UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT JOYNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:06-cr-00016-MBS)
Submitted: July 31, 2007 Decided: August 15, 2007
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Leesa Washington, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Robert Joyner was convicted of
possession with intent to distribute fifty grams or more of cocaine
base (crack), in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A)
(West 1999 & Supp. 2007). On appeal, Joyner contends that the
district court erred in denying his motion to suppress evidence
discovered during the search of the vehicle in which he was driving
and denying in part his motion to suppress statements he made to
the police officer. He also challenges the district court’s denial
of his motion for a mistrial based on the trial testimony of the
officer. We find no error in these rulings and accordingly affirm
Joyner’s conviction.
Shortly after midnight on July 24, 2005, Joyner
approached a driver’s license checkpoint being conducted by the
Department of Public Safety in Cayce, South Carolina. Joyner
stopped briefly and then sped off, leading officers on a high speed
vehicle chase, which ended after Joyner crashed his vehicle into a
tree. Also in the vehicle were an adult male, a sixteen-year-old
female, and her one-year-old female child.
Officers searched Joyner and found approximately $2000 in
his pocket. He was handcuffed and placed in a patrol car. A
quantity of crack cocaine was discovered under the hood of the car.
After the officer advised Joyner of his rights, Joyner repeatedly
called the officer back to the vehicle and tried to convince the
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officer to let the girls go. When the officer asked Joyner if the
crack was his, he replied, “I don’t know nothing about that man, I
talk to an attorney.” The officer asked Joyner again to whom the
drugs belonged and stated that if Joyner did not claim them,
everyone in the vehicle would be arrested. Ultimately, Joyner
claimed ownership of the drugs.
The district court denied Joyner’s motion to suppress the
evidence discovered during the search of the vehicle, finding that
the officers had probable cause to search the entirety of the
vehicle. The court granted, in part, Joyner’s motion to suppress
his statements, finding that the officer’s questioning was
overreaching and overcame Joyner’s right to remain silent. The
court therefore suppressed all statements Joyner made after and
including his first mention of an attorney. The court found that
this mention of an attorney was not a sufficient request to invoke
his right to counsel, but that suppression was warranted based on
the officer’s questioning.
On appeal from a district court’s determination on a
motion to suppress, the factual findings are reviewed for clear
error and legal determinations are reviewed de novo. Ornelas v.
United States, 517 U.S. 690, 699 (1996); United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). The evidence is reviewed in the
light most favorable to the government, the prevailing party on the
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motion. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998).
Joyner contends that the district court erred in denying
his motion to suppress evidence discovered during a search of the
vehicle in which Joyner was driving. The district court determined
that the officers had probable cause to search the vehicle.
Probable cause to search exists where there is a “fair
probability that contraband or evidence of a crime will be found in
a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
The “automobile exception” to the warrant requirement allows a
warrantless search “[i]f a car is readily mobile and probable cause
exists to believe it contains contraband.” Maryland v. Dyson, 527
U.S. 465, 467 (1999). If such probable cause exists, the officers
may conduct a search “as thorough as a magistrate may authorize in
a warrant.” United States v. Ross, 456 U.S. 798, 800 (1982).
Thus, the scope of the search is defined by the object of the
search and the places in which such an object may be concealed.
Id. at 824.
Here, the officers had probable cause to believe that
there was evidence or contraband in the vehicle, based on Joyner’s
flight when subjected to a routine traffic stop, see United States
v. Moye, 454 F.3d 390, 396 (4th Cir.) (consciousness of guilt may
be inferred from flight), cert. denied, 127 S. Ct. 452 (2006), and
the fact that Joyner had a large sum of money in his possession and
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was in a high drug area. See United States v. Hardwell, 80 F.3d
1471, 1490 (10th Cir. 1996) (“[A]n individual’s possession of large
amounts of cash tends to show involvement in drug distribution
because it is among the tools of the trade of drug traffickers.”);
United States v. Ramirez, 63 F.3d 937, 943 (10th Cir. 1995) (prior
arrest for drug trafficking while possessing drugs and cash is
probative of knowledge and intent). Consequently, we conclude that
the officers had probable cause to believe that they would find
drugs in the vehicle. See Ross, 456 U.S. at 800, 824. Therefore,
the district court properly determined that the officers had
probable cause to conduct a thorough investigatory search and
correctly denied Joyner’s motion to suppress the evidence. See
Ornelas, 517 U.S. at 699 (providing standard).
Next, Joyner argues that the district court erred by not
suppressing all of the statements he made following the officer’s
issuance of the warnings required by Miranda,1 because he had
requested an attorney. In order to “invoke the right to counsel
and prevent further interrogation, a suspect must unambiguously
request the assistance of counsel.” United States v. Cardwell, 433
F.3d 378, 389 (4th Cir. 2005), cert. denied, 547 U.S. 1061 (2006).
Here, Joyner mentioned an attorney in the following manner:
Immediately after being informed of his rights, Joyner asked
Officer Pereira if he was “letting the girl go?” After being asked
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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if the crack found under the hood was his, Joyner denied knowledge
of it. Pereira then stated that he would have to charge everyone
with possession of it. Joyner was again asked if it was his. He
replied, “Man, I’ll talk to an attorney[.] Go ahead and let them
go.”
After a time, Joyner called the officer back to the
vehicle. The officer stated that he was not dealing with Joyner.
Joyner stated, “I talk to my attorney, I’ll figure this thing out
they they straight. They ain’t got nothing to do with this man.”
After some more questioning by the officer as to whether the crack
was Joyner’s, and Joyner’s continued insistence that his passengers
were innocent, the officer asked, “Is it yours? You got something
to tell me? If not, this discussion is over with.” Joyner
responded, “I get an attorney, when I get an attorney present.
They innocent.”
We find no clear error in the district court’s
determination that Joyner did not clearly and unambiguously request
an attorney. See Ornelas, 517 U.S. at 699 (providing standard);
see also Seidman, 156 F.3d at 547 (viewing evidence in the light
most favorable to the government). Moreover, even if Joyner did
invoke his right to an attorney, any error in continuing the
questioning was harmless here because the district court suppressed
Joyner’s statement referring to an attorney and all statements
following Joyner’s first mention of an attorney. See Fed. R. Crim.
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P. 52(a) (“Any error . . . which does not affect substantial rights
shall be disregarded.”); United States v. Hastings, 134 F.3d 235,
240-41 (4th Cir. 1998).
As for any statements that Joyner made before he
mentioned an attorney, he impliedly waived his right to remain
silent by initiating the conversation with the officer, in which he
asked the officer to let the girls go. See Cardwell, 433 F.3d at
388 (waiver of rights may be implied from voluntary statement after
receiving Miranda warnings); United States v. Payne, 954 F.2d 199
(4th Cir. 1992) (holding that Miranda does not apply when
incriminating statements are not made in response to
interrogation). After being advised of his rights, Joyner asked
the officer to let the girls go. He was asked about the crack
found under the car hood and he denied knowledge of it. On two
separate occasions, Joyner motioned for the officer to come back to
the vehicle and attempted to convince him to let the girls go. In
light of Joyner’s conduct in voluntarily engaging the officer in
conversation, we find no error by the district court in refusing to
suppress all statements that Joyner made. See Ornelas, 517 U.S. at
699.
The final issue in this appeal is Joyner’s challenge to
the district court’s denial of his motion for a mistrial. The
denial of a motion for a mistrial is within the discretion of the
trial judge and will be disturbed only under extraordinary
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circumstances. United States v. Dorlouis, 107 F.3d 248, 257 (4th
Cir. 1997).
In determining whether a mistrial is warranted based on
improper questioning or testimony, the court considers whether the
testimony was improper, and whether it was so prejudicial that the
defendant was denied a fair trial. United States v. Bennett, 984
F.2d 597, 608 (4th Cir. 1993). The district court found that the
officer’s testimony was not improper, but merely stated his opinion
of the meaning of Joyner’s words requesting that the girls be
released.
The court read back the testimony—“I felt that he took- -
that he stated - - I mean, that it was his”—and found that the
officer did not testify that Joyner said that the crack cocaine was
his or otherwise confess to the possession. We find that this
conclusion, and the denial of a mistrial based on this statement,
was not an abuse of discretion. See Dorlouis, 107 F.3d at 257. We
find further support for this conclusion in the officer’s next
statement that clarified that he formed the opinion that the drugs
belonged to Joyner from Joyner’s requests that the girls be
released. In response to the government’s inquiry as to his
interpretation of Joyner’s request to let the girls go, the officer
testified that the phrase “indicated to me that the drugs that were
found were his. The others are innocent, I could let them go.”
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Moreover, even if the testimony was improper, a mistrial
was not warranted. See United States v. Harrison, 716 F.2d 1050,
1052 (4th Cir. 1983) (providing factors to consider). Joyner
argues that the officer’s testimony that Joyner admitted his
possession took away Joyner’s only defense—that one of the other
occupants of the vehicle owned the drugs. However, as stated
above, the officer’s testimony was that he interpreted Joyner’s
request that the others be let go as an admission that the drugs
were his. Defense counsel was free to cross-examine this opinion,
to present another view, and to request a curative instruction.
Accordingly, we affirm the district court’s order denying Joyner’s
motion for a mistrial.2 See Dorlouis, 107 F.3d at 257.
In conclusion, we affirm Joyner’s conviction. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
We also find no plain error arising from the government’s
closing argument, in which the prosecutor state that Joyner fled
from a checkpoint and that he “implicated himself.” See United
States v. Olano, 507 U.S. 725, 732-36 (1993); United States v.
DePew, 932 F.2d 324, 327-28 (4th Cir. 1991).
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