United States v. Rose

• Decision Date: 09 July 2021
• Docket Number: No. 19-4755,19-4755
• Citation: 3 F.4th 722
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Faruq ROSE, a/k/a Faruq Uthman Rose, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

3 F.4th 722

UNITED STATES of America, Plaintiff - Appellee,

v.Faruq ROSE, a/k/a Faruq Uthman Rose, Defendant - Appellant.

No. 19-4755

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2021

Decided: July 9, 2021

ARGUED: William David Auman, AUMAN LAW OFFICES, Asheville, North Carolina, for Appellant. Scott Andrew Lemmon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, J. Bradford Knott, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before GREGORY, Chief Judge, KEENAN, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the majority opinion, in which Judge Quattlebaum joined. Chief Judge Gregory wrote a dissenting opinion.

BARBARA MILANO KEENAN, Circuit Judge:

This appeal involves searches of two packages at a FedEx processing facility that were addressed to a deceased person. The defendant, Faruq Rose, the intended recipient of those packages, asserts a Fourth Amendment right entitling him to suppression of evidence of cocaine discovered during those searches.

Rose was convicted by a jury of (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 ; and (2) possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court sentenced Rose to serve a 420-month term of imprisonment and a five-year term of supervised release.

Before trial, Rose filed a motion to suppress evidence of the cocaine found in the two searches conducted at the FedEx processing facility. Rose argued that although he was neither the sender of, nor the named recipient on, the packages, he nonetheless had a reasonable expectation of privacy in those packages because he was their intended recipient. The district court denied Rose's motion.

On appeal, Rose challenges the district court's denial of his motion to suppress, as well as the procedural and substantive reasonableness of his sentence.¹ Upon our review, we conclude that the district court did not err in denying the suppression motion because, at the time the searches were conducted, Rose did not have a reasonable expectation of privacy in the packages. We also reject Rose's arguments regarding the procedural and substantive reasonableness of his sentence. Accordingly, we affirm the district court's judgment.

I.

Rose developed a scheme to receive packages containing illegal controlled substances by having them delivered to a friend's residence in North Carolina. Rose paid his friend, Donald Ray West (West, or Donald West), to allow the packages, which were addressed to West's deceased brother, Ronald West, to be delivered to West's house in Wallace, North Carolina. Rose did not live at West's residence. Under the delivery arrangement with Donald West, and before delivery of the packages at issue here, Rose successfully had obtained multiple packages addressed to Ronald West that had been delivered to the residence. The record lacks any evidence that law enforcement was aware of these prior deliveries at the time of the searches at issue.

After those completed deliveries, in October 2016, Drug Enforcement Administration Task Force Officer Kevin Cornell and Guilford County Deputy Sheriff Thomas Gordy were screening packages at the "FedEx Mid-Atlantic Hub" in Greensboro, North Carolina (the FedEx facility), and noticed a suspicious package on the conveyor belt. The package attracted Deputy Gordy's attention because of the type of box, the heavy taping used, and the sender's location in Chandler, Arizona, which was a known "source city" for narcotics.

The package was addressed to Ronald West and listed a phone number on the label. After checking a law enforcement database, the officers verified that neither the phone number nor the address was registered to a person named Ronald West. The officers alerted the FedEx facility's manager to the suspicious package, which the manager opened. The package contained about two kilograms of cocaine.

Several minutes later, Officer Cornell spotted a second package with similar characteristics, which also was addressed to Ronald West and had been shipped from Chandler, Arizona. When the officers had a dog trained in narcotics detection approach the package, the dog signaled an "alert." Based on this alert, the officers obtained a search warrant, opened the package, and found two more kilograms of cocaine.

Following these discoveries, law enforcement officers coordinated a controlled delivery of both packages to West's residence and conducted surveillance of the home. After the packages were delivered, officers observed Rose and another man, LaVonne Murray, arrive at West's residence in a silver car and enter the home, before leaving shortly thereafter. However, while at the house, neither Rose nor Murray touched the packages that had been left on the front porch. When West later arrived at his residence, he entered but also did not touch the packages on the porch. Later that day, Rose and Murray returned to the residence, retrieved the packages, and departed in the silver car.

When officers tried to stop the vehicle, Rose, who was driving, attempted to evade them. Ultimately, the silver car collided head-on with an unmarked police car in a parking lot.

After the officers arrested Rose and informed him of his Miranda rights, he waived his right to remain silent. Rose explained that the packages contained cocaine, and that he was working with a drug organization to smuggle cocaine from California into North Carolina.

Rose was indicted for (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C. § 846 ; and (2) possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). He filed a motion to suppress the evidence found during the searches of the packages at the FedEx facility.

Before the hearing on the motion to suppress, Rose's counsel indicated that he intended to call Donald West as a witness. However, after a recess, counsel informed the court that he had changed his mind despite Rose's objection to the change in plans. As the hearing began, Rose's counsel informed the court that Rose wanted to have different counsel appointed, explaining that Rose viewed West as a necessary witness. The court responded by explaining that Rose's disagreement with counsel's tactical choice did not justify appointing new counsel, especially because present counsel was Rose's fifth attorney in the case.

When Rose's counsel attempted to introduce an affidavit executed by West, the court refused to admit it because West had not been called to testify as a witness. The court ultimately denied Rose's motion to suppress, concluding that Rose did not have an objectively reasonable expectation of privacy in the two packages at the time they were searched.

Before trial, Rose claimed that his counsel was ineffective at the suppression hearing in his approach to challenging the search and in his examination of the government's witnesses. When Rose requested that new counsel be appointed, the court noted Rose's prior difficulties with his several attorneys and asked whether present counsel wished to remain in the case. After counsel responded that Rose refused to listen to him, the court granted Rose's request for a new attorney. However, Rose's difficulties continued with another attorney who represented Rose at trial.

After the district court conducted a jury trial, the jury convicted Rose on both charges. The United States Probation Office prepared a presentence report (PSR), in which the probation officer computed a total offense level of 42 and a criminal history category of VI, resulting in a United States Sentencing Guidelines (U.S.S.G.) range of 360 months to life imprisonment. Relevant to this appeal, Rose's offense level included a two-level enhancement under U.S.S.G. § 3B1.1(c) for being a leader or organizer of the offenses. The district court overruled Rose's objection to the enhancement, explaining that Rose managed or supervised Donald West by coordinating the deliveries of the controlled substances to Donald West's address, planning logistics, and recruiting West to participate in the scheme.

The court reviewed the factors listed in 18 U.S.C. § 3553(a) in determining Rose's sentence. The court noted that: (1) Rose had been convicted of serious offenses; (2) he had an extensive criminal history that included violent offenses; (3) he had a limited employment history; and (4) he had attempted to obstruct justice by his conduct at the suppression hearing and at the trial. As examples of Rose's obstructionist conduct, the probation officer detailed in the PSR Rose's actions convincing Donald West to sign a false affidavit and encouraging him to provide false testimony at trial. In imposing the sentence of 420 months’ imprisonment and a five-year term of supervised release, the court noted that if it had "in any way miscalculated the advisory guideline range," it would "impose the same sentence as an alternative variant sentence." Rose appeals from the district court's judgment.

II.

A.

We first consider Rose's assertion that the district court erred in denying his motion to suppress. His argument is based on the simple, but incorrect, premise that because he was the intended recipient of the two packages addressed to Ronald West, he had a reasonable expectation of privacy in those packages.

We review a district court's denial of a motion to suppress by considering "conclusions of law de novo and underlying factual findings for clear error." United States v. Fall , 955 F.3d 363, 369-70 (4th Cir. 2020) (citation omitted). The Fourth Amendment protects individuals from unreasonable searches and...