United States v. Calvin Hall

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4462

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

CALVIN JAMES HALL, a/k/a Kebo,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior
District Judge. (3:12-cr-00513-JFA-16)

Submitted: October 28, 2015 Decided: November 10, 2015

Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Todd Hagins, THE HAGINS LAW FIRM, LLC, Columbia, South Carolina,
for Appellant. William N. Nettles, United States Attorney, J.D.
Rowell, Assistant United States Attorney, Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, Thomas E. Booth, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Calvin Hall appeals his convictions and life sentence for

conspiring to participate in racketeering activity, in violation

of 18 U.S.C. §§ 1962(d), 1963(a) (2012) (Count 1); conspiring to

possess with intent to distribute 280 grams or more of cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846

(2012) (Count 10); two counts of possessing with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C), 18 U.S.C. § 2 (2012) (Counts 14, 44); using a

telephone to facilitate a drug conspiracy, in violation of 21

U.S.C. § 843(b) (2012), 18 U.S.C. § 2 (Count 47); and

interfering with commerce by robbery, in violation of 18 U.S.C.

§§ 2, 1951 (2012) (Count 83).

On appeal, Hall contends that (1) evidence seized during

the traffic stop should have been suppressed because the

attending officer lacked reasonable suspicion of illegal

activity; (2) evidence obtained from Hall’s cell phone should

have been suppressed, despite the good faith exception to the

exclusionary rule and the independent source doctrine;

(3) wiretap evidence should have been suppressed because the

district court clearly erred in finding that the wiretap was

necessary; and (4) his sentence contravened United States v.

Alleyne, 133 S. Ct. 2151 (2013). We affirm.

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I

When evaluating a district court’s denial of a motion to

suppress evidence, we review its legal determinations de novo

and its factual determinations for clear error. United

States v. Sowards, 690 F.3d 583, 587 (4th Cir. 2012). We

construe the evidence “in the light most favorable to the

Government, the prevailing party below.” Id.

“When a police officer stops an automobile and detains the

occupants briefly, the stop amounts to a seizure” under the

Fourth Amendment. United States v. Digiovanni, 650 F.3d 498,

506 (4th Cir. 2011). An officer “may initiate a brief

investigatory stop if the officer has reasonable suspicion to

believe that ‘criminal activity may be afoot.’” United

States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009) (quoting

Terry v. Ohio, 392 U.S. 1, 30 (1968)).

To determine whether reasonable suspicion exists, courts

conduct a “totality of the circumstances” inquiry, asking

“whether the officer had a particularized and objective basis

for suspecting the particular person stopped of criminal

activity.” Id. (internal quotation marks omitted). Reasonable

suspicion is “a commonsense, nontechnical conception that deals

with the factual and practical considerations of everyday life

on which reasonable and prudent men, not legal technicians,

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act.” United States v. McCoy, 513 F.3d 405, 411 (4th Cir. 2008)

(brackets and internal quotation marks omitted).

Generally, when an officer effects a Fourth Amendment

seizure based in large part on information received from an

informant, the reliability of that informant is an important

consideration in determining whether reasonable suspicion

existed. See United States v. DeQuasie, 373 F.3d 509, 518-19

(4th Cir. 2004). Reasonable suspicion depends as much on the

“content (or quantity)” of the information provided as it does

on the “reliability (or quality)” of the information. United

States v. Perkins, 363 F.3d 317, 329 (4th Cir. 2004).

Applying these standards to the record before us, we

conclude that the police officer in this case had reasonable

suspicion to stop Hall’s vehicle. The reliability of the

informant is not in question, and the police knew that drug

deals often occurred at the arranged location. Moreover, the

timing of Hall’s arrival and his behavior were inconsistent with

the informant’s information and, together, provided reasonable

suspicion. Accordingly, the district court did not err in

denying Hall’s motion to suppress the evidence obtained as a

result of the traffic stop.

Hall next challenges the admission of evidence found in a

forensic search of his phone. The exclusionary rule prohibits

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introducing “evidence obtained in violation of a defendant’s

Fourth Amendment rights, but the sole purpose of the rule is to

deter future Fourth Amendment violations, and its application

properly has been restricted to those situations in which its

remedial purpose is effectively advanced.” United States v.

Stephens, 764 F.3d 327, 335 (4th Cir. 2014) (citations and

internal quotation marks omitted), cert. denied, No. 14-1313,

2015 WL 1970174 (U.S. Oct. 5, 2015). As a result, “when the

police act with an objectively reasonable good-faith belief that

their conduct is lawful, . . . the deterrence rationale loses

much of its force, and exclusion cannot pay its way.” Davis v.

United States, 131 S. Ct. 2419, 2427-28 (2011) (citation and

internal quotation marks omitted). Consequently, the

exclusionary rule does not apply to searches conducted in

accordance with then-binding appellate precedent, even if that

precedent is later overruled. Id. at 2423-24.

In this case, at the time of the search, this court had

ruled that the contents of a cell phone could be retrieved

without a warrant during a search incident to arrest. See

United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009).

While the Supreme Court later held to the contrary, in Riley v.

California, 134 S. Ct. 2473, 2484-85 (2014), the searching

officer’s conduct was in accord with then-binding precedent.

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Therefore, the district court properly declined to suppress the

evidence obtained.

Hall challenges the district court’s admission of evidence

secured by wiretap. We review a district court’s determination

of the necessity for a wiretap under 18 U.S.C. § 2518 (2012) for

abuse of discretion. See United States v. Wilson, 484 F.3d 267,

280 (4th Cir. 2007).

To justify a wiretap, the Government must demonstrate that

“normal investigative procedures have been tried and have failed

or reasonably appear to be unlikely to succeed if tried or to be

too dangerous.” 18 U.S.C. § 2518(3)(c). The burden imposed by

this provision “is not great, and the adequacy of such a showing

is to be tested in a practical and commonsense fashion that does

not hamper unduly the investigative powers of law enforcement

agents.” Wilson, 484 F.3d at 281 (internal quotation marks

omitted). “[T]he Government need only present specific factual

information sufficient to establish that it has encountered

difficulties in penetrating the criminal enterprise or in

gathering evidence such that wiretapping becomes reasonable.”

Id. (brackets and internal quotation marks omitted).

We have upheld findings of necessity where traditional

investigative techniques revealed some illegal activity, but

failed to adequately penetrate the full extent of the

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conspiracy. Wilson, 484 F.3d 267; United States v. Leavis, 853

F.2d 215, 221 (4th Cir. 1988). In Wilson, traditional

investigative techniques provided valuable information, but

failed to “identify the higher-ups of the conspiracy,” or

“uncover the conspiracy’s cocaine source and the extent to which

the coconspirators distributed it for resale.” 484 F.3d at 281.

Upholding the district court’s finding of necessity, we

emphasized that wiretaps are particularly necessary “where

crimes are committed by large and sophisticated organizations.”

Id. Indeed, “read[ing] the statute in an overly restrictive

manner . . . could result in helping insulate more complex and

sophisticated conspiracies.” Id.

We find Hall’s case materially indistinguishable from

Wilson. Consequently, the district court correctly denied

Hall’s motion to suppress this evidence.

III

Finally, Hall contends that the district court erred in

sentencing him. We review de novo a constitutional challenge to

a sentence. United States v. Dowell, 771 F.3d 162, 167 (4th

Cir. 2014).

The Due Process Clause and the Sixth Amendment require that

any fact that raises the minimum or maximum sentence a defendant

faces must be charged in the indictment and admitted by the

defendant or proven to a jury beyond a reasonable doubt.

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Alleyne v. United States, 133 S. Ct. 2151, 2155, 2160-63 (2013).

Excepted from this general requirement is the fact of a prior

conviction. Almendarez-Torres v. United States, 523 U.S. 224

(1998); see Alleyne, 133 S. Ct. at 2160 n.1 (refusing to revisit

Almendarez-Torres).

When a defendant is convicted of a drug conspiracy, “prior

felony drug convictions that fall within the conspiracy period

may be used to enhance the defendant’s sentence if the

conspiracy continued after his earlier convictions were final.”

United States v. Smith, 451 F.3d 209, 224-25 (4th Cir. 2006).

Under 21 U.S.C. § 841(b)(1)(A), a defendant convicted of a drug

trafficking offense “after two or more prior convictions for a

felony drug offense have become final” is subject to a mandatory

sentence of life imprisonment.

The district court’s failure to seek from the jury a

specific verdict as to whether Hall’s participation in the

conspiracy continued after the date on which his prior

convictions became final was harmless beyond a reasonable doubt.

Under Count 44, the jury determined that on June 26, 2012, Hall

received cocaine from individuals who were known members of the

Bloods, which he then intended to distribute. Hall’s prior

convictions became final in October 2011. Thus, the district

court’s failure to obtain a specific finding from the jury that

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Hall participated in the conspiracy beyond October 2011 was

harmless.

We affirm the district court’s judgment and deny Hall’s

motion to file a pro se brief. 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