the statute in Bass,
§ 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.
Lopez, 514 U.S. at 562; see also United States v. Morrison, 529 U.S. 598, 613, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (holding that the civil remedies in
Contrary to the prior version of
This holding follows circuit precedent on a closely related statute,
The Eighth Circuit reached the same conclusion regarding
We agree with the Eighth Circuit‘s decision in Danks, and follow our own precedent regarding
IV
Dorsey finally challenges the sentencing court‘s finding that he had more than three grams of cocaine base in his possession. Dorsey claims that this sentence violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the weight of the cocaine base was determined by the judge by preponderance of the evidence; the weight was neither charged in the indictment nor admitted by the defendant in his plea. See id. at 2537-38.
Dorsey concedes that he is raising this Sixth Amendment challenge for the first time on appeal. Consequently, we must review his sentence for plain error. See United States v. Booker, 125 S.Ct. 738, 769 (2005); United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005). He is not entitled to relief unless his sentence amounts to plain error, meaning that there is 1) error, 2) that is plain, and 3) that affects substantial rights. Ameline, 409 F.3d at 1078. Because it was given “in reliance upon judge-made findings under the then-mandatory guidelines,” Dorsey‘s sentence was constitutional error and he satisfies the first two prongs of the plain error test. Ameline, 409 F.3d at 1078.
The next question is whether the error affected Dorsey‘s substantial rights, i.e. “whether the outcome of [Dorsey‘s] sentencing was affected by erroneous enhancement of [Dorsey‘s] sentence on the basis of judge-made findings in the mandatory guidelines regime.” Id. Dorsey “must demonstrate a reasonable probability that he would have received a different sentence had the district judge known that the sentencing guidelines were advisory.” Id. In cases, like this one, where “the record does not provide an inkling of how the district court would have proceeded had it known that the Guidelines were advisory rather than mandatory” the proper course of action is to “remand to the district court to answer the question whether the sentence would have been different had the court known that the Guidelines were advisory.” Id. at 1078-79. Accordingly, we remand Dorsey‘s challenge to his sentence to the district court for consideration in light of Booker and Ameline.
CONVICTION AFFIRMED; SENTENCE REMANDED.
RAWLINSON, Circuit Judge, concurring in the result, dissenting in part:
I concur in the result in this case because, and only because, of the Supreme Court‘s recent ruling in Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). In Devenpeck, the Court rejected our decision that probable cause to arrest must be predicated upon an offense that is “closely related” to the offense invoked by the arresting officer as the basis for arrest. See id. at 593. The Supreme Court reiterated its prior holdings that “a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Id. (citations omitted) (emphasis added).
In this case, the magistrate judge specifically found that there was probable cause to arrest Dorsey for reckless driving. Because of that fact, the arrest was lawful, and evidence discovered during the search incident to Dorsey‘s arrest was admissible. See id., see also United States v. Smith, 389 F.3d 944, 952 (2004) (holding “that as long as there is probable cause to make an arrest, and the search is conducted rough-
I respectfully disagree that there was probable cause to arrest Dorsey for the crime of trespassing.
A person cannot be convicted under AS 11.46.350(a)(2) of “failing to leave” a public facility “after being lawfully directed to do so” unless the person fails to heed a reasonably contemporaneous directive to leave, or ... the person heeds the directive to leave but then returns to the public facility after only a short while.
Turney v. State, 922 P.2d 283, 288 (Alaska App.1996) (emphasis added).
Turney involved a courthouse protester who was given a letter by the court administrator informing Turney that he was “prohibited from entering or remaining on court property to engage in protest activities, picketing or pamphleteering.” Id. at 285. Approximately two months later, Turney returned to the courthouse, again engaging in protest activities. Id. A court employee called the Alaska State Troopers, who responded. Id. One of the troopers asked Turney to leave, and Turney complied. Id. Turney was subsequently charged with and convicted of trespass. Id. “[T]he State‘s theory of prosecution was that Turney had committed trespass by returning to the courthouse to renew his protest activities after receiving [the court administrator‘s] letter.” Id. at 286.
In reaching its decision to reverse Turney‘s conviction, id. at 290, the Alaska Court of Appeals started with the premise that
a criminal trespass statute which applies to public property in general, and which proscribes refusing or failing to leave a public building or public grounds upon being requested to do so by an authorized employee, limits the power of public officials to notifying people, in specified circumstances, that they may not remain on the property and does not permit them to bar entry.
Id. at 287 (citation and alterations omitted) (emphasis added).
The Turney decision discussed a Maryland case that is remarkably similar to the case before us. In that case, In re Appeal No. 631, 282 Md. 223, 383 A.2d 684 (1978), the defendant visited a school after being previously told not to return. When discovered, the defendant was taken to the vice-principal to explain his return to the premises. Having failed to give a satisfactory explanation, the defendant was arrested and convicted of trespassing. Id. at 685.
In reversing the conviction, the Maryland Court of Appeals noted that the defendant was never asked to leave the school premises on the day of the arrest. Id. at 687. “No request having been given [on that day], there was none to disobey.” Id. The Maryland Court emphasized that the previous requests to leave could not serve as the predicate for the trespass charge. Id.
State v. Johnson, 381 So.2d 498 (La.1980), is also a similar case cited in the Alaska Court of Appeals’ decision. In Johnson, the Louisiana Supreme Court, like the Maryland Court of Appeals, focused on the lack of a request to leave on
Finally, the Alaska Court of Appeals turned to New York cases interpreting that state‘s trespass statute. The Alaska court summarized the New York approach as consistent with that of Maryland and Louisiana. See Turney, 922 P.2d at 288. “[U]nder New York‘s general trespass statutes, the supervisor of a public facility has no such power to bar an individual from ever returning to the facility. Even though a person has previously been ordered to leave and not return, this person may not be prosecuted for trespass merely for returning on another occasion.” Id. (citations omitted).
As informed by case precedent from three other states, the Alaska Court of Appeals’ interpretation of the trespass statute poses two major impediments to finding probable cause for a trespass arrest in this case. The first is that Dorsey was not “lawfully directed” to leave the school. The second is that the record does not support the finding that he failed to leave the premises or was directed to leave on the day he was arrested.
As the Maryland Court of Appeals recognized, if the trespass warning is not given as specified in the statute, no trespass occurs upon re-entry onto the premises. See In re Appeal No. 631, 383 A.2d at 687. In this case, no authorized representative of the Anchorage School District directed Dorsey to vacate the premises. Consequently, the provisions of the trespass statute were never triggered.
There is also no evidence in the record that Dorsey failed to leave the school premises when directed to do so. The only evidence in the record is that Dorsey was seen on campus later that day, which in no way indicates that he never left.
Further complicating the trespass charges is that, as in Turney, Dorsey was not directed to leave the campus on the day he was arrested for trespass. The Alaska Court of Appeals concluded that under these circumstances, no trespass occurred. Turney, 922 P.2d at 286. The Alaska Court of Appeals noted that the Alaska statute “does not authorize a government official to bar a person from returning to a public building and its surrounding property in perpetuity.” Id. Yet that is exactly what the government officials attempted with Dorsey. I cannot agree that the arrest for trespass was supported by probable cause, and dissent from that portion of the opinion concluding otherwise.