United States v. Howard, 012909 FED4, 074146

Docket Nº:07-4146, 07-4147, 07-4168
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID L. HOWARD, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NICHOLAS RAGIN, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRACY HOWARD, Defendant - Appellant.
Attorney:Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Richard A. Culler, CULLER & CULLER, Sue Genrich Berry, BOWEN AND BERRY, P.L.L.C, for Appellants. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, for Appellee. Claire J. Rauscher, Executive Director, Matthew R. Segal, ...
Judge Panel:Before TRAXLER and AGEE, Circuit Judges, and Rebecca Beach SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.
Case Date:January 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

DAVID L. HOWARD, Defendant – Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

NICHOLAS RAGIN, Defendant – Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

TRACY HOWARD, Defendant - Appellant.

Nos. 07-4146, 07-4147, 07-4168

United States Court of Appeals, Fourth Circuit

January 29, 2009

UNPUBLISHED

Argued: December 5, 2008.

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:04-cr-00271)

ARGUED:

Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Richard A. Culler, CULLER & CULLER, Sue Genrich Berry, BOWEN AND BERRY, P.L.L.C, for Appellants.

Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Matthew R. Segal, Peter S. Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant

David L. Howard. Gretchen C. F. Shappert, United States Attorney, Charlotte, 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Affirmed in part, vacated in part, and remanded in part by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit

PER CURIAM:

David L. Howard ("David"), Tracy Howard ("Tracy"), and Nicholas Ragin ("Ragin") (collectively "the Defendants") appeal their convictions and sentences on various charges primarily related to prostitution and illegal drug sales. (JA 65). Relevant to this appeal for all the Defendants are convictions for conspiracy to promote prostitution in violation of 18 U.S.C. §§ 2422, 2423, 1952 (2008), (JA 66-68), and conspiracy to possess with intent to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. § 846. (JA 70). David and Tracy were also convicted for conspiracy to launder prostitution proceeds in violation of 18 U.S.C. § 1956. (JA 69).

David contends that he was deprived of his Fifth and Sixth Amendment rights to present a defense and that he was sentenced based on an incorrect advisory guideline range. Tracy argues that the district court erroneously denied his motion to suppress certain evidence. David and Tracy jointly assert that the district court gave incorrect jury instructions for the money laundering count. The Defendants collectively appeal their sentences, arguing that the district court gave incorrect jury instructions and that the sentences violate their Fifth and Sixth Amendment rights. For the following reasons, we affirm the judgment of the district court in part, vacate in part, and remand as to David for resentencing.

I. Tracy's Motion to Suppress

In reviewing a denial of a motion to suppress, this Court reviews the district court's factual findings for clear error and its legal conclusions de novo. United States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997).

A. Relevant Facts

In September 2004, Vice Detective M.J. Grimsley ("Grimsley") received information from David, who was acting as a confidential informant, that Tracy was selling drugs and prostituting underage girls. On September 16, 2004, David informed Grimsley that Tracy had rented a hotel room and was staying in the room with his girlfriend, Keshia Burris ("Burris") who was listed as a guest at the hotel. David also reported that Tracy and Burris had a fourteen year old girl in the room. Grimsley was unable to confirm whether the alleged minor was staying in the room but determined there was an outstanding warrant for Tracy's arrest.

Instead of arresting Tracy in the hotel room, detectives waited until he left the room and drove a few blocks away from the hotel where they conducted a traffic stop. (JA 129). During the stop, Grimsley questioned Tracy about his activities at the hotel, including whether he kept a minor there or had any instrumentalities of crime in his room. Grimsley asked for Tracy's consent to search the room and Tracy responded that he "would consent to [Grimsley's] searching for a body" but "he did not want [Grimsley] poking around" because "he had a little money" in the room. (JA 132). Tracy was then arrested on the outstanding warrant and taken to the local law enforcement center for questioning.

Officers then approached Burris at the hotel and asked her permission to enter and search the hotel room. She consented to the search and opened the door with her key. Upon entering the hotel room, officers did not see a minor or any other person, but drug paraphernalia, including packaging for cocaine, a scale, a razor blade, and a bag of crack cocaine were in plain view. Upon searching the room further, officers found more crack cocaine, money, and a pistol hidden at various places.

Tracy filed a motion to suppress the evidence found in the hotel room as well as certain statements he made to police in an interview after his arrest. He contended that the hotel room search was unlawful because he did not give his consent. The district court denied the motion.

B. Analysis

Tracy avers that Burris's consent to a search of the hotel room was not sufficient to overcome his express refusal to give consent for a search. In support of his position, Tracy cites the Supreme Court's holding in Georgia v. Randolph, 547 U.S. 103 (2006), which stated that a "physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." Id. at 122-23. In that case, the defendant unequivocally refused to consent to a warrantless police search. Id. at 107. His wife subsequently gave police permission to search their marital residence. Id. The Supreme Court held that the search was unreasonable and invalid as to the husband. Id. at 120.

Tracy argues that Randolph applies here because he only gave limited consent to a search, that is, to verify the fourteen year old minor was not in the hotel room.1Consequently, Tracy contends the police officers breached the rule in Randolph, because they conducted a full search which was beyond the limits of his consent. The Government responds that Randolph does not apply because Tracy was not physically present at the hotel when Burris consented to a full search of the room.

It is not necessary for us to reach the Randolph question because, under the facts of this case, the inevitable discovery rule applies. "[W]here it appears that evidence 'inevitably would have been discovered by lawful means, ' the deterrence rationale of the exclusionary rule has 'so little basis' that the rule should not be applied." United States v. Whitehorn, 813 F.2d 646, 650 (4th Cir. 1987) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)).

The officers who entered Tracy's hotel room, on the basis of the limited consent to search the room for a body, discovered the drug paraphernalia in plain view. Upon observing this paraphernalia in plain view, officers inevitably would have arrested Burris and Tracy. Incident to that arrest, officers would have searched the surrounding area. Police may conduct a search of the area "immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie, 494 U.S. 325, 334 (1990). The district court found that any items seized that were not in plain view "were readily accessible by any inhabitant of that room." (JA 261) . Thus, while conducting a search incident to arrest, officers would have inevitably discovered the other incriminating evidence which was not in plain view.

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