United States v. Marshall, 16-4594
| Decision Date | 29 August 2018 |
| Docket Number | No. 16-4594,16-4594 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYAN CHRISTOPHER MARSHALL, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:15-cr-00630-JFA-1)
Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and SHEDD, Senior Circuit Judge.
ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, South Carolina, for Appellant. William Camden Lewis, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, Nancy Chastain Wicker, Robert Frank Daley, Jr., Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Bryan Marshall was charged with three felonies: (1) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841; (2) possession of a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3) being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). The charges were based on certain items recovered when police officers executed a search warrant for a vehicle that Marshall was driving immediately before he encountered the police. Marshall sought to suppress this evidence, arguing that the officers had violated his Fourth Amendment rights by arresting him without probable cause, and by towing the vehicle without justification. After the district court denied the suppression motion, Marshall entered a conditional guilty plea. The district court sentenced Marshall in accordance with the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and the career offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.1 (). Marshall now appeals the district court's judgment, challenging the denial of his suppression motion and his ACCA and career offender designations.
Upon our review, we conclude that the district court properly denied Marshall's motion to suppress because (1) his arrest for disorderly conduct was supported by probable cause; and (2) the officers complied with police department policy and acted reasonably in towing the vehicle under the community caretaking exception to the general warrant requirement. We also hold that the court correctly determined thatMarshall qualified for enhanced penalties based on his prior drug convictions. We therefore affirm the district court's judgment.
Because the district court denied Marshall's suppression motion, we state the evidence in the light most favorable to the government. United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013). Notably, Marshall does not challenge any of the district court's factual findings, including the district court's decision to credit the testimony of the arresting officer.
On April 22, 2014, around 10:00 p.m., Officer James Heywood and Officer Trainee Christon Miller of the Columbia, South Carolina Police Department, were patrolling a Columbia neighborhood in a marked police car when they received information from a police dispatcher that gunshots had been fired nearby. The dispatcher further informed the officers of a report that a dark-colored pickup truck "with rims" was connected to the shooting incident.
Minutes later, about three or four blocks from the reported shooting, Officer Heywood observed Marshall driving a truck (the truck, or the vehicle) that matched the description provided by the dispatcher. Marshall backed the truck into a driveway of a house located on Waites Road (the Waites Road property), and got out of the truck along with his passengers. Officer Heywood and another officer parked their patrol cars in front of the Waites Road property, got out of their vehicles, and approached Marshall.
At that time, Marshall began walking toward the house, and was holding the keys to the truck in his hand. Officer Heywood approached Marshall and inquired about the nearby shooting. Heywood also asked whether the truck had any connection to the shooting incident, and twice requested permission to search the truck.
Marshall admitted that he had been driving the truck, but did not respond to Heywood's requests for consent to search the vehicle. Marshall immediately became loud and belligerent, shouting profanities at the officers and yelling that the officers were "f---ing with him."
During this exchange, between 10 and 15 people came out of the residence, formed a crowd near the officers, and began shouting comments in support of Marshall. After one member of the crowd shouted that the officers would be unable to search the truck if they did not have the keys, Marshall threw the keys into the crowd. The officers did not know where the keys had fallen or whether anyone had retrieved them.
After Marshall continued to disregard the officers' direction to "calm down," the officers arrested him for disorderly conduct, in violation of Columbia City Ordinance 14-91(1). At the time of the arrest, Marshall was standing on public property, on the shoulder of the public street.
Following Marshall's arrest, the officers learned from a computer database that Marshall was not the owner of the truck. The truck was registered to a person who did not reside, and was not currently present, at the Waites Road property. Despite Marshall's request to leave the truck where it was parked, the officers arranged for the truck to be towed to a police station. At the station, a narcotics detection dog alerted tothe presence of drugs in the vehicle. The officers later had the truck towed to police department headquarters in Columbia.
The day after Marshall's arrest, narcotics investigators obtained a search warrant for the truck. During a search conducted pursuant to that warrant, investigators recovered from the vehicle several bags of marijuana, hashish, a loaded firearm, additional ammunition, cash, a digital scale, other bags, and a wallet containing Marshall's identification.
After Marshall's entry of a conditional guilty plea reserving his right to appeal the denial of the suppression motion, the district court convicted Marshall of the drug and firearm-related charges.1 Based on Marshall's four prior drug-related convictions, the probation officer designated Marshall as an armed career criminal under the ACCA and as a career offender under the Guidelines. Over Marshall's objection, the district court concluded that Marshall's prior drug convictions qualified as predicate offenses for purposes of both the ACCA and the career offender guideline. The court sentenced Marshall to a term of 261 months' imprisonment, and Marshall now appeals.
As noted above, in considering the denial of a motion to suppress, we view the evidence in the light most favorable to the government. McGee, 736 F.3d at 269. Wereview the district court's factual findings for clear error and its legal conclusions de novo. Id.
Marshall first argues that his arrest for disorderly conduct, under Columbia, South Carolina City Ordinance 14-91 (the ordinance), was not supported by probable cause. He contends that his actions did not amount to disorderly conduct, because the crowd did not take any threatening actions and was not so disruptive as to place Marshall's statements outside the scope of First Amendment protection. Notably, however, Marshall does not contend that the ordinance violates the First Amendment, or that his words were not lewd or obscene within the meaning of the ordinance. Instead, he only contests probable cause for his arrest on the limited basis that his actions did not create a clear danger and that, therefore, the district court should have suppressed the evidence recovered from the vehicle following his illegal arrest. We disagree with Marshall's argument.2
In addressing the issue whether an arrest was supported by probable cause, we consider two facts: (1) the conduct of the arrestee known to the officer at the time, and (2) the contours of the offense contemplated by that conduct. Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017). We consider only whether these facts "provide a probability on which reasonable and prudent persons would act," and do not examine the officer's subjective belief regarding whether the probable cause standard was satisfied. Id.(citation omitted). Thus, although an officer needs more than "bare suspicion" to justify an arrest, the officer need not have evidence sufficient to support a conviction. Id. (citation omitted). Probable cause is a practical, common-sense standard that we apply under the totality of the circumstances. Florida v. Harris, 568 U.S. 237, 244 (2013).
The ordinance forming the basis for Marshall's arrest provides, in relevant part:
Columbia, South Carolina City Ordinance 14-91, available at https://library.municode.com/sc/columbia/codes/code_of_ordinances (emphasis added). Because Marshall does not argue that his words were not "lewd or obscene," we consider only whether the officers had probable cause to believe that Marshall engaged in conduct that he reasonably knew would tend to "promote or provoke" violence under the ordinance.
In the present case, in considering the issue of probable cause, we find...
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