United States v. Smith, 20-4290

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: WILKINSON, Circuit Judge
• Citation: 21 F.4th 122
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Jabrell Craig SMITH, Defendant - Appellant.
• Docket Number: No. 20-4290,20-4290
• Decision Date: 17 December 2021

21 F.4th 122

UNITED STATES of America, Plaintiff – Appellee,
v.
Jabrell Craig SMITH, Defendant - Appellant.

No. 20-4290

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2021
Decided: December 17, 2021

ARGUED: John Scott Coalter, COALTER LAW P.L.L.C, Greensboro, North Carolina, for Appellant. John McRae Alsup, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Before WILKINSON, WYNN, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Harris joined. Judge Wynn wrote an opinion dissenting in part and dissenting from the judgment.

WILKINSON, Circuit Judge:

A jury convicted Jabrell Craig Smith of possessing heroin with intent to distribute and three offenses related to possessing a firearm. On appeal, Smith claims that the evidence against him should have been suppressed, that the district court abused its discretion in failing to give a lesser-included offense instruction, and that there was insufficient evidence supporting the jury's guilty verdict. For the following reasons, we affirm Smith's convictions.

I.

A.

On May 29, 2017, the Greensboro Police Department Street Crimes Unit (SCU)

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was conducting surveillance at a nightclub called Lucky 7's. Vincent Legrande, whom SCU knew to be a convicted felon, was inside. At approximately 2:00 a.m., SCU officers saw Legrande and two others, later determined to be Smith and Ja'kirus Staton, leave Lucky 7's in a black Chevrolet Malibu. Staton was driving, Smith was in the front right seat, and Legrande was in the back right seat.

Corporal James Buchanan and Detective Robert Mayo began following the Malibu in an unmarked police car. Buchanan radioed another SCU officer to run the license plate, which he identified as "Eagle, Eagle, Lincoln 7755," or "EEL 7755." The search for that plate showed that it was registered to a different car, leading the SCU team to believe that the Malibu was being driven with a fictitious registration. There is no dispute that Buchanan inadvertently transposed one letter while reading the license plate and that the Malibu had a valid license plate reading "ELL 7755."

Mayo and Buchanan followed the Malibu to a gas station, where they were eventually joined by several other SCU units. As they pulled into the parking lot, they saw Legrande get out of the back right passenger seat and walk over to a nearby car. Staton and Smith were already inside the convenience store.

The SCU units pulled around the Malibu and activated their blue lights, began exiting their cars, drew their guns, and yelled at Legrande to keep his hands up. Buchanan approached the Malibu and shined a flashlight inside. He saw a handgun protruding out from underneath the back of the front passenger seat to the footwell of the right-rear seat where the officers had observed Legrande. Detective Jason Lowe later observed another firearm, an Intratec 9mm handgun, on the floorboard of the Malibu's front-right passenger seat, where Smith had been sitting.

Meanwhile, Mayo and Sergeant Kory Flowers went inside the convenience store. Smith was standing in front of the cashier as if to pay for merchandise; Staton was standing behind Smith in line. Flowers approached Smith, advised him that he was being detained because of a fictitious tag, and placed him in handcuffs. Smith responded that the car was not his. At this time, neither officer knew about the handguns or the identities of Staton or Smith.

Officers detained Smith outside for about thirty minutes while they searched the Malibu. The officers seized both handguns, two cell phones, and a bag of heroin. Upon finding the heroin in the front-right door pocket, they arrested Smith and told him that he was being charged with trafficking. Smith asked how much the heroin weighed, and officers responded that it weighed 4.5 grams. Smith protested several times that the bag weighed a gram and that officers should have weighed the heroin without the packaging, rendering a weight of 3.5 grams. A later laboratory test showed that the heroin weighed 3.32 grams.

B.

A grand jury indicted Smith of possessing with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) ; possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C § 924(c) ; being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) ; and possessing a firearm subject to regulation under the National Firearms Act, in violation of 26 U.S.C. §§ 5845(a) and (e), 5861(d), and 5871.

Before trial, Smith filed a motion to suppress the evidence found in the car. He argued that officers lacked reasonable suspicion or probable cause to justify the seizure

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and that the subsequent search of the car violated his reasonable expectation of privacy. The district court denied the motion, finding that both the search and seizure of the car were lawful and that Smith lacked standing to raise a Fourth Amendment challenge.

Smith was then tried before a jury. The government presented, among other things, testimony of the SCU officers, DNA evidence linking Smith to the Intratec handgun, and videos depicting Legrande and Smith holding handguns. It also presented text messages found in a search of Smith's cell phone and expert testimony concluding that the heroin was unlikely to be for personal use.

At the close of the government's evidence, Smith moved for a judgment of acquittal due to insufficient evidence, which the district court denied. The defense then rested. Smith requested a jury instruction on simple possession of heroin, a lesser-included offense of the possession with intent to distribute charge. The district court also denied that motion. The jury returned a guilty verdict on all counts, and Smith was sentenced to 138 months imprisonment.

II.

Smith first argues that the evidence against him—the heroin, the two firearms, and the cell phone—should have been suppressed because the search and seizure of the Malibu were based on an unreasonable mistake about its license plate. Yet we must initially consider whether Smith even has standing to raise this Fourth Amendment challenge. Smith puts forth two grounds for standing: first, that he can challenge the search because he had a legitimate expectation of privacy in the Malibu and, alternatively, that he can challenge the seizure because he was also seized along with the car. We reject both theories. Because we hold that Smith lacks standing, we have no need to pass on the merits of his Fourth Amendment claim.

In assessing a district court's decision on a motion to suppress, we review factual findings for clear error and legal determinations de novo. United States v. Lewis , 606 F.3d 193, 197 (4th Cir. 2010). When, as here, a district court has denied a suppression motion, we view the evidence in the light most favorable to the government. United States v. Palmer , 820 F.3d 640, 648 (4th Cir. 2016). This entails giving "due weight to inferences drawn from those facts by resident judges and law enforcement officers." Lewis , 606 F.3d. at 197 (internal citation omitted).

A.

Fourth Amendment standing doctrine is carefully tailored to the privacy rights the Amendment was designed to protect. Smith claims he had a legitimate expectation of privacy in the Malibu that allows him to challenge its search. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The text signals that "the Fourth Amendment is a personal right that must be invoked by an individual." Minnesota v. Carter , 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). So we must ask whether a person "has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." Rakas v. Illinois , 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). To successfully bring that challenge, a defendant must show both "that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." Carter , 525 U.S. at 88, 119 S.Ct. 469 ; see also

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United States v. Castellanos , 716 F.3d 828, 832 n.3 (4th Cir. 2013). The defendant bears the burden of demonstrating his legitimate expectation of privacy in the area searched. Rawlings v. Kentucky , 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

A legitimate expectation of privacy is not established solely through legitimate presence in a particular place. Rakas , 439 U.S. at 148, 99 S.Ct. 421. Nor does ownership of the item seized, by itself, confer a privacy interest in the area searched. United States v. Manbeck , 744 F.2d 360, 374 (4th Cir. 1984). Both legitimate presence and ownership of the items found should of course be considered in analyzing a legitimate expectation of privacy. See Rakas , 439 U.S. at 148, 99 S.Ct. 421 ; Manbeck , 744 F.2d at 374. But if a passenger asserts neither a property nor...