United States v. Cotton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4530

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARC COTTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00409-RDB)

Submitted: January 19, 2007 Decided: March 6, 2007

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVENELL,
PA, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Philip S. Jackson, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Marc Cotton pled guilty to possession with intent to

distribute cocaine, pursuant to a conditional plea agreement that

reserved his right to challenge the denial of his motion to

suppress evidence found in his car. He contends that the district

court improperly concluded that the officers had the reasonable

suspicion necessary to arrange a canine sniff of his car. We

affirm.

On August 24, 2005, between two and three o’clock in the

afternoon, officers began surveilling an individual named Keith

Waller. Waller was a federally convicted drug felon, and the

officers had been told by a confidential informant that Waller was

distributing large amounts of cocaine in Baltimore. For the next

three to four hours, officers observed Waller meet “for a very

short period of time” with at least three different people, twice

in homes and once in Waller’s car. An officer testified that the

meetings bore the indicia of drug deals.

At around 7:30 p.m., Waller stopped near an intersection.

His location was in an area known for drug-dealing and only a

couple of blocks away from where approximately eight months before

one of the officers had witnessed several deals. A BMW X5 vehicle

pulled up and stopped, and the driver, later identified as Marc

Cotton, got out of the BMW and got into Waller’s car. After

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staying for less than a minute, Cotton returned to his BMW and

left. The officers followed Cotton to a nearby Chinese restaurant.

Officers approached Cotton and identified themselves as

police officers. They told Cotton that they were investigating an

armed robbery and that Cotton matched the description of the armed

person. An officer then asked Cotton where he was coming from, and

Cotton responded that he was coming from his son’s football

practice. He said that he came directly from practice and did not

make any other stops.1

The officers then detained Cotton and called for a

drug-sniffing canine. Within fifteen minutes, the canine officer

arrived, and the dog alerted to the presence of drugs in the

vehicle. The officers then arrested Cotton and obtained a search

warrant for the car. The search produced 500 grams of cocaine.

Officers are permitted, consistent with the Fourth

Amendment, to “conduct a brief, investigatory stop when the officer

has a reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry v.

Ohio, 392 U.S. 1, 30 (1968). Reasonable suspicion requires more

than a hunch but less than probable cause. United States v.

Perkins, 363 F.3d 317, 320 (4th Cir. 2004). Officers conducting a

1
The district court found that, because Cotton was not free to
leave when he made this statement, it should be suppressed. Thus,
we do not consider the statement in our determination of whether
reasonable suspicion existed to order the canine sniff.

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lawful Terry stop may check for identification, question the

suspect about his travel plans, briefly detain the suspect, and

conduct a dog sniff. See Illinois v. Caballes, 543 U.S. 405, 409

(2005); United States v. Hensley, 469 U.S. 221, 232 (1985); United

States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). Thus, if

there was reasonable suspicion to believe that Cotton was involved

in criminal activity when the officers approached him, the officers

properly arranged for a prompt canine sniff. Cotton does not

dispute that, if the canine alert was proper, there was probable

cause to issue the warrant. See Caballes, 543 U.S. at 409 (holding

that positive canine alert may provide probable cause).

Several factors have been held to contribute to

reasonable suspicion. One contributing factor is the defendant’s

presence in a high-crime area. Perkins, 363 F.3d at 320.

Additionally, officers are permitted to draw on their experience

and specialized training to make inferences from and deductions

about cumulative evidence. United States v. Arvizu, 534 U.S. 266,

273 (2002).

The court based its ruling that there was reasonable

suspicion upon the following facts: (1) the area was known for drug

trafficking; (2) Cotton was observed parking his vehicle in the

area, leaving his vehicle and entering another vehicle, remaining

only briefly, and returning to his vehicle; (3) the vehicle Cotton

got into was driven by Keith Waller, a convicted drug dealer;

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(4) the police had confidential information that Waller was still

dealing drugs; and (5) based on his training and experience, an

officer concluded that this activity was consistent with a

narcotics transaction. We find that these circumstance, taken

together, provided the officers with reasonable, articulable

suspicion that Cotton was engaged in criminal activity, thus

justifying his detention and the canine sniff.

Cotton cites United States v. Sprinkle, 106 F.3d 613 (4th

Cir. 1997), as a case with similar facts where we upheld the

district court’s granting of a suppression motion. However, we

conclude that Sprinkle is distinguishable. In Sprinkle, an officer

saw a relative, who had recently been in prison on narcotics

charges, in a high crime area and sitting in a car. Sprinkle

walked up to the car and sat in the passenger’s seat next to the

relative. The driver and Sprinkle huddled together, and Sprinkle

put his hand in front of his face when he saw the officer.

However, we held that the police did not have reasonable suspicion

of criminal activity because the officers walked by and saw that

the hands of the driver and Sprinkle were empty. Id. at 616-17.

While the officers in Sprinkle knew that the driver of

the car was a convicted drug dealer, they had no information about

his current activities or those of Sprinkle. Here, the officers

had confidential information that Waller was dealing large

quantities of drugs. In addition, they had observed Waller spend

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his day conducting what appeared to be drug deals. Second, while

the officers could plainly see that neither Sprinkle nor the other

person had drugs or money in their hands, the officers in this case

observed what appeared to be a drug deal between Waller and Cotton.

Thus, the district court properly found that the officers had

reasonable suspicion sufficient to conduct a Terry stop of Cotton

and a dog sniff of his car.2

Because the positive alert was properly obtained, it was

properly included in the affidavit and provided ample support for

the finding of probable cause. Accordingly, the warrant was

properly issued, and we therefore affirm Cotton’s conviction. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

2
This holding calls into question the district court’s
determination that Cotton’s false statements to the police should
be suppressed. However, that ruling is not before us on appeal.

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