U.S. v. Murphy, 07-4607.

• Citation: 552 F.3d 405
• Decision Date: 15 January 2009
• Docket Number: No. 07-4607.,07-4607.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damian Antonio MURPHY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

552 F.3d 405

UNITED STATES of America, Plaintiff-Appellee, v. Damian Antonio MURPHY, Defendant-Appellant.

No. 07-4607.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2008.

Decided: January 15, 2009.

ARGUED:

Richard Croutharmel, Raleigh, North Carolina, for Appellant. Jennifer R. Bockhorst, Office of the United States Attorney, Abingdon, Virginia, for Appellee.

ON BRIEF:

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

Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and MARTIN K. REIDINGER, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge REIDINGER wrote the opinion, in which Judge KING and Senior Judge HAMILTON joined.

OPINION

REIDINGER, District Judge:

Damian Antonio Murphy appeals his conviction for conspiracy to possess with intent to distribute cocaine and hydromorphone, in violation of 21 U.S.C.A. §§ 846 and 841(b)(1)(C) (2000 & Supp.2008), and for possession of counterfeit currency, in violation of 18 U.S.C.A. § 472 (Supp.2008). On appeal, Murphy contends that the district court erred in denying his motion to suppress evidence of a cell phone, $14,790 in U.S. currency, and counterfeit money seized at the time of his arrest. We affirm.

I.

In the early morning hours of June 6, 2006, Virginia State Trooper Danny Pruett was operating stationary radar along Interstate 81 in Wythe County, Virginia, when he observed a vehicle traveling northbound at a high rate of speed. Radar confirmed that the vehicle was traveling 95 miles per hour. After stopping the vehicle, Trooper Pruett asked the driver for her license and registration. The driver, who was later identified as Marsha Massengill, advised him that she had left her operator's license at home. Massengill told Trooper Pruett that her name was Debbie Arlene Sanchez, and she provided a date of birth. Trooper Pruett observed that Massengill appeared to be nervous and hesitant. The front seat passenger, who was later identified as Damian Murphy, also claimed to have left his license at home. He told Trooper Pruett that his name was Corey Antonio Murphy and provided a date of birth. The back seat passenger, later identified as James McCord, provided to Trooper Pruett an unusually thick Alabama license bearing the name Clarence Todd Drain. The occupants could not produce a registration for the vehicle, but they did produce a rental agreement for the vehicle in the name of Sabrina Callaway.

Trooper Pruett conducted a check through the National Crime Information Center (NCIC) on the names and dates of birth provided by the vehicle's occupants. The NCIC check revealed that there were no licenses or state identification cards issued to any persons by those names. The check also revealed that the license number appearing on the license of "Clarence Todd Drain" was a legitimate number, but that it had been issued to a female.

Having determined that no one in the vehicle had a valid driver's license, Trooper Pruett prepared to have the vehicle towed. He also requested additional officer assistance to help determine the identity of the vehicle's occupants and to assist him in conducting an inventory of the vehicle's contents, as required by Virginia State Police policy.

In speaking with Trooper Pruett, Massengill initially referred to the front seat passenger as "Corey" but later told Trooper Pruett that his name was "Damian." She referred to McCord as "James" and "Jay." She also told Trooper Pruett that she and Murphy were traveling to New York City to see Murphy's sick grandmother, and that McCord was just getting a ride to New York.

Murphy spoke with a second officer on the scene, Trooper Chapman. Murphy first identified himself to Trooper Chapman as "Corey Antonio Murphy" but later stated that his name was "Corey Demetrius Murphy." He provided Trooper Chapman with the names of individuals with whom he claimed to work at a company called Colgate Steel who allegedly could verify his identity. Murphy also gave Trooper Chapman his cell phone and showed him how to use it in order to locate the number for his employer.

After conducting the NCIC check, Trooper Pruett arrested McCord for providing a fictitious driver's license. When told that the license number that he had provided belonged to a woman, McCord admitted that the license was fictitious, and he provided a second false name, James Anthony McCoy. McCord claimed ownership of a green duffle bag in the back-seat of the vehicle. A search of this duffle bag incident to McCord's arrest revealed a fragment of a glass smoking pipe containing burnt residue, a dagger-type weapon, four additional fake licenses, and a plastic baggie with an off-white powdery substance consistent with the appearance of cocaine.¹

Trooper Pruett arrested Massengill for reckless driving. Trooper Pruett searched her purse incident to her arrest and found a Jefferson County, Alabama inmate photo identification card with her picture and a Social Security card, both bearing the name "Marsha Arlene Massengill." Massengill admitted that it was her true name, and she explained that she had lied about her identity because she was wanted in Alabama for forgery. Trooper Pruett confirmed this warrant through NCIC.

Because Murphy had provided multiple names and his true identity could not be verified, he was arrested for obstruction of justice.

The officers began an inventory search of the vehicle at the scene. Inside the trunk, they discovered a duffle bag containing make-up and women's clothing, and a laptop bag containing $14,790 in U.S. currency, which was packaged in stacks containing equal amounts of money, folded and arranged to offset one another, and then banded with rubber bands. Based on his training, Trooper Pruett knew this type of packaging was often used by drug dealers in the purchase of large quantities of narcotics. Murphy claimed ownership of the money and stated that he had withdrawn the money from a bank account, but he admitted that he had no documentation of this withdrawal. Murphy claimed to have earned the money by operating a lawn care business. Murphy further stated that he was planning to use the money to purchase shoes and clothing in New York for stores that he planned to operate in Alabama. A canine unit trained to detect the smell of narcotics was brought first to the scene of the traffic stop and then to the Sheriff's Department. While the drug dog did not alert to the vehicle on the scene, it did alert to the currency at the station in a manner indicating that it was positive for drug residue.

Prior to the vehicle being towed, the officers removed all items from the vehicle and transported them to the Sheriff's Department for completion of the inventory. All three of the vehicle's occupants were transported to the Wythe County Sheriff's Department for booking. When Murphy was told that he was going to be fingerprinted, he told Trooper Pruett his true name and date of birth. Murphy told Trooper Pruett that he had lied about his identity because he was on parole for several drug violations and had left the state of Alabama without his parole officer's permission. His identity was verified through NCIC and by photo identification faxed to the Sheriff's Office from an Alabama jail.

While at the Sheriff's Department, McCord made several requests to go to the restroom. He was searched prior to being allowed to go to the restroom, and a bag containing crack cocaine and powder cocaine was recovered from his underwear. At that point, McCord's duffle bag was more thoroughly searched, and a business card was discovered, which revealed McCord's true name. McCord's identity was verified by photo identification faxed from Alabama authorities, who advised that there was an outstanding arrest warrant for McCord for distribution of narcotics.

At the Sheriff's Department, the officers continued to inventory the items removed from the vehicle. One of the items that had been removed from the glove compartment of the vehicle was a plastic bag containing a yellow Timberland t-shirt. When the officers searched the bag at the Sheriff's Department, they discovered that inside the shirt were 26 uncut sheets of counterfeit $100 bills. Murphy denied any knowledge of the counterfeit money, although he admitted that he had placed the plastic bag in the glove compartment at McCord's request.

During the inventory of the items seized from the vehicle, a supervisor advised Trooper Pruett that some of the cell phones contained possible incriminating information, and he instructed Trooper Pruett to log them in as evidence.

The evidence in this case was transferred to Virginia State Police headquarters and subsequently turned over to the custody of a Drug Enforcement Administration (DEA) Task Force Officer, who transported it to the DEA office for processing. The evidence, including Murphy's cell phone, was examined by DEA Special Agent Brian Snedeker on June 29, 2006. Snedeker identified several text messages sent from an individual named Brian Sheppard. In a telephone interview with Snedeker that same day, Sheppard stated that Murphy was his drug supplier.

II.

In reviewing the denial of a motion to suppress, we must construe the facts in the light most favorable to the government. United States v. Kimbrough, 477 F.3d 144, 147 (4th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 154, 169 L.Ed.2d 106 (2007). We review the district court's factual findings for clear error and its legal conclusions de novo. Id.

III.

Murphy first argues that the district court erred in refusing to suppress evidence of his cell phone and its contents. Specifically, Murphy contends that the district court erred in concluding that the cell phone was seized during a search incident to arrest because there was no evidence presented to indicate that the cell phone was located on his person at the time of his arrest. He...