Various Challenges to Meth Conviction Rejected
United States v. Finley, No. 06-50160 (5th Cir. Jan. 26, 2007) (King, Wiener, Clement)
Finley was convicted at trial of aiding and abetting the possession of methamphetamine with intent to distribute. On appeal, he argued that the district court erred by 1) refusing to give the jury a lesser-included-offense instruction on simple possession, 2) "denying his motion to suppress text messages and call records recovered in a warrantless, post-arrest search of his cell phone[,]" and 3) admitting certain evidence at trial. The court rejected all of Finley's arguments and affirmed his conviction. I'll just highlight the first two issues:
Lesser-Included-Offense Instruction
The charges arose out of Finley's involvement with Mark Brown. The DEA and the Midland (Texas) Police Department used a "cooperating source" to set up a controlled buy of methamphetamine from Brown. Brown agreed to deliver the meth at a truck stop. He got Finley to drive him there in a van that belonged to Finley's employer. At the truck stop, the cooperating source gave Brown $600 in marked bills and Brown gave her 3.1 grams of meth, which was tucked inside the clear wrapper of a cigarette package.
The MPD pulled over Finley and Brown a few miles away. The police found the marked bills in a trash can between the driver and passenger seats of the van. There were also two pill bottles in the trash can. One bottle had five individual packages of meth. The other bottle had Finley's name on it, and contained some meth paraphernalia and a substance commonly used to cut meth.
The Government charged both Finley and Brown with aiding and abetting each other in the possession of methamphetamine with intent to distribute. It argued at trial that Finley knowingly drove Brown to the truck stop so Brown could sell the meth. Finley argued that Brown had only asked for a ride to the truck stop to buy some cigarettes, and that he didn't know a meth deal was going to go down. Brown, who pled guilty and testified at Finley's trial, dropped Finley in the grease.
Finley asked the district court to give the jury an instruction on simple possession of meth, based on the meth found in the pill bottle. The district court refused. The court of appeals found no error. It held that although simple possession can be a lesser included offense of possession with intent to distribute, in this case they were two separate offenses:
Slip op. at 11. Finley argued for the instruction based on the meth in the pill bottle. As to the meth in the cigarette pack, the facts showed that Finley either assisted Brown's sale or that he didn't; the facts did not support a finding of simple possesion of that meth. But because the Government had only charged Finley with the meth in the cigarette pack, he wasn't entitled to a simple possession instruction.
Motion to Suppress Information Recovered from Cell Phone
Finley had a cell phone in his pocket when the police arrested him. During a later interrogation, and without a warrant, one of the officers looked through the call records and text messages in the phone and confronted Finley with some of the purportedly incriminating text messages. The district court denied Finley's motion to suppress the fruits of the warrantless search of his phone.
On appeal, the Government argued that Finley lacked standing to challenge the search due to the fact that the phone belonged to Finley's employer. The court held otherwise. It concluded that that Finley had a sufficient privacy interest in the phone to give him standing, due in large part to the fact that Finley's employer expressly allowed him to use the phone for personal purposes.
As for the search itself, Finley argued that the phone was analogous to a closed container and that the police therefore could not search it without a warrant. The court disagreed. It held, with little explanation, that the phone search was a permissible search incident to arrest.
Finley was convicted at trial of aiding and abetting the possession of methamphetamine with intent to distribute. On appeal, he argued that the district court erred by 1) refusing to give the jury a lesser-included-offense instruction on simple possession, 2) "denying his motion to suppress text messages and call records recovered in a warrantless, post-arrest search of his cell phone[,]" and 3) admitting certain evidence at trial. The court rejected all of Finley's arguments and affirmed his conviction. I'll just highlight the first two issues:
Lesser-Included-Offense Instruction
The charges arose out of Finley's involvement with Mark Brown. The DEA and the Midland (Texas) Police Department used a "cooperating source" to set up a controlled buy of methamphetamine from Brown. Brown agreed to deliver the meth at a truck stop. He got Finley to drive him there in a van that belonged to Finley's employer. At the truck stop, the cooperating source gave Brown $600 in marked bills and Brown gave her 3.1 grams of meth, which was tucked inside the clear wrapper of a cigarette package.
The MPD pulled over Finley and Brown a few miles away. The police found the marked bills in a trash can between the driver and passenger seats of the van. There were also two pill bottles in the trash can. One bottle had five individual packages of meth. The other bottle had Finley's name on it, and contained some meth paraphernalia and a substance commonly used to cut meth.
The Government charged both Finley and Brown with aiding and abetting each other in the possession of methamphetamine with intent to distribute. It argued at trial that Finley knowingly drove Brown to the truck stop so Brown could sell the meth. Finley argued that Brown had only asked for a ride to the truck stop to buy some cigarettes, and that he didn't know a meth deal was going to go down. Brown, who pled guilty and testified at Finley's trial, dropped Finley in the grease.
Finley asked the district court to give the jury an instruction on simple possession of meth, based on the meth found in the pill bottle. The district court refused. The court of appeals found no error. It held that although simple possession can be a lesser included offense of possession with intent to distribute, in this case they were two separate offenses:
[T]he methamphetamine in the cigarette package and the methamphetamine in the pill bottle were two separate caches of drugs; one was intended for distribution to Stratton at the truck stop, and the other was intended for some other purpose. Each stash therefore constituted a separate violation of the narcotics laws.
Slip op. at 11. Finley argued for the instruction based on the meth in the pill bottle. As to the meth in the cigarette pack, the facts showed that Finley either assisted Brown's sale or that he didn't; the facts did not support a finding of simple possesion of that meth. But because the Government had only charged Finley with the meth in the cigarette pack, he wasn't entitled to a simple possession instruction.
Motion to Suppress Information Recovered from Cell Phone
Finley had a cell phone in his pocket when the police arrested him. During a later interrogation, and without a warrant, one of the officers looked through the call records and text messages in the phone and confronted Finley with some of the purportedly incriminating text messages. The district court denied Finley's motion to suppress the fruits of the warrantless search of his phone.
On appeal, the Government argued that Finley lacked standing to challenge the search due to the fact that the phone belonged to Finley's employer. The court held otherwise. It concluded that that Finley had a sufficient privacy interest in the phone to give him standing, due in large part to the fact that Finley's employer expressly allowed him to use the phone for personal purposes.
As for the search itself, Finley argued that the phone was analogous to a closed container and that the police therefore could not search it without a warrant. The court disagreed. It held, with little explanation, that the phone search was a permissible search incident to arrest.
posted by Brad Bogan at 10:01 AM
1 Comments:
this is he who is spoken of in this blog. i am out and free and hope a similar travesty does not fall on another in my past situation
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