31 F.3d 1304 (4th Cir. 1994), 92-5823, United States v. Jones

Docket Nº:92-5823.
Citation:31 F.3d 1304
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ervin Charles JONES, Defendant-Appellant.
Case Date:August 10, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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31 F.3d 1304 (4th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Ervin Charles JONES, Defendant-Appellant.

No. 92-5823.

United States Court of Appeals, Fourth Circuit

August 10, 1994

Argued March 31, 1993.

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ARGUED: Marilyn Gerk Ozer, Winston & Massengale, Chapel Hill, NC, for appellant. Robert Holt Edmunds, Jr., U.S. Atty., Greensboro, NC, for appellee. ON BRIEF: Barry T. Winston, Winston & Massengale, Chapel Hill, NC, for appellant.

Before ERVIN, Chief Judge, HALL, Circuit Judge, and FABER, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge FABER wrote the majority opinion, in which Judge HALL joined. Chief Judge ERVIN wrote a concurring and dissenting opinion.


FABER, District Judge:

Ervin Charles Jones pleaded guilty to a single count of knowingly purloining an article of registered United States Mail in violation of 18 U.S.C. Sec. 641, and was sentenced to eleven months' imprisonment and three

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years' supervised release. Under his plea agreement Jones reserved the right to appeal the district court's ruling denying his motion to suppress evidence. His direct appeal presents three questions for decision: (1) whether the district court erred by declining to suppress evidence allegedly obtained from Jones by postal service inspectors in violation of the Fourth Amendment; (2) whether the court erred by denying Jones a two-level reduction in his sentence, after finding that he had accepted responsibility for his crime; and (3) whether the court erred by including in its calculations of Jones' sentence four prior occasions on which mail had been stolen from the same post office. Finding no merit in any of Jones' assignments of error, we affirm his conviction and sentence.



In early 1992, the defendant Ervin Jones was employed as a Saturday driver by a private trucking firm holding a contract for conveyance of United States Mail in Chapel Hill and Carrboro, North Carolina. Shortly before 4:00 p.m. each Saturday, Jones would drive his personal van to the main post office on Estes Drive in Chapel Hill. Leaving his van in the building's rear parking lot, Jones would drive the tractor-trailer used to haul mail from Estes Drive to the branch offices. At approximately 4:00 p.m. Jones would arrive with the mail truck at the Timberlyne branch office. Leaving the truck at the loading dock, he often would wait in the rear of the post office, chatting with postal workers while they counted monetary receipts and packaged the day's outgoing mail in mail sacks. By 4:30 p.m., postal workers would have loaded the outgoing mail into the trailer and attached a wire seal to the trailer lock. Jones then would drive to the Carrboro post office. There being no postal workers on duty in Carrboro on Saturdays, Jones had to release the wire seal himself, retrieve the outgoing mail from within the post office vestibule, load the mail sacks and packages into his trailer, balance the load in the trailer, and reattach the seal. From Carrboro Jones would return to the Estes Drive office, where postal workers waited to unload the mail from the trailer. Once Jones reached Estes Drive and backed his truck to the loading dock behind the post office building, his duties for the day were completed. Because the distance between the three post offices is short, Jones usually finished his loading and delivery duties by 5:00 p.m.

On four Saturdays in the winter and spring of 1992, postal service deposit envelopes containing a total of approximately $12,000 in currency and $5,000 in checks were reported missing from registered mail pouches between Timberlyne and the main post office in Raleigh, North Carolina. Jones was the Saturday driver on each of these occasions.

Because of his access to the mail each time it disappeared, Jones was identified as a suspect by federal postal inspectors. On June 20, 1992, as they had done on the three previous Saturdays without success, postal inspectors placed a small electronic transmitter in an envelope addressed to First Citizens Bank in Raleigh, North Carolina. The envelope also contained money, checks and deposit tickets. The envelope was given to the supervisor at the Timberlyne Station who placed it in the day's registered mail. Following normal procedures, the registered envelope was placed in a pouch reserved for bank deposits and sealed with a wire seal bearing an individual number. The number of the seal was recorded on a waybill; the only way to remove the numbered seal was to cut it off the pouch.

At 4:25 p.m., under surveillance by the inspectors, Jones departed Timberlyne for Carrboro. When he arrived at the Carrboro post office, another inspector watched as Jones loaded the outgoing mail into the trailer. Jones was then lost from view inside the trailer for approximately five minutes; he later claimed that he had been balancing the load during this time. A postal inspector who testified at the hearing on Jones' suppression motion stated that on the other three occasions when he watched Jones load the mail at Carrboro, the balancing task required only about thirty seconds.

Emerging from the trailer and reattaching the wire seal, Jones got into the truck,

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turned it around, and headed for Estes Drive. Arriving about 5:00 p.m., Jones parked the truck behind the loading dock. While the inspectors watched, he got out and had a brief conversation with a postal worker who was standing on the dock. Jones then walked across the building's back parking lot towards his personal van. The inspectors saw nothing in Jones' hands, nor did they see him place anything in the van. As Jones drove away, the inspectors followed. They immediately began receiving the customary high-pitched beeping signal from the electronic transmitter. From the post office parking lot, Jones turned right onto Estes Drive. Shortly thereafter, he turned right again onto East Franklin Street. The inspectors briefly lost the sound of the transmitter when their vehicle fell slightly behind Jones' van. Upon drawing closer to the van, the sound returned, and the inspectors signalled Jones to stop. Jones pulled his van into the parking lot of a hardware store some seven-tenths of a mile from the Estes Drive post office, and was placed under arrest.

The inspectors drove Jones' van back to Estes Drive, where they impounded it until a search warrant could be obtained. The registered mail pouch, containing only two of the three original deposit envelopes placed in it by the supervisor at Timberlyne, was retrieved from the loading dock of the Estes Drive post office. The pouch had been cut. At 7:43 p.m. one of the inspectors presented an affidavit of the day's events to a North Carolina Superior Court judge, who immediately caused a search warrant to issue permitting the inspectors to seize by June 22, 1992, "registered mail belonging to the U.S. Postal [S]ervice addressed to First Citizens Bank of Raleigh, North Carolina, an electronic transmitting device[,] and U.S. Currency and checks." At 8:30 p.m. the inspectors executed the search warrant. They found the envelope containing the transmitter beneath the driver's seat of Jones' van.


On June 29, 1992, Jones was indicted by a grand jury in the Middle District of North Carolina on a single count alleging theft of United States Mail in violation of 18 U.S.C. Sec. 641. Jones pleaded not guilty. He then filed a motion to suppress the envelope containing the electronic tracking device as evidence, contending that the postal inspectors' stop of his van, the issuance of the search warrant, and the van search itself all violated the Fourth Amendment. Following an evidentiary hearing and oral argument, the district court denied Jones' motion from the bench. Reserving his right to appeal the trial court's ruling on the motion to suppress, Jones then pleaded guilty to the indictment pursuant to a written plea agreement.

At sentencing, the district court found that Jones had not accepted responsibility for his actions pursuant to section 3E1.1 of the United States Sentencing Guidelines, and that Jones' relevant conduct for sentencing purposes included the four occasions before June 20, 1992, on which bank deposits had been taken from the registered mail pouch originating at the Timberlyne Post Office. The court thereupon sentenced Jones to eleven months' incarceration, to be followed by a supervised release term of three years.

This appeal followed.


In his first assignment of error, Jones contends that the district court erred in declining to suppress as evidence the deposit envelope containing the electronic tracking device, because the postal inspectors allegedly obtained the envelope from him in violation of the Fourth Amendment. Specifically, he argues (1) that the postal inspectors' use of an electronic tracking device to monitor the contents of his van constituted a search forbidden by the Fourth Amendment; (2) that the stop of his van was undertaken without probable cause, rendering it a seizure in violation of the Fourth Amendment; (3) that the postal inspectors obtained the search warrant on insufficient indicia of probable cause; and (4) that the search executed by the inspectors pursuant to the warrant exceeded the scope of the warrant, and therefore constituted a generalized search proscribed by the Fourth Amendment. We address these contentions seriatim, reviewing the district court's conclusions of law with respect to them de novo. See United States

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v. Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992).




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