                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3530
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Chris Maurice Welch

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                         for the District of Minnesota
                                 ____________

                         Submitted: December 13, 2019
                           Filed: February 27, 2020
                                ____________

Before LOKEN, GRASZ, and STRAS, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.

      Chris Welch was charged with illegal gun possession. At trial, the district
court1 admitted DNA and drug evidence over Welch’s objections. Welch now




      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
appeals, challenging admission of the evidence and claiming the government failed
to prove the necessary scienter requirement. We affirm.

                                  I. Background

      A confidential informant told Minneapolis Police Officer Jeffrey Werner he
witnessed Chris Welch storing guns and drugs in a house on Aldrich Avenue North.
The informant described Welch as “a black male about 30-35 years old, about 6’0 tall
with a medium build and medium afro.”

       To verify the tip, Officer Werner searched for Welch’s name on the Minnesota
Department of Motor Vehicles (“DMV”) website. He found a “Chris Maurice
Welch” whose description generally matched the one given by the informant. Officer
Werner showed the informant Welch’s DMV photos, and the informant confirmed
Welch’s identity. Because Welch’s criminal history revealed a prior felony
conviction, Officer Werner knew it was illegal for Welch to possess a gun. Officer
Werner then surveilled the Aldrich house. He saw foot traffic at the house consistent
with drug-distribution. Another officer saw Welch sitting inside a car in the driveway
next to the house.

      Officer Werner obtained a warrant to search the Aldrich house. Police officers
followed Welch to the house and began their search shortly after Welch went inside.
The officers found three men, including Welch, in a bedroom. Welch’s hair was in
braids. In that same room, officers found three broken cellphones. The officers also
found inside the house four guns and “a large amount of synthetic marijuana,” some
of which was packaged for sale. Outside the house, police found two men in a car
with marijuana and a loaded gun.




                                         -2-
      Welch was arrested, handcuffed, and given Miranda warnings. See Miranda
v. Arizona, 384 U.S. 436 (1966). He agreed to talk to Officer Werner. Their
conversation, as transcribed by the district court, follows:

      Werner:      Okay, well it’s customary too, is when we do a search
                   warrant and find guns in the house, we try to take DNA of
                   everyone that’s in the house. So . . .

      Welch:       Okay, well my DNA is already in the system.

      Werner:      I know, but we’ve got to take one anyway. (inaudible) So
                   you’re cool with me taking your DNA sample real quick?
                   (inaudible) So you’ve had this done before and stuff?

      Welch:       Yeah, I’ve done like three of them before (inaudible) DNA
                   for kids.

      Werner:      Oh, for child support stuff?

      Welch:       Yeah (laughs).

Following this exchange, and without telling Welch he could refuse, Officer Werner
took Welch’s DNA with a cheek swab. The police then took Welch to the county jail.

       Months later, the DNA test results showed that a Ruger .22 caliber pistol found
at the Aldrich house very likely had Welch’s DNA on it. Federal prosecutors charged
Welch with illegal gun possession under 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The
prosecution also intended to introduce at trial evidence that Welch — a month after
his arrest — had in his car two bags of the same kind of synthetic marijuana as that
found at the Aldrich house. Welch moved to exclude the DNA evidence and the
synthetic marijuana evidence. However, the evidence was admitted and Welch was
convicted.



                                         -3-
      Welch now appeals the district court’s admission of the DNA and synthetic
marijuana evidence. He also argues his conviction is invalid in light of a recent
Supreme Court decision. We affirm his conviction.

                                     II. Analysis

                                 A. DNA Evidence

       Welch argues the officers violated the Fourth Amendment when they arrested
him and took his DNA. See U.S. Const. amend. IV (prohibiting unreasonable
searches and seizures). According to Welch, because the officers never had probable
cause to arrest him and they never had consent to take his DNA, the DNA evidence
is inadmissible. See Weeks v. United States, 232 U.S. 383, 393 (1914) (articulating
the “exclusionary rule” generally prohibiting the use of unconstitutionally-obtained
evidence); see also Elkins v. United States, 364 U.S. 206, 223 (1960) (applying the
exclusionary rule to evidence obtained by state officers and used in a federal
prosecution).

      “We review a district court’s findings of fact for clear error and its conclusions
of law regarding its denial of a motion to suppress de novo.” United States v.
Lothridge, 332 F.3d 502, 503 (8th Cir. 2003).

       We turn first to Welch’s arrest. Under the Fourth Amendment, a warrantless
arrest must be based on probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964).
“Probable cause exists to make a warrantless arrest when, at the moment of the arrest,
the collective knowledge of the officers involved was ‘sufficient to warrant a prudent
man in believing that the [defendant] had committed or was committing an offense.’”
United States v. Wajda, 810 F.2d 754, 758 (8th Cir. 1987) (internal citation omitted)
(quoting Beck, 379 U.S. at 91). Probable cause depends on the totality of the
circumstances. United States v. Kelly, 329 F.3d 624, 628 (8th Cir. 2003).

                                          -4-
       Welch argues that probable cause did not exist. He characterizes the
informant’s description (“a black male about 30–35 years old, about 6’0 tall with a
medium build and medium afro”) as false and inaccurate. And he argues that,
because the police never saw him selling or storing drugs at the Aldrich house, his
mere presence at the house could not provide probable cause to arrest him. See
Ybarra v. Illinois, 444 U.S. 85, 90–91 (1979) (finding a person’s proximity to
suspected criminals insufficient to establish probable cause).

       Considering the totality of the circumstances, we disagree. The police matched
the informant’s somewhat vague description to Welch’s DMV photos. They observed
foot traffic consistent with the informant’s allegation that drugs were at the house.
They knew Welch was prohibited from gun possession and they confirmed he spent
time at or near the Aldrich house. During the search of the house, police found drugs
and guns. Outside the house, in a parked car, police found more drugs and another
gun. And police identified Welch as one of the three men inside the house standing
next to three broken cellphones. While the informant got Welch’s hairstyle wrong,
he got the gun and drug possession right. See Illinois v. Gates, 462 U.S. 213, 245
n.14 (1983) (“We have never required that informants used by the police be infallible,
and can see no reason to impose such a requirement in this case.”). The officers’
knowledge warranted prudent belief that Welch had committed or was committing
an offense; they had probable cause to arrest him.

      But probable cause alone does not resolve the DNA evidence’s admissibility.
The police did not have a warrant to take Welch’s DNA; they relied on his consent
to swab his cheek. Free and voluntary consent renders a search reasonable under the
Fourth Amendment. United States v. Sanders, 424 F.3d 768, 773 (8th Cir. 2005). If
the government shows that Welch knowingly and voluntarily consented to the cheek
swab, then the DNA evidence is admissible. See id. The government’s “burden
cannot be discharged by showing mere acquiescence to a claim of lawful authority.”
Id. “Rather, the government must show that a reasonable person would have believed

                                         -5-
that the subject of a search gave consent that was the product of an essentially free
and unconstrained choice that he or she was making.” Id. (quoting United States v.
Cedano-Medina, 366 F.3d 682, 684 (8th Cir. 2004)). We review a district court’s
finding of voluntary consent for clear error. Id.

      The district court explained that Welch’s age, intelligence, sobriety, and
experience with the criminal justice system, coupled with his Miranda warning,
supported a finding of voluntary consent. Additionally, the district court found that,
while Welch was under arrest when the DNA swab was taken, he had not been
detained and questioned for long. The district court also noted the interview was
“calm and cordial” and free from police intimidation. In fact, as the district court
pointed out, “Welch responded to questions cooperatively and in a steady voice, even
chuckling at times.” And in the midst of this even-keeled conversation, Welch
complied with Officer Werner’s request for a cheek swab “without hesitation.”
According to the district court, the facts surrounding the interrogation support a
finding of voluntary consent.

      The district court’s account of the conversation between Welch and Officer
Werner is well-supported by the record. And besides casually explaining that his
“DNA is already in the system,” Welch never expressed any reluctance in providing
the sample. After reviewing the entire record, we are not “left with the definite and
firm conviction that a mistake has been made.” Id. (quoting United States v. Booker,
269 F.3d 930, 931–32 (8th Cir. 2001)). As such, we find no clear error in the district
court’s finding of voluntary consent. Given Welch’s lawful arrest and voluntary
consent, the district court properly denied Welch’s motion to suppress the DNA
evidence.




                                         -6-
                        B. Synthetic Marijuana Evidence

       The district court also admitted evidence of the synthetic marijuana found in
Welch’s car a month after the Aldrich house search. According to Welch, this
violated Federal Rule of Evidence 404(b)(1), which states “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.” Fed.
R. Evid. 404(b)(1). The district court, however, admitted the evidence after finding
it probative of Welch’s motive to possess the gun. See Fed. R. Evid. 404(b)(2)
(permitting evidence of prior bad acts to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident”).

      “We review the admission of [Rule 404(b)] evidence for abuse of discretion,
and we will reverse only when such evidence clearly has no bearing on the case and
was introduced solely to prove the defendant’s propensity to commit criminal acts.”
United States v. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998).

        Under the circumstances of this case, the synthetic marijuana evidence made
it more likely that Welch knew of and possessed the .22 caliber Ruger handgun.
Welch’s defense — that he was not involved with the guns and drugs at the house —
is far less plausible when he was later found with the exact same (unique) kind of
synthetic marijuana as was earlier found in the Aldrich house. Moreover, this court
has held that drug possession can be relevant to motive in gun-possession cases.
United States v. Williams, 796 F.3d 951, 961–62 (8th Cir. 2015). And facts tying a
defendant to drug-trafficking may show a defendant’s “motive, opportunity, intent,
and plan” to possess a gun. United States v. Claybourne, 415 F.3d 790, 797 (8th Cir.
2005). As such, we see no reason to suppose the synthetic marijuana evidence was
only introduced to prove Welch’s criminal propensity. The district court did not
abuse its discretion.



                                         -7-
                          C. Rehaif Scienter Requirement

       Welch finally argues that his conviction is invalid in light of the Supreme
Court’s recent Rehaif v. United States decision.2 139 S. Ct. 2191 (2019). Under
Rehaif, the government in a § 922(g) prosecution must prove the defendant “knew he
belonged to the relevant category of persons barred from possessing a firearm.” Id.
at 2200. And while at trial Welch stipulated to being a felon prohibited from gun
possession, the government never proved, at the time of the Aldrich house search, he
knew he had “been convicted in any court of[] a crime punishable by imprisonment
for a term exceeding one year.” 18 U.S.C. § 922(g)(1).

       Because Welch failed to raise the issue at trial, we review for plain error.
United States v. Hollingshed, 940 F.3d 410, 415 (8th Cir. 2019). Plain error is “(1)
an error (2) that was obvious and (3) that affected the defendant’s substantial rights
and (4) that seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citing United States v. Olano, 507 U.S. 725 (1993)).

       To prove the alleged error affected his substantial rights, Welch must “show
a reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Id. at 415–16 (quoting Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016)). But this he cannot do. Welch has received and served
several prison sentences longer than one year for felony convictions. It is not
reasonably probable that, if the government had to prove Welch’s knowledge of a
previous conviction for “a crime punishable by imprisonment for a term exceeding
one year,” he would have been acquitted. 18 U.S.C. § 922(g)(1); see also
Hollingshed, 940 F.3d at 415 (finding no plain error when the defendant was
previously incarcerated for a year or more).


      2
      Welch, through counsel, moved for leave to brief this court on Rehaif. The
motion is granted; we here consider Welch’s Rehaif argument.

                                          -8-
                                 III. Conclusion

      The district court rightly denied Welch’s motion to suppress the DNA
evidence, and it exercised its sound discretion by admitting the synthetic marijuana
evidence. And because the Supreme Court’s Rehaif decision leaves Welch’s
conviction unaffected, we affirm his conviction.3
                       ______________________________




      3
       Welch raised several arguments pro se, and moved to supplement the record
and obtain new counsel. We deny the pro se motion and do not consider his pro se
arguments, as Welch is presently represented by counsel. United States v. McIntosh,
492 F.3d 956, 961 n.2 (8th Cir. 2007) (denying an appellant’s pro se motion because
he was represented by counsel).


                                        -9-
