                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 1, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                         No. 07-5010
          v.                                              N.D. Okla.
 DALLION LAVELL BANKS,                              (D.C. No. 06-CR-61-K)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      Dallion Lavell Banks was evicted from his hotel room because of noise

complaints. Following his eviction, the police searched his room and discovered

drugs and guns. On the basis of this evidence, the police obtained a search

warrant for Banks’ apartment and discovered more drugs and guns, as well as

other indicia of drug dealing. Banks challenges the denial of his motion to

suppress the evidence discovered in his hotel room. He also challenges the



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
district court’s decision to allow a police officer to opine that Banks was “most

definitely” involved in drug dealing. (R. Vol. V at 73.) We affirm.

                                I. BACKGROUND

      On January 10, 2006, Banks rented a hotel room in Tulsa, Oklahoma. He

originally rented the room for one night, but paid for an additional night on

January 11. There were complaints about the noise coming from Banks’ room on

the night of the 10th, and again on the night of the 11th. At approximately 11:00

p.m. on January 11, Patricia Mauler, the hotel’s front desk night auditor, arrived

for work. The individual who had worked the previous shift informed Mauler she

had received noise complaints about Banks’ room. She told Mauler she had

relayed the complaints to the hotel manager, who instructed her to telephone

Banks and inform him he needed to vacate his room, but would be refunded the

cost of the room. She informed Mauler she had called the room, but no one had

answered.

      At approximately 11:10 p.m., Mauler received a call from the occupant of

Room 205, who complained he had been kept awake the previous night by noise

coming from Room 203 (Banks’ room) and was upset because it was happening

again. After receiving this call, Mauler called Banks’ room, but again no one

answered. Mauler then called the Tulsa Police Department (TPD) on its non-

emergency line and asked for assistance in evicting Banks from his room.

      TPD Officers King and Driskill arrived at the hotel at approximately 11:45

                                         -2-
p.m. Mauler told the officers she had received complaints about Room 203 and

needed to evict Banks from the room. Mauler remained at her desk while the

officers went to Room 203. Officer King knocked on the door and identified

himself as a police officer. At the suppression hearing, he testified he could tell

the room was occupied because he saw someone come to the peephole and he saw

shadows under the door, but no one answered. King continued to knock and

identify himself as a police officer.

      TPD Officers Upton and Eddings arrived at the hotel to assist King and

Driskill. After more knocking, Eddings went to the front desk to get a pass key

from Mauler because no one had answered the door. Before Officer Eddings

returned, Banks answered the door. Officer King testified Banks was “very

agitated” when he answered the door. (R. Vol. III at 18.) Officers King and

Driskill testified they were concerned for their safety because Banks was

clenching his left hand and his right hand was out of view. King testified he

explained to Banks why the police were there, but Banks would not listen. King

asked Banks to step out of the room several times but Banks refused. Eventually,

Banks started to step out of the room. The officers still could not see what was in

Banks’ hands. Out of concern for their safety, they grabbed Banks’ arms and

handcuffed him. Officer Driskill took Banks down to the hotel lobby.

      Prior to being led downstairs, Banks clearly and unequivocally objected to

his room being searched. Officer Driskill was asked at the suppression hearing:

                                         -3-
“[Banks] was saying you don’t have any business in my room, correct?” He

replied: “He was saying words to that effect, yes.” He was asked: “He didn’t

invite you to enter?” and responded: “No.” (Id. at 31.) He testified: “He kept

being argumentative. Telling us we had no right to be there, we had to leave.

Get out of here. This is my room.” (Id. at 28.) Nonetheless, Officers King,

Upton and Eddings entered Banks’ room after he was led downstairs. To ensure

their safety, the officers handcuffed the five people remaining in Banks’ room.

The search of the room revealed multiple guns, methamphetamine and over

$4,000 cash. Based on the search, the police obtained a warrant to search Banks’

apartment and found more guns and methamphetamine as well as baggies, two

sets of digital scales, and sheets of notebook paper with notations of people owing

money.

      Banks was indicted on two counts: possession with intent to distribute fifty

grams or more of methamphetamine (Count I) and possession of three firearms in

furtherance of a drug trafficking crime (Count II). A superseding indictment was

filed, which added counts based on evidence discovered in Banks’ apartment:

possession with intent to distribute five grams or more of methamphetamine

(Count III) and possession of three firearms in furtherance of a drug trafficking

crime (Count IV).

      Banks filed a motion to suppress the evidence that formed the basis of

Counts I and II, arguing the police officers’ entry into his hotel room violated his

                                         -4-
Fourth Amendment right to be free from unreasonable searches and seizures. The

district court held a suppression hearing and then requested supplemental briefing

on the applicability of United States v. Flowers, 336 F.3d 1222 (10th Cir. 2003).

After reviewing the supplemental briefs, the court denied Banks’ motion to

suppress. The court focused its analysis on “whether . . . the police illegally

crossed the threshold when they reached in and seized Defendant for the purposes

of cuffing and arresting him.” (R. Vol. I, Doc. 49 at 5.) It held “the officers

clearly had authority to arrest Defendant in the doorway of the hotel room” and

concluded “even if the doorway arrest was improper, there were exigent

circumstances justifying the entry into the dwelling.” (Id. at 6-7.)

      The case against Banks proceeded to trial. Over the course of the two-day

trial, the jury heard testimony from seven police officers, a forensic scientist, and

three of Banks’ personal acquaintances, among others. Banks also testified in his

own defense. The court allowed Officer Kelley to testify, over Banks’ objection,

that he “believe[d] that the defendant, Dallion Banks, was most definitely

distributing illegal methamphetamine for the purpose of obtaining money.” (R.

Vol. V at 73.) The court admitted this statement as lay opinion testimony under

Rule 701 of the Federal Rules of Evidence. Banks was convicted of all four

counts and sentenced to 528 months imprisonment. He contends the district court

erred by denying his motion to suppress and allowing Officer Kelley to opine that

he was “most definitely” engaged in drug dealing. (Id.)

                                         -5-
                                  II. DISCUSSION

A. Denial of Motion to Suppress

      Banks contends the search of his hotel room violated his rights under the

Fourth Amendment. He did not raise this particular argument before the district

court. 1 “The well-settled law of this circuit is that issues not raised in district

court may not be raised for the first time on appeal.” United States v. Abdenbi,

361 F.3d 1282, 1289 (10th Cir. 2004). However, we “may affirm the judgment of

a district court on any grounds that find support in the record, provided the

litigants have had a fair opportunity to develop the record.” Seibert v. Okla. ex

rel. Univ. of Okla. Health Sci. Ctr., 867 F.2d 591, 597 (10th Cir. 1989),

abrogated by Am. Mfg. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). While

“[v]ery rarely will such a record be available on a motion to suppress when the

issue . . . [was] not expressly argued at the suppression hearing,” United States v.

Morgan, 936 F.2d 1561, 1576 (10th Cir. 1991) (Seymour, J., dissenting), this is

one of those rare cases. The parties have fully briefed the validity of the search

and the facts have been sufficiently developed for us to consider Banks’

      1
         In the district court, Banks argued the hotel did not have the authority to
evict him and the police did not have the authority to assist in the eviction. He
does not repeat those arguments here. Instead, he concedes the police “might
arguably have attempted to exercise a valid community caretaking function when
they initially seized [him]. (Appellant’s Br. at 13 n.1.) While we have serious
concerns about the manner in which the officers “assisted” with the eviction,
Banks has waived this issue by not raising it in his opening brief. See United
States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) (“The failure to raise an
issue in an opening brief waives that issue.”).

                                           -6-
argument.

      When reviewing a district court’s denial of a motion to suppress, we

“consider[ ] the totality of the circumstances and view[ ] the evidence in the light

most favorable to the government.” United States v. Andrus, 483 F.3d 711, 716

(10th Cir. 2007). “We accept the district court’s factual findings unless they are

clearly erroneous.” Id. “Issues of law, however, such as determinations of

reasonableness under the Fourth Amendment . . . are reviewed de novo.” Id.

      The Supreme Court has afforded the greatest Fourth Amendment protection

to the home. See Payton v. New York, 445 U.S. 573, 585 (1980) (“[T]he physical

entry of the home is the chief evil against which the wording of the Fourth

Amendment is directed.”) (quotations omitted); United States v. Najar, 451 F.3d

710, 712 (10th Cir.), cert. denied, 127 S. Ct. 542 (2006). The requirements of the

Fourth Amendment apply with the same force to a motel room as to a more

permanent residence. See Hoffa v. United States, 385 U.S. 293, 301 (1966) (“A

hotel room can clearly be the object of Fourth Amendment protection as much as

a home . . . .”); United States v. Wicks, 995 F.2d 964, 969 (10th Cir. 1993) (“A

motel room may be considered a ‘dwelling’ for purposes of the validity of a

warrantless arrest.”); United States v. Owens, 782 F.2d 146, 149 (10th Cir. 1986)

(“It is settled that a motel guest is entitled to constitutional protection against

unreasonable searches of his or her room.”).

      Had Banks not been evicted from his hotel room prior to the search, the

                                           -7-
search would have violated the Fourth Amendment unless it fell within one of the

recognized exceptions to the warrant requirement. See United States v. Edwards,

242 F.3d 928, 937 (10th Cir. 2001). The government contends the warrantless

search was justified because the police officers had probable cause and exigent

circumstances existed. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002)

(“[P]olice officers need either a warrant or probable cause plus exigent

circumstances in order to make a lawful entry into a home.”); see also Wicks, 995

F.2d at 969 (“Even with probable cause, absent consent or exigent circumstances

police officers may not enter a dwelling to make an arrest.”).

      We need not consider whether there were exigent circumstances, however,

because Banks was evicted prior to the search and thus, he did not have a

reasonable expectation of privacy in his room at the time of the search. In United

States v. Croft, we explained:

      [A]lthough it is clearly established that a guest in a hotel or motel
      room is entitled to protection against unreasonable searches and
      seizures . . . the protection is dependent on the right to private
      occupancy of the room. When the rental period has elapsed, the
      guest has completely lost his right to use the room and any privacy
      associated with it.

429 F.2d 884, 887 (10th Cir. 1970) (citations omitted). Though Croft involved an

expiration of the occupancy period rather than an eviction, its reasoning is equally

applicable here. Where an occupant of a hotel room is evicted, he or she no

longer has a right to privacy in the room, and there can be no invasion thereof.


                                        -8-
      In United States v. Rambo, the Eighth Circuit concluded a defendant’s

Fourth Amendment rights had not been violated by a post-eviction search of his

hotel room. 789 F.2d 1289 (8th Cir. 1997). The court explained:

      Rambo was asked to leave the hotel by the officers, acting at the
      request of and on behalf of the hotel manager, because of his
      disorderly behavior. Thus, Rambo was justifiably ejected from the
      hotel . . . and the rental period therefore had terminated. At that
      time, control over the hotel room reverted to the management.
      Rambo no longer had a reasonable expectation of privacy in the hotel
      room, and therefore is now without standing to contest the officers’
      entry (search) into the hotel room. Rambo cannot assert an
      expectation of being free from police intrusion upon his solitude and
      privacy in a place from which he has been justifiably expelled.

Id. at 1295-96 (citations omitted); see also Young v. Harrison, 284 F.3d 863, 869

(8th Cir. 2002) (concluding “[the defendant]’s constitutional rights were not

violated by the officers’ entry into his hotel suite because when a hotel guest is

properly evicted he loses the Fourth Amendment’s protection against warrantless

entry”); United States v. Haddad, 558 F.2d 968, 975 (9th Cir. 1977) (“Appellant

had no reasonable expectation of privacy with respect to a room from which he

had been justifiably ejected . . . . Once ejected for good cause, the room reverted

to the control of the management, and the former occupant had no continuing

right to privacy in the room.”). Assuming the eviction was proper, which we

must, the post-eviction search of Banks’ hotel room did not violate his Fourth

Amendment rights.




                                          -9-
B.    Admission of Lay Opinion Testimony

      A trial, the court allowed Officer Kelley to opine that Banks was “most

definitely” engaged in drug dealing, concluding this was a proper lay opinion.

(R. Vol. V at 73.) Banks argues this was improper lay opinion testimony and

should have been excluded. The government contends the testimony was properly

admitted or, if its admission was error, it was harmless because the evidence of

Banks’ guilt was overwhelming. We agree with Banks that this evidence should

have been excluded, but we also agree with the government that the error was

harmless.

      “[T]he admission of lay opinion testimony is within the sound discretion of

the trial court and will not be overturned on appeal absent a clear abuse of

discretion.” United States v. Hoffner, 777 F.2d 1423, 1425 (10th Cir. 1985).

Pursuant to Rule 701 of the Federal Rules of Evidence, a lay witness may testify

“in the form of opinions or inferences . . . which are (a) rationally based on the

perception of the witness, (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.” 2

      The third requirement of Rule 701 was added by amendment in 2000 “to

      2
        By contrast, Rule 702 allows a “witness qualified as an expert by
knowledge, skill, experience, training, or education” to testify in the form of an
opinion “if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case.”

                                         -10-
eliminate the risk that the reliability requirements set forth in Rule 702 will be

evaded through the simple expedient of proffering an expert in lay witness

clothing.” Fed. R. Evid. 701 Adv. Comm. Notes (2000 Am.). As we described in

Lifewise Master Funding v. Telebank:

      When the subject matter of proffered testimony constitutes scientific,
      technical, or other specialized knowledge, the witness must be
      qualified as an expert under Rule 702. Rule 701 applies only if the
      witness is not testifying as an expert. Indeed, the rule expressly
      prohibits the admission of testimony as lay witness opinion if it is
      based on specialized knowledge. In other words, a person may
      testify as a lay witness only if his opinions or inferences do not
      require any specialized knowledge and could be reached by any
      ordinary person.

374 F.3d 917, 929 (10th Cir. 2004) (internal quotations and citations omitted).

      The government first attempted to qualify Officer Kelley as an expert. It

established that Officer Kelley had worked for the Tulsa Police Department for

seven years and was in the special investigations division of the “vice”

department, which covers “narcotics, prostitution, gambling, that kind of stuff.”

(R. Vol. V at 58.) Kelley testified he had specialized training in narcotics, having

attended a basic investigator school; a “marijuana grow school put on by the

Canadian Mounted Police”; “[a]n A1 conference . . . focused completely on

narcotics investigations”; and various in-service trainings. (Id. at 59.) He

testified to having been involved in over one hundred cases involving

methamphetamine. After laying this foundation, the government asked: “Officer

Kelley, based on your training and experience, do you have an opinion concerning

                                         -11-
all of the items that you found [in Banks’ apartment] in connection with the

distribution or possession with intent to distribute methamphetamine?” (R. Vol.

V at 71.) Banks objected on the grounds that Kelley had not been qualified as an

expert. The court sustained the objection.

      The government then questioned Officer Kelley further about his training

and experience. Kelley testified: “I’ve been to in-service [training] here at the

Tulsa Police Academy that was solely based on drug identification, methods of

distribution. And then at the A1 conference, which was a week long, there were

four classes a day and they covered the various ways of distributing . . . [and] the

transportation routes that were being taken from various locations into the United

States.” (Id.) He testified he had been involved with “[p]robably 25” cases

involving drug trafficking. (Id. at 72.)

      After this questioning, the government again asked Officer Kelley to give

an opinion “based on [his] training and experience” concerning the items found in

Banks’ apartment. (Id.) Banks objected at a bench conference: “I object that I

was not aware we were going to have expert testimony from the vice officer. I

don’t have a report from the man or anything.” (Id. at 73.) The government

replied that Officer Kelly is “not an expert” and should be allowed to “give an

opinion based on his training and experience.” (Id.) The court overruled Banks’

objection, stating: “It’s just a lay opinion based on experience and training.” (Id.)

Kelley then testified: “I believe that the defendant, Dallion Banks, was most

                                           -12-
definitely distributing illegal methamphetamine for the purpose of obtaining

money.” (Id.)

      As the government’s questioning makes clear, Officer Kelley’s opinion

about Banks’ guilt was based on his specialized training and experience. Thus,

this testimony should have been considered expert testimony under Rule 702, not

lay opinion testimony under Rule 701. See Fed. R. Evid. 701 Adv. Comm. Notes

(2000 Am.) (“[T]he distinction between lay and expert witness testimony is that

lay testimony results from a process of reasoning familiar in everyday life, while

expert testimony results from a process of reasoning which can be mastered only

by specialists in the field.”) (quotations omitted). Moreover, Banks did not

receive a report identifying Kelley as an expert witness, as required by Rule 16 of

the Federal Rules of Criminal Procedure, therefore Kelley could not have testified

as an expert witness. Rule 701 is not designed to provide a runaround to the

expert witness requirements. See Fed. R. Evid. 701 Adv. Comm. Notes (2000

Am.) (“By channeling testimony that is actually expert testimony to Rule 702, the

amendment also ensures that a party will not evade the expert witness disclosure

requirements . . . by simply calling an expert witness in the guise of a

layperson.”). Where, as here, a party fails to follow the expert disclosure

requirements, a witness’ testimony based on his specialized training cannot

simply be recharacterized as lay opinion testimony and admitted under Rule 701.




                                         -13-
      Even if Officer Kelley had been qualified as an expert and the expert

disclosure requirements were satisfied, it still would have been error to allow him

to testify Banks was “most definitely” guilty of drug trafficking. Rule 704 of the

Federal Rules of Evidence generally allows an expert to offer opinion evidence

even if “it embraces an ultimate issue to be determined by the trier of fact.” Fed.

R. Evid. 704(a). However, the rules “do not . . . allow an expert to offer

testimony that merely tells the jury what result they should reach . . . .” United

States v. Simpson, 7 F.3d 186, 188 (10th Cir. 1993). “Expert testimony of this

type is often excluded on the grounds that it states a legal conclusion, usurps the

function of the jury in deciding the facts, or interferes with the function of the

judge in instructing the jury on the law.” Id.; see, e.g., United States v.

Anderskow, 88 F.3d 245, 250 (3d Cir. 1996) (concluding it was error for a witness

to testify that the defendant “must have known” fraud was occurring as this

opinion essentially turned the witness “into a thirteenth juror” and was not helpful

to a trier of fact called upon to evaluate the same evidence upon which the

witness based his opinion) (quotations omitted).

      Moreover, where an expert witness is “testifying with respect to the mental

state or condition of a defendant in a criminal case,” he may not “state an opinion

or inference as to whether the defendant did or did not have the mental state or

condition constituting an element of a crime charged or of a defense thereto.”

Fed. R. Evid. 704(b). Here, Banks was charged with possession with intent to

                                          -14-
distribute methamphetamine (Counts I and III) and possession of firearms in

furtherance of a drug trafficking crime (Counts II and IV). In order to be

convicted of Counts I and III, the government had to prove beyond a reasonable

doubt that Banks intended to distribute methamphetamine. See United States v.

Harris, 369 F.3d 1157, 1163 (10th Cir. 2004). Whether Banks had the requisite

intent is an “ultimate issue[ ] . . . for the trier of fact alone,” see Fed. R. Evid.

704(b), and thus, was not a proper subject for expert testimony.

       We must consider whether the court’s error in allowing Officer Kelley to

opine as to Banks’ guilt was harmless. “In conducting a harmless error review,

we review the record de novo.” United States v. Flanagan, 34 F.3d 949, 955

(10th Cir. 1994).

       [We] examine the entire record, focusing particularly on the
       erroneously admitted statements. The question is not whether,
       omitting the inadmissible statements, the record contains sufficient
       evidence for a jury to convict the defendant. Rather, we must discern
       whether the statements, in light of the whole record, substantially
       influenced the outcome of the trial, or whether we are left in grave
       doubt as to whether it had such an effect. If our answer to either of
       these questions is yes, the error requires reversal.

United States v. Tome, 61 F.3d 1446, 1455 (10th Cir. 1995) (citations and

quotations omitted). “[T]he government has the burden of proving that the

non-constitutional error was harmless.” Flanagan, 34 F.3d at 955.

       Here, Officer Kelley’s testimony did not have a substantial influence on the

outcome of the trial because the evidence of Banks’ guilt was overwhelming. The


                                           -15-
police officers testified they found, in addition to large quantities of drugs and

guns, numerous empty baggies with symbols on them, baggies containing small

amounts of methamphetamine, notebook sheets with notations of people owing

money, and a large set of digital scales in Banks’ apartment. Brittany Osborn

testified she lived with Banks and they distributed drugs together. Osborn

identified the empty baggies found in Banks’ apartment as the type Banks used to

package methamphetamine for distribution. She also identified the notebook

sheets as “owe” sheets, listing the various people who owed Banks money for

drugs he supplied to them. (R. Vol. V at 96.) Osborn testified Banks had traded

drugs for firearms and used firearms for protection. Michael Moniz testified that

when he was arrested at the hotel on January 12, 2006, he had methamphetamine

in his possession that he had received from Banks earlier in the day. He testified

Banks was his sole supplier of methamphetamine. Shanna Wadriski identified

empty baggies with the number seven and Playboy bunny symbols on them as

being the type Banks used to package methamphetamine and testified she received

methamphetamine from Banks in those types of baggies. Banks testified in his

defense and, while he denied ever having sold methamphetamine, he admitted he

had handed someone a bag of methamphetamine and told him to pay for it later.

He also admitted he could have been responsible for giving Wadriski the

methamphetamine she was found with when she was arrested on March 1, 2006.

And he admitted that he owned the guns found in the hotel room.

                                         -16-
      Banks contends there were credibility problems with Osborn, Moniz and

Wadriski, because, among other things, each admitted to being a heavy drug user

and Osborn admitted to being a drug dealer. It is, of course, for the jury to assess

the credibility of witnesses. See, e.g., Tellabs, Inc. v. Makor Issues & Rights,

Ltd., 127 S. Ct. 2499, 2513 (2007). Moreover, the jury had the ability to evaluate

Banks’ credibility, as he testified in his defense. There is no indication that

Officer Kelley’s testimony substantially influenced the jury in its credibility

evaluations. On the contrary, we are confident the result would have been the

same even if Kelley’s opinion had been excluded. Where, as here, “there is an

abundance of evidence regarding the defendant’s guilt, the nonconstitutional error

will be deemed harmless.” United States v. Solomon, 399 F.3d 1231, 1238 (10th

Cir. 2005).

      AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




                                         -17-
