UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOSE DEMOND ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-03-616)
Argued: February 1, 2007 Decided: March 22, 2007
Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South
Carolina, for Appellant. Isaac Louis Johnson, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee. ON BRIEF: Reginald I.
Lloyd, United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlose Demond Robinson (“Appellant”) appeals his convictions
for various drug-related offenses and resulting 960-month sentence.
He challenges his convictions solely on Fourth Amendment grounds,
arguing that the district court should have suppressed numerous
pieces of evidence presented at trial. He challenges his sentence
on both constitutional and statutory bases under United States v.
Booker, 543 U.S. 220 (2005). For the reasons that follow, we
affirm Appellant’s convictions, but reverse his sentence and remand
to the district court.
I
In 2002, Appellant was the target of a joint investigation
between the Greenville County Sheriff’s Department (“Sheriff’s
Department”) and the U.S. Drug Enforcement Agency (“DEA”). During
the course of this investigation the Sheriff’s Department secured
the cooperation of a confidential informant (the “CI”) who was
familiar with Appellant. The CI disclosed that Appellant was
selling drugs out of an apartment located at 79 Haywood Crossing in
Greenville (“79 Haywood”), and officers placed that location under
surveillance.
On October 30, 2002, the CI arranged to purchase cocaine from
Appellant. Prior to meeting with Appellant, the CI was outfitted
with a covert listening device so that officers could listen to and
2
record the transaction. Appellant and the CI first met in a
restaurant parking lot to exchange the cocaine and, several hours
later, met at a gas station to exchange payment for the drugs.
Appellant drove to the first meeting in a rented Nissan Pathfinder
and to the second in a Chevrolet Caprice. For both meetings,
Appellant came directly from and returned directly to 79 Haywood.
Throughout this period, Appellant was under constant surveillance
by a rotating team of officers in different vehicles.
A. The October 30, 2002 Searches
Shortly after returning to 79 Haywood following his second
meeting with the CI, Appellant again left the apartment driving the
Pathfinder. At that time, Officer Edward Hazel (“Hazel”), a member
of the surveillance team, contacted Officer Mark Edwards
(“Edwards”), a member of the Sheriff’s Department who was
previously uninvolved in the investigation, to notify him of the
ongoing surveillance. Hazel informed Edwards of Appellant’s
location, the type of car he was driving, and the fact that he had
conducted a drug transaction out of the Pathfinder earlier in the
day. Edwards then caught up to the rolling surveillance of
Appellant and began following him.
Shortly after Edwards began following him, Appellant made a
right turn at a red light without coming to a complete stop.
Edwards immediately pulled Appellant over for the traffic
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violation, approached his car, and requested his driver’s license,
registration, and proof of insurance. Appellant provided his
driver’s license, but had no registration or insurance information
because the car was rented. After returning to his car and
checking Appellant’s driver’s license, Edwards confirmed that he
had pulled over the target of the on going surveillance, and that
Appellant had prior weapons and drug convictions.
Edwards then returned to Appellant’s car, asked him to exit
the vehicle, informed him of his traffic violation, and issued him
a citation. Edwards asked whether Appellant had any weapons or
drugs in his possession or in the car. Appellant denied having
any. Edwards then received Appellant’s permission to perform a
patdown search, which revealed money, but no contraband.
After Appellant denied him consent to search the Pathfinder,
Edwards called for a K-9 unit to come to the scene. Approximately
ten minutes later, the K-9 unit arrived, conducted a sweep of the
car and alerted to the presence of drugs. Two other officers then
arrived on the scene and conducted a search of the Pathfinder,
discovering two handguns and several bags of cocaine.
Based on the contraband discovered in the Pathfinder and the
fact that Appellant had been at 79 Haywood directly prior to the
traffic stop, officers obtained a search warrant for the apartment,
where they ultimately discovered cocaine, a digital scale,
currency, and paperwork with Appellant’s name on it.
4
Officers placed Appellant under arrest that day, but he was
released on bond the following day, October 31, 2002.
B. The February 1, 2003 Search
In early 2003, the Sheriff’s Department was searching for
Appellant in connection with an outstanding arrest warrant for
murder. On February 1, 2003, Inspector Collis Flavell met with
Wister Gates, an informant who had worked with Appellant in selling
narcotics and had been arrested on charges not relevant here.
Gates informed Flavell that he had seen Appellant earlier that day
at a house located at 16 Bradley Boulevard in Greenville (“16
Bradley”). Gates indicated that Appellant was selling drugs from
that residence and described a number of the cars located there.
Flavell and Gates went to 16 Bradley to confirm its physical
location. Flavell later confirmed independently that Appellant was
known to use one of the vehicles parked there. Flavell then
obtained a warrant to search for Appellant at the residence. When
executing the search warrant, officers discovered Appellant, a
handgun lying in plain view, and $2,800 in Appellant’s possession.
Officers subsequently obtained two additional search warrants, one
to search the full residence for contraband and one to open a safe
discovered on the premises. The execution of those two warrants
revealed firearms, ammunition, a drug scale, an additional $24,628,
marijuana, cocaine, and various items used to make crack cocaine.
5
C. The Trial
On February 10, 2004, Appellant was charged in a superseding
indictment with (1) one count of conspiracy to possess with intent
to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846; (2) two counts of possession of cocaine and
aiding and abetting in violation of 18 U.S.C. § 2 and 21 U.S.C. §
841(a)(1), (b)(1)(A), (b)(1)(C); (3) two counts of possession and
use of a firearm in furtherance of a drug crime, and aiding and
abetting in violation of 18 U.S.C. §§ 2, 924(c)(1); and (4) two
counts of felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2).
Prior to trial, Appellant filed two separate motions to
suppress evidence, one for the fruits of the search of the
Pathfinder and 79 Haywood, and one for the fruits of the search of
16 Bradley. Both motions were denied. Following a jury trial,
Appellant was convicted of all counts in the superseding
indictment.
Before Appellant was sentenced, the Supreme Court issued
Blakely v. Washington, 542 U.S. 296 (2004), but had yet to decide
United States v. Booker, 543 U.S. 220 (2005). At sentencing,
Appellant raised a Blakely objection to the quantity of drugs used
and to the government’s use of Appellant prior convictions for
sentencing purposes. The district court overruled these objections
and sentenced Appellant to a combined 960-month sentence after
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finding that he qualified as a Career Offender under U.S.S.G. §
4B1.1 for each of his narcotics violations and an Armed Career
Criminal under U.S.S.G. § 4B1.4 for each of his firearms offenses.
This appeal followed.
II
Appellant challenges his convictions on grounds that the
evidence underlying each was obtained in violation of his Fourth
Amendment rights and should have been suppressed.1 We will
consider each of his arguments in turn.
A.
With respect to the search of the Pathfinder, Appellant argues
that Edwards violated his Fourth Amendment rights by detaining him
for the period of time necessary for the K-9 unit to arrive on the
scene and conduct the sweep of the car. Appellant does not dispute
that, up to that point, Edwards was justified in detaining him to
investigate his traffic infraction. However, Appellant contends
that once Edwards concluded the routine traffic stop, he was
without authority to continue the detention. The government
counters that Appellant’s criminal activity and pattern of behavior
earlier in the day created sufficient reasonable suspicion of
1
We have reviewed the remainder of Appellant’s arguments and
find that they are without merit.
7
ongoing criminal drug activity to justify the detention under Terry
v. Ohio, 392 U.S. 1 (1968). We agree with the government.
Consistent with the Fourth Amendment protection against
“unreasonable searches and seizures,” U.S. Const. amend. IV,
officers can briefly detain a suspect in order to investigate a
reasonable suspicion that criminal activity is afoot. Terry, 392
U.S. at 30. When a routine traffic infraction is involved, “an
officer may request a driver’s license and vehicle registration,
run a computer check, and issue a citation. Any further
investigative detention, however, is . . . illegal unless the
officer has a reasonable suspicion of other criminal activity or .
. . consent” from the suspect. United States v. Foreman, 369 F.3d
776, 781 (4th Cir. 2004). Indeed, although the sweep of a car by
a drug dog is not a search for Fourth Amendment purposes, “in order
to perform the sniff, there must be a seizure of the vehicle and,
therefore, the person, requiring either consent to be detained or
reasonable suspicion.” Id.
There is no dispute that Appellant did not consent to being
detained for the period of time necessary for the K-9 unit to
arrive and sweep the Pathfinder. Therefore, we must determine
whether the detention was lawful under Terry by analyzing whether
it was “[1] justified at its inception [(i.e., whether reasonable
suspicion was present)], and . . . [2] was reasonably related in
scope to the circumstances which justified the interference in the
8
first place.” Terry, 392 U.S. at 20. We consider each element in
turn.
First, the continued detention was justified because
Appellant’s actions on the day in question created a reasonable
suspicion that he was engaged in ongoing criminal drug activity.
To establish reasonable suspicion, an officer must “point to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant . . . intrusion” on
a suspect’s Fourth Amendment rights. Terry, 392 U.S. at 21. “The
officer must be able to articulate more than an inchoate and
unparticularized suspicion or ‘hunch’ of criminal activity.”
Wardlow v. Illinois, 528 U.S. 119, 123-24 (2000) (internal
quotations omitted). The requisite “level of suspicion,” however,
“is considerably less than proof of wrongdoing by a preponderance
of evidence,” United States v. Quarles, 330 F.3d 650, 653 (4th Cir.
2003) (internal quotations omitted), and “can arise from
information that is less reliable than that required to show
probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990).
Reasonable suspicion is determined based on the totality of the
circumstances, id., and may be based on the collective knowledge of
officers involved in a single investigation. See United States v.
Hensley, 469 U.S. 221, 232 (1985).
Taking into account the collective knowledge of the officers
involved in the investigation of Appellant, the following
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circumstances informed Edwards’s decision to detain Appellant: (1)
a reliable CI told officers that she could purchase drugs from
Appellant; (2) the CI was quickly able to arrange such a
transaction; (3) Appellant delivered drugs to the CI in a rented
Pathfinder; (4) Appellant used a separate car to retrieve the money
for the drugs from the CI a short time later; (5) after each step
of the transaction with the CI, Appellant returned to 79 Haywood;
and (6) just prior to the traffic stop, Appellant left the
apartment driving the Pathfinder that he had used to deliver drugs
to the CI. Taken together, these facts support a reasonable
suspicion that Appellant was engaged in ongoing drug dealing and
was using the Pathfinder to conduct his business. Consequently, it
was reasonable for Edwards to suspect that Appellant was likely in
possession of drugs at the time of the traffic stop and detain him
based on that suspicion.
Second, the length of Appellant’s detention fell well within
the scope of lawful police action under the Fourth Amendment. The
permissible scope of a Terry stop is “strictly tied to and
justified by the circumstances which rendered its initiation
permissible.” Terry, 392 U.S. at 19 (internal quotations omitted).
We have previously upheld the investigative detention of an
individual suspected of drug activity, along with his luggage, for
thirty-eight minutes while officers awaited the arrival of a K-9
unit to sweep for drugs. United States v. McFarley, 991 F.2d 1188,
10
1193-94 (4th Cir. 1993). In McFarley, we found the scope of the
detention reasonable because there was no evidence that officers
unduly extended the defendant’s detention or failed to act with
diligence in conducting their investigation. Id. at 1194. The
same reasoning controls here.
Edwards detained Appellant for approximately ten minutes while
waiting for the K-9 unit to arrive. Although there is no
indication in the record of how much time the dog sweep took, all
of the evidence in the record suggests that Edwards and the other
officers acted with diligence in investigating their suspicions.
Conversely, there is no evidence that Edwards or the other officers
detained Appellant for any longer than necessary. Therefore, based
on McFarley, we conclude that Appellant’s detention was reasonable
in scope.
Ultimately, we find no merit in Appellant’s argument that his
detention during the traffic stop violated the Fourth Amendment.
B.
Appellant next argues that, because the government offered no
evidence on the K-9 unit’s training or certification, the district
court erred in finding that the dog sweep of the Pathfinder
provided probable cause to search the vehicle. Appellant waived
this argument by failing to raise it below. Muth v. United States,
1 F.3d 246, 250 (4th Cir. 1993) (argument raised for first on
11
appeal waived absent showing of plain error or fundamental
miscarriage of justice). Our review of Appellant’s two motions to
suppress and the transcripts of the hearings thereon reveals no
challenge to the credentials of the K-9 unit. Indeed, Appellant
failed to raise any objection to Edwards’s testimony at the
suppression hearing regarding the K-9 unit’s alert on the
Pathfinder. We therefore conclude that Appellant waived this
argument and find no basis to conclude that the admission of K-9
alert evidence constitutes either plain error or a fundamental
miscarriage of justice.
C.
Appellant next argues that the affidavit filed in support of
the search warrant for 79 Haywood did not establish a sufficient
nexus between the contraband found in the Pathfinder and the
apartment. We find no merit to this argument.
In weighing a contention that a sufficient nexus was
lacking, [w]e adhere[] to the principle that the nexus
between the place to be searched and the items to be
seized may be established by the nature of the item and
the normal inferences of where one would likely keep such
evidence.
United States v. Servance, 394 F.3d 222, 230 (4th Cir. 2005),
vacated on other grounds 544 U.S. 1047 (2005) (internal quotations
omitted). We have previously recognized that a sufficient nexus
can exist between a defendant’s criminal conduct and his residence
even when an “affidavit [supporting a search] warrant contains no
12
factual assertions directly linking the items sought to the
defendant’s residence.” Id. at 394 F.3d at 230 (emphasis added).
Where a direct link is lacking, probable cause is inferred from the
surrounding circumstances. See United States v. Anderson, 851 F.2d
727, 729 (4th Cir. 1988). These principles control here.
The affidavit filed by Investigator C.J. Todd, who was also
involved in the investigation, was sufficient to support probable
cause. In relevant part, Todd stated that officers had surveilled
both Appellant and 79 Haywood in connection with a drug
investigation. He went on to state that officers discovered
cocaine in Appellant’s car after he had driven away from 79 Haywood
and before he had made any intervening stops. These facts
established a sufficient link between 79 Haywood and Appellant’s
criminal activity to support probable cause to search that location
for additional contraband. See United States v. Grossman, 400 F.3d
212, 218 (4th Cir. 2005) (holding it reasonable to suspect that a
drug dealer stores drugs in a residence to which he has access).
Therefore, we do not find the search warrant for 79 Haywood
defective.
D.
Appellant next challenges the warrant issued to search 16
Bradley solely on grounds that officers failed to corroborate the
underlying information provided by Gates. We find no merit to this
13
argument. There is no set requirement that officers corroborate
all information underlying a search warrant. United States v.
Perez, 393 F.3d 457, 462 (4th Cir. 2004). A search warrant
properly issues when there is probable cause to believe that a
certain item or items can be found at a certain location. United
States v. Wylie, 705 F.2d 1388, 1392 (4th Cir. 1983). Although
officers can seek a search warrant based on hearsay or information
received from informants, United States v. DeQuasie, 373 F.3d 509,
518 (4th Cir. 2004), officers need not corroborate or confirm every
underlying fact. Perez, 393 F.3d at 462. Here, the facts
underlying the warrant supported the search of 16 Bradley.
As related in the affidavit accompanying the search warrant
application, Flavell learned from Gates both that Appellant was
living at 16 Bradley and the description of a number of cars parked
there. Flavell drove Gates to the residence to confirm its
physical location and determined that Appellant was known to use
one of the cars parked there. These facts would lead a reasonable
person to conclude that Appellant was either living at or
conducting business out of 16 Bradley, and could likely be found
there. Therefore, we conclude that sufficient probable cause
existed to support the search warrant for 16 Bradley.2
2
Because we find that the searches of 79 Haywood and 16
Bradley did not violate the Fourth Amendment, we decline to reach
the government’s argument that Appellant lacked standing to
challenge each because he had no reasonable expectation of privacy
in either residence.
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III
Robinson next challenges his sentence under Booker, 543 U.S.
220, on both constitutional and statutory grounds. Because
Appellant raised an objection based on Blakely, 542 U.S. 296, at
his sentencing hearing, we review his arguments for harmless error
and will reverse if the error affected Appellant’s substantial
rights. United States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir.
2006). The government bears the burden of demonstrating that any
error was harmless. Id.
Appellant first argues that the district court violated the
Sixth Amendment by making improper findings of fact regarding his
prior convictions for purposes of the U.S.S.G. §§ 4B1.1 and 4B1.4
sentencing enhancements. Appellant does not argue that the
district court engaged in improper fact-finding regarding a
discrete aspect of his prior convictions, such as whether his prior
convictions qualified as violent felonies for purposes of U.S.S.G.
§ 4B1.4. See United States v. Thompson, 421 F.3d 278, 284 (4th
Cir. 2005) (analyzing whether district court properly classified
defendant’s prior state conviction for breaking and entering as a
violent felony). Rather, he argues that the Sixth Amendment
required the district court to submit the basic fact of his prior
convictions to the jury. This argument is foreclosed by Shepard v.
United States, 544 U.S. 13, 20 (2005), where the Supreme Court held
that a district court can rely on the fact of a prior conviction
15
for sentencing purposes without submitting it to a jury. See also
Thompson, 421 F.3d at 283 (discussing and applying Shepard).
Therefore, we find no Sixth Amendment error.
Appellant next argues that the district court committed
statutory Booker error by treating the sentencing guidelines as
mandatory. This argument has merit. Under Booker, “statutory
error occurs when a sentencing court treats the Guidelines as
mandatory, rather than as advisory.” United States v. Sullivan,
455 F.3d 248, 265 (4th Cir. 2006) (citing Booker, 543 U.S. at 245-
46). The district court here clearly treated the guidelines as a
mandatory limitation on its sentencing discretion. See J.A. 575
(“[T]hat is the minimum sentence I could have given him.”).
Because the district court made no indication of how it would have
sentenced Appellant under an advisory guidelines regime and the
government has not otherwise demonstrated harmless error, we
conclude that statutory Booker error is present and affected
Appellant’s substantial rights.3 Therefore, we must vacate
Appellant’s sentence and remand for resentencing. Sullivan, 455
F.3d at 266.
3
We note that, although it contested the presence of statutory
Booker error in its brief, the government conceded this issue at
oral argument.
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IV
For the foregoing reasons, Carlose Demond Robinson’s
convictions are affirmed, and his sentence is vacated and remanded.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
17