Railroaded: Evidence in Backpack Linking Defendant to Drugs on Train Not Subject to Suppression

US v. Davis, No. 07-2101, 7/31/08 - Denial of motion to suppress, conviction by jury and sentence for conspiracy to distribute PCP affirmed. Defendant flew into LA from Vegas and was questioned by cops, who also searched his backpack. Inside were $12,000 cash and travel itineraries, including one for another guy, Stewart. That itinerary led DEA to stop Stewart on an Amtrak train in Albuquerque. Agents find PCP in his backpack. The defendant moved pretrial to suppress the evidence found in his backpack in LA on ground that, although initially consensual, the encounter there turned into a seizure because the cops had seized his backpack, which meant he was not free to leave, and he did not give explicit verbal consent to the search of the backpack. The district court didn't buy the story and denied the motion. On appeal, the defendant tried to argue that the post-9/11 airport security environment is so inherently coercive that all encounters with cops there should be considered non-consensual. The 10th refused to consider this argument; even assuming it had been implicitly raised below, it was nevertheless based on pure speculation.

Other issues - 1) District court did not abuse its discretion in refusing to declare mistrial when cop mentioned defendant's prior arrest, even though district court had granted notion in limine to exclude this, because it came up on cross in direct response to counsel's question about all reports cop had reviewed, and court promptly told jury to disregard it. 2) No abuse of discretion in refusing to instruct jury about effect of drug abuse on witness credibility where defense witness testified about Stewart's habit of smoking pot two years earlier and never expressly testified that Stewart was a drug abuser, especially since jury was instructed to treat Stewart's testimony with great care because he was a cooperating witness for the government. 3) Application of advisory guideline system is not a "de facto" violation of 5th and 6th Amendments. Defendant raised this issue merely to preserve it for further review. The 10th found this case to be a "peculiar vehicle" for such a challenge, given that his sentence was well below the advisory guideline range.