United States v. David Allen

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 21-3060
___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

David Leroy Allen

lllllllllllllllllllllDefendant - Appellant
____________

Appeal from United States District Court
for the Southern District of Iowa - Central
____________

Submitted: April 13, 2022
Filed: August 9, 2022
____________

Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
____________

MELLOY, Circuit Judge.

David Leroy Allen was charged with one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress
evidence obtained during a vehicle search. The district court1 denied the motion. Mr.
Allen proceeded to trial, where a jury found him guilty. He appeals and raises four
arguments: (1) the district court should have granted his motion to suppress; (2) the
district court should have admitted impeachment evidence; (3) the district court
should have given additional jury instructions; and (4) the evidence was not sufficient
to convict. We affirm.

I.
Just after midnight on November 28, 2019, Officer Brandon Holtan was
patrolling alone in his usual patrol area, the fairgrounds neighborhood of Des Moines.
Officer Holtan testified at the suppression hearing about his observations that
evening and the inferences he drew from those observations. Based on his
experience, Officer Holtan believed the fairgrounds neighborhood had a significant
drug problem. He had received specific information that an individual was selling
drugs out of a residence at 511 East 27th Street.

At approximately 12:48 a.m., Officer Holtan drove down East 27th Street and
came to the residence at 511 East 27th Street. When Officer Holtan arrived, he saw
a truck parked on the street in front of the house. Mr. Allen was standing outside the
truck speaking to the driver. When Mr. Allen saw Officer Holtan, Mr. Allen “darted”
away from the truck. Officer Holtan believed he had just observed a drug deal.

Mr. Allen entered the front passenger’s side of an Altima parked in the
driveway of the residence. The Altima was parked over the sidewalk, in violation of
Iowa Code § 321.358 and Des Moines Code of Ordinances § 114-358. Brittney
Pinckney sat in the driver’s seat. Before Officer Holtan got out of his car, he
observed Mr. Allen make “furtive” movements—Mr. Allen leaned forward at the

1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

-2-
waist and reached down and to his left, towards the dashboard or the glove
compartment in a way that Officer Holtan believed was consistent with hiding
contraband.

Officer Holtan exited his vehicle and approached the passenger’s side of the
Altima. As he approached, Mr. Allen opened the door and held his hands up. Mr.
Allen showed Officer Holtan a bottle of vodka and said that he had been drinking
with his friends. As Officer Holtan spoke to Mr. Allen, three individuals exited the
truck and approached the Altima. They told Officer Holtan they had been hanging
out and drinking. Officer Holtan asked for each of their names. Officer Holtan
recognized the driver’s name as an individual suspected of selling drugs out of the
residence. Officer Holtan told the three people who had been in the truck that they
were free to leave. They then left.

After the truck passengers left, Mr. Allen asked if he could get out of the car.
Officer Holtan thought this was suspicious because, during traffic stops, people
normally stay in the vehicle until an officer directs them to exit. He thought that
when people ask to exit the vehicle, it is a sign they are trying to distance themselves
from something inside of it. Officer Holtan told Mr. Allen he could exit and
instructed him to put his hands behind his back so Officer Holtan could handcuff him.
As Officer Holtan was handcuffing Mr. Allen, he asked Mr. Allen and Ms. Pinckney
what Mr. Allen had hidden under the seat. Mr. Allen stated that he had not hidden
anything and that he had just been looking for his cigarettes. He was holding a pack
of cigarettes when he was handcuffed. Mr. Allen asked Ms. Pinckney if she had
called the police on him. Officer Holtan thought this question was suspicious
because it is not something that people usually discuss while officers are present.

Officer Holtan escorted Mr. Allen to a police vehicle and told him he was being
detained because of an open container violation. When Officer Holtan asked for Mr.
Allen’s name, Mr. Allen stated that Officer Holtan should know him from a recent

-3-
police raid at the residence. Mr. Allen also stated that he had case numbers in his
pocket. Although Officer Holtan asked multiple times what was hidden in the car,
Mr. Allen asserted he did not know about any contraband except the alcohol.
Anything else in the vehicle, he said, belonged to Ms. Pinckney.

As Officer Holtan handcuffed Mr. Allen, Officer Jordan Ulin arrived. While
Officer Holtan escorted Mr. Allen to one police vehicle, Officer Ulin escorted Ms.
Pinckney to the other vehicle and spoke to her. Once they were secured in separate
cars, Officers Holtan and Ulin began to search the Altima. Officer Holtan told
Officer Ulin the Altima was parked over the sidewalk and there were open containers
inside it. Officer Holtan informed Officer Ulin that “this house is a threat” and that
Mr. Allen had been speaking to people inside the truck when he spotted Officer
Holtan and “darted” back to the Altima. During this initial search, the officers found
several bottles of alcohol, but they did not find any other contraband. Eventually,
Officer Holtan asked Officer Ulin to keep searching while Officer Holtan went to
speak with Ms. Pinckney. Specifically, Officer Holtan told him to keep looking for
open containers and to make sure that he was only looking in spots where a “one-
ounce shooter” could be hidden. Officer Holtan did not tell Officer Ulin to look for
a weapon or evidence of a drug transaction.

Officer Holtan then went to speak with Ms. Pinckney. He told Ms. Pinckney
that Mr. Allen had stated that any contraband in the car belonged to her. Ms.
Pinckney then told Officer Holtan that there was a gun belonging to Mr. Allen in the
car. She explained that Mr. Allen had gotten into a fight. Concerned for his safety,
Mr. Allen asked Ms. Pinckney to drive him to the south side of Des Moines, where
he picked up a gun. Mr. Allen had the gun when they arrived at the residence. When
Mr. Allen saw Officer Holtan and returned to the Altima, he shuffled around because
he was hiding the gun. Eventually, Ms. Pinckney explained that the gun was hidden
behind a panel on the passenger’s side wall of the dashboard.

-4-
 With Ms. Pinckney’s consent, Officer Holtan searched the Altima for a firearm.
He found a gun exactly where Ms. Pinckney stated it would be, along with a plastic
container of ammunition. The gun was positioned so that the barrel was pointed
toward the driver’s side of the vehicle. Officer Holtan believed that this position was
consistent with how the gun would be arranged if a person in the passenger’s seat
held it by the grip and placed it in the compartment.

Officer Holtan returned to his vehicle to speak to Mr. Allen. After Officer
Holtan read Mr. Allen his Miranda2 rights, Mr. Allen stated that the gun was not his
but that he should have one because he was scared for his life. Mr. Allen told Officer
Holtan the gun “was there to protect me but it wasn’t mine.” Eventually, Mr. Allen
decided he was willing to speak to Officer Holtan but he was not willing to do so in
front of the residence. Officer Holtan drove Mr. Allen to another location and they
spoke further. Mr. Allen stated that the gun “wasn’t mine but I wanted to protect
myself,” that he “had brought it,” and that he “knew about it.”

Several hours later, at approximately 4:30 in the morning, Investigator Brian
Buck interviewed Mr. Allen. Mr. Allen told Investigator Buck that Ms. Pinckney had
handed him the gun as he got into the car, and he hid it for her. He admitted he had
touched the gun and his DNA would be on it.

II.
Mr. Allen first argues that the district court erred because it denied his motion
to suppress the firearm. Mr. Allen argues that the officers impermissibly extended
the traffic stop by searching the inside of the car without probable cause.

2
Miranda v. Arizona, 384 U.S. 436 (1966).

-5-
 A.
In an appeal from a denial of a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United
States v. Davis, 943 F.3d 1129, 1132 (8th Cir. 2019).

The Fourth Amendment protects against unreasonable searches and seizures.
U.S. Const. amend. IV. A search of a vehicle may violate a passenger’s Fourth
Amendment rights if an unreasonable seizure of the passenger caused the search.
Davis, 943 F.3d at 1132. A traffic stop is a reasonable seizure if it is “supported by
either reasonable suspicion or probable cause.” United States v. Soderman, 983 F.3d
369, 374 (8th Cir. 2020). Once a vehicle is stopped based on reasonable suspicion
or probable cause, officers may continue the stop only for the time necessary “to
attend to the stop’s ‘mission’ and ‘related safety concerns.’” Id. (quoting Rodriguez
v. United States, 575 U.S. 348, 354 (2015)). Thus, officers may continue the stop
while they complete tasks related to the stop, such as checking the vehicle’s
registration and insurance, checking the occupants’ names and criminal histories,
preparing the citation, and asking routine questions. United States v. Murillo-
Salgado, 854 F.3d 407, 415 (8th Cir. 2017).

Generally, a valid traffic stop becomes an unreasonable seizure if the officers
extend the stop beyond the time necessary to complete the stop’s mission. Soderman,
983 F.3d at 374. The officers may, however, extend the stop if they develop
reasonable suspicion of criminal activity. Davis, 943 F.3d at 1132. “The reasonable
suspicion inquiry asks ‘whether the detaining officer has a particularized and
objective basis for suspecting legal wrongdoing.’” United States v. Sanchez, 955
F.3d 669, 674 (8th Cir. 2020) (quoting United States v. Walker, 771 F.3d 449, 450
(8th Cir. 2014)). To have reasonable suspicion, a “‘police officer must be able to
point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant’ further investigation.” United States v. Woods,
829 F.3d 675, 679 (8th Cir. 2016) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). We

-6-
review the totality of the circumstances to determine if an officer had reasonable
suspicion to extend a traffic stop. Davis, 943 F.3d at 1132.

B.
Officer Holtan had probable cause to stop the Altima because it was illegally
parked. Because the initial stop was permissible, two questions remain: first,
whether Officer Holtan extended the search of the vehicle beyond the time necessary
“to attend to the stop’s ‘mission’ and ‘related safety concerns,’” and second, if he did,
whether the extension was supported by reasonable suspicion of criminal activity.

First, Officer Holtan extended the stop. The stop was for a parking violation,
and all the evidence of the violation was outside the car. Cf. Knowles v. Iowa, 525
U.S. 113, 118 (1998) (holding that when an officer cited a driver for speeding, the
need to find evidence did not justify a search of a car because the officer had already
obtained all the evidence necessary to prosecute the offense and no more evidence
would be found in the car). Once Officer Holtan observed the location of the Altima
on the sidewalk, he had gathered all the evidence he needed to prosecute a parking
violation. The remaining investigation would involve checking the car’s license and
registration, checking Ms. Pinckney’s and Mr. Allen’s identification and criminal
histories, and writing the citation. See Murillo-Salgado, 854 F.3d at 415. It would
not involve a search of the interior of the car. By proceeding with a search, instead
of completing the investigation and citation, Officer Holtan extended the traffic stop
beyond the time necessary to complete the stop’s mission.

As to the second question, we find Officer Holtan had reasonable suspicion to
extend the traffic stop. When Officer Holtan decided to extend the stop by searching
the Altima, he could point to specific and articulable facts which warranted further
investigation. At 12:48 a.m., in front of a house that was suspected to be the location
of drug dealing, Officer Holtan had observed Mr. Allen standing outside an occupied
truck. Officer Holtan eventually learned that the truck’s driver was a suspected drug

-7-
dealer. When Mr. Allen saw a police officer, he rushed back to his own car and
appeared to hide something in an area of the car where offenders often hide
contraband. When Officer Holtan approached, Mr. Allen quickly admitted to
possessing alcohol and attempted to distance himself from the inside of the car. In
Officer Holtan’s presence, Mr. Allen asked Ms. Pinckney if she had called the police
on him. Mr. Allen told Officer Holtan that he had case numbers in his pocket and that
Officer Holtan should know him from a recent police raid at the same residence.
Considering the totality of the circumstances, including the location, the time of
night, the presence of a suspected drug dealer, and Mr. Allen’s decision to rush back
to his car and hide something, Officer Holtan had reasonable suspicion to think he
had observed a drug deal and Mr. Allen had concealed contraband or a weapon.
Based on his reasonable suspicion, Officer Holtan could extend his traffic stop to
search for the hidden contraband and to speak to Ms. Pinckney. The district court
appropriately denied the motion to suppress.

III.
Mr. Allen next argues the district court erred because it excluded defense
Exhibits S and T from evidence. Both exhibits are videos depicting Ms. Pinckney’s
interactions with Officer Ulin. Defense Exhibit S is a video of Ms. Pinckney looking
for her keys and saying she was very grateful that she was not being arrested.
Defense Exhibit T is a video in which Officer Ulin told Ms. Pinckney she was barred
from driving. Mr. Allen argues that these exhibits were admissible to impeach Ms.
Pinckney’s credibility under Federal Rule of Evidence 806 because they show her
motive to lie and place blame for the gun on Mr. Allen. The government argues that
the videos were not admissible to impeach Ms. Pinckney because she did not testify
at trial and the court did not admit any of her hearsay statements.

“We review the evidentiary rulings of a district court only for abuses of
discretion, and will reverse only when an improper evidentiary ruling affects the
substantial rights of the defendant or when we believe that the error has had more

-8-
than a slight influence on the verdict.” United States v. Yarrington, 634 F.3d 440,
447 (8th Cir. 2011) (quoting United States v. Elbert, 561 F.3d 771, 775 (8th Cir.
2009)). Under Federal Rule of Evidence 806, when hearsay statements are admitted,
a party may impeach the credibility of the person who made those statements “by any
evidence that would be admissible for [impeachment] purposes if the declarant had
testified as a witness.” Fed. R. Evid. 806.

Any error in excluding the defense exhibits was harmless and did not affect
Mr. Allen’s substantial rights because the impeachment information was admitted
through Officer Ulin’s testimony. Officer Ulin testified that Ms. Pinckney was barred
from driving. He also testified that Ms. Pinckney exhibited some of the signs of
intoxication, including slurred speech, and that the officers found multiple open
containers of alcohol in her car. Defense counsel raised this information in closing
arguments. Specifically, counsel noted that Ms. Pinckney was not cited for any of the
violations she may have committed, including driving while barred, operating while
intoxicated, parking illegally, or possessing open containers in a vehicle. Counsel
also argued that Ms. Pinckney could have been responsible for the firearm. Because
the impeachment information was admitted at trial, and counsel was permitted to
make arguments based on it, any error in excluding Exhibits S and T was harmless.

IV.
Mr. Allen next argues that the district court erred because it refused to give his
proffered jury instructions. Final Instruction 9 explained the elements of the crime
of felon in possession of a firearm. The instruction explained that, to convict, the
government was required to prove that Mr. Allen knowingly possessed a firearm.
Final Instruction 11 defined the element of possession, and explained that possession
may be actual or constructive, sole or joint. The court also gave Final Instruction 10,
which explained what evidence the jury could consider to decide if the government
has proven the knowledge element. It explained that “knowledge may be proved like
anything else.”

-9-
 In addition to the instructions given, Mr. Allen argues the district court should
have given three additional instructions. First, he argues that the court should have
given a separate instruction on “innocent or transitory” possession of a firearm.
Second, he argues that the court should have added language to Final Instruction 11
to explain “accidental” possession of a firearm. Third, he argues the court should
have included the definition of “knowingly” in Final Instruction 10.

We review a district court’s rejection of a proposed jury instruction for abuse
of discretion. United States v. Bull, 8 F.4th 762, 769 (8th Cir. 2021). A defendant is
entitled to a theory-of-defense jury instruction if the “instruction is supported by the
evidence” and “correctly states the law.” Id. (quoting United States v. Overton, 971
F.3d 756, 767 (8th Cir. 2020). “A defendant is not entitled to a particularly worded
instruction as long as the instructions fairly and adequately instruct the jurors on the
applicable law.” United States v. Gilmore, 968 F.3d 883, 886 (8th Cir. 2020).

Mr. Allen first requested an instruction on “innocent or transitory” possession.
This Court has held there is no innocent or transitory possession defense to a felon
in possession of a firearm charge. United States v. Becerra, 958 F.3d 725, 730–31
(8th Cir. 2020) (“Knowing possession, regardless of motive, is all that matters.”). Mr.
Allen argues that Becerra was wrongly decided in light of the Supreme Court’s
decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). We disagree. Rehaif
held that, to sustain a conviction under 18 U.S.C. § 922(g), the defendant must know
both of his possession of the firearm and of his status as a prohibited person. Id. at
2194. Becerra is consistent with that decision because it recognizes possession of the
firearm must be knowing. Becerra, 958 F.3d at 730–31. Mr. Allen’s proffered jury
instruction is an incorrect statement of the law. Therefore, the district court did not
abuse its discretion by rejecting Mr. Allen’s “innocent or transitory” possession
instruction.

-10-
 Second, Mr. Allen asked the district court to add the following language to its
instruction on possession:

Knowledge is required to establish constructive possession.
Constructive possession requires knowledge of presence plus control.

Constructive possession is not established where the government
fails to establish some nexus between a defendant and the contraband;
mere physical proximity to a weapon is insufficient. Mere presence as
a passenger in a car from which the police recover a weapon does not
establish possession.

Mr. Allen’s proposed instruction closely mirrors the defendant’s proposed
answer to a jury question in Gilmore, 968 F.3d at 886. The requested instruction is
a correct statement of law—constructive possession requires both knowledge of
contraband and the intent to control it. Id. But these elements are already explained
in Final Instruction 11. That instruction stated a person who “has both the power and
the intention at a given time to exercise dominion or control over a thing . . . is then
in constructive possession of it.” Final Instruction 11 fairly and adequately explains
constructive possession. See Gilmore, 968 F.3d at 886. The district court did not
abuse its discretion by rejecting Mr. Allen’s additional language.

Third, Mr. Allen asked the district court to give the jury an instruction on the
definition of the word “knowingly.” Mr. Allen requested an instruction that stated,
“An act or a failure to act is knowingly done if done voluntarily and intentionally, and
not because of mistake or accident or some other innocent reason.”

Generally, jurors do not need a definition of “knowingly” because it is within
the common understanding of a lay person. United States v. Counce, 445 F.3d 1016,
1019 (8th Cir. 2006); United States v. Urick, 431 F.3d 300, 304 (8th Cir. 2005). A
definition instruction, however, may be appropriate if “the proposed instruction is

-11-
required for a fair determination of the defendant’s guilt or innocence.” United States
v. Brown, 33 F.3d 1014, 1017 (8th Cir. 1994).

Here, the district court did not abuse its discretion in finding that a definition
was not necessary for a fair determination of Mr. Allen’s guilt or innocence. Final
Instruction 9 explained that the government was required to prove that Mr. Allen
possessed the firearm knowingly. Based on that instruction, defense counsel argued
that Mr. Allen did not knowingly possess the firearm because he did “not have the
awareness and the intent to possess [the] gun.” Counsel argued that if Ms. Pinckney
quickly passed him the gun when he got into the Altima, his possession could be a
mistake or accident and not intentional and, therefore, not knowing possession.
Because Mr. Allen was able to present his theory of defense, an instruction on the
definition of “knowingly” was not necessary for a fair determination of his guilt or
innocence.

The district court did not abuse its discretion by rejecting Mr. Allen’s proposed
jury instructions.

V.
Finally, Mr. Allen argues the evidence was insufficient to support a guilty
verdict. We review the sufficiency of the evidence “de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Morrissey, 895 F.3d 541, 549 (8th Cir. 2018) (quoting United States v. Mathews, 761
F.3d 891, 893 (8th Cir. 2014)). We will reverse a conviction “only if no reasonable
jury could have found the defendant guilty beyond a reasonable doubt.” Id. (quoting
United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009)).

The evidence was sufficient to support Mr. Allen’s conviction. The only issue
in this trial was whether Mr. Allen knowingly possessed the firearm. When Officer

-12-
Holtan arrived on scene, he observed Mr. Allen leaning down and moving like he was
hiding something. Officer Holtan ultimately found the firearm behind a panel on the
passenger’s side of the vehicle, where Mr. Allen had been sitting. The firearm was
positioned so the grip was pointing toward a person in the passenger’s seat, as it
would have been if placed there by the passenger. When speaking in Officer Holtan’s
car at the scene, Mr. Allen stated that the gun “was there to protect me.” He later told
Officer Holtan that he “had brought it,” and that he “knew about it.” Ultimately, Mr.
Allen told Investigator Buck that he had touched the firearm and he expected his
DNA would be on it. Considering the location of the firearm and Mr. Allen’s
statements, the evidence showed that Mr. Allen knew of the gun and exercised
control over it. Whether or not Ms. Pinckney also had control of the gun, the
evidence was sufficient to show that Mr. Allen at least had joint possession of it.

VI.
The district court correctly denied Mr. Allen’s motion to suppress because the
search was supported by reasonable suspicion. At trial, any error in excluding
defense Exhibits S and T was harmless because the impeachment information was
admitted through Officer Ulin’s testimony. The district court did not abuse its
discretion by rejecting Mr. Allen’s proposed jury instructions because the instructions
it gave fairly and accurately set forth the law. Finally, the evidence was sufficient to
support Mr. Allen’s conviction.

We affirm the judgment of the district court.
______________________________

-13-