691 F.3d 334 (4th Cir. 2012), 10-5008, United States v. Mubdi

Docket Nº:10-5008.
Citation:691 F.3d 334
Opinion Judge:DIAZ, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mantel Delance MUBDI, Defendant-Appellant.
Attorney:Matthew Segal, Assistant Federal Defender, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Office of the United States Attorney, Asheville, North Carolina, for Appellee. Claire J. Rauscher, Executive...
Judge Panel:Before SHEDD, DAVIS, and DIAZ, Circuit Judges. Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge SHEDD joined. Judge DAVIS wrote a separate opinion concurring in part and in the judgment. DAVIS, Circuit Judge, concurring in part and in the judgment:
Case Date:August 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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691 F.3d 334 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mantel Delance MUBDI, Defendant-Appellant.

No. 10-5008.

United States Court of Appeals, Fourth Circuit.

August 10, 2012

Argued: Jan. 24, 2012.

Page 335

[Copyrighted Material Omitted]

Page 336

ARGUED:

Matthew Segal, Assistant Federal Defender, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant.

Amy Elizabeth Ray, Assistant United States Attorney, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Federal Defenders of Western North Carolina, Inc., Kevin A. Tate, Assistant Federal Defender, Charlotte, North Carolina, for Appellant.

Anne M. Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge SHEDD joined. Judge DAVIS wrote a separate opinion concurring in part and in the judgment.

OPINION

DIAZ, Circuit Judge:

Mantel Delance Mubdi entered a conditional guilty plea to drug and firearms offenses, reserving the right to challenge the district court's denial of his motion to suppress evidence seized during a traffic stop. The district court sentenced him to 300 months' imprisonment. On appeal, Mubdi contends that the district court erred in denying his motion to suppress because the officers who stopped his car did not have probable cause to execute the stop. As an alternative ground for suppression, he contends that the officers unlawfully prolonged the traffic stop to conduct an open-air canine sniff of his car. Mubdi also argues that the district court erred in increasing his statutory mandatory minimum sentence for the drug offenses based on improper judicial factfinding. Finding no error, we affirm.

I.

A.

On the morning of September 30, 2008, Mubdi was driving a gray Dodge Magnum northbound on Interstate 77 near Statesville, North Carolina. In the car with Mubdi was Markus Parham. Two Statesville Police Department Officers, Jason York and Phillip Wolfe, were parked in marked police cruisers perpendicular to the highway about ten yards from the right-hand side of the northbound lanes near exit 50.1 As Mubdi approached the

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officers, they each visually determined that he was driving above the posted speed limit of fifty-five miles per hour.

York observed a group of cars in front of Mubdi's car traveling the speed limit, and he noticed that Mubdi was closing in on the group. He tracked Mubdi's car for about a hundred yards to estimate its speed at sixty-three or sixty-four miles per hour. Wolfe likewise noticed Mubdi's car gaining on the cars in front of it and pulling away from the cars behind it; he estimated Mubdi's speed at sixty-five miles per hour. Because of the angle at which the officers were parked, they were unable to verify their estimates with radar equipment. However, York and Wolfe had both passed a radar certification class that, among other things, provided training on how to visually estimate the speed of vehicles within a narrow margin of error.

The radar certification course constitutes a minimum of thirty-two hours of training, which includes sixteen hours of " supervised field practice where [officers] learn how to estimate the speed of vehicles and how to operate the radar units properly and to check off and set up the instrument and test for accuracy." J.A. 106. Estimating speed is a mandatory part of the certification process. Officers are trained to estimate speeds both from a stationary position and while in motion. An officer may err on any given estimate (or, indeed, all of them) and still receive certification, provided that he errs in the aggregate no more than forty-two miles per hour over twelve separate speed estimates (an average margin of error of three and a half miles).

York and Wolfe pursued Mubdi for a few miles as he merged from Interstate 77 onto Interstate 40 heading west.2 Wolfe passed Mubdi's car in the left lane in an attempt to see whether its occupants were wearing seatbelts. Mubdi then merged behind Wolfe to pass a truck in the right lane. York, trailing Wolfe and Mubdi, determined that Mubdi was following Wolfe's patrol car at a distance of no more than two to three car lengths, contrary to the North Carolina Highway Patrol's recommendation that motorists keep at least a one car length interval per ten miles per hour of speed.3

At that point, York activated his blue lights to initiate a traffic stop. After what struck York as " an extended amount of time," id. 163, Mubdi pulled over to the side of the road. York approached the car and asked for Mubdi's driver's license and registration. He observed that Mubdi kept his foot on the brake pedal, instead of shifting the transmission to park and releasing the brake. Mubdi handed York a plastic pouch containing his license and a

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vehicle rental contract. York saw that Mubdi's " hands were shaking more so than an average person would be shaking for just a routine traffic stop" and that Mubdi looked scared. Id. 165-66. York asked Mubdi whether he had rented the car, and Mubdi said that he had. In response to York's questions regarding the purpose of Mubdi's travel, Mubdi said he was headed to his grandfather's funeral in Statesville and to his aunt's house. Mubdi, however, could not tell York his aunt's name or where she lived.

York returned to his patrol car to review Mubdi's license, insurance, and rental contract, and to issue Mubdi a warning ticket for speeding and following too closely. The rental contract showed that the car had in fact been rented to Latonyia Brathwaite, other drivers were explicitly forbidden from driving it, and the car was not permitted to travel outside of Georgia. All told, it took York approximately fifteen minutes to review Mubdi's paperwork and to issue the warning ticket, a time frame he described as typical. In the interim, Wolfe, along with his drug-sniffing canine, arrived on the scene.

After York completed the warning ticket for speeding and following too closely, he approached Mubdi's car to issue the citation. He asked Mubdi to roll up the windows, turn off the engine, and step out of the car. Mubdi complied but did not shift the transmission into park. As a result, the car began rolling away before Parham, still seated in the passenger seat, stopped it. York explained the warning ticket and then told Mubdi that Wolfe's dog would conduct an open-air sniff around the car.

Captain Jacob Dyson, who arrived on the scene for backup, approached the passenger's side of the car, knocked on the window, and asked Parham to get out. Parham just looked at him, so Dyson tried the door handle. Parham then rolled down his window, and, when Dyson again asked him to get out of the car, Parham responded, " What for? I don't have a gun." Id. 113. When Parham started to reach between his legs to the floorboard, Dyson feared that he was reaching for a firearm and unsnapped his holster. Parham, however, got out of the car without incident, and both he and Mubdi consented to a pat-down for weapons. Shortly thereafter, Wolfe's dog conducted the open-air sniff and alerted. A search of the car uncovered crack and powder cocaine, as well as two loaded firearms, one under each front seat.

B.

A grand jury returned a superseding indictment charging Mubdi with conspiracy to distribute and to possess with intent to distribute a quantity of cocaine and at least fifty grams of cocaine base, in violation of 21 U.S.C. § 846, possession with intent to distribute a quantity of cocaine and at least fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a), (b)(1)(A), (b)(1)(C), possession of firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c), and possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e).

Mubdi moved to suppress the drugs and firearms on the grounds that the officers lacked probable cause to make a traffic stop, lacked reasonable suspicion to prolong the stop to conduct the canine open-air sniff, and conducted an illegal warrantless search of the car.4 The district court denied Mubdi's motion. First, the court found that the officers had probable cause to make the traffic stop because Mubdi

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was speeding and following too closely. As to the first ground, the court concluded that York and Wolfe were trained in visually estimating vehicle speed and that their testimony regarding Mubdi's rate of speed was credible. After crediting the officers' testimony and reviewing the video recording of Mubdi changing lanes, the district court further found that the officers had probable cause to stop Mubdi for following too closely.

The court also determined that the duration of the stop was reasonable, particularly given the objective facts that piqued the officers' growing suspicions. Finally, the court found that the ensuing search of the car was proper on two independent grounds: (1) Mubdi and Parham did not have a reasonable expectation of privacy in the car in that neither of them was an authorized driver on the rental contract, and (2) the officers were justified in searching the car based on the canine alert and Mubdi's and Parham's behavior.5

Mubdi entered a conditional guilty plea to all charges, reserving the right to appeal the denial of his suppression motion. At the sentencing hearing, the district court adopted the Presentence Investigation Report setting Mubdi's offense level at thirty and his criminal history category at IV. Mubdi's Guidelines sentence was 240 months on the drug charges, due to the government's filing of a notice of its intent to seek an enhanced...

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