FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Landya B. McCafferty, U.S. District Judge]
L. Gordon for appellant.
W. Murray, United States Attorney, with whom Seth R. Aframe,
Assistant United States Attorney, was on brief, for appellee.
Lynch, Stahl, and Barron, Circuit Judges.
Joseph Davis was convicted after a two-day bench trial of one
count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Davis raises two
issues in this appeal. First, he contends that the district
court erred in denying his motion to suppress the handgun in
question, which he claims was discovered during an
unconstitutional search of his vehicle. Judge Joseph A.
DiClerico, Jr., denied that motion and conducted Davis's
first trial. That trial was held before a jury, which
deadlocked on the sole charge. Davis was then retried in a
bench trial held before Judge Landya B. McCafferty, who found
him guilty. Davis argues that his conviction was not
supported by sufficient evidence of his knowing and
intentional possession of the weapon. After careful
consideration, we affirm both the denial of the suppression
motion and Davis's conviction.
Factual Background and Prior Proceedings
summarize the facts in two parts. First, we describe those
events relevant to Davis's arrest and the subsequent
search of the car, which are recounted "as the trial
court found them, consistent with record support."
United States v. Andrade, 551 F.3d 103, 106 (1st
Cir. 2008) (quotation marks and citation omitted). We then
recite the facts related specifically to Davis's
conviction for possession of a firearm by a felon, which are
taken "from the trial transcript and present[ed]  in
the light most favorable to the judgment of the court . . .
." United States v. Grace, 367 F.3d 29, 31 (1st
Cir. 2004). The procedural facts are undisputed.
events at issue stem from Davis's arrest in the early
hours of July 2, 2016. Davis, a musician, performed at a
Hampton, New Hampshire, bar on the evening of July 1, 2016.
Davis left the bar following the show but, needing to use the
restroom, attempted to return a short while later and was
rebuffed on the basis of the bar's no-reentry policy.
Instead, Davis obtained the keys to his
then-fiancée's vehicle (the "Vehicle")
from his brother and, without anyone else in the car, drove a
short distance in search of a restroom.
officers of the Hampton Police Department ("HPD"),
Detective Robinson, and Officers Zigler and Hood, in two
separate police vehicles, observed the Vehicle leaving the
bar and watched it travel, without headlights on, to a nearby
parking lot. Once there, Davis stopped the Vehicle
perpendicularly across a designated handicap parking spot. At
that point, the police officers pulled into the lot behind
the Vehicle, activated their emergency lights, and approached
neared the Vehicle, Robinson observed a number of potential
signs that Davis was driving under the influence of alcohol
and/or marijuana. Robinson informed Davis that he had been
driving without his headlights on and inquired whether he had
consumed any alcohol that evening. While Davis attributed his
erratic driving to his urgent need to use the restroom,
Robinson suspected that Davis was impaired and took
Davis's license to his cruiser to conduct a background
check. Zigler and Hood remained with Davis and the Vehicle.
the background check indicated that the Vehicle was not
registered to Davis, Robinson requested that he step out of
the Vehicle. Davis appeared to have difficulty walking, and
admitted to having had several drinks at the bar following
his performance. Zigler also noted a bottle of alcohol in the
car door as Davis opened it. Davis failed two of three
"field sobriety" tests administered by the
officers, and Robinson arrested him on suspicion of driving
while intoxicated. The officers then handcuffed Davis and
placed him in one of the police vehicles.
Davis's arrest, the police officers contacted a tow truck
to remove the Vehicle. The HPD has a "Motor Vehicle
Inventory Search Policy" that dictates guidelines for
"conducting a search . . . for the purpose of making an
inventory of the contents of a motor vehicle [directed to be]
towed by the members of the [HPD]." Under that policy,
officers are required to conduct an inventory search
whenever, inter alia,
1. The vehicle is being towed under orders of a department
member when the owner or custodian of the vehicle is under
2.The vehicle is towed under orders of a department member
because the driver of the vehicle is under arrest and the
owner or custodian is not present . . . .
. . .
6. The vehicle is illegally parked and is a hazard to traffic
if allowed to remain.
and Zigler testified that, when a driver is arrested for
driving under the influence, HPD policy calls for the vehicle
to be towed. However, both officers also stated that they
sometimes permit an unimpaired, licensed person authorized by
the arrestee to take the vehicle themselves in order to save
the arrestee the cost of a tow. In this instance, the
officers stated that two individuals came forward at the
scene of the arrest and identified themselves as Davis's
friends but refused Robinson's offer that they take the
Vehicle away on Davis's behalf.
waiting for the tow truck, Zigler entered the Vehicle to
seize the bottle and cups in plain view. Zigler then
conducted an "inventory search" of the Vehicle as
required by the policy quoted above, adding several items to