535 F.3d 210 (4th Cir. 2008), 07-4498, United States v. Farrior

Docket Nº:07-4498.
Citation:535 F.3d 210
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kareem Berlin FARRIOR, Defendant-Appellant.
Case Date:August 05, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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535 F.3d 210 (4th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kareem Berlin FARRIOR, Defendant-Appellant.

No. 07-4498.

United States Court of Appeals, Fourth Circuit.

August 5, 2008

Argued: May 16, 2008.

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ARGUED:

Rena Gladys Berry, Roanoke, Virginia, for Appellant. Craig Jon Jacobsen, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

ON BRIEF:

John L. Brownlee, United States Attorney, Roanoke, Virginia, for Appellee.

Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Terry L. WOOTEN, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge TRAXLER and Judge WOOTEN joined.

OPINION

WILLIAMS, Chief Judge:

A jury convicted Kareem B. Farrior of possession with intent to distribute an unspecified quantity of crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1) and (b)(1)(C) (West 1999 & Supp.2008) (Count One), and possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1) and (b)(1)(A) (West 1999 & Supp.2008) (Count Two). Because Farrior had two previous convictions for felony drug offenses, the district court sentenced him as a career offender and, under 21 U.S.C.A. § 841(b)(1)(A), imposed a mandatory minimum sentence of life imprisonment. Farrior appeals his convictions and sentence on numerous grounds and for the reasons that follow, we affirm.

I.

A.

On April 16, 2006, Sergeant Anderson of the Pulaski, Virginia Police Department received a tip that a green car with New York license plates was involved in drug trafficking in the Highland Terrace area in Pulaski. Pulaski police officers located the vehicle in the Highland Terrace area that night, but it was unoccupied.

On April 21, 2006, at approximately 1:15 a.m., Officer Morris of the Pulaski Police Department observed the same green car parked at the end of Maple Street, an area known for drug trafficking. Again, the vehicle was unoccupied. Officer Morris relayed this information to Sergeant Anderson who advised him that this was the same vehicle about which Anderson had received the tip a week earlier.

Thereafter, Officer Morris parked his patrol cruiser on a nearby street to wait for the driver of the green car to return. Approximately five minutes later, Officer Morris observed the green car pass by him and noticed that the tag light was inoperable on the car. He decided to stop the car because of the inoperable tag light.

Shortly after the stop, Sergeant Anderson learned that Officer Morris had stopped the green car and that the driver was Farrior. Anderson contacted the police dispatcher to obtain Farrior's criminal history and to request that a canine unit arrive on the scene. Anderson then proceeded to the scene. In response to Sergeant Anderson's request, Officer Dowdy, an officer with a drug-sniff dog, also made his way to the scene.

After contacting Sergeant Anderson, Officer Morris requested Farrior's driver's license and car registration and returned to his patrol cruiser to check their validity.

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Both proved to be valid, and Officer Morris returned to Farrior's car. According to Officer Morris, who had just completed his field training months before the incident, he was not familiar with the process for giving warning tickets for inoperable tag light violations. Consequently, rather than issuing Farrior a traffic citation, Officer Morris returned Farrior's license and registration and orally warned him that he needed to have his tag light fixed. At this point, Officer Morris told Farrior that he was free to go.

Before Farrior pulled away, however, Officer Morris asked Farrior if he would mind stepping out of the car to talk. Farrior responded that he was willing to talk from inside his car. Given Farrior's willingness to speak with him, Officer Morris advised Farrior that the Pulaski Police Department was having problems in the area with drug-related crimes and asked Farrior if he had any drugs or weapons, to which Farrior replied that he did not. Officer Morris then asked Farrior if he could search Farrior's car, and Farrior agreed. Farrior exited his car and Officer Morris searched Farrior for weapons. Finding no weapons on Farrior's person, Officer Morris then searched the interior of Farrior's car.

While Officer Morris was searching the inside of Farrior's car, Sergeant Anderson arrived on the scene. As Officer Morris concluded his search, finding nothing suspicious, Sergeant Anderson, Officer Morris's superior, realized that a ticket had not been issued so he instructed Officer Morris to issue Farrior a written warning for the inoperable tag light. Officer Morris once again took Farrior's license and registration back to his patrol cruiser to write the warning ticket. Officer Morris completed the ticket and was explaining it to Farrior when Officer Dowdy and the drug dog arrived.

Upon arriving, Officer Dowdy was advised by Sergeant Anderson that Farrior had consented to a vehicle search. In response, Dowdy had his drug dog sniff the outside of the car, and it alerted to the presence of drugs in the trunk. Officer Dowdy then had the dog sniff the inside of the car, and this time it alerted to the console area. Because of this alert, Sergeant Anderson and Officer Dowdy searched the inside of Farrior's car again, this time noticing that the carpeting and consoles had been altered. At that point, Sergeant Anderson searched Farrior's trunk and found a black bag with a razor and some white powdery residue.

Sergeant Anderson informed Farrior that the drug dog had indicated the presence of drugs in the car and asked Farrior to remove his boots. Farrior at first refused, but Sergeant Anderson told him that he had no choice but to comply. Accordingly, Farrior kicked off his boots, and inside one of the boots Sergeant Anderson found 5.5 grams of crack cocaine and $2,720.

The officers arrested Farrior and issued him Miranda warnings. Farrior admitted that the cocaine was his, but stated that he had come to Pulaski to buy, not to sell cocaine. Farrior stated that the money in his boot was money that he had earned as a bus driver in Connecticut.

Less than one month later, on May 10, 2006, police officers in Roanoke, responding to a call that someone had been shot, found a wounded Farrior leaning against a car. Farrior, who had been shot three times, was taken to the hospital. As part of their investigation of the shooting, the police located Farrior's rental car one block from the scene of the shooting and had it towed. On May 12, 2006, after obtaining a search warrant for the vehicle, the police searched the vehicle and found 469.5 grams of crack cocaine in the trunk

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of the car, hidden inside Farrior's boot. On May 30, 2006, as Farrior was being discharged from the hospital, he was arrested by U.S. Drug Enforcement Administration agents.

B.

On June 1, 2006, a federal grand jury sitting in the Western District of Virginia returned a two-count indictment charging Farrior with possession with intent to distribute an unspecified quantity of crack cocaine and possession with intent to distribute 50 grams or more of crack cocaine.

Before trial, Farrior filed a motion to suppress the evidence seized from the search of his vehicle and his person on April 21, 2006, contending that the seizure violated his Fourth Amendment rights. Following a hearing on the motion, the district court held that the search did not violate Farrior's Fourth Amendment rights because (1) his vehicle was legitimately stopped for an inoperable tag light; (2) he voluntarily consented to the search of his car; and (3) the officers had probable cause to search the inside of the car and trunk because a drug dog alerted to the presence of drugs in the vehicle while Officer Morris was issuing Farrior a warning ticket. Accordingly, the district court denied Farrior's motion to suppress, and the case proceeded to trial.

During jury selection, Farrior objected under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the Government's strike of the only African American venire member, contending only that the strike was improper because he and the prospective juror are both African American. The district court denied Farrior's Batson challenge, concluding that the Government provided three race-neutral explanations for the strike.

The jury found Farrior guilty of both counts charged in the indictment. In response, Farrior moved for a new trial on the grounds that the Government improperly defined reasonable doubt in its closing argument and improperly invited the jury to place trust in the Government, thus cumulatively lessening the Government's burden of proof in the case. The district court denied Farrior's motion.

On June 26, 2006, the Government filed a prior-felony information pursuant to 21 U.S.C.A. § 851 (West 1999 & Supp.2008), giving notice that Farrior was subject to the enhanced penalties set forth in 21 U.S.C.A. § 841(b)(1)(A) due to previous felony drug convictions in 1993 and 1996. Thereafter, a probation officer prepared a presentence report (“PSR" ). The PSR calculated Farrior's advisory Guidelines range to be 360 months to life imprisonment, but because Farrior qualified as a career offender under 21 U.S.C.A. § 841(b)(1)(A), a status for which the mandatory minimum sentence is life imprisonment, the PSR adjusted the Guidelines range to recommend the statutory minimum sentence...

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