U.S. v. Bullard

• Decision Date: 06 May 2011
• Docket Number: No. 09–5214.,09–5214.
• Citation: 645 F.3d 237
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.William Lewis BULLARD, II, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

645 F.3d 237

UNITED STATES of America, Plaintiff–Appellee,

v.William Lewis BULLARD, II, Defendant–Appellant.

No. 09–5214.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2011.Decided: May 6, 2011.

ARGUED: Matthew McGavock Robinson, Robinson & Brandt, PSC, Covington, Kentucky, for Appellant. Graham Tod Green, Office of the United States Attorney, Winston–Salem, North Carolina, for Appellee. ON BRIEF: John W. Stone, Jr., Acting United States Attorney, Greensboro, North Carolina, for Appellee.Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER and Judge AGEE joined.

OPINION

DUNCAN, Circuit Judge:

William Bullard (“Bullard”) appeals his conviction and sentence for possession with intent to distribute cocaine base (“crack”) under 21 U.S.C. § 841(a)–(b). Bullard challenges the district court's denial of his motion to suppress, argues that the disparities in sentencing between crack and powder cocaine offenses violate the Equal Protection and Due Process Clauses of the Constitution, and contends that the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111–220, 124 Stat. 2372, should be applied to him. For the reasons that follow, we affirm the district court's denial of Bullard's motion to suppress, reject his constitutional challenges, and join all of our sister circuits to have addressed the issue in holding that the FSA does not apply retroactively.

I.

A.

The following facts, which appear to be undisputed, are drawn from the testimony of Greensboro Police Department Detective Mike Montalvo (“Detective Montalvo”) and the general manager of the Greensboro Extended Stay America Hotel, Tammy Parrish (“Parrish”).

On March 10, 2008, James Burgess (“Burgess”) checked into Room 318 of the Greensboro Extended Stay America Hotel (the “hotel”). He filled out a guest registration card indicating that he would be the sole occupant of Room 318, and initialed a statement providing that “I am aware that failure to register all occupants and pets in above room could result in immediate termination of our stay.” J.A. 75. Burgess's scheduled departure date was April 9, 2008.

The following day, March 11, Jawann Bradford (“Bradford”) registered and paid for a one-night stay in Room 303 of the hotel. After checking out the following morning, Bradford returned to the hotel office and told Parrish that he had left a piece of luggage in Room 303. Parrish gave him a key to the room so that he could retrieve it.

During the afternoon of March 12, while checking to ensure that Room 303 had been satisfactorily cleaned, Parrish discovered a grocery bag underneath the bed. When she opened the bag, she smelled a strong chemical odor and identified a “[c]reamy white substance” that she took to be drugs. J.A. 68. Parrish called Greensboro police, who sent seven members of their Vice Narcotics Unit, including Detective Montalvo, to the hotel. The officers confirmed that the bag contained approximately two kilograms of cocaine.

The officers set up surveillance around the hotel and questioned all individuals in the parking lot, including three men standing by a parked car. Parrish responded negatively when asked if Bradford was in the group; she indicated that she did not recognize any of them. She did, however, identify a key taken from one of the men as the key to Room 318. The officers then allowed the men to leave the premises with the key, a decision to which Parrish later objected because none of the men was the registered occupant of Room 318. Police remained at the hotel until 7:00 pm on March 12, at which point they determined that no one was likely to return for the drugs. They left after instructing the hotel staff to notify them of anything suspicious.

The following day, March 13, Bradford returned to the hotel, entered the lobby, and approached the front desk. Parrish, who was sitting around the corner in the hotel office, recognized Bradford and motioned to the desk clerk. When Bradford noticed this communication, he told Parrish he “forgot something outside” that he needed to get. J.A. 70. As Bradford was exiting, Parrish saw him reaching down into his pocket in a move she interpreted as possibly reaching for a gun. Once Bradford left the lobby, Parrish locked the door and called 911.

Parrish then noticed a second man, later identified as Bullard, walking around the corner of the hotel from the direction of Room 318. Parrish recognized him as one of the three men questioned in the parking lot the day before.¹ Together, Bradford and Bullard tried to shove their way inside the lobby door. When the effort proved unsuccessful, they left.

Detective Montalvo and several additional officers arrived shortly thereafter and Parrish explained what had happened. She informed them of her belief that one of the men had the key to Room 318 and that Bradford might be in that room. She asked the officers to please “check the room to make sure he wasn't in that room and to have all the occupants that were in the room that weren't registered to leave [sic] the room.” J.A. 76. She further explained that several guests had complained to her the day before of an unusual number of people coming and going from Room 318, that she had not seen the registered occupant since the day he checked in, and that she feared for the safety of nearby guests and hotel employees. Parrish gave Detective Montalvo the room key.

When the officers reached Room 318 they found a handmade “Do Not Disturb” sign on the door. J.A. 85. They knocked several times but no one answered, so they used their key to enter. The officers immediately noticed a “harsh chemical smell” that suggested to Detective Montalvo that the occupants “were cooking up some type of narcotic.” J.A. 86. As he walked a few feet into the room, Detective Montalvo noticed what appeared to be cocaine residue and cocaine packaging equipment on a table. He testified that he then told the other officers: “Listen, let's just do a quick protective sweep of this place, lock it down. I am going to go ahead and apply for a search warrant. Make sure there are no weapons, no chemicals for us to inhale, or any booby traps, and so forth.” Id.

The officers conducted an extensive search, looking in and around the beds and under clothing and opening a zipped suitcase, the refrigerator, and cabinets. Inside the suitcase, which Bullard later acknowledged was his,² officers found a child's lunchbox containing cocaine. At this point, Detective Montalvo requested back-up and positioned additional officers around the hotel, while he and another detective remained in the room.

Shortly thereafter, Bullard arrived at the hotel accompanied by his two children, ages five and two, and another man, Quinton Covington (“Covington”). The group went up to Room 318, with Bullard carrying his two-year-old and a plastic bag. When Bullard inserted the key into the lock, the detectives opened the door and announced themselves. Covington ran but was quickly apprehended. Bullard tried to run but was encumbered by his children and stopped. Officers searched him and found $2,000 of currency in his pocket and one and one-half ounces of cocaine in the plastic bag he was carrying. Once Bullard and Covington were secured in Room 318, Detective Montalvo left to obtain a search warrant for the room.

Detective Montalvo based the search warrant application on the information he received from Parrish, the cocaine residue and packing materials he saw on the table in Room 318, and the items found on Bullard's person. The warrant application did not describe the items found in Bullard's suitcase.

Detective Montalvo obtained a search warrant and returned to the hotel to execute it. Officers found paraphernalia used to cook and package drugs and seized the approximately 300 grams of cocaine previously identified in Bullard's luggage and an additional $20,000–$25,000 of United States currency.

B.

On July 28, 2008, Bullard was indicted on two counts of possession with intent to distribute crack in violation of 21 U.S.C. §§ 812 and 841. Count One charged Bullard with possessing approximately 47 grams of a mixture containing crack; Count Two charged Bullard with possession of approximately 332 grams of a mixture containing crack. In November 2008, Bullard filed a motion to suppress the evidence “obtained during and flowing from” the search of Room 318, arguing that the search was conducted “without a valid warrant and in the absence of any exception to the warrant requirement.” J.A. 28.

After an evidentiary hearing at which Parrish and Detective Montalvo testified, the district court denied Bullard's motion to suppress. The district court based its denial of Bullard's motion on two alternative grounds: first, it determined that, as an unregistered guest occupying Room 318 in contravention of hotel policy and North Carolina law, Bullard had no legitimate expectation of privacy in Room 318 and thus could not challenge the search. Second, the district court found that even if Bullard did have a reasonable expectation of privacy in Room 318, the search did not violate his Fourth Amendment rights. Specifically, the district court found that officers reasonably relied on Parrish's consent to enter Room 318, and, once in the room, saw evidence in plain view that supported their later application for a search warrant. The district court further explained that the constitutionality of officers' initial search of Bullard's luggage during their protective sweep of Room 318 was not relevant because the officers “did not rely on any evidence from the protective sweep to obtain the warrant.” J.A. 166. The district court also found the search of Bullard's person permissible as a search incident to arrest.

Bullard entered into a plea agreement in which he pleaded conditionally guilty to Count Two of the indictment, reserving the right to appeal the denial of his ...