U.S. v. Carter
| Decision Date | 30 July 2002 |
| Docket Number | No. 98-4916.,No. 98-4913.,No. 98-4915.,No. 98-4912.,No. 98-4914.,98-4912.,98-4913.,98-4914.,98-4915.,98-4916. |
| Citation | 300 F.3d 415 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Keisha CARTER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jerry Lee McRae, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tivarus Montiento McRae, a/k/a/ Tat-Killer, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Willie Jerome McRae, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gilbert Devon Melvin, a/k/a G-Boy, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Richard Brooks Glazier, Fayetteville, North Carolina, for Appellant Carter; Thomas Peter McNamara, Hafer, McNamara, Caldwell, Cutler & Curtner, P.A., Raleigh, North Carolina, for Appellant William McRae; Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant Melvin; Rudolph Alexander Ashton, III, McCotter, McAfee & Ashton, P.L.L.C., New Bern, North Carolina, for Appellant Jerry McRae; Ray Colton Vallery, Fayetteville, North Carolina, for Appellant Tivarus McRae. John Howarth Bennett, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
ON BRIEF:
H. Geral Beaver, Fayetteville, North Carolina, for Appellant Carter. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Before WIDENER and MURNAGHAN,* Circuit Judges, and HALL, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
Affirmed by published PER CURIAM opinion.
I.
The instant case results from a Task Force investigation into drug trafficking in the area of the Campbell Terrace Public Housing Project in Fayetteville, North Carolina. An indictment naming 20 defendants was returned by the Grand Jury in the United States District Court for the Eastern District of North Carolina on March 3, 1998. In general terms, the indictment alleged (1) a conspiracy to distribute controlled substances, including heroin and crack cocaine, beginning January 1, 1987, and continuing until March 5, 1998, in violation of 18 U.S.C. § 846 (Count 1), and (2) firearms violations during the course and scope of the drug conspiracy, in violation of 18 U.S.C. § 924(c)(1) (Counts 2-38).
Of the 20 defendants named in the indictment, the five appellants in the instant case were joined for trial on September 29, 1998, in the United States District Court for the Eastern District of North Carolina.
From October 6-8, 1998, the jury deliberated and then returned verdicts with the following results:
(a) Keisha Carter was convicted of Counts Five and Six, and a mistrial was declared on Count One.
(b) Jerry McRae was convicted of Count One.
(c) Tivarus McRae was convicted of Counts One and Twenty-Six and was acquitted of Count Twenty-Seven.
(d) Willie McRae was convicted of Count One and acquitted of Count Twenty-Nine.
(e) Gilbert Melvin was convicted of Counts One, Thirty, and Thirty-Three and acquitted of Counts Thirty-One and Thirty-Two.
Keisha Carter was sentenced to 60 months in prison on Count Five and 240 months on Count Six. Jerry McRae was sentenced to life imprisonment. Tivarus McRae was sentenced to 292 months in prison on Count One and 60 months on Count Twenty-Six. Willie McRae was sentenced to life imprisonment. Gilbert Melvin was sentenced to life imprisonment on Count One, 60 months on Count Thirty and 240 months on Count Thirty-Three.
After sentencing, the five defendants filed a timely notice of appeal. The grounds of appeal are numerous, and we address only those specific grounds that merit discussion. We affirm the convictions and sentences.
II.
Defendants Jerry McRae and Gilbert Melvin appeal from the denial of their motion to suppress drug evidence seized from McRae's automobile in September of 1997. McRae and Melvin were arrested after Officer Lane Mooney of the Texas Narcotics Task Force seized cocaine and marijuana from McRae's automobile. In the trial below before the district court, McRae filed a motion to suppress the drug evidence. Melvin also adopted McRae's motion. The district court denied the suppression motions as to both defendants. We review a denial of a motion to suppress de novo regarding legal conclusion, with underlying factual determinations reviewed only for clear error. See United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).
The district court correctly held that Melvin lacked standing to challenge the search of McRae's automobile. A passenger in a car normally has no legitimate expectation of privacy in an automobile in which he asserts neither a property interest nor a possessory interest and where he disclaims any interest in the seized object. See Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In the instant case, Melvin denied even knowing whose car he was in at the time Officer Mooney pulled the car over and disclaimed any interest in the car's contents. Accordingly, Melvin lacks standing to challenge the search, and the district court properly denied his motion to suppress the drug evidence.
The district court was also correct when it denied McRae's motion to suppress. The seizure occurred when Officer Mooney pulled McRae over for speeding. Officer Mooney testified that when he approached the vehicle, he smelled burnt marijuana in the air. He asked McRae, the driver, for permission to search the car. McRae refused. Officer Mooney then detained the car and retrieved a K-9 drug-sniffing dog from his patrol car for the purpose of conducting a walk-around search of the vehicle. During the walk-around, the dog "alerted" when walking by the driver's side door. Officer Mooney then searched the entire passenger compartment of the vehicle and found a quantity of marijuana on the passenger side of the center console. After discovering the source of the marijuana odor, Mooney then conducted an additional search of the locked trunk of the car, including a search of a closed suitcase in the trunk. Inside the suitcase, Mooney found a kilogram of cocaine.
Warrantless searches "are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." See California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). One such exception is the presence of "exigent circumstances" — an exception presumptively present in the automobile context because of the inherent mobility of the car and the danger that contraband inside the car may disappear if police take the time to obtain a warrant. See California v. Carney, 471 U.S. 386, 390-91, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Thus the police may search a car without a warrant as long as there is probable cause to believe the car contains contraband. Carney, 471 U.S. at 392, 105 S.Ct. 2066.
The police may also conduct warrantless searches of "closed containers" within an automobile, but only if they have probable cause to believe the closed container may contain contraband. See Acevedo, 500 U.S. at 580, 111 S.Ct. 1982. Whether the warrantless search is of an automobile or of a closed container within an automobile, the limitation is the same: the scope of the search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found." United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). As the Supreme Court held in Acevedo, a police officer who has probable cause to believe a paper bag deposited in the trunk of a car contains marijuana may conduct a warrantless search of the trunk and the paper bag; but the officer can not then conduct a warrantless search of the passenger compartment of the car, unless he also has probable cause to believe the passenger compartment contains contraband. See Acevedo, 500 U.S. at 580, 111 S.Ct. 1982.
In the instant case, Officer Mooney clearly had probable cause to search the passenger compartment of McRae's vehicle without a warrant, based on the burning marijuana he smelled as he approached the car. The question is whether he also had probable cause to search the locked trunk of the car and the closed suitcase inside the trunk (where the cocaine was found).
The government argues that the K-9 drug dog's "alerting" on the driver side of the car gave Mooney probable cause to search the entire vehicle: including the trunk and the suitcase. We think that overstates the matter. Because probable cause must be tailored to specific compartments and containers within an automobile, the key is whether the dog "alerted" in the precise vicinity of the trunk. That is a question of fact that the district court resolved in favor of the government, finding that the dog's "alerting" was sufficiently close to the trunk to give Officer Mooney probable cause to believe it contained contraband. We review the district court's findings of fact in a suppression hearing only for clear error. See Seidman, 156 F.3d at 547; see also United States v. Gray, 137 F.3d 765, 769 (4th Cir.1998). And it was not clearly erroneous for the district court to conclude that the dog's "alerting" was prompted by the contents of the trunk.
III.
Defendant Jerry McRae also appeals from the district court's denial of his motion to suppress drug evidence seized from his car during a separate warrantless search conducted by Fayetteville, North Carolina police officers.
On March 1, 1997, the police responded to a domestic violence report at McRae's residence. The police put McRae in the back of a police car and went back inside the home to talk to Ms. McRae. The police and Ms. McRae tell two conflicting versions of what happened next.
According to Ms. McRae, she never consented to the search of the vehicle sh...
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