966 F.2d 868 (4th Cir. 1992), 91-5375, United States v. Rusher

Docket Nº:91-5375, 91-5379 and 91-5381.
Citation:966 F.2d 868
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Lee RUSHER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sarah Jean Shoemaker RUSHER, a/k/a Sarah Anne Rusher, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Joseph FLANNERY, a/k/a James Joseph Fleming, a/k/a Richard J. Mutschler, Defendant-
Case Date:June 03, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 868

966 F.2d 868 (4th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

David Lee RUSHER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Sarah Jean Shoemaker RUSHER, a/k/a Sarah Anne Rusher,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James Joseph FLANNERY, a/k/a James Joseph Fleming, a/k/a

Richard J. Mutschler, Defendant-Appellant.

Nos. 91-5375, 91-5379 and 91-5381.

United States Court of Appeals, Fourth Circuit

June 3, 1992

Argued Oct. 29, 1991.

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Anthony Harrison, Sr., Harrison, North, Cooke & Landreth, Greensboro, N.C., J. Matthew Martin, Martin & Martin, P.A., Hillsborough, N.C., argued, for defendants-appellants.

Douglas Cannon, Asst. U.S. Atty., Greensboro, N.C., argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, LUTTIG, Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation.

OPINION

ERVIN, Chief Judge:

A highway patrolman stopped, searched, and discovered drugs and firearms in a pickup truck driven by defendant James Joseph Flannery and occupied by defendants David Rusher ("David") and his wife Sarah Rusher ("Sarah"). Flannery and the Rushers were convicted in the Middle District of North Carolina of possession with the intent to distribute methamphetamine and psilocin. On appeal, defendants argue, among other things, that the district court erred in not suppressing the evidence seized from the truck. The defendants also appeal their sentences: all three argue that the mandatory minimum sentencing provisions of 21 U.S.C. § 841(b)(1)(B)(viii) were inapplicable because the mixture of methamphetamine they possessed did not exceed 100 grams; the Rushers argue that the court erred in enhancing their sentences under the Federal Sentencing Guidelines because guns were involved in the offense; and David contests the court's upward departure from his criminal history category. We affirm the defendants' convictions and sentences in all respects, except that we vacate David's sentence and remand his case for resentencing because the court failed to state the specific reasons for departing.

I.

The facts in this case are basically uncontested. On Friday, April 13, 1990 at 6:00 P.M., North Carolina Highway Patrol Trooper Tim Cardwell stopped a pickup truck driven by Flannery and occupied by the Rushers. Trooper Cardwell had been a state trooper for four and a half years and was on traffic duty, working alone with his police dog. Cardwell had observed that the occupants of the truck, headed northbound on I-85 just inside Guilford County, did not appear to be wearing seat belts and that the truck did not have a proper license

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plate. When Cardwell pulled out and started to catch up to the truck, he noticed that it had a handmade cardboard Arizona registration tag in the rear glass of the cab.

Cardwell stopped the truck using his blue light, walked up to the driver's door, and asked the driver, Flannery, for his license and the vehicle registration. Cardwell verified that none of the occupants were wearing seat belts. Flannery produced an Arizona driver's license in the name of an alias and an Arizona registration for the truck in the name of Francine Robinson. Cardwell then requested Flannery to step back into the patrol car. While in the patrol car, Cardwell asked Flannery general questions about the truck and their trip. Flannery answered that the truck belonged to a friend in Arizona; that he had borrowed it to deliver welding and construction supplies to friends he had been staying with in Rockwell, North Carolina, the Rushers; and that they were now headed to visit friends in Greensboro. Cardwell asked about the cardboard "license plate," and Flannery said that he had lost the real plate and replaced it with a homemade one.

Cardwell issued a ticket for driving without proper registration and gave Flannery a warning for not wearing seat belts. Cardwell gave Flannery back his driver's license and then told Flannery that he was "free to go." J.A. 124. Cardwell then asked Flannery whether there were "any weapons, illegal contraband, alcohol or anything of an illegal nature in the vehicle." J.A. 274. Flannery said that there was not. Cardwell said that he asked Flannery about illegal contraband because Flannery's construction supplies story did not strike Cardwell as "a normal reasonable story." J.A. 163-64. Cardwell asked permission to search the truck, and Flannery granted the permission orally and through signing a consent form allowing a search of the vehicle and any "luggage and all contents therein." J.A. 334. The written form advised Flannery that he had the right to refuse to sign the form, to refuse to consent to the search, and to withdraw his consent at any time.

After Flannery signed the consent to search form, Cardwell asked him to go to the front of the truck. Cardwell then asked the Rushers to leave the truck and told them that he intended to search it for anything illegal. As Sarah got out of the truck, Cardwell asked her if the purse was hers, to which she replied yes. Cardwell also asked her if he could search it, and she orally consented; he did not ask her to sign a written consent form.

When Cardwell searched the pocketbook, he found a crystal white rock substance weighing about a gram. Cardwell thought it was either crack cocaine or methamphetamine (it turned out to be the latter). Cardwell then walked back to his patrol car to call for assistance. Sarah joined him at his car and asked what he was doing. Cardwell asked her if the rock substance was hers and she admitted that it was, adding that she only had "a little dope in it," and that the other two passengers did not know about it. J.A. 130. Cardwell placed her under arrest, advised her of her Miranda rights, and placed her in the front seat of the patrol car.

Cardwell returned to the truck to begin the search. He explained to David that Sarah had been arrested, and then searched the truck cab, finding only drug paraphernalia. Cardwell then began to search the ten to twenty bags located in the bed of the truck, which had a tin cover. As he started to open one of the bags, David asked what Cardwell was doing and began cursing and yelling at Cardwell, asking "What the hell is going on?" J.A. 133. Cardwell then returned to his patrol car and called for assistance. Sarah overheard the conversation and yelled to her companions, "He's calling for help; do something." J.A. 138. Cardwell got the dog out of the car and stationed him by the rear of the truck for his protection.

When another officer arrived, Cardwell resumed his search. When he reached a silver briefcase, Sarah yelled from the car, "He's found it, run." J.A. 140. Cardwell opened the briefcase and found what appeared to be drugs. The dog indicated that there were drugs in the briefcase, and

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Cardwell arrested the two men. Later analysis showed that the briefcase contained 141 grams of marijuana, 10.2 grams of psilocin (a hallucinogenic mushroom), 41.5 grams of methamphetamine (ice), over $10,000 in cash, and a handgun. A later search of the rest of the bags uncovered three more fully loaded handguns, a semi-automatic rifle and silencer, chemistry textbooks, a business receipt and social security card under Flannery's alias, Sarah's "Sprint" card, and a magazine addressed to her.

On June 25, 1990, a federal grand jury in Greensboro, North Carolina returned an indictment charging all three defendants with two counts of possession of controlled substances with the intent to distribute them, 21 U.S.C. § 841(a)(1) & (b)(1)(B) (methamphetamine) and 21 U.S.C. § 841(a)(1) & (b)(1)(C) (psilocin), and two counts of possession and use of firearms and a firearm equipped with silencer during a drug trafficking offense. 18 U.S.C. § 924(c)(1). On October 2, 1990, the district court heard evidence on the defendants' motions to suppress evidence from the search of the truck. The district court denied the motion and issued a subsequently written memorandum opinion on April 1, 1991. The defendants' trial began on October 9, 1990. At the conclusion of the government's evidence, the court dismissed two counts of each defendant's indictment, ruling that the evidence did not show that the guns were used in the drug trafficking offenses. 1 The defense presented no evidence. The jury returned guilty verdicts for all three defendants on the remaining two drug charges.

The court sentenced the defendants on December 19, 1990. Flannery and the Rushers challenged the application of the mandatory minimum sentencing provisions of 21 U.S.C. § 841(b)(1)(B)(viii), claiming that their mixture of methamphetamine did not exceed 100 grams. The defendants also contended that the two level enhancement for possessing guns that were involved in the offense should not apply. The court disagreed with both arguments and sentenced Flannery and Sarah to a minimum five year active term of imprisonment. In addition, the court sentenced David to a 105 month active term of imprisonment, departing upward from the Sentencing Guidelines on the ground that they did not take into account David's long criminal history. Defendants timely appealed their convictions and their sentences.

II.

Flannery appeals the district court's denial of his motion to suppress evidence resulting from the search of the truck. The Rushers join in this argument, and also contend that even if Flannery properly consented to the search of the truck, the district court erred in admitting the evidence against them because they did not. 2 In addition, David argues...

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