U.S. v. Garrett

• Decision Date: 17 March 1992
• Docket Number: No. 90-3210,90-3210
• Citation: 959 F.2d 1005
• Parties: UNITED STATES of America, Appellee, v. Sammy L. GARRETT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1005

959 F.2d 1005

295 U.S.App.D.C. 1

UNITED STATES of America, Appellee, v. Sammy L. GARRETT, Appellant.

No. 90-3210.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 25, 1991.

Decided March 17, 1992.

Appeal from the United States District Court for the District of Columbia (Criminal No. 90-00078-01).

Samuel Edgar Wilhite, Washington, D.C. (appointed by the Court) for appellant.

Leslie Ann Wise, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Roy W. McLeese, III Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, SILBERMAN, and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Sammy L. Garrett was convicted on one count of possession of cocaine base with intent to distribute and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ¹ Garrett challenges his convictions on the grounds that the trial court erred in (1) finding that the police had probable cause to search his car and (2) excluding evidence regarding the activities of a defense witness on the day Garrett was arrested. Garrett also challenges the legality of the career offender provision of the United States Sentencing Guidelines (Guidelines) as it was applied to him. We conclude that the trial court committed no error and that the application of the Guidelines withstands Garrett's attack. We therefore affirm the convictions.

I

On January 30, 1990, at about 8:00 p.m., Metropolitan Police Officer Wayne T. Simpson set up an observation post in the area of Fifth Street and S Street, N.W., in Washington, D.C. Simpson had earlier received a citizen's complaint alleging that narcotics were being distributed in that neighborhood by someone driving a burgundy car with Maryland license plates "WJB-787." When Simpson arrived at 5th Street and S Street that evening, he saw a burgundy vehicle with Maryland license plates "WJB-787" parked at the northeast corner of the intersection. Simpson then saw Garrett and codefendant Randolph Campbell walk over to the burgundy car where Campbell passed paper currency to Garrett. Garrett opened the car door and retrieved from inside a small object which he passed to Campbell. Aware that the area was a known "high narcotic area" and based on his experience and the citizen's tip, Simpson concluded that a narcotics transaction had just taken place. Simpson further observed that as Garrett and Campbell walked away from the car they were joined by a third man, Levander Johnson. At this point, Simpson directed scout officers to stop all three men. As the officers approached, Campbell dropped a pouch on the ground. Simpson testified that the pouch was the same size as the item Garrett passed to Campbell. The police recovered the pouch. It contained 20 packages of white powder which later tested positive for both heroin and cocaine. After they recovered the pouch, the police placed Campbell under arrest and detained Garrett and Johnson. Officer Gudger of the scout force then searched Garrett's car and discovered a black bag containing 13.26 grams of cocaine base and 26.41 grams of regular cocaine and a brown paper bag containing 6.3 grams of cocaine base. Garrett was placed under arrest and a search of his person produced $1067. Johnson was not arrested.

At the suppression hearing, Johnson testified that shortly before his encounter with the police he visited Virginia Brown's house to use her telephone. Her telephone was not working. When Johnson left Brown's house, he saw Garrett standing across the street. Knowing that Garrett had a portable telephone, Johnson asked to borrow it. Johnson claimed that he waited for Garrett near a parked pick-up truck and did not watch where Garrett went. He testified that it took Garrett three minutes to retrieve the phone and another three minutes to return it to his car after Johnson had finished using it. Johnson, who claimed not to know Campbell, further testified that five minutes after Garrett had returned the phone to his car, Campbell came around the corner and stood in front of them. According to Johnson, when he and Garrett began to walk up the street, Campbell walked along with them. Johnson also testified that when the police arrived, they threw him face down on the hood of a car and kept him there for twenty-five minutes during which time they searched him.

The trial judge denied the defendants' motion to suppress, concluding that the police had reasonable suspicion to stop the three men. Their reasonable suspicion ripened into probable cause to arrest Campbell when the police discovered that the discarded pouch contained drugs. The trial judge further held that the police also had probable cause to search Garrett's car because it appeared that the drugs Garrett passed to Campbell had been removed from it.

Before trial, the government notified the court, in writing, that Garrett had two prior felony drug convictions. Garrett was eventually tried on an indictment charging him with one count of distribution of cocaine, one count of distribution of heroin, one count of possession of cocaine base with intent to distribute and one count of possession of cocaine with intent to distribute. A jury acquitted him on the two distribution counts but found him guilty on the two possession with intent to distribute counts. Garrett's motion for a new trial was denied on June 6, 1990. He was subsequently sentenced to two concurrent terms of 360 months each.

II

Garrett argues that the trial court should have granted his motion to suppress because the police lacked probable cause to search his car. The existence of probable cause for a warrantless search is a mixed question of law and fact. See Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1629-30, 10 L.Ed.2d 726 (1963); see also United States v. Alfonso, 759 F.2d 728, 741 (9th Cir.1985). We review the trial court's findings of fact under a clearly erroneous standard and its legal conclusions de novo. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Alfonso, 759 F.2d at 741.

Our analysis of the trial court's probable cause determination begins with the initial encounter between the police and the three suspects. Under the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer has the requisite reasonable suspicion to stop a suspect if he has observed conduct "which leads him reasonably to conclude in light of his experience that criminal activity may be afoot...." Id. at 30, 88 S.Ct. at 1884; United States v. McKie, 951 F.2d 399, 401-02 (D.C.Cir.1991). In view of Officer Simpson's nine years of experience in undercover narcotics investigations and in view of the facts that the officer observed the transaction in a "high narcotic area" and that the color and license plate number of Garrett's car matched those given in the citizen's complaint, Simpson could have easily developed a reasonable suspicion of criminal activity when he witnessed Garrett pass a small object retrieved from inside his car to Campbell in exchange for money. We conclude therefore that the initial contact between the scout officers and Garrett, Campbell and Johnson constituted a valid Terry stop.

When Campbell dropped the pouch, a pouch containing drugs and matching in size the object Simpson had seen Garrett removing from his car, and the officers opened it, probable cause arose to believe that the drugs in the pouch came from the car and that additional drugs might be found there. ² See United States v. Caroline, 791 F.2d 197, 201 (D.C.Cir.1986) ("Probable cause for a search exists where 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983))). Once the officers had probable cause to believe that more drugs would be found in Garrett's car, they could properly conduct a search of the entire car and any containers found therein. ³ Id. at 202, 103 S.Ct. at 2312 (citing United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982)). The trial court therefore properly denied Garrett's motion to suppress.

Garrett also claims that the trial judge improperly excluded evidence that would have bolstered Johnson's testimony that he made a telephone call from Garrett's portable phone. Specifically, Garrett objects to the trial judge's exclusion of Virginia Brown's testimony and his exclusion of certain telephone records, both of which, he contends, would have supported Johnson's claim. Questions regarding the relevance or materiality of evidence generally rest within the discretion of the trial court. Hardy v. United States, 335 F.2d 288, 289 (D.C.Cir.1964). Such rulings should not be disturbed except for grave abuse. Id. This is particularly true when the evidence is cumulative. United States v. Thornton, 746 F.2d 39, 49-50 (D.C.Cir.1984) ("[Where] defense was allowed to adduce substantial evidence that appellant was a gambler ... an in depth examination of the gambling investigation and of each piece of gambling material seized would have been redundant, time-consuming, and possibly confusing to the jury.").

At trial, the government did not contest the fact that Johnson used the portable telephone. Mrs. Brown's testimony and the telephone records would therefore have been cumulative. Under the circumstances, the trial court's exclusion of this evidence appears to have been proper and in any event does not amount to "grave abuse."

III

As we noted earlier, Garrett was convicted of one count of possession of cocaine base with intent to distribute and one count of possession of cocaine with intent to distribute. For possession of more than five grams of cocaine base with intent to...