PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4750
ANTWONNE D. WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(2:06-cr-00163)
Argued: October 31, 2008
Decided: December 12, 2008
Before WILKINSON and GREGORY, Circuit Judges,
and Martin K. REIDINGER, United States District Judge
for the Western District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Reidinger joined.
COUNSEL
ARGUED: Harry Robert Reinhart, Columbus, Ohio, for
Appellant. Monica Lynn Dillon, OFFICE OF THE UNITED
2 UNITED STATES v. WHITE
STATES ATTORNEY, Charleston, West Virginia, for Appel-
lee. ON BRIEF: Charles T. Miller, United States Attorney,
Charleston, West Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Antwonne White appeals the district court’s denial of his
motion to suppress evidence seized during his June 29, 2006,
arrest. Police seized approximately 89.5 grams of cocaine
powder from White’s vehicle during the arrest. White was
subsequently charged with one count of conspiracy to distrib-
ute cocaine and cocaine base and one count of possession of
cocaine powder with intent to distribute. After entering a con-
ditional plea of guilty to the second count, White received a
sentence of 20 years imprisonment.
We affirm the district court’s conclusion that the officers
had probable cause to search White’s car. As its name sug-
gests, probable cause involves probabilities – judgment calls
that are tethered to context and rooted in common sense.
Here, as the Supreme Court has noted, police can corroborate
an informant’s tip when that tip is borne out by actual events.
See Draper v. United States, 358 U.S. 307 (1959). We find no
fault with the district court’s conclusion that the officers had
reason initially to find their informant credible – a credibility
that was only buttressed when events played out as the infor-
mant had forecast.
I.
A.
On June 29, 2006, Yusuf Ali arrived in Charleston, West
Virginia, and checked into a Motel 6. Several hours later,
UNITED STATES v. WHITE 3
Charleston police arrested him for possession of crack
cocaine. Although Ali initially lied to the officers about his
circumstances, he later agreed to cooperate with them in
hopes of reducing his punishment. When questioned by the
officers, Ali provided the names of several drug dealers
known to him in Charleston. One dealer, whom Ali called
"Skip," was recognized by the officers as Antwonne White,
whose car they had stopped several months earlier and
searched for drugs unsuccessfully. At the officers’ request,
Ali agreed to call White and set up a drug deal for later that
day.
As the officers watched, Ali called someone to obtain
White’s cell phone number and then called White several
times. White answered Ali’s third call and quickly hung up,
refusing to discuss any deals over the phone. Ali called again
and told White that he had "66" for some "stuff," intending to
communicate that he had $6,600 for cocaine. White agreed to
meet Ali at the Family Dollar store in Charleston, and Ali told
the officers that he had arranged with White to buy nine
ounces of cocaine from him there. Although Ali had seen
White drive three different vehicles in the past several
months, he told the officers that White likely would be driv-
ing a blue Mustang convertible.
Ali called White while under arrest in the police station,
and the officers observed and listened to Ali as he talked to
White. The officers did not record the numbers Ali dialed,
however, or listen to White’s side of the conversation.
Although the officers placed a recording device in Ali’s
phone to record the calls, they later discovered – while pre-
paring for White’s prosecution — that the device had mal-
functioned and was blank.
After Ali set up the deal, police sent unmarked cars to
watch the Family Dollar and nearby streets. After circling the
store several times, officers saw a blue Mustang convertible
stop briefly in the Family Dollar parking lot. They then
4 UNITED STATES v. WHITE
watched the Mustang travel to a house at 1406 Stuart Street,
about a block away. They identified White when he got out
of the Mustang, walked into the residence, and returned to the
car about five minutes later.
Around this time, Ali reported that White had called him
and requested to move the deal because the area around the
Family Dollar was "too hot." Ali took this to mean that police
activity made it unsafe to deal there. According to Ali, White
had redirected the deal to the "Food" Pharmacy off of Oak-
wood Road, which the officers interpreted to mean the Fruth
Pharmacy in Charleston. White then drove in the direction of
the Fruth Pharmacy.
When White reached an area known as Five Corners in
Charleston, officers stopped his vehicle with a marked cruiser.
When asked, White told the officers that there were no weap-
ons in the Mustang and that he did not have any crack
cocaine. He also denied the officers permission to search the
vehicle. One officer then started the vehicle’s engine and
closed the top of the convertible part way in preparation for
the arrival of a drug-sniffing dog. At 8:30 pm, a dog per-
formed a drug sniff of the Mustang and showed interest, but
did not alert. The lieutenant supervising the investigation then
called in a second drug-sniffing dog, which alerted near the
driver’s door of the Mustang. Officers then searched the vehi-
cle and found a plastic bag in the trunk containing about 89.5
grams of cocaine powder.
B.
A grand jury indicted White on one count of conspiracy to
distribute cocaine and cocaine base from February 2001 to
June 2006 in violation of 21 U.S.C. § 846, and one count of
possession of cocaine powder with intent to distribute on June
29, 2006, in violation of 21 U.S.C. § 841(a)(1). On August 22,
2006, White moved to suppress the evidence of cocaine
seized from the Mustang. Over the next several weeks, White
UNITED STATES v. WHITE 5
filed several supplemental memoranda in support of his
motion. On October 23, 2006, the district court held a hearing
on the motion, where it listened to testimony from Ali and
from four police officers. The court then issued an order
denying White’s motion to suppress. The court held that the
officers "were justified" in finding Ali’s information reliable,
and that they further had probable cause to believe that White
was transporting drugs when he arrived at the Family Dollar.
In the alternative, the court held that the officers had suffi-
cient reasonable suspicion to conduct a Terry stop and that the
length of White’s detention was reasonable.
On December 10, 2006, White filed a motion for reconsid-
eration based on an alleged inconsistency between White and
Ali’s phone records and testimony regarding the phone calls
between them. The district court held a second hearing on
January 22, 2007, and subsequently denied White’s motion
for reconsideration.
White entered a conditional guilty plea to count two of his
indictment, charging possession of cocaine with intent to dis-
tribute. The district court held a two-day sentencing hearing
where it calculated an advisory guidelines range of 324 to 405
months. Because in the court’s view the statutory maximum
for White’s offense was 20 years, the court found that the sug-
gested guidelines sentence was the statutory maximum, and
sentenced White to imprisonment for 20 years.
White filed a timely appeal, challenging the denial of his
motion to suppress and his sentence.
II.
White claims that the district court erred in denying his
motion to suppress because the officers had no basis for
believing that Ali was truthful or that his tip was reliable. See
Illinois v. Gates, 462 U.S. 213, 233 (1983). Therefore, the
officers lacked probable cause to search his vehicle, and the
6 UNITED STATES v. WHITE
evidence uncovered in that search should be excluded under
the Fourth and Fourteenth Amendments. See Wong Sun v.
United States, 371 U.S. 471, 487-88 (1963).
A.
We must first review the applicable principles of law. It is
well established that officers who have probable cause can
search a vehicle without a warrant. Carroll v. United States,
267 U.S. 132 (1925). This exception lacks a separate exigency
requirement – rather, "[i]f a car is readily mobile and probable
cause exists to believe it contains contraband, the Fourth
Amendment . . . permits police to search the vehicle without
more." Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)
(per curiam); see also United States v. Ross, 456 U.S. 798,
809 (1982). In crafting this exception, the Court noted that
vehicles can move quickly out of reach, and that effective
police work will often require seizing contraband before a
warrant can be obtained. Carroll, 267 U.S. at 151-53. And
when police have probable cause to search a vehicle, "nice
distinctions" among different parts of the car such as the
glove compartment and trunk "give way to the interest in the
prompt and efficient completion of the task at hand." Ross,
456 U.S. at 821. In other words, officers may conduct a thor-
ough search of the vehicle once probable cause is established.
Id. at 800.
To determine whether officers have probable cause to con-
duct a search, courts rely on the totality of the circumstances
test established in Illinois v. Gates, 462 U.S. 213 (1983). In
Gates, the Court replaced the prior two-prong test of whether
(1) the informant was truthful, and (2) the information was
reliable, with a more flexible, commonsense approach. See id.
at 230-39; see also Aguilar v. Texas, 378 U.S. 108 (1964);
Spinelli v. United States, 393 U.S. 410 (1969). The Court
noted that the Aguilar-Spinelli test was at odds with tradi-
tional approaches to probable cause, which rested on com-
monsense judgments of laymen and resisted neat
UNITED STATES v. WHITE 7
categorization. See Gates, 462 U.S. at 235-36 (noting that
warrants were often issued by people other than lawyers and
judges). Moreover, the two-prong test had spawned "‘appar-
ently ceaseless litigation’" as courts attempted to devise legal
rules to govern its application. Gates, 462 U.S. at 238, n.11
(quoting 8A Moore’s Federal Practice ¶ 41.04 (1982)).
Finally, the Court worried that a rigid judicial test would ham-
per legitimate police work, and noted that tips from infor-
mants are critical in solving crimes and protecting the public.
Id. at 237-38. In sum, the Court concluded that probable cause
determinations involve diverse factual scenarios that are "not
readily, or even usefully, reduced to a neat set of legal rules."
Id. at 232.
Gates thus directs courts to assess whether officers had
probable cause by examining all of the facts known to officers
leading up to the arrest, and then asking "whether these histor-
ical facts, viewed from the standpoint of an objectively rea-
sonable police officer," amount to probable cause. Ornelas v.
United States, 517 U.S. 690, 696 (1996). An informant’s
truthfulness and reliability, while certainly relevant, are only
two factors among many that courts may consider. A very
detailed tip, for example, may compensate for questions about
the informant’s reliability, and a tip that relies on hearsay may
be deemed reliable if police later can corroborate it. See
Gates, 462 U.S. at 234, 241-42.
The Supreme Court’s decision in Draper v. United States,
358 U.S. 307 (1959) remains "the classic case on the value of
corroborative efforts" by police. Gates, 462 U.S. at 242. In
Draper, a paid informant told a federal narcotics agent that a
man carrying illegal narcotics would arrive on a train from
Chicago on September 8 or 9, wearing a light-colored raincoat
and carrying a tan bag, and that the suspect typically walked
quickly. Draper, 358 U.S. at 309. Officers observed the train
arriving from Chicago on September 8, but saw no one fitting
this description. On September 9, police again observed the
station and saw a man alight from the Chicago train "wearing
8 UNITED STATES v. WHITE
the precise clothing described by [the informant]," carrying a
tan bag and walking quickly toward the exit. Id. at 309-10.
Police arrested and searched him. When the defendant moved
to exclude the drugs found in that search, the Court held that
the officer had probable cause to search after corroborating
most of the informant’s tip through personal observation. Id.
at 312-13.
Similarly, we held in United States v. Miller, 925 F.2d 695,
697 (4th Cir. 1991), that police had sufficiently corroborated
a tip from an unknown informant when they observed a
woman arrive by bus in Winston-Salem wearing blue jeans
and a blouse and carrying a brown tote bag, just as the infor-
mant had described. The court noted that, under Draper,
police may establish probable cause even if they "conduct[ ]
no investigation beyond observing the predictions supplied by
an informant’s tip." Miller, 925 F.2d at 699. To require a spe-
cific type of corroboration such as an independent investiga-
tion would violate the flexibility emphasized in Gates. Id.
Rather, observation of "a substantial portion of what the infor-
mant’s tip had said they would see," may constitute sufficient
corroboration. Id. at 698-99.
Finally, we note the deference we owe in probable cause
determinations to district court findings of fact. In Ornelas v.
United States, 517 U.S. 690, 699 (1996), the Court held that
courts of appeals should review probable cause determina-
tions de novo, but "hasten[ed] to point out that a reviewing
court should . . . review findings of historical fact only for
clear error and . . . give due weight to inferences drawn from
those facts by resident judges and local law enforcement offi-
cers." This deference is appropriate for at least two reasons.
First, district judges can better assess facts "in light of the dis-
tinctive features and events of the community" in which they
serve. Id. The Court noted that such "background facts,
though rarely the subject of explicit findings, inform the
judge’s assessment of the historical facts" – in Ornelas, for
example, the fact that Lake Michigan blocks further eastward
UNITED STATES v. WHITE 9
progress from Milwaukee and that few tourists visit the city
in winter made it reasonable to credit the officers’ assessment
that a motel visitor from California was not there to see the
local sights. Id. at 699-700.
Similarly, deference is appropriate because only district
judges have the chance to assess the demeanor and testimony
of those persons actually involved with the search. In this
regard, the district court is entitled to respect the inferences
drawn by officers from their "own experience in deciding
whether probable cause exists." Id. at 700. In Ornelas, the
officer noticed a loose panel beneath the car’s armrest, which
led him to believe that drugs might be hidden there. The Court
noted that a layman might see nothing suspicious about a
loose panel, but an officer with years of experience might see
telltale signs of contraband. Id. Therefore, a reviewing court
"should give due weight to a trial court’s finding that the offi-
cer was credible and the inference was reasonable." Id.
Thus, in considering the denial of a motion to suppress, we
must be mindful of a trial court’s superior vantage point.
Because the district court denied White’s motion, we construe
the evidence in the light most favorable to the government.
See United States v. Uzenski, 434 F.3d 690, 704 (4th Cir.
2006).
B.
Applying these principles to White’s case, we must uphold
the district court’s conclusion that the officers had probable
cause. To begin with, the court’s consideration was a consci-
entious one. It held two hearings – one on White’s motion to
suppress, and the other on his motion to reconsider. At the
first hearing, the court heard testimony from Ali and from
four police officers involved in setting up the deal and making
the arrest. The court credited Ali’s testimony that an offer to
pay "66" for "stuff" was an offer to pay $6,600 for cocaine,
noting Ali’s specific knowledge and experience with the drug
10 UNITED STATES v. WHITE
culture. The court also listened to the officers testify about
their familiarity with Charleston and their reasons for infer-
ring that White was heading to the Fruth Pharmacy when he
left Stuart Street.
Next, when White filed his motion to reconsider, the court
held a second hearing where both parties presented evidence
on the cell phone records of White, Ali, and Charleston Police
Officer Derrick McDaniel. The court examined these records
in detail and concluded that Ali received a call that could have
come from White at 8:00 p.m., and that White tried to call Ali
three times between 7:57 p.m. and 8:08 p.m., the last call
coming 14 minutes before White’s arrest. The court found no
reason, based on this evidence, for doubting Ali’s testimony
that White had called him to redirect the deal to the Fruth
Pharmacy.
Finally, when White claimed that Ali had confessed to a
prison inmate that he planted the drugs in White’s car, the
court brought that inmate to the courtroom on the day of the
second hearing. Nevertheless, White chose not to call him as
a witness. It is clear here that the district court considered all
of the information before it and gave White every opportunity
to present his version of the facts. The court listened to
White’s speculation about many of the events, speculation
that he raised again on appeal: for instance, that Ali was lying
to curry favor with the officers; that Ali or the officers caused
the recording device to malfunction; or that White meant to
sell his car – rather than drugs – to Ali in the Family Dollar
parking lot. The district court found no basis for crediting any
of these claims, and we should think long and hard before we
toss careful trial court conclusions out the window.
Second, we find ample basis in the record for the district
court’s conclusion that the officers could have found Ali cred-
ible and therefore had probable cause to arrest White. We
note at the outset that Ali had been arrested on a possessory
offense and had every incentive to cooperate with the police.
UNITED STATES v. WHITE 11
He hoped to lessen his punishment, and risked additional
charges if he gave the officers false information. See Miller,
925 F.2d at 699 (finding that "[t]he informant’s interest in
obtaining leniency created a strong motive to supply accurate
information."). Ali spoke with the officers face to face and in
close quarters, where they could easily assess his credibility.
Although the officers decided to target White as "[t]he most
prominent of the names given by [Ali]," United States v.
White, No. 2:06-cr-00163, slip. op. at 1 (S.D.W.Va. Nov. 1,
2006), it was Ali who first mentioned White’s name. See Mil-
ler, 925 F.2d at 697 (concluding that officers could have
found an informant’s tip reliable where the informant pro-
vided the name of a known drug dealer to police). Ali’s phone
conversations with White took place while Ali was at the
police station, in the presence of officers and under close
observation. Finally, and importantly, the district court found
that both Ali and the officers believed his phone calls were
being recorded. Ali would have been playing a dangerous
game indeed by lying to the officers in such circumstances.
And then, of course, every bit of information that Ali pro-
vided was quickly borne out by actual events. First, Ali told
officers that White would arrive at the Family Dollar in a blue
Mustang convertible to conduct the deal. The officers set up
surveillance at the Family Dollar, and a short time later White
arrived there driving a blue Mustang. After White left the
Family Dollar for a nearby residence, Ali reported that White
wanted to move the transaction to the "Food" Pharmacy off
Oakwood Road. Officers then watched White drive in the
direction of the Fruth Pharmacy off of Oakwood. In fact, the
district court took judicial notice of the fact that White’s route
from Stuart Street to Five Corners, where he was arrested,
"was the most direct route to Fruth Pharmacy." United States
v. White, No. 2:06-cr-00163, slip op. at 5 (S.D.W.Va. Nov. 1,
2006).
12 UNITED STATES v. WHITE
At this point, Ali had pinpointed two locations where White
would appear and had described the exact car that White
would be driving. As in Draper, the officers "had personally
verified every facet of the information given [them] by [the
informant] except whether petitioner [was transporting
drugs]." Draper, 358 U.S. at 313. It is common sense that
when an informant provides information that is consistently
borne out by a suspect’s own actions, officers are hardly
required to look the other way. Moreover, as the Supreme
Court has noted, failing to act in the face of such information
could render an officer derelict in his duties. See id. Consider-
ing these circumstances in their totality, as we must, we find
that the officers had probable cause to search White’s car and
that the district court did not err by denying White’s motion
to suppress. We therefore affirm the district court’s ruling.*
The judgment is accordingly affirmed.
AFFIRMED
*Because we agree with the district court’s ruling on probable cause, we
do not reach questions on the alternative ground of reasonable suspicion
and the length of White’s detention.
We also find no merit in the various assignments of error raised by the
defendant regarding his sentence – namely, that he was wrongly classified
as a career offender, that he was wrongly denied a reduction for accep-
tance of responsibility, and that his base offense level was wrongly
enhanced by two levels for obstruction of justice. For its part, the govern-
ment has raised no objection to the sentence imposed. See Greenlaw v.
United States, 128 S. Ct. 2559 (2008) (holding that courts of appeals
should not increase a defendant’s sentence absent a cross-appeal by the
government). We thus affirm the sentence.