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United States v. Long

United States Court of Appeals, Eighth Circuit

August 31, 2017

United States of America Plaintiff- Appellee
v.
Rashawn Long Defendant-Appellant

          Submitted: June 9, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

          MELLOY, CIRCUIT JUDGE.

         Rashawn Long was convicted by a jury of one count of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Long was sentenced to 360 months' imprisonment. He appeals, arguing the district court[1] erred by failing to suppress evidence discovered during an inventory search. He also argues the district court erred in calculating his criminal history. We affirm Long's convictions and sentence.

         I.

         On October 26, 2013, Long parked his car in Valerie McCoy's yard and left it there. McCoy called the Kansas City, Missouri police at approximately 8:20 am. When officers arrived, McCoy explained that a black male parked the car in her yard, knocked on the door, and left when she did not answer. The officers found a 2013 silver Avenger parked in McCoy's yard, ran the license plate number, and learned it was a rental car. After an unsuccessful attempt to contact the rental company, the officers called a tow truck to remove the car from McCoy's property.

         After the officers ordered the tow truck, Long ran towards them. Long gave the officers his name, told the officers the name of the person who rented the car, and explained that he had parked the car in McCoy's yard. The officers handcuffed and frisked Long and asked if they could look in the car. Long said it would be okay but that the keys were at a nearby house. Officers ran Long's name and a computer search revealed two outstanding warrants for his arrest. Believing these warrants were out of Kansas City, Missouri, the officers placed Long in a patrol vehicle. Soon after, the officers learned the warrants were out of Kansas City, Kansas, and were non-extraditable. The officers did not, however, remove Long's handcuffs or release him from the patrol vehicle.

         Officer Ballowe, one of the first officers on the scene, asked the patrol vehicle driver to continue holding Long so he could "determine if there was anything illegal in the car." Around this time, Sergeant Hamilton, a member of the Kansas City Police Department's illegal firearms squad, arrived at the scene. He was called to the scene because he was investigating Long as a possible suspect in several homicides and had asked to be notified any time Long had an encounter with police. Sergeant Hamilton was with Officer Ballowe for the entire vehicle search.

         Because the car was locked, the tow truck driver used a "slim jim" to open the car door. On the passenger seat of the car, Officer Ballowe found a backpack containing pepper spray, a taser, and a coke can. The coke can felt hard and solid so Officer Ballowe twisted the top of the can and discovered a bag containing a white powder. At this point, Sergeant Hamilton told Officer Ballowe to stop the inventory search in order to obtain a search warrant.

         A field test of the substance revealed that the powder was not cocaine and had an extremely weak reaction for amphetamines. Long was placed under arrest, the vehicle was towed, and Long was issued a ticket for illegally parking the vehicle.

         After obtaining the search warrant, officers discovered a camcorder in the car. The camcorder contained clips of Long with a Glock pistol. Additionally, the white powder was tested and determined to be 2-(Methylamino)-1-phenyl-1-butanone (buphedrone), a Schedule I controlled substance. Long was subsequently indicted for possession with intent to distribute a controlled substance and possession of a firearm by a felon.

         Before trial, Long moved to suppress the evidence against him. Following a suppression hearing, the magistrate judge recommended denying the motion to suppress, finding that the vehicle search was a valid inventory search and assuming, without deciding, that Long had standing to challenge the search. The district court adopted that recommendation.

         Long was convicted of both counts at trial. The initial Presentence Investigation Report ("PSR") calculated a Guidelines range of 92-115 months, based on an offense level of 26 and a criminal history category of IV. Long objected to the PSR's computation of criminal history points. Specifically, the PSR assessed three criminal history points for Long's prior Missouri conviction for second-degree murder, pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 4A1.1(a). The PSR assessed an additional point for Long's Missouri conviction for armed criminal action, [2] pursuant to U.S.S.G. ยง 4A1.1(e). Long argued that his conviction for armed criminal action is not a crime of violence and, thus, he should not be assessed the additional criminal history point. At sentencing, the district court concluded that armed criminal action is a crime of violence and that ...


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