United States v. Davis

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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