U.S. v. Perry
| Decision Date | 23 March 2009 |
| Docket Number | No. 07-4727.,07-4727. |
| Citation | 560 F.3d 246 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Derrick Jomell PERRY, a/k/a Mel, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Rudolph Alexander Ashton, III, McCotter, Ashton & Smith, P.A., New Bern, North Carolina, for Appellant. Banumathi Rangarajan, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.
ON BRIEF:
George E.B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.
Before TRAXLER and AGEE, Circuit Judges, and Rebecca Beach SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed in part; vacated and remanded in part by published opinion. Judge TRAXLER wrote the opinion, in which Judge AGEE and Judge SMITH joined.
Derrick Jomell Perry appeals his convictions and sentences for distribution of crack cocaine, possession with intent to distribute marijuana, and possession of a firearm during and in relation to a drug trafficking crime. We affirm Perry's convictions, but vacate the sentence and remand for resentencing.
In May 2004, the Franklin County Sheriff's Department, working in cooperation with other law enforcement agencies, obtained a search warrant for Perry's Louisburg, North Carolina house and surrounding area, after receiving information from a reliable informant that the informant had personally observed cocaine and crack cocaine being prepared and sold there. Immediately prior to executing the warrant, two Franklin County officers conducted visual surveillance of Perry's house, a three-bedroom, double-wide mobile home. Over the course of approximately three hours, the officers observed ten cars being driven to the back of the house. Each car stayed no more than ten minutes. The officers observed Perry walking out of the house, into the woods, and back to the house. This activity was considered to be consistent with drug distribution.
During the ensuing search of Perry's house, officers found a small amount of marijuana in a jar in the kitchen and a brick of marijuana weighing approximately 373.5 grams, an amount consistent with distribution, in the kitchen island. Drug paraphernalia, including a set of digital scales, a cutting agent, and a crystal scanner, were also found in the kitchen. In the master bedroom, officers found two pipes containing marijuana residue on the night stand and a set of digital scales on the dresser. A loaded SKS assault rifle and .25 caliber semiautomatic pistol were found in the master bedroom closet. A .38 caliber revolver with ammunition was also found in the master bedroom. Officers also discovered that Perry's house was equipped with a television surveillance system. Cameras on the front and back corners of the house allowed Perry to see vehicles as they entered his driveway and traveled to the back of the house. In the woods next to the house, officers found a bucket containing 73.9 grams of powder cocaine, also an amount consistent with distribution, and an additional quantity of marijuana.
In May and June of 2005, SBI Agent Timothy Gay and Franklin County law enforcement officers arranged for a different informant to make three purchases of crack cocaine from Perry as follows: 26.1 grams on May 5, 2005; 5.8 grams on May 18, 2005, and 52.9 grams on June 9, 2005. At trial, the informant testified that he had purchased crack, powder cocaine, and marijuana from Perry over the course of four years, both at Perry's house and at his place of business.
Perry was subsequently indicted on two counts of distribution of more than five grams of crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999), arising from the controlled buys on May 5, 2005 (Count 1) and May 18, 2005 (Count 2), and one count of distribution of more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), arising from the controlled buy on June 9, 2005 (Count 3). Three additional counts arose out of the search of Perry's house in May 2004. Perry was indicted on one count (Count 4) of possession with intent to distribute a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1), one count (Count 5) of possession with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count (Count 6) of possessing firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (West Supp.2008).
Prior to trial, Perry moved to suppress evidence of the marijuana and firearms found in his house during the search, as well as incriminating statements he made to officers that day. The district court denied the motion. At the conclusion of the government's case, Perry moved for a judgment of acquittal with respect to Count 6 on the ground that there was insufficient evidence that he possessed the firearms in furtherance of any drug trafficking crime. The district court denied this motion as well.
The jury found Perry guilty of the controlled buy on May 18, 2005 (Count 2), but acquitted Perry of the remaining two controlled buys (Counts 1 and 3). The jury also convicted Perry of possession with intent to distribute the marijuana found in May 2004 (Count 5), and of possession of a firearm in furtherance of a drug trafficking crime (Count 6). However, the jury acquitted Perry of possession with intent to distribute the cocaine found in May 2004 (Count 4). Perry was sentenced to concurrent 170-month sentences on Counts 2 and 5, a consecutive 60-month sentence on Count 6, and a five-year term of supervised release.
On appeal, Perry first challenges the district court's denial of his motion to suppress the marijuana and firearms found during the search of his house, as well as the incriminating statements he made that same day. On appeal from the district court's denial of such a motion, we review the district court's factual findings for clear error and its legal determinations de novo. See United States v. Kimbrough, 477 F.3d 144, 147 (4th Cir.2007); United States v. Stevenson, 396 F.3d 538, 541 (4th Cir.2005).
We begin with Perry's challenge to the district court's refusal to suppress the marijuana and firearms found during the search of his house, in which Perry contends that the search warrant failed to describe the items to be seized with sufficient particularity and that there was insufficient probable cause to search for and seize those items
The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The requirement that the warrant describe with particularity the items to be seized ensures that persons are not subjected to "a general, exploratory rummaging in [their personal] belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). "The magistrate issuing the search warrant must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place." Owens ex rel. Owens v. Lott, 372 F.3d 267, 273 (4th Cir.2004) ().
In the instant case, a reliable, confidential informant personally observed crack cocaine and powder cocaine being prepared and sold at Perry's house. In addition, Perry had an established reputation as a drug dealer in Franklin County. Based upon this information, Detective William Mitchell of the Franklin County Sheriff's Office requested a search warrant, proposing as items to be seized, inter alia, "US coins and currency, proceeds from the sale and delivery of controlled substances, [c]rack [c]ocaine and other controlled substances, scales and measuring devices, ... drug paraphernalia, ... firearms and weapons, ... and fruits of the crimes listed in this application." J.A. 45 (emphasis added). The application listed as crimes Perry's possession with intent to sell and deliver cocaine and the maintenance of a dwelling to keep, sell, and store controlled substances. The detective also noted that, based on his training and experience, "drug traffickers typically possess numerous firearms and weapons for protection from other dealers, robbery from users, and from arrest for their criminal activities." J.A. 45. The warrant, as issued, authorized the seizure as requested, including "[c]rack [c]ocaine and other controlled substances," as well as "firearms and weapons." J.A. 45.
Like the district court, we conclude that the warrant was sufficiently particular to cover the marijuana, a "controlled substance[ ]," as well as the "firearms and weapons" found in the house. The seizure of the drugs and firearms was also supported by probable cause. Although the informant did not personally observe marijuana or firearms in the house, the informant's observation of cocaine being prepared and sold at the house, as well as the well-known and attested-to link between drug distribution and firearms, gave the officers probable cause to search for such controlled substances and firearms. See United States v. Ward, 171 F.3d 188, 195 (4th Cir.1999) (). In addition, the marijuana and firearms were found in the place where the cocaine and crack had been seen by the informant and, therefore, in a place where the officers unquestionably had probable cause to search. Accordingly, we affirm the district court's denial of Perry's motion to suppress the marijuana and firearms found during the search of his house.
Perry also challenges the district court's denial of his motion to suppress...
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