Criminal Practice – Evidence – Prior Bad Acts – Search & Seizure – Traffic Stop

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U.S. v. McBride (Lawyers Weekly No. 12-01-0452, 33 pp.) (Keenan. J.) No 10-5162, April 23, 2012; USDC at Charleston, W.Va. (Duffy, J.) 4^th Cir. Full-text opinion.

Holding: Police had a reasonable articulable suspicion to detain defendant’s truck after a traffic stop, based on an experienced officer’s observations of defendant’s contacts with others at the site of a club known for drug activity, but the trial court erred reversibly in admitting prior “bad act” evidence, the 4^th Circuit says.

Defendant argues the authorities did not have a reasonable, articulable suspicion to detain his vehicle. We disagree. The officer was familiar with the club and knew it had been a site of past drug activity. The officer’s suspicions also were aroused by the volume of activity at the club in the early evening hours, when the club usually was closed. The officer also testified that, in his experience, the brief exchange between defendant and the driver of a blue truck was consistent with a drug transaction. Although standing alone, this inference would not support a reasonable suspicion, the discovery of $9,101 in the blue truck after the traffic stop provided corroborating evidence supporting defendant’s initial suspicion. The officer was aware that defendant previously had engaged in drug dealing and that other club patrons who were present likewise had been involved in drug activity in the past.

In sum, the officers observed unexplained traffic at an unusual hour at a location having a history of drug activity. They saw defendant, whom they knew to have engaged in drug transactions in the past, engaged in what appeared to be a drug transaction with another individual who was found shortly thereafter in possession of over $9,000. Defendant was found in the company of other men known to have been involved in the drug trade. These factors supported detention of defendant’s vehicle on the ground that it may have contained illegal drugs. Nor was the 55-minute duration of the detention unreasonable under the circumstances.

Prior “bad acts” that occurred on Jan. 14, 2008, involving defendant’s attempted manufacture of crack cocaine and his expressed willingness to sell crack cocaine bear no discernible relationship to the charge for possession of cocaine with intent to distribute for which defendant was on trial. The evidence was inherently prejudicial in the absence of any plausible probative value, and the effect of the evidence, if not its purpose, was merely to brand defendant before the jury as a manufacturer and distributor of crack cocaine. We conclude that admission of this prior “bad act” evidence was error.

We are unable to conclude in this case that it is highly probable that the error did not affect the jury’s judgment. The district court’s error in admitting the evidence cannot be classified as harmless. Because defendant’s intended drug distribution was the very subject corrupted by the evidence, the convictions with regard to counts 1 and 3 cannot stand. Defendant’s conviction for count 2, a charge of possessing a firearm as a convicted felon, is unaffected by our determination that the prior “bad act” evidence was improperly admitted.

Affirmed in part, reversed in part and remanded.

Concurrence & Dissent

Wilkinson, J.:  By holding that defendant’s expressed willingness to sell crack cocaine bears no discernible relationship to the charge of possession of cocaine with intent to distribute, the majority departs from established law in no fewer than five circuits spanning more than 30 years. Our sister circuits have wisely recognized that assessing whether a defendant’s prior transactions in different narcotics are relevant to the charged offenses is an intensely factual question, and that appellate courts owe significant deference to the district court’s discretion on whether the evidence should be admitted and to a jury determination about how much weight it should receive.

I can find no error, and certainly not one that amounts to an abuse of discretion, in the admission of the testimony about prior narcotics transactions with defendant. I respectfully dissent from parts III and IV of the majority opinion. The trial court should be commended, not reversed.