                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0164n.06

                                            No. 08-4468
                                                                                            FILED
                            UNITED STATES COURT OF APPEALS                              Mar 21, 2011
                                 FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                  )
                                                           )
          Plaintiff-Appellee,                              )
                                                           )
v.                                                         )   On Appeal from the United States
                                                           )   District Court for the Northern
CHRISTOPHER A. DAVIS,                                      )   District of Ohio
                                                           )
          Defendant-Appellant.                             )



Before:          MARTIN, BOGGS, and COOK, Circuit Judges.

                 BOGGS, Circuit Judge. Appellant Christopher Davis was convicted by a jury of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to a

prison term of 77 months. Davis appeals his conviction and sentence on three grounds, contending

that: (1) the firearm was discovered during a warrantless search that violated his Fourth Amendment

rights; (2) the district court erred in allowing the government to introduce into evidence his statement

that he had previously purchased a gun for an ex-girlfriend; and (3) the district court erred in denying

his motion for a mistrial after a government witness mentioned “gang activity.” Because the search

was proper under the Fourth Amendment and Ohio’s parole statute and the district court’s

evidentiary rulings involved no abuse of discretion, we affirm Davis’s conviction and sentence.
No. 08-4468
United States v. Davis

                                                  I

       The events leading to Davis’s conviction occurred in January 2007, while Davis was on

parole to the Ohio Department of Rehabilitation and Correction. Davis’s approved residence for

parole purposes was in Akron, Ohio. On January 8, 2007, Sergeant Dittmore of the Canton, Ohio

Police Department received information from a known informant that Davis was living in Canton

and possibly trafficking in narcotics. The source indicated that Davis was residing at 2000 Spring

Avenue in Canton and driving a Chrysler 300. Dittmore conducted surveillance of the residence and

saw an individual fitting Davis’s description arrive in a Chrysler 300 and enter the home. Driving

by the residence periodically over the course of two days, Dittmore noted the car’s presence.

Dittmore then checked police department records, discovering that Davis was on parole in Akron,

that he owned the Spring Avenue residence, and that the Chrysler 300 was registered in his name at

a third address. Dittmore spoke with Officer Michael Beebe of the State of Ohio Adult Parole

Authority, who learned from parole records that Davis’s approved residence was in Akron, not

Canton. With approval from his supervisor, Beebe went to Canton to conduct surveillance of the

Spring Avenue residence, along with Dittmore and an agent from the Bureau of Alcohol, Tobacco,

and Firearms.

       During the surveillance, Davis drove up in the Chrysler 300. The officers stopped him and

searched the vehicle and the residence. Davis’s girlfriend and her three young children were present.

After the ATF agent found a gun in a bedroom dresser drawer, Dittmore arrested Davis and took him

to the police station, where he was read his Miranda rights. Davis provided a written statement,



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United States v. Davis

admitting that he owned the gun found in the house and that he had previously helped an ex-

girlfriend purchase a gun, which they had kept in their home for protection until it was stolen.

       After a suppression hearing, the district court concluded that, given the conditions of Davis’s

parole, the search of his Spring Avenue residence did not violate the Fourth Amendment. The court

held that the conditions for a warrantless search were met because “Officer Beebe had information

to justify a reasonable suspicion that Mr. Davis was living on Spring Avenue in violation of the

terms of his parole.”

       During his May 2008 jury trial, Davis asserted that, contrary to his statement, which he

claimed was coerced, he did not own or know about the gun found at the residence. Davis testified

that he heard the officers discussing the possibility of charging his girlfriend with child

endangerment, and that this motivated him to cooperate with the officers and provide a written

statement. Given Davis’s defense of lack of knowledge, the district court admitted into evidence

Davis’s statement that he had previously purchased a gun for a former girlfriend. The statement was

admitted over defense counsel’s objection that, under Federal Rules of Evidence 404(b) and 403, this

was inadmissible evidence relevant only to Davis’s “propensity” to commit crimes.

       While testifying at trial, Officer Beebe made a brief reference to “gang activity.” Beebe was

describing the information Davis provided during his interview at the police station:

       Q.      And as far as you were aware and what you observed, was there information
               that was provided by Mr. Davis that wasn’t put in this document?
       A.      I do believe so.
       Q.      Do you know what that referenced?
       A.      Gang activity.

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United States v. Davis

The defense moved for a mistrial. Instead, the district court instructed the jury to disregard the

remark.

       On May 19, 2008, the jury returned a guilty verdict against Davis for being a felon in

possession of a firearm. On October 22, 2008, the district court sentenced him to 77 months of

imprisonment. Davis timely appealed the conviction and sentence.


                                                  II

                           Search Pursuant to Conditions of Supervision

       Davis first challenges the warrantless search of his residence as violating his Fourth

Amendment rights. As a parolee, Davis signed an agreement regarding the conditions of his

supervision, which provided:

       I agree to a search, without a warrant, of my person, my motor vehicle, or my place
       of residence by a supervising officer or other authorized representative of the
       Department of Rehabilitation and Correction at any time. Notice: Pursuant to section
       2967.131 of the Revised Code, Officers of the Adult Parole Authority may conduct
       warrantless searches of your person, your place of residence, your personal property,
       or any property which you have been given permission to use if they have reasonable
       grounds to believe that you are not abiding by the law or terms and conditions of your
       supervision.

The agreement echoes Ohio Revised Code § 2967.131(C), which states that “authorized field officers

of the authority . . . may search, with or without a warrant,” a felon’s person, residence, vehicle, or

other property if they “have reasonable grounds to believe” that he “is not complying with the terms

and conditions” of his parole.

       In evaluating a search of a parolee, our inquiry is two-fold. We first “examine whether the

relevant regulation or statute pursuant to which the search was conducted satisfies the Fourth

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United States v. Davis

Amendment’s reasonableness requirement.” United States v. Loney, 331 F.3d 516, 520 (6th Cir.

2003) (citing United States v. Payne, 181 F.3d 781, 786–91 (6th Cir. 1999)). This court has already

held that § 2967.131(C) “passes constitutional muster.” Id. at 521. As we explained in Loney, “it

is now beyond question that a state statute survives Fourth Amendment scrutiny if it authorizes

searches of parolees based on a reasonable suspicion that an individual is violating the terms or

conditions of parole,” id. at 520–21, and “Ohio’s ‘reasonable grounds’ standard mirrors . . . the

federal reasonable suspicion standard,” id. at 521. Indeed, the Supreme Court has upheld

California’s more intrusive parole regulations, which require parolees to agree to be subject to search

“with or without a search warrant and with or without cause.” Samson v. California, 547 U.S. 843,

846 (2006).

       As the statute itself is reasonable, the second question is whether “the facts of the search itself

satisfy the regulation or statute at issue.” Loney, 331 F.3d at 520. In other words, we ask whether

the officers had reasonable grounds—or reasonable suspicion—to suspect that Davis was violating

the terms and conditions of his parole. Reasonable suspicion “is based on the totality of the

circumstances and has been defined as requiring ‘articulable reasons’ and ‘a particularized and

objective basis for suspecting the particular person.’” Payne, 181 F.3d at 788 (citing United States

v. Cortez, 449 U.S. 411, 417–18 (1981)). “Courts analyzing searches under the reasonable suspicion

standard use the same factors but require a less demanding showing than when applying a probable

cause standard.” Id. at 790.

       In this case, the reasonable suspicion standard was satisfied. Officer Dittmore received

information that Davis was residing at the Spring Avenue address in Canton. He then corroborated

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No. 08-4468
United States v. Davis

that information by conducting surveillance of the address, where he observed on multiple occasions

a car registered to Davis and an individual fitting Davis’s description. Officer Beebe confirmed

through a check of parole records that Davis’s approved residence was in Akron. These facts

sufficed to establish reasonable grounds to suspect that Davis was not complying with the conditions

of his parole. Officer Beebe was therefore justified in conducting a warrantless search of Davis’s

residence pursuant to § 2967.131(C).

        Davis argues that reasonable grounds could not be established because his assigned parole

officer was not contacted by the police—the investigation was instead conducted by a different

parole officer, Officer Beebe. But there is no requirement in § 2967.131(C) that “authorized field

officers of the authority” must be those specifically assigned to an individual parolee, and Beebe had

approval from his supervisor to investigate Davis. We further note that the Supreme Court has

upheld a search of a probationer’s property based on reasonable grounds even though the police

failed “to secure the assistance of [the probationer’s] own probation officer” and were accompanied

by a different probation officer. Griffin v. Wisconsin, 483 U.S. 868, 871 (1987).


                           Testimony about Davis’s Prior Gun Purchase

       Despite objections from Davis’s counsel, the district court allowed the government to

introduce at trial the portion of Davis’s written statement admitting that he had previously purchased

a firearm for an ex-girlfriend and had kept that gun in their home. The admission or exclusion of

evidence in a criminal case is reviewed for abuse of discretion. United States v. Perry, 438 F.3d 642,

647 (6th Cir. 2006). A trial court’s evidentiary ruling will stand unless there is a definite and firm


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No. 08-4468
United States v. Davis

conviction that the court committed a clear error in judgment. United States v. Bell, 516 F.3d 432,

440 (6th Cir. 2008).

       The statement was admitted under Federal Rule of Evidence 404(b), which provides that

evidence of other crimes is not admissible to prove the character of a person, but may be admissible

for “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of

mistake or accident.” If admissible under 404(b), the evidence is also subject to Federal Rule of

Evidence 403, which provides that relevant information may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. We have articulated a three-step process

to determine if Rule 404(b) evidence is admissible, inquiring: (1) whether there is sufficient

evidence that the “other acts” took place; (2) whether the “other acts” are admissible for a proper

purpose under Rule 404(b); and (3) whether the evidence is less prejudicial than it is probative.

United States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004).

       In this case, Davis’s written statement provides sufficient evidence that he purchased a gun

for his ex-girlfriend. As to the relevance of this evidence under Rule 404(b), the district court

admitted it after Davis’s defense counsel argued that Davis’s statement that he owned the gun found

at the Spring Avenue home was coerced and that Davis had no knowledge of the gun. The district

court ruled that evidence that Davis had possessed a gun before had “substantial probative value”

and provided a limiting instruction that the jury was to consider the evidence only in determining

“whether he intended to possess the gun, or had a motive to possess it, or opportunity to possess it.”

       The district court properly concluded that the evidence was relevant to establishing Davis’s

knowledge, motive, and intent concerning the firearm in light of his defense that he was unaware the

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No. 08-4468
United States v. Davis

gun was in the residence. We agree with the District of Columbia Circuit that in cases involving

firearm possession by a felon, evidence that the defendant possessed a gun at other times “is often

quite relevant to his knowledge and intent with regard to the crime charged.” United States v.

Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002) (internal quotation marks and citation omitted). Nor

was the probative value of the statement substantially outweighed by the danger of unfair prejudice

under Rule 403, particularly given that the court cautioned the jury as to the relevance of the

evidence. Thus, the district court did not abuse its discretion in admitting the statement.


                                        Denial of a Mistrial

       Finally, Davis argues that Officer Beebe’s reference to gang activity was highly prejudicial

and warranted a mistrial. The district court instead struck the answer and provided a curative

instruction. We review the district court’s denial of a mistrial for abuse of discretion. United States

v. Moore, 917 F.2d 215, 220 (6th Cir. 1990).

       The district court did not abuse its discretion in denying Davis’s motion for a mistrial. A

mistrial is warranted when there is a seriously prejudicial error. Ibid. The testimony in question was

not highly prejudicial. Officer Beebe simply stated that he and Davis had discussed “gang activity.”

He did not state that Davis himself was involved in a gang. The district court’s curative instruction

was sufficient to remedy any prejudice.


                                                  III

       For the reasons stated, we AFFIRM Davis’s conviction and sentence.



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