United States Court of Appeals
For the First Circuit
No. 13-1251
UNITED STATES OF AMERICA,
Appellee,
v.
FOSTER L. STARKS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
James L. Sultan, with whom Kerry A. Haberlin was on brief, for
appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
October 8, 2014
THOMPSON, Circuit Judge. Foster Starks, Jr. was not
having a good day. First, he learned that his son had been
arrested, then he was tasked with the unenviable job of retrieving
a rental car from the son's irate girlfriend. Lastly, as he was
nearing home that night, he saw a State Trooper's blue lights
reflected in the rental's rearview mirror. So one could say that
the cherry on the cake of Starks's day was the Trooper's discovery
of the bag on the seat beside him--containing, as it did, a gun and
two boxes of ammunition. Starks was charged with being a felon in
possession of a firearm, and when his luck did not improve at
trial, he was convicted and sentenced to 210 months in prison. He
raises a number of issues on appeal, including one that is
determinative. Because the district court erred in holding that
Starks, as the unauthorized driver of the rental car, did not have
standing to challenge the stop, we reverse his conviction and
remand for an evidentiary hearing.
I.
BACKGROUND
A. The Stop
On the night of May 24, 2009, Starks was driving north on
Route 24 in a black Kia Sportage. Massachusetts State Trooper
Jason Vital was on patrol that evening when he saw Starks signal
and pull into the breakdown lane. Vital stopped to offer
assistance, and as he approached the Kia, Starks stepped out of the
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car. Noticing that Starks looked "tense, jittery, nervous," Vital
asked if he was alright, and Starks replied that he had dropped his
cigarette. Starks then reached down to the floor on the driver's
side and produced the lit cigarette. Satisfied that his assistance
was not needed, Vital returned to his cruiser and watched as Starks
resumed his journey.
Starks was not, however, home free. According to Vital,
he followed behind Starks and noticed that the Kia was traveling at
approximately forty to forty-five miles per hour in a sixty-five
mile per hour zone. After observing the Kia drifting and crossing
the lane lines, Vital conducted a registry check and determined
that the car was registered to a rental company, but that the
registration listed the car's color as red, rather than the black
that it was. Vital continued to follow Starks for a short time,
and after noticing two more lane violations, he activated his
lights and pulled over the Kia.
Starks provided his license and registration to Vital,
and during their discussion about the color discrepancy, Starks
said, "[H]ey, it's a rental."1 Vital returned to his cruiser to
conduct a license and warrants check, and discovered that Starks's
license had been suspended as a result of an unpaid seatbelt
violation. At the same time, Vital learned that Starks had "a
1
As will be discussed infra, the car had been rented by
Starks's friend, Wendy Ford. Starks was not an authorized driver
on the rental agreement.
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fairly lengthy criminal history," and had completed a sentence for
armed robbery. Vital returned to the Kia and placed Starks under
arrest for driving on a suspended license.
In conducting a pat-down frisk, Vital felt a pill bottle
in Starks's pocket. He removed the bottle, which Starks said
contained blood pressure medication, and opened it to find that it
held "approximately nine types of different pills."
B. The Search
Vital handcuffed Starks and placed him in the back of his
cruiser. Vital then returned to the Kia and shone his flashlight
through the passenger-side front window. He spotted a white
plastic shopping bag on the front seat. The bag was translucent
enough that Vital could see through it to glimpse a white box with
the word "Independence" printed on it in black. Vital recognized
the label as a brand of ammunition.
Vital opened the car door and began looking through the
contents of the bag. It contained two boxes of ammunition (.357
caliber and .38 caliber) and two smaller plastic bags. One bag
contained a .45 caliber handgun wrapped in a bandanna, as well as
a magazine with seven .45 caliber rounds, and a baggie with an
additional seven rounds. The other bag contained four prescription
medication bottles, all of which were labeled Foster L. Starks and
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each of which contained only the medication listed on the label.2
The bags also contained other items, including clothing and "court
paperwork."
After discovering the gun and the prescription bottles,
Vital opened the center console of the Kia and found a cache of
"approximately 227 round tablets" that appeared to be OxyContin;
the pills were later determined to be counterfeit. The pills may
have been fake, but Starks was in real trouble. He was indicted by
a grand jury for being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1).
C. The Motion to Suppress
Starks's defense strategy was two-pronged; he intended to
challenge the legality of the stop, and he intended to show that he
had no knowledge of the contents of the bag, because it had been
packed by his son Dante's erstwhile girlfriend, Teanisha Rodriguez.
Prior to trial, Starks moved, pursuant to the Fourth and Fourteenth
Amendments, to suppress "all evidence obtained as a result of the
illegal stop." In his memo in support of the motion, Starks argued
that the stop was pre-textual, that he was neither swerving nor
driving too slowly, and that Vital stopped him because he is
African-American. Specifically, Starks argued that "a seizure
occurred when Trooper Vital stopped the car" and that because the
2
Pharmacy records indicate that these medications were
dispensed to Starks.
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stop was not justified, the "fruits" of the stop should be
suppressed. In support of this argument, Starks submitted an
affidavit from Professor of Economics Dr. Steven Durlauf, who
examined statistics from the Massachusetts State Police and
determined that the percentage of African-Americans stopped by
Vital was 38.6% higher than the percentage stopped by other
troopers.
A hearing on the motion to suppress was held on May 26,
2011. At the outset of the hearing, before either Vital or Durlauf
testified, the government stated that Starks "had absolutely no
standing to even challenge the search of the vehicle . . . because
he was an unlicensed driver but it was a rental car so he was also
an unauthorized driver. . . . We think he lacks standing." The
district court gave Starks's counsel the choice of addressing
standing immediately, or proceeding with witness examination.
Because Durlauf had come in from Wisconsin, counsel chose to
proceed before addressing standing. Following the two witnesses,
the hearing was continued to July 27.
On the second day of the hearing, the district court
instructed Starks's counsel that "what I was waiting for you to do
is to get to somebody who is going to testify that he either has a
driver's license, you know, that the woman gave him permission to
use the car or she didn't give him permission." Starks's friend,
Wendy Ford, then testified that she gave her license and credit
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card information to the rental company to allow Rodriguez to rent
the car. She further testified that when Starks called her on
Sunday afternoon, May 24, 2009, she did not realize that Rodriguez
had extended the rental and still had the car. During that
conversation, she and Starks agreed that he would retrieve the car
from Rodriguez and return it on Tuesday.3 Ford testified that she
gave Starks her express permission to drive the car.
The government then called a rental company employee,
Richard Pozner, who testified that Ford could not authorize anyone
other than a domestic partner to drive the car.
At the conclusion of testimony, the government argued
that Starks had no standing to challenge the stop because, as an
unauthorized, unlicensed driver, he had no reasonable expectation
of privacy in the contents of the vehicle. Defense counsel argued
that Starks had standing under the Fourth Amendment, because Ford
had given him permission to drive the car and thus his expectation
of privacy was reasonable. In the alternative, counsel argued that
standing was established under the Equal Protection Clause of the
Fourteenth Amendment, saying:
I guess I would like to jump, Your Honor, to
the second issue of standing in this case
which is under the defendant's equal
protection argument. We are not arguing that
this is a straight Fourth Amendment illegal
stop by an officer based on failure to have
some kind of probable cause or reasonable
3
Memorial Day fell on that Monday, May 30, 2009.
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suspicion. We're arguing that this officer
himself discriminated against my client
because of his race, because of his color, and
he stopped the car based on racial profiling.
The district court denied the motion to suppress in a brief
statement, saying "I don't think there's any standing here, to use
that phrase, but certainly no expectation of privacy. He was
unlicensed and he was unauthorized and so he has no occasion to be
here challenging the admission of evidence. I am going to deny the
motion . . . to suppress." The district court made no other
findings of fact.
D. Motions in limine
As the case proceeded toward trial, the parties made a
number of motions in limine. The government moved to bar the
testimony of Durlauf, the economics professor, arguing that Starks
was "improperly attempting to re-litigate the motion to suppress in
front of the jury." When the court allowed the motion, Starks
moved for reconsideration, arguing during a pre-trial conference
that Durlauf's testimony was admissible to impeach Trooper Vital.
The district court denied the motion without further findings or
comment. The court also barred the testimony of the defendant's
DNA expert, Dr. Carll Ladd, as irrelevant.
The next flurry of motions centered on Rodriguez. She
had previously given a statement to federal agents, and testified
before the grand jury. On both occasions, she denied being at home
when Starks came to her apartment, and stated that the firearm did
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not belong to either Dante or herself. Two years later, she spoke
with a defense investigator and admitted to putting the gun and the
ammunition into the shopping bag along with Dante's belongings, and
said that she did so without Starks's knowledge.
Defense counsel made a motion in limine to "alert the
[c]ourt that the proposed government witness T[e]anisha Rodriguez
has significant Fifth Amendment rights" and would likely invoke
those rights to avoid testifying. As a pre-emptive strike, the
defense moved for the admission of Rodriguez's statement to its
investigator, as well as several other pieces of evidence which, if
admitted, would tend to support Starks's third-party culprit
defense. Specifically, Starks sought to admit Rodriguez's grand
jury testimony, her statements to federal agents, and her
statements to the defense investigator. Defense counsel also
sought the admission of Rodriguez's medical records, criminal
history, the cases pending against her at the time of her grand
jury testimony, as well as records of the Department of Children
and Families.
The government opposed the motions, arguing that
Rodriguez's statements were not admissible because the defense
failed "to offer any corroborating circumstances clearly indicating
the trustworthiness" of the recitations. See United States v.
Monserrate-Valentín, 729 F. 3d 31, 52 (1st Cir. 2013) (defining the
requirement of "meaningful corroboration" as "evidence that clearly
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indicates that the statements were worthy of belief, based upon the
circumstances in which the statements were made") (internal
quotations omitted). The government also argued that her medical
records were not relevant. On the first day of trial, the court
adopted the reasoning of the government's response and denied the
motion. On the third day of trial, the defense called Rodriguez as
a witness, and she invoked her privilege against self-
incrimination. Once she was unavailable as a witness, the defense
made another motion in limine to admit Rodriguez's earlier
statements, and again, the court denied the motion.
E. Trial
A jury trial commenced on October 11, 2011. During
defense counsel's cross-examination of Trooper Vital, she
approached the bench to seek guidance in pursuing a line of
questioning about racial profiling. At sidebar, defense counsel
referenced the court's ruling on the motion to bar Durlauf's
testimony, stating, "[d]uring this time of my cross-examination, I
would ask him questions related to his knowledge of the race of the
drivers that he had stopped and issues relating to racial
profiling. It's my understanding from the [c]ourt's order that you
are precluding me from asking questions on this topic?" When the
court replied "Yes," counsel asked that a chart describing the
statistics of Vital's stops relative to his fellow troopers be
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admitted for identification, to preserve it for the appellate
record.
During the government's closing, the prosecutor urged the
jury to "not even consider . . . the propriety or the legality or
the constitutionality" of the stop, saying "The stop was legal.
The arrest was legal. The search was legal. That's a done deal.
That's been decided by the judge." Defense counsel objected to the
prosecution's comment, noting that the judge had ruled only that
Starks had no standing to contest the legality of the stop, and had
made no determination that the stop was legal. When the district
court asked what she wanted to do about it, she declined a jury
instruction, saying "I can't think of an instruction that would not
draw more attention to the issue that would be helpful."
The jury returned a guilty verdict. Eight days later,
defense counsel received information that a juror was acquainted
with one of Starks's sons, and had not disclosed that information
to the court. Starks moved for a new trial, arguing that the
prosecutor's closing remarks were improper, and that a juror
committed perjury during voir dire. The district court conducted
evidentiary hearings before issuing a written order denying the
motion in its entirety. On February 13, 2013, Starks was sentenced
to 210 months in prison, and two years of supervised release. This
timely appeal followed.
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II.
DISCUSSION
Starks makes four main points on appeal. He argues that:
1) the district court erred in ruling that he lacked standing to
challenge the constitutionality of the initial stop; 2) the
prosecutorial misconduct during closing argument deprived him of a
fair trial; 3) the district court committed two evidentiary errors
by curtailing impeachment of Trooper Vital during cross-
examination, and by improperly excluding evidence of Rodriguez's
statements and background; and finally, 4) a juror's failure to
disclose information during voir dire violated his right to trial
by an impartial jury.
A. Fourth Amendment Standing to Challenge Stop
Starks's first argument, the standing issue, is
dispositive. Although there were other missteps during the course
of this case, it was the stumble at this first hurdle that requires
us to vacate the conviction and remand for a new hearing. We will
therefore focus on the question of standing.
We review de novo the district court's ruling that Starks
lacked standing to bring a Fourth Amendment claim. See United
States v. Werra, 638 F.3d 326, 335 n.13 (1st Cir. 2011).
The government argues that Starks abandoned his Fourth
Amendment argument before the district court and thus the argument
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has been waived and our review should be limited to plain error.4
The government contends that, during the hearing on the motion to
suppress, defense counsel shifted focus to its second argument that
the stop was racially motivated, thus leading the court to
understand "that [Starks] was not pursuing the argument that Vital
lacked reasonable suspicion." In support of this argument, the
government quotes part of defense counsel's argument at the
hearing: "I am not arguing that this is a straight Fourth Amendment
illegal stop by an officer based on failure to have some kind of
probable cause or reasonable suspicion." However, the government
has ripped this quote from its moorings.
The hearing was preceded by defense counsel's submission
of a comprehensive memorandum in support of the motion which
thoroughly addressed both the Fourth and Fourteenth Amendment
bases. In the memorandum, defense counsel led off with the
argument that Starks had standing to challenge the illegal seizure,
and then proceeded to contend that the stop which led to the
seizure was not justified. In the final pages of her memorandum,
she addressed the second argument--the Equal Protection issue.
During the hearing, defense counsel again led off with the argument
that Starks had standing under the Fourth Amendment, and after
4
"Arguments related to the unlawfulness of a search that were
not raised to the district court, however, are considered waived or
forfeited and are reviewed at most for plain error." United States
v. Reynolds, 646 F.3d 63, 73 (1st Cir. 2011).
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discussing cases from other circuits, she said, "I guess I would
like to jump, Your Honor, to the second issue of standing in this
case which is under the defendant's equal protection argument."
That sentence makes clear that defense counsel was merely switching
gears from her first argument to her second argument; at no time
did she concede her Fourth Amendment argument. Accordingly, our
review of the district court's ultimate legal decision to deny the
motion to suppress is de novo.
Having addressed the waiver argument, the standing issue
is easily resolved. In his memorandum in support of the motion to
suppress, Starks argued that "a seizure occurred when Trooper Vital
stopped the car," and that because the stop was not justified, its
"fruits" should be suppressed. "When a police officer makes a
traffic stop, the driver of the car is seized within the meaning of
the Fourth Amendment." Brendlin v. California, 551 U.S. 249, 251
(2007). In Brendlin, the Supreme Court determined that a passenger
traveling in a car is seized along with the driver, and therefore
has standing to challenge the constitutionality of the stop. Id.
In its brief, the government concedes that a holding that an
unauthorized driver cannot contest a stop "would be difficult to
square with Brendlin." We concur. Even accepting the district
court's finding that Starks was an unlicensed, unauthorized driver,
his status was still no less than that of a passenger. Under
Brendlin, Starks was seized within the meaning of the Fourth
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Amendment, and thus has standing to challenge the constitutionality
of the stop.5 In ruling, the court relied on the prosecution,
which should have known its position was error. The decision of
the district court was incorrect as a matter of law.
The government concedes that if "the plain error standard
does not apply or has been met, a remand is appropriate for the
district court to address Starks's standing to contest the stop,
and, if standing is found, whether Vital had reasonable suspicion."
We agree. Because the district court erred as a matter of law, we
remand for a new hearing on Starks's motion to suppress.6
B. Additional Concerns
Because we are vacating his conviction on other grounds,
we need not address Starks's remaining arguments. We would like,
however, for the sake of thoroughness, to make a few brief points.
5
In so holding, we distinguish this case from our decision in
United States v. Symonevich, 688 F.3d 12 (1st Cir. 2012). In
Symonevich, we held that a passenger did not have standing to
challenge the lawfulness of a search; here, Starks is not
challenging the search, but rather, the stop that preceeded it.
Id. at 19-20.
6
We note that the district court did not address Starks's
alternative Equal Protection Clause argument. The Supreme Court,
in Whren v. United States, stated that "the constitutional basis
for objecting to intentionally discriminatory application of laws
is the Equal Protection Clause, not the Fourth Amendment." 517
U.S. 806, 813 (1996). Although other circuits have held that an
Equal Protection violation does not require suppression of
otherwise legally obtained evidence, see United States v. Nichols,
512 F.3d 789, 794 (6th Cir. 2008)(overruled on other grounds), we
have not yet opined on this issue. Starks contends that it is not
necessary for us to do so at this time, and we agree.
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First, the prosecutor's representation to the jury that the judge
had determined the stop was legal was not only inappropriate, it
was legally incorrect. The district court never reached the merits
of whether the stop was legal; it merely determined (erroneously)
that Starks lacked standing to make the argument that the stop was
illegal. Starks also argued that the court erred in excluding
evidence of Rodriguez's statements and background; we review such
rulings for abuse of discretion. United States v. Powers, 702 F.3d
1, 10 (1st Cir. 2012). The court did not abuse its discretion when
it found that her statements to the defense investigator lacked
meaningful corroboration, and her grand jury testimony was
inadmissible because the government did not have a similar motive
to develop her testimony there. See United States v. Bartelho, 129
F.3d 663, 671 (1st Cir. 1997) ("[W]e focus narrowly on a party's
motive and opportunity to develop particular testimony on a
particular issue," and the government's motive may vary from case
to case.). Finally, because this case will be remanded, we need
not reach the question of juror bias.
III.
CONCLUSION
The district court's denial of Starks's standing was a
fundamental error that requires us to vacate the conviction and
remand for an evidentiary hearing in accordance with this opinion.
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