                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 5, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 11-7042
    v.                                        (D.C. No. 6:10-CR-00003-RAW-2)
                                                         (E.D. Okla.)
    DREW SAMUEL BATES,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.


         Drew Samuel Bates appeals from a possession with intent to distribute

cocaine base conviction. He argues that (1) the district court erred in denying his

motion to suppress; (2) there was insufficient evidence to convict him; and (3) his

trial counsel was ineffective. We affirm. 1




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
1
         Our jurisdiction derives from 28 U.S.C. § 1291.
                                  B ACKGROUND

      On the morning of December 10, 2009, Oklahoma Highway Patrol Trooper

Vern Roland stopped a car driven by Rodney Ledell Carter after observing the

vehicle change lanes without signaling. As Roland walked up to the vehicle, he

smelled “an overwhelming odor of green or raw marijuana.” R., Vol. II at 35.

Neither Carter nor his passenger, Bates, could produce a driver’s license.

      Trooper Alan Murray, who had also witnessed the car change lanes without

signaling, arrived on the scene with his drug sniffing dog, Duffy. Murray also

detected the odor of marijuana emanating from the car and Duffy alerted to the

presence of narcotics. After placing Carter and Bates in the back seat of Roland’s

vehicle the troopers searched the vehicle. Behind the passenger seat of Carter’s

vehicle the troopers found a black duffle bag containing scented drier sheets and a

box of laundry detergent that appeared to have been opened and resealed. Inside

the box they found Ziploc bags filled with over three kilograms of a substance

that field-tested positive for cocaine. They also found “loose-laying marijuana”

and “a marijuana cigar blunt” in the vehicle. Id. at 58.

      As the search progressed the patrol car’s dashboard camera recorded it and

also recorded the conversation between Carter and Bates, who were in the back

seat of the patrol car. As the troopers were closing in on the hidden cocaine,

Carter and Bates discussed the search:




                                         -2-
      [Carter]:     Drew [Bates] just chill.
      [Bates]:      Oh I am, you know.
      [Bates]:      Probably smell it.
      [Carter]:     That’s why I told you to get that cologne.
      [Bates]:      Umm hmm. I thought we was going to stop off at the
      store cause I had to pee.
      [Carter]:     Damn he, I sure hope he don’t . . . [PAUSE]. It must be
      time to pray.
      [Bates]:      [MOAN]
                    ...
      [Carter]:     Looks like [unintelligible] go down, shit.
      [Bates]:      Did he open it up?
      [Carter]:     He ain’t opened it, but he, he got it out. [PAUSE]. He
      opening it Drew.
      [Bates]:      Damn.
      [Carter]:     That’s it fool.

Addendum of Exs., Ex. 9 at 10 (capitalizations in original).

      The troopers arrested Carter and Bates, and had the vehicle towed from the

scene. Inside Bates’s pocket, the troopers found $1,190 in cash.

      Carter and Bates were indicted on a charge of possessing with intent to

distribute fifty grams or more of crack cocaine. Both unsuccessfully moved to

suppress the evidence recovered from the traffic stop. Ultimately, Carter pleaded

guilty; Bates went to trial.

      At the suppression hearing and trial Roland and Murray testified regarding

the traffic stop. Agent Brian Epps of the Drug Enforcement Administration

testified to having examined the vehicle shortly after it was towed away. He

could smell the odor of marijuana both outside and inside the car. Additionally,

at trial, he recounted statements made by Bates during an interview on the day he


                                        -3-
was arrested. According to Agent Epps, Bates stated Carter “was like a brother to

him,” and he had taken several trips with Carter from Dallas to Tulsa. R., Vol. II

at 294. Bates explained Carter had called him on December 9 to invite him on

another trip to Tulsa. Bates“knew what Carter was involved in.” Id. at 295.

Bates also told Agent Epps that his (Bates’s) fingerprints might be on the

detergent box and the duffel bag was his.

      Carter testified for the prosecution. He stated the black bag in which the

cocaine was ultimately located belonged to Bates, Bates put it in the car, and he

“guess[ed] [Bates] put [the detergent box] in [the bag],” id. at 267, but someone

else put the cocaine in the box. According to Carter, the purpose of every trip

they made to Tulsa was to deliver narcotics. While there, they would stay in a

hotel for several days and gamble, and he would use Bates’ I.D. to cash his

winnings. Further, he stated Bates knew what he (Carter) was doing, Bates

“wanted to be there,” id. at 273, and had on at least one occasion accompanied

him to the delivery point.

      Bates testified in his defense, stating he had accompanied Carter on four

trips from Dallas to Tulsa for fun and gambling. Because Carter lacked an I.D.,

Bates would rent the hotel rooms, collect Carter’s gambling winnings, and pay the

taxes on them. He denied attending any deliveries with Carter, but “had [his]

suspicions” about what Carter was doing given that he owned several houses and

numerous cars despite never working. Id. at 328. Bates further stated he moved a

                                        -4-
box of detergent while preparing breakfast before leaving with Carter, but it was a

different brand than the one found in Carter’s car. Bates denied owning the black

duffel bag that contained the resealed detergent box, and stated he did not know

drugs were in the car.

      The jury convicted. Shortly thereafter Bates filed a pro se “Motion for

Mistrial & Motion for Ineffective Assistance of Counsel & Motion to Dismiss.”

R., Vol. I at 145. The district court referred the ineffective-assistance issue to a

magistrate judge and denied the remaining motions. After conducting an

evidentiary hearing, where Bates was represented by new counsel, the magistrate

recommended that the motion be denied. Bates did not object. The district judge

accepted the recommendation and sentenced Bates to 190 months’ imprisonment.

                                     D ISCUSSION

                                I. Motion to Suppress

      “In reviewing the district court’s denial of a motion to suppress, we review

the court’s factual findings for clear error and view the evidence in the light most

favorable to the government.” United States v. Worthon, 520 F.3d 1173, 1178

(10th Cir. 2008). We review de novo the reasonableness of a search or a seizure

under the Fourth Amendment. Id. “The credibility of witnesses, the weight

accorded to evidence, and the reasonable inferences drawn therefrom fall within

the province of the district court.” Id.




                                           -5-
      Bates contends there are “serious questions of credibility as to [] Roland’s

reason for the [traffic] stop.” Aplt. Br. at 14. There is no video of the traffic

violation and Roland’s testimony varied concerning the length of time his

dashboard camera was operating.

      “Whether a traffic stop is valid under the Fourth Amendment turns on

whether this particular officer had reasonable suspicion that this particular

motorist violated any one of the multitude of applicable traffic and equipment

regulations of the jurisdiction.” United States v. Vercher, 358 F.3d 1257, 1261

(10th Cir. 2004) (quotation omitted). Both Roland and Murray testified to having

witnessed Carter’s vehicle change lanes without signaling, a traffic offense. As

Bates does not challenge Murray’s testimony we conclude the initial stop of

Carter’s vehicle was legitimate.

      Bates next claims the stop was not reasonably related in duration and scope

to the circumstances that justified the stop. He complains that instead of writing

Carter a ticket for the unsignaled lane change, “Roland had [] Murray come to

the scene for the purpose of having [Duffy] sniff the vehicle.” Aplt. Br. at 15.

Thus, Bates frames the issue as “whether the intention of [] Roland was to give a

warning ticket or to search the vehicle for drugs.” Id. at 15-16.

      The argument fails for two reasons. First, an officer’s subjective motives

for the stop are irrelevant; “[w]e look only at whether the stop was objectively

justified,” United States v. Kitchell, 653 F.3d 1206, 1216 (10th Cir. 2011)

                                          -6-
(quotation omitted), and here it was. Second, a “traffic stop may be expanded

beyond its original purpose if during the initial stop the detaining officer acquires

reasonable suspicion of criminal activity, that is to say the officer must acquire a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.” Id. at 1217-18 (quotation omitted). Here, neither Carter nor

Bates could legally operate the vehicle, as they both lacked a driver’s license.

Moreover, Roland detected the odor of marijuana when he approached the

vehicle—an observation confirmed by Murray, and later, Epps. There was

reasonable suspicion for the continued detention of Carter and Bates.

      Finally, Bates “question[s] whether the smell of marijuana constitutes

probable cause to search the subject vehicle.” Aplt. Br. at 16. We have clearly

stated it does. See United States v. Johnson, 630 F.3d 970, 974 (10th Cir. 2010).

Additionally, Duffy alerted to the presence of narcotics. A positive alert by a

certified drug dog generally provides probable cause for officers to search a

vehicle. See United States v. Parada, 577 F.3d 1275, 1282 (10th Cir. 2009).

      The district court properly denied Bates’s motion to suppress.

                           II. Sufficiency of the Evidence

      Bates claims there was no evidence he “knew what was in the soap box” or

did anything “to make the venture succeed.” Aplt. Br. at 19. We review

sufficiency-of-the-evidence claims de novo, “ask[ing] whether a reasonable jury

could find a defendant guilty beyond a reasonable doubt, viewing the evidence in

                                         -7-
the light most favorable to the government and drawing reasonable inferences

therefrom.” United States v. Vigil, 523 F.3d 1258, 1262 (10th Cir. 2008).

“However, we do not weigh conflicting evidence or consider witness credibility,

and the fact that prosecution and defense witnesses presented conflicting or

differing accounts at trial does not necessarily render the evidence insufficient.”

United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011) (citation omitted).

      To prove possession with intent to distribute under 21 U.S.C. § 841(a), the

government must prove the defendant “(1) possessed a controlled substance,

(2) knew he possessed a controlled substance, and (3) intended to distribute the

controlled substance.” United States v. Burkley, 513 F.3d 1183, 1189 (10th Cir.

2008) (quotation omitted).

      Both Carter and Epps attributed ownership of the duffel bag containing the

box of cocaine to Bates. According to Carter, Bates put the bag in the car and he

(Carter) “guess[ed]” it was Bates who put the detergent box in the bag. R., Vol.

II at 267. This latter point was supported by Epps, who related Bates’s statement

that his fingerprints might be on the box. And the bag and cocaine were found

behind Bates’s seat. The evidence was sufficient to prove Bates’s possession of

the cocaine.

      Regarding Bates’s knowledge of the cocaine, the audio captured by

Roland’s dashboard camera clearly demonstrates Bates’s knowledge of the

contents of the box. He is heard discussing with Carter his role concealing the

                                         -8-
narcotics’ smell, asking Carter whether the troopers opened the box, and then

cursing when told they had found the contraband.

      Finally, Bates’s intent to distribute is demonstrated by the large quantity of

cocaine (over three kilograms), the use of scented sheets in the duffel bag to mask

the odor, and the presence of $1,190 in cash found in his pocket when he was

arrested. See United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000) (“Facts

that can go toward proving that a defendant possessed drugs with the intent to

distribute include: (1) the amount of the drugs; (2) the way they are packaged;

(3) the presence of cash; and (4) the presence of firearms.”). Further, Bates

admitted to Epps that he (Bates) “knew what Carter was involved in,” R, Vol. II

at 295, and had accompanied him in the past from Dallas to Tulsa. In addition,

Carter testified he was, indeed, trafficking cocaine, the only purpose of the trips

was trafficking, and Bates had even accompanied him on one occasion to the

delivery point.

      The evidence against Bates was strong. It was clearly sufficient to convict

him of possessing cocaine with intent to distribute.

                       III. Ineffective Assistance of Counsel

      Generally, ineffective assistance claims must be brought on collateral

review “so that a factual record enabling effective appellate review may be

developed in the district court.” United States v. Hamilton, 510 F.3d 1209, 1213

(10th Cir. 2007). But when the claims are sufficiently developed at the district

                                         -9-
court level, direct appellate review is appropriate. Id. Here, the claims were

adequately addressed below: the magistrate judge held an evidentiary hearing and

issued a detailed report and recommendation (R&R), which was adopted by the

district judge.

        Bates was notified that failure to object to the R&R would preclude

appellate review. He did not object. Under the firm waiver rule, “[t]he failure

to timely object to a magistrate’s recommendations waives appellate review of

both factual and legal questions.” Duffield v. Jackson, 545 F.3d 1234, 1237

(10th Cir. 2008) (quotation omitted). Although the rule “may be suspended when

the interests of justice warrant, or when the aggrieved party makes the onerous

showing required to demonstrate plain error,” Wardell v. Duncan, 470 F.3d 954,

958 (10th Cir. 2006) (quotation and citation omitted), neither exception applies

here.

        AFFIRMED.

                                                    Entered for the Court


                                                    Terrence L. O’Brien
                                                    Circuit Judge




                                         -10-
