                   Not for Publication in West's Federal Reporter
                  Citation Limited Pursuant to 1st Cir. Loc. R. 32.3


          United States Court of Appeals
                          For the First Circuit

No. 01-2704

                        UNITED STATES OF AMERICA,
                                Appellee,

                                         v.

                               DAVID JOHNSON,
                           Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]


                                      Before

                        Torruella, Circuit Judge,

                  B. Fletcher,* Senior Circuit Judge,

                        and Lipez, Circuit Judge.


          Paul M. Glickman for appellant.
          Cynthia A. Young, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.


                              December 20, 2002



     *
      Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
             B. FLETCHER, Senior Circuit Judge. David Johnson appeals

his conviction on three felony counts.      A jury found him guilty of

possession of crack cocaine with the intent to distribute, being a

felon in possession of a firearm and ammunition, and being a felon

in possession of a firearm in furtherance of a drug trafficking

crime.   He argues that the trial court should have suppressed

evidence obtained from a search of his car, and should not have

allowed the prosecution to cross-examine him regarding his prior

felony convictions.    Because we find that the search of his car was

proper, and that the court's error in allowing him to be cross-

examined on his prior convictions was harmless, we affirm.

I.   FACTS

             Appellant Johnson was driving a rental car in a high

crime area in Roxbury at 2:30 a.m.      The car stopped for 90 seconds

in the middle of a street.    Plainclothes officers Lewis and Streat

waited behind it in an unmarked car for about 60 seconds.         The

officers testified that the car's dome lights were on, and that

both occupants were using cell phones.        Johnson's car continued

down the street and turned into a narrow private driveway, where it

stopped. Its motor was running, its brake lights were on, and both

occupants were talking on cell phones. The parties dispute whether

Johnson's door was open or closed at this time.

             The officers approached the vehicle on foot to conduct a

"Field Interrogation Observation Report" ("FIO") -- a threshold


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inquiry to see if there was some problem, otherwise referred to as

a Terry stop.    They had made many arrests in the area, and because

a car parked in the middle of a street was unusual, they sought to

question the occupants to ensure that everything was all right.

The officers testified that they typically conducted an FIO when

stopping an individual or a car in a high crime area.              Unknown to

the officers, the driveway led to the residence of Johnson's

passenger, Calhoun.      No obstacles blocked the officers' access to

the driveway, and they entered it.

             Officer Lewis stood behind the driver's side of the car

for 30 to 45 seconds, before Johnson saw him.              Lewis identified

himself   as    an   officer   and    asked   for    Johnson's   license   and

registration. The beam of his flashlight then illuminated a bundle

of bags of crack cocaine in the map compartment of Johnson's door.

Lewis testified that after he ordered Johnson out of the car,

Johnson turned off the ignition and transferred the keys to his

left hand.     As Johnson tried to reach under the driver's seat with

his right hand, Lewis pulled him away.          A handgun was later found

under the seat.      Johnson claimed that he had merely been putting

away his wallet. Johnson reached further under the seat, and Lewis

pulled him out of the car.           A struggle ensued as Lewis tried to

keep   Johnson    from   reentering     the   car.      Calhoun,   the   car's

passenger, exited the car, entered the yard, and unleashed a pit

bull on Officer Streat.        Streat held the dog at bay at gunpoint


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until Calhoun returned it to the yard, and then Streat and Calhoun

struggled as well.       These struggles ended only when backup units

arrived.

            At trial, over Johnson's timely and renewed objections,

the government cross-examined Johnson about at least five of his

prior drug-related convictions.      Before taking the stand, Johnson

moved in limine to suppress this evidence, and the trial judge

stated that he would let the prosecution use "whatever should come

in under the rule."      He required the prosecution to provide a list

of   the   convictions   it   intended   to   use   along   with   citations

authorizing their admissibility to help him rule as to whether they

did address credibility.       He noted that he always went back and

looked at Rule 609 due to its number of layers.        When Johnson again

moved to suppress this evidence prior to his taking the stand, the

trial judge demurred, saying that the prosecutor had done "just

what I asked him to, be specific about what was going to be

offered."    When Johnson once more moved to suppress just prior to

his cross-examination, the trial judge accepted the prosecutor's

advice that Rule 609 did not require him to find explicitly on the

record that the probative value of the evidence exceeded its

prejudicial effect, but that he could do so implicitly.             He then

cut short Johnson's objections, ruling "Okay, I think I understand

and I am going to let them in."          Johnson was sentenced to 262

months in jail on the first two counts, with a 60 month sentence


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for the third count to be served consecutively.

                         II.   LEGAL ANALYSIS

A.   Jurisdiction

           This court has jurisdiction pursuant to 28 U.S.C. § 1291.



B. Motion to Suppress Evidence from Search

           1.   Standard of review

           Factual findings underlying a district court's denial of

a motion to suppress evidence are reviewed for clear error, and its

determinations of law are reviewed de novo.     U.S. v. Marenghi, 109

F.3d 28, 31 (1st Cir. 1997).

           2.   Merits of the motion to suppress

           The officers did not know that the driveway where the car

stood led to Calhoun's residence. Further, the car was clearly not

within the residence's curtilage.       In light of the stop in the

middle of the street late at night, the officers had a reasonable

and articulable basis to conduct a Terry stop. While Johnson

asserts that the officers had no right to leave the public street

and enter a driveway to do so, if a reasonable expectation of

privacy could be asserted here, it would belong only to Calhoun,

who resided at the property.    See Minnesota v. Carter, 525 U.S. 83,

88-91 (1998). Johnson had no standing to claim a privacy interest.

           The trial court found that Johnson's car door was open

when Officer Lewis approached the car, and that this allowed Lewis

                                  -5-
to see the bags of crack cocaine in the pocket of the car door.

This finding was not clear error.               Upon his seeing the bags, Lewis

had probable cause to arrest Johnson, and then to search the car,

where the officers found the gun.                The bags of crack cocaine and

the gun, therefore, are not subject to suppression.

C. Motion to Suppress Evidence of Prior Felony Convictions

             1.    Standard of review

             We    review     whether    the     probative   value   of    a   prior

conviction        outweighs    its      prejudicial    effect    for      abuse    of

discretion.        United States v. Tracy, 36 F.3d 187, 193 (1st Cir.

1994).

             2.    Violation of Fed. R. Evid. 609(a)(1)

             Johnson asserts that the court violated Federal Rule of

Evidence 609 by admitting evidence about his prior convictions of

felonies despite his offer to stipulate to the fact of felony

status.   He relies on Old Chief v. United States, 519 U.S. 172, 191

(1997).     Assuming arguendo that this argument has merit, we hold

that any erroneous admission of evidence was harmless.                            "[A]

nonconstitutional evidentiary issue will be treated as harmless if

it is highly probable that the evidence did not contribute to the

verdict."     United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998)

(quoting United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.

1997)).      Here, Officer Lewis's testimony was straightforward,

believable, and damning.             Johnson's testimony -- that he didn't


                                          -6-
know that the drugs and gun were in the car, that he kept slipping

when still in the car and did not intend to reach for the gun or

fight Officer Lewis -- was not credible.        Had the trial judge ruled

optimally, the jury would still have known that Johnson had been

convicted   of   several   felonies,     but   not   the   nature   of   those

felonies.    At best, from Johnson's perspective, jurors would have

known that he had been convicted of a felony.               Given the other

evidence, we cannot say that the jury was appreciably less likely

to have acquitted Johnson had it not known the nature of his prior

convictions.

                           III.   CONCLUSION

            The trial court correctly admitted evidence obtained from

the search of Johnson's car.       The officers had a reasonable and

articulable suspicion to warrant their approaching the car in the

driveway, and probable cause for arrest once they viewed the bags

of crack cocaine in the car's open door.             Even though the trial

court may have erred in allowing cross-examination on Johnson's

prior felony convictions, any trial court error was harmless given

the overwhelming evidence against Johnson.           Accordingly, we affirm

appellant Johnson's convictions on both charges.




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