United States v. James Dennis , 527 F. App'x 221 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1825
___________
UNITED STATES OF AMERICA
v.
JAMES DENNIS,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 2-10-cr-00233-001
(Honorable Gene E.K. Pratter)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 4, 2013
Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.
(Filed: June 10, 2013)
_________________
OPINION OF THE COURT
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SCIRICA, Circuit Judge.
James Dennis appeals the District Court’s orders denying his motions to
suppress physical evidence obtained from a search of his car and to withdraw his guilty
plea for possession of 500 grams or more of cocaine with intent to distribute. We will
affirm.
I.
In August 2009, the Drug Enforcement Administration (“DEA”) intercepted phone
calls between Dennis and A.G., a known drug dealer they were investigating, in which
the two men negotiated a drug buy.1 Dennis and A.G. agreed to meet at a predetermined
time and location in Philadelphia, Pennsylvania. DEA agents surveilled this location at
the designated time and observed Dennis arrive in a gold Chevrolet Tahoe. A.G. and
another man entered Dennis’s waiting car. Approximately fifteen minutes later, the two
men exited and Dennis drove away.
The DEA agents informed Pennsylvania state police of the suspected drug sale and
requested that state troopers intercept Dennis. Specifically, the DEA agents told the state
police that the driver of the gold Chevrolet Tahoe had just met with the target of a
wiretap drug trafficking investigation and had purchased 500 grams of cocaine that could
be found in the vehicle. The DEA agents asked the police to develop an independent
basis for stopping Dennis in order to conceal their ongoing investigation of A.G.
Based on the DEA’s tip, Pennsylvania state troopers located Dennis’s car and
pulled him over for suspected violations of the Pennsylvania motor vehicle code.2 A
field sobriety test indicated that Dennis was not intoxicated; a pat-down revealed no
contraband; and a background check revealed several prior drug convictions, but no open
1
The calls were intercepted through a court-authorized wiretap of A.G.’s phone.
2
Prior to pulling Dennis over, the troopers noted that his car had heavily tinted
windows—a possible violation of the Pennsylvania motor vehicle code. The troopers
2
warrants. The troopers noted that Dennis’s car smelled strongly of air freshener, which
can be used to mask the scent of narcotics. Dennis declined the troopers’ request to
search his vehicle and a canine unit was called to the scene, which arrived approximately
an hour later. After the dog failed to alert, the troopers told Dennis he was free to leave,
but that his car would be seized because they suspected it contained contraband.
Subsequently, the troopers obtained a warrant to search Dennis’s car. A search
uncovered a manila envelope containing approximately 500 grams of cocaine.
Dennis was indicted for possession of 500 grams or more of cocaine with intent to
distribute (21 U.S.C. § 841(a)(1)). The District Court denied Dennis’s motion to
suppress the physical evidence obtained from the search of his car, finding that the state
police had probable cause to conduct a warrantless search based on the information
provided by the DEA agents. On March 1, 2011, one day after his motion to suppress
was denied, Dennis entered into a plea agreement in which he pled guilty to possession of
500 grams or more of cocaine with intent to distribute in violation of 21 U.S.C. §
841(a)(1).
On November 1, 2011, Dennis moved to withdraw his guilty plea, asserting that
his plea was not knowing, intelligent, and voluntary and that his prior counsel misled him
into pleading guilty.3 The District Court denied Dennis’s motion to withdraw his guilty
also observed the car weaving within its lane—a possible indication of an intoxicated
driver.
3
Several weeks after entering his guilty plea, Dennis wrote to the District Court asking to
withdraw his guilty plea due to ineffective assistance of counsel. The attorney who
represented Dennis at his guilty plea hearing then moved to withdraw as counsel. The
3
plea and sentenced him to 180 months of imprisonment, 8 years of supervised release, a
fine of $2500, and a special assessment of $100. Dennis timely appeals the District
Court’s denial of his motions to suppress the evidence obtained from the search of his car
and to withdraw his guilty plea. Dennis’s plea agreement preserved his right to appeal
the denial of his motion to suppress.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We review the denial of a motion to suppress “for clear error as
to the underlying factual findings and exercise[] plenary review of the District Court’s
application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002) (citing United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)). We review the
denial of a motion to withdraw a guilty plea for abuse of discretion. United States v.
Martinez, 785 F.2d 111, 113 (3d Cir. 1986) (citations omitted).
III.
We agree with the District Court that the DEA’s tip was sufficient to provide the
state police with probable cause to conduct a warrantless search of Dennis’s car after they
had impounded it.4
“The automobile exception to the warrant requirement permits law enforcement to
District Court granted the motion and appointed new counsel, who represented Dennis on
his motion to withdraw his guilty plea.
4
Because the warrantless search was supported by probable cause, we will not address
the propriety of the search warrant. See, e.g., United States v. Martinez, 78 F.3d 399,
400-01 (8th Cir. 1996) (upholding an automobile search supported by probable cause,
notwithstanding any potential deficiencies in warrant obtained by officers).
4
seize and search an automobile without a warrant if ‘probable cause exists to believe it
contains contraband.’” United States v. Burton, 288 F.3d 91, 100 (3d Cir. 2002) (quoting
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)). The police’s authority to conduct
such a search adheres even if the automobile has been seized and immobilized at the
stationhouse, provided the police had probable cause to search when they initially
stopped the vehicle. See Chambers v. Maroney, 399 U.S. 42, 51-52 (1970) (upholding
the warrantless search of a car secured at a police stationhouse where police had probable
cause to search the car when they initially stopped it); see also California v. Acevedo, 500
U.S. 565, 570 (1991) (“Following Chambers, if the police have probable cause to justify
a warrantless seizure of an automobile on a public roadway, they may conduct either an
immediate or a delayed search of the vehicle.”).
Probable cause to search requires a “‘fair probability that contraband or evidence
of a crime will be found in a particular place.’” Burton, 288 F.3d at 103 (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)). The officer conducting a search need not personally
possess knowledge of the facts giving rise to the probable cause to conduct the search.
See id. at 99 (“[T]he arresting officer need not possess . . . the facts supporting probable
cause, but can instead rely on an instruction to arrest delivered by other officers
possessing probable cause.”).
Given the facts arising out of the DEA’s investigation, probable cause existed to
believe that Dennis’s car contained contraband. Recorded phone calls revealed Dennis’s
plan to purchase drugs from A.G., a known drug dealer, at a specific time and location.
5
DEA agents then observed A.G. enter Dennis’s car at the specified time and location.
These facts permitted the DEA agents to conclude that A.G. and Dennis had
consummated their planned transaction and that drugs were present in Dennis’s car—
facts which the DEA communicated to the Pennsylvania state police. Thus, the state
troopers had probable cause to search Dennis’s car.
The trooper’s probable cause to search Dennis’s car was not vitiated by the drug-
sniffing dog’s failure to alert. See United States v. Jodoin, 672 F.2d 232, 236 (1st Cir.
1982) (“The dog’s failure to react does not . . . destroy the ‘probable cause’ that would
otherwise exist.”), abrogated on other grounds by Bloate v. United States, 559 U.S. 196(2010). Nor was the Fourth Amendment offended by the troopers’ pretext for stopping
Dennis’s car, see United States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012) (“[P]retextual
traffic stops supported by reasonable suspicion do not run afoul of the Fourth
Amendment.”), or the sixty minutes it took for the canine unit to arrive, see Burton, 288
F.3d at 101-02 (explaining that the temporary seizure of a vehicle for approximately
forty-five minutes pending the arrival of a canine unit did not offend the Fourth
Amendment).
IV.
Dennis also lacks adequate grounds to withdraw his guilty plea. In order for a
guilty plea to be valid, it must represent “‘a voluntary and intelligent choice among the
alternative courses of action open to the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56
(1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A criminal defendant
may withdraw a guilty plea after the court accepts it, but before the court imposes a
6
sentence, if “the defendant can show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B).
In determining whether the defendant has met this burden, a district court must
consider three factors: “(1) whether the defendant asserts his innocence; (2) the strength
of the defendant’s reasons for withdrawing the plea; and (3) whether the government
would be prejudiced by the withdrawal.” United States v. Jones, 336 F.3d 245, 252 (3d
Cir. 2003) (citations omitted). With respect to the first factor, “[b]ald assertions of
innocence are insufficient . . . . ‘Assertions of innocence must be buttressed by facts in
the record that support a claimed defense.’” Id. at 252 (quoting United States v. Brown,
250 F.3d 811, 818 (3d Cir. 2001)). When asserting his innocence, a defendant must also
provide a sufficient explanation for the contradictory position he took at his guilty plea
hearing. Id. at 253 (citing United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992),
superseded by statute on other grounds as stated in United States v. Roberson, 194 F.3d
408, 417 (3d Cir. 1999)).
With respect to the first factor, the District Court concluded that Dennis failed to
adequately assert his innocence because he could not buttress his bald assertion of
innocence with facts from the record. At the plea withdrawal hearing, Dennis asserted
his innocence by stating, “I’m not guilty of being in possession with the intent to
distribute 500 grams of cocaine.” Dennis attempted to support this assertion with two
facts: (1) he was not in his car when the drugs were discovered and (2) he did not see the
police remove the drugs from his car. Yet these meager details do not buttress his
assertion of innocence—they merely describe the circumstances surrounding the search
7
of his car. It is unremarkable that Dennis was not present when the drugs were
discovered given that the search occurred after the police had impounded his car.5
Moreover, Dennis has failed to explain the inconsistency between his present assertion of
innocence and his earlier admissions of guilt.6
With respect to the second factor, the District Court concluded that Dennis’s
reasons for seeking to withdraw his guilty plea—that he was tricked, misled, and rushed
into pleading guilty—were thoroughly contradicted by the record. At the Rule 11
colloquy, the District Court stressed that the decision to plead guilty should not be made
hastily and repeatedly offered to postpone the hearing so that Dennis could further
contemplate his decision. Yet Dennis insisted, “I’m ready. I’m ready.” Dennis also
confirmed that he had sufficient time to confer with his lawyer and was satisfied with the
advice he had received. The District Court then carefully walked Dennis through the
charges against him; the government’s obligation to prove its case at trial if he decided to
plead not guilty; the specific terms of the plea agreement, including the rights he would
waive by agreeing to it; and the mandatory minimum sentence he faced.
The record clearly establishes that Dennis’s decision to plead guilty was made
voluntarily, knowingly, and with a full understanding of the consequences. There is
ample support for the District Court’s conclusions that (1) Dennis failed to adequately
5
If Dennis cited these facts to suggest that the police planted the cocaine in his car, his
assertion of innocence remains unsupported. Assertions of innocence in a motion to
withdraw a guilty plea require support from facts in the record, not speculation.
6
At the Rule 11 colloquy, Dennis agreed that the government’s version of events “is
what happened,” and responded “yes” when asked by the District Court if he had
intended to sell the cocaine found in his car.
8
assert his innocence and (2) his reasons for seeking withdrawal of his guilty plea lacked
merit. Accordingly, the District Court did not abuse its discretion when it denied
Dennis’s motion to withdraw his guilty plea.7
V.
For the foregoing reasons, we will affirm the rulings of the District Court denying
Dennis’s motions to suppress the evidence obtained from the search of his car and to
withdraw his guilty plea.
7
Because we find that the District Court did not abuse its discretion with respect to the
first two factors, there is no need to consider the third factor—whether the government
would be prejudiced by withdrawal. Jones, 336 F.3d at 255.
9