210 F.3d 363 (4th Cir. 2000), 95-5407, U.S. v. Peterson

Docket Nº:95-5407, 95-5449, 95-5518, 95-5519.
Citation:210 F.3d 363
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steven Desmond PETERSON, a/k/a Primo, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward HERRING, Jr., a/k/a Foo Foo, a/k/a Charles Edward Johnson, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lavon MILES, a/k/a Tony, Defendant-Appell
Case Date:March 24, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 363

210 F.3d 363 (4th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven Desmond PETERSON, a/k/a Primo, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Edward HERRING, Jr., a/k/a Foo Foo, a/k/a Charles Edward Johnson, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony Lavon MILES, a/k/a Tony, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Shane FELLS, a/k/a Q, a/k/a Quasim Yusef Johnson, Defendant-Appellant.

Nos. 95-5407, 95-5449, 95-5518, 95-5519.

United States Court of Appeals, Fourth Circuit

March 24, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued Jan. 28, 2000.

Appeals from the United States District Court for the Eastern District of North Carolina, at Fayetteville. Malcolm J. Howard, District Judge. (CR-94-46-H).

William Lee Davis, III, Lumberton, NC, for apellant Peterson.

Wayne James Payne, Shallotte, NC, for appellant Miles.

Alvin Garnell Matthews, Fayetteville, NC, for appellant Herring.

Danny Thomas Ferguson, WinstonSalem, NC, for appellant Fells.

Anne M. Hayes, Assistant United States Attorney, Raleigh, NC, for appellee.

ON BRIEF: Janice McKenzie Cole, United States Attorney, Emily B. Berndt, Third Year Law Student, Raleigh, NC, for appellee.

Before WILKINSON, Chief Judge, and MICHAEL and TRAXLER, Circuit Judges.

OPINION

PER CURIAM.

Shane Fells, Steven Desmond Peterson, Charles Edward Herring, and Anthony Lavon Miles appeal from their convictions on various drug-related charges. We affirm in part and vacate in part.

I. BACKGROUND

Ten defendants were charged in a 40-count indictment arising from a drug-trafficking conspiracy. Several of the defendants pleaded guilty, and the case proceeded to trial against the remaining defendants, including the Appellants in this case.

At trial, the government presented evidence establishing the existence of a drug-trafficking organization operating primarily out of the Hollywood Heights area in Fayetteville, North Carolina. Fells, who lived in Greensboro, North Carolina, generally arranged for the acquisition of cocaine powder in New York. From Fells, the cocaine was given to Peterson, Fells's brother, who was in charge of the Fayetteville distribution network. Peterson parcelled out the cocaine, usually in the form of crack cocaine, to other members of the conspiracy, who in turn distributed it to other sellers or sold it at the street level. The jury convicted each of the Appellants on various counts of the indictment.

The Appellants challenge certain errors they contend occurred during the trial and sentencing proceedings. We address the trial issues first and then the sentencing issues.

II. TRIAL ISSUES

A.

Fells contends that the district court erred by denying his motion to suppress the evidence found during the execution of what he contends was an illegal search warrant. According to Fells, the affidavit in support of the warrant application did not establish probable cause to believe that the evidence sought would be located at the house to be searched. Fells also contends that the "good faith" exception established by the Supreme Court in United States v. Leon, 468 U.S. 897, 913 (1984), is inapplicable to this case.

Probable cause exists when "there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or evidence of crime and will be present at the time and place of the search." United States v. Suarez, 906 F.2d 977, 984 (4th Cir.1990). "In determining whether a search warrant is supported by probable cause, the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched." United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir.1993). "We review legal conclusions involved in the district court's suppression determination de novo but review factual findings underlying the legal conclusions subject to the clearly erroneous standard." United States v. Rusher, 966 F.2d 868, 873 (4th Cir.1992).

Based on the affidavit of ATF Special Agent J.D. Newman, the magistrate issued a warrant authorizing the search of a residence located at 1709 Fleming Road in Greensboro. In his affidavit Newman stated he was a member of an ongoing multi-jurisdiction investigation of Fells, Peterson, and others suspected of trafficking drugs. Newman stated that the investigation revealed that Fells supplied the cocaine to be distributed in Fayetteville through Peterson and that the investigation connected Fells and Peterson to a murder where shots were fired from a silver Toyota Cressida.

Newman further stated that on the day before his application for the warrant, he assisted in the execution of a state arrest warrant for Fells. Fells was arrested while he was driving a car in which Crystal Whitney was a passenger. Newman interviewed Whitney, who told him that Fells lived at 1709 Fleming Road and had a safe in the house. When Newman went to that address with Whitney, he saw a silver Toyota Cressida in the driveway. Whitney told Newman that the car belonged to Peterson, and that the car was brought to the house after Peterson "had gotten into trouble with the law." In his affidavit Newman also outlined his training and experience in investigating narcotics trafficking and stated that, based on his experience, he knew that drug traffickers frequently keep large amounts of cash, as well as books or records documenting their drug transactions, in their residences, often in safes.

In our view, the facts alleged in the affidavit establish probable cause to believe that evidence of drug trafficking would be found at 1709 Fleming Drive. The presence at that address of the Toyota Cressida, which was believed to have been involved in a drug-related murder, created a substantive connection between the residence and the crimes being investigated. In addition, the magistrate could reasonably infer from the nature of the items to be seized, which included books, records, and other documentary evidence of drug trafficking, and from Agent Newman's statement about the normal practices of drug dealers, that such items would be kept at Fells's residence. See United States v. Anderson, 851 F .2d 727, 729 (4th Cir.1988) (A "nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence."); United States v. $149,442.43 in United States Currency, 965 F.2d 868, 874 (10th Cir.1992) ("[C]ourts often rely on the opinion of police officers as to where contraband may be kept. Where a suspect has no place of business separate from his residence, it is reasonable for an officer to conclude that evidence may be at the suspect's residence." (citation omitted)). The affidavit, therefore, established a sufficient nexus between the place to be searched and the items to be seized.

Moreover, even if the warrant were defective, Leon 's "good faith" exception would apply. In Leon, the Supreme Court held that evidence obtained by "officers reasonably relying on a warrant issued by a detached and neutral magistrate" is admissible. Leon, 468 U.S. at 913. This exception, however,

does not apply in four situations: first, when the warrant is based on an affidavit containing "knowing or reckless falsity"; second, when the magistrate has simply acted as a "rubber stamp" for the police; third, when the affidavit does not "provide the magistrate with a substantial basis for determining the existence of probable cause"; and finally, when the warrant is so "facially deficient" that an officer could not reasonably rely on it.

United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir.1996). In this case, there is no allegation that the affidavit contained any false or misleading information, or that the magistrate abandoned his judicial role by rubber-stamping the warrant. Nor is the warrant itself facially deficient. Even if the allegations of the affidavit were insufficient to establish a nexus between Fells's residence and the group's drug activities, they are "not so lacking in probable cause that the officers' reliance upon [the warrant] was objectively unreasonable." Lalor, 996 F.3d at 1583. The district court, therefore, properly denied the suppression motion.

B.

Peterson and Herring challenge the sufficiency of the evidence to support certain of their convictions. A jury's verdict in a criminal case "must be upheld on appeal if there is substantial evidence in the record to support it." United States v. Wilson, 198 F.3d 467, 470 (4th Cir.1999). Substantial evidence is evidence that, when viewed in the light most favorable to the government, "a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc).

Peterson first contends that the evidence was insufficient to support his conviction for engaging in a continuing criminal enterprise. See 21 U.S.C.A.§ 848(c) (West 1999). To sustain a conviction for engaging in a continuing criminal enterprise ("CCE"), the government must prove that:

(1) defendant committed a felony violation of the federal drug laws; (2) such violation was part of a continuing series of violations of the drug laws; (3) the series of...

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