United States v. Robinson

UNPUBLISHED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Affirmed in part; vacated and remanded in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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.

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 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.

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 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.

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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

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