United States v. Jones , 345 F. App'x 872 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4748
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMARL ALBERT JONES, a/k/a Jamal Miles,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cr-00057-CCB-3)
Argued: March 24, 2009 Decided: October 5, 2009
Before WILKINSON, Circuit Judge, Eugene E. SILER, Jr., Senior
Circuit Judge of the United States Court of Appeals for the
Sixth Circuit, sitting by designation, and Robert J. CONRAD,
Jr., Chief United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Conrad wrote the
opinion, in which Judge Wilkinson and Senior Judge Siler joined.
ARGUED: Lisa Jo Sansone, Baltimore, Maryland, for Appellant.
Philip S. Jackson, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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CONRAD, Chief District Judge:
Jermarl Albert Jones (“Jones”) appeals a conviction for
conspiracy to possess with intent to distribute heroin in
Baltimore, Maryland. He challenges the district court’s denial
of his motion to suppress evidence from his arrest and the
executions of search warrants at two apartments. He also
disputes two evidentiary rulings during his trial, which he
claims unfairly permitted the jury to know his criminal history.
Finally, he asserts that the evidence presented at trial was
insufficient to support the jury’s guilty verdict. For the
reasons that follow, we affirm.
I. Motion to Suppress
A district court’s ruling on a motion to suppress is
reviewed for clear error on factual findings and de novo on
legal determinations. United States v. Cain, 524 F.3d 477, 481
(4th Cir. 2008). Facts are viewed in the light most favorable
to the prevailing party, United States v. Jamison, 509 F.3d 623,
628 (4th Cir. 2007), and great deference is shown to the
district court’s findings of probable cause, Illinois v. Gates,
462 U.S. 213, 236 (1983).
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A. Arrest at Breezy Tree Court Apartments
The Fourth Amendment allows an individual to be arrested
without a warrant if such action is supported by probable cause.
United States v. Watson, 423 U.S. 411, 424 (1976). The
probable-cause standard depends on the totality of the
circumstances, viewed from the standpoint of an objectively
reasonable police officer, leading to the belief that an
individual has committed or is committing a crime. Maryland v.
Pringle, 540 U.S. 366, 370-71 (2003).
Jones argues that he was innocently in a public place and
that there was no evidence to link him to criminal activity at
the apartment where he was arrested. Our review of the record,
however, reveals substantial evidence supporting the district
court’s conclusion that Jones was arrested with probable cause.
The district court found that Patrol Officer Kevin Fisher
of the Baltimore County Police Department responded to a loud-
music complaint for Apartment H at 10 Breezy Tree Court. He
entered the apartment with the assistance of the property
manager and observed a stash house, that is an apartment with
very little furniture and very little kitchen equipment, except
what would be suitable for a drug operation. Upon executing a
search warrant there, Vice and Narcotics Detective Joseph Blake
and other law enforcement agents found a very substantial and
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valuable quantity of drugs, drug-cutting material, scales, a
colander, baggies, gel caps, and drug residue showing the
apartment was being used for an ongoing drug operation.
Additionally, the court found that neighbors had reported
to the police that one or more African-American males would
arrive at the apartment in the evening in a Jeep Cherokee. On
the date in question, Jones and another African-American male
arrived at the apartment at 10 p.m. in a Jeep Cherokee. When
they arrived at the apartment’s door, the other person inserted
a key into the lock and opened the door. Before they could
completely enter the apartment, they were confronted by police
officers and arrested. These factual findings are amply
supported by the record of the suppression hearing. Indeed,
Jones does not dispute the facts, but rather the conclusion that
they established probable cause for his arrest.
In Pringle, the Supreme Court found probable cause for the
arrest of the front-seat passenger in a car where police found
baggies of cocaine found behind the back-seat armrest and a roll
of cash in the glove compartment. 540 U.S. at 371-72. The
Court held that it was reasonable to infer that Pringle was
involved in the criminal activity based on his equal access to
the controlled substance and cash. Id. at 372. The Court also
noted that a dealer would not likely allow an innocent person
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into a relatively small automobile with drugs and proceeds
because that person could then report the crime. Id. at 373.
Thus, the Court distinguished Pringle from the public tavern
patron in Ybarra v. Illinois, 444 U.S. 85 (1979), who was
unlawfully searched when there was probable cause to search only
the bartender and the tavern itself. Pringle, 540 U.S. at 373
(citing Wyoming v. Houghton, 526 U.S. 295 (1999) (car passenger
is often engaged in common enterprise with driver with same
interest in concealing crime)).
Here, Jones’s attempt to align himself with Ybarra by
asserting he was innocently in a public place when arrested is
unavailing. He arrived at a privately leased apartment in the
same type of vehicle at the same time as neighbors had seen
there previously. The defendant’s companion, later identified
as Calvin Wright, unlocked the apartment door with a key. The
defendant was in the process of entering when he was confronted
by police. The drug operation inside was obvious, based on the
absence of furniture and the presence of drug-trafficking
materials, and makes it unlikely that an uninvolved person would
be granted access for fear he might report the criminal
activity. As in Pringle, it was entirely reasonable for the
officers to infer that Jones was part of that felonious criminal
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activity. Therefore, the district court properly concluded that
his warrantless arrest did not violate the Fourth Amendment.
B. Search of Thistledown Apartment
The Fourth Amendment also allows a residence to be searched
with a warrant supported by probable cause. An issuing
magistrate must make “a practical, common-sense decision” based
on the facts in the affidavit that “there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
A reviewing court considers whether the magistrate had a
substantial basis for finding probable cause and great deference
is shown to the magistrate’s conclusion. United States v.
Hodge, 354 F.3d 305, 309 (4th Cir. 2004)(citing Gates, 462 U.S.
at 238-39).
Jones argues that information from the confidential
informant was insufficient and that Jones’s presence at the
Breezy Tree Court apartment did not justify a search of his
residence on Thistledown Road. Our review of the affidavit
finds a substantial basis for the issuance of the warrant and a
sufficient connection between the unlawful activity at Breezy
Tree Court and Jones’s residence to approve its search.
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The affidavit presented to the issuing magistrate contained
information from a confidential informant given to police within
a month before Jones’s June 19, 2002 arrest. Over an eight-
month period, the informant had provided information leading to
the execution of search warrants and the discovery of large
quantities of controlled substances and guns. Specifically, in
the middle of May 2002, the informant provided information about
the “Red Dot” heroin organization’s use of 1608 Clifton Street
as a stash house. When police executed a search warrant there,
they found heroin, marijuana, a gun, and currency and arrested
three individuals, including Calvin Wright.
The informant also identified other alleged members of the
Red Dot organization. He knew Jermarl Jones as “Marty” and
accurately reported that Jones had been arrested with a Red Dot
co-conspirator in 2001. He knew Johnnie Butler as “Junior,” who
was the registered owner of a van at 1608 Clifton Street and the
Jeep Cherokee in which Jones arrived at Breezy Tree Court.
Officers found a key to the Breezy Tree Court apartment on
Butler the night Jones was arrested there. Therefore, the
reliability of the informant’s linking Jones with heroin
distribution through Red Dot is established in the affidavit.
In addition to providing information about Jones’s arrest
at Breezy Tree Court with Calvin Wright and the drug operation
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occurring there, the detectives seeking the warrant swore that
they were aware that drug dealers often store narcotics,
weapons, proceeds, and records of their trafficking in their
residences for safe keeping. Jones’s address listed on his
license and vehicle registration, as well as surveillance on the
date of his arrest, supported a reasonable belief that
Thistledown Road Apartment 473 was Jones’s residence.
Thus, we find that information in the affidavit provided a
substantial basis for the magistrate to conclude that there was
probable cause to believe that contraband or evidence of a crime
would be found at Jones’s residence on Thistledown Road. In
United States v. Severance, 394 F.3d 222, 230 (4th Cir.),
vacated on Booker grounds, 544 U.S. 1047 (2005), this Court
reached a similar conclusion where a defendant was arrested in
his vehicle for possessing cocaine and the affidavit
demonstrated a strong connection between him and the apartment
to be searched. We recognized that “‘the nexus between the
place to be searched and the items to be seized may be
established by the nature of the items and the normal inferences
of where one would likely keep such evidence.’” Id. (quoting
United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993));
see also United States v. Williams, 974 F.2d 480, 481-82 (4th
9
Cir. 1992)(finding fair probability that drug paraphernalia
would be found in motel room of known drug dealer).
Here, the affidavit contains sufficient information to
suspect Jones’s involvement in heroin distribution as part of
the Red Dot organization. It also clearly establishes the
apartment at Thistledown Road as his residence. The detectives
swore that they were aware that drug dealers often store
evidence of their trafficking and weapons at their residences.
Therefore, substantial evidence in the affidavit supports the
magistrate’s determination that there was probable cause to
search Jones’s apartment.
C. Search of Rudisill Court Apartment
Jones argues that the affidavit did not establish probable
cause for the search of his girlfriend’s apartment in Rudisill
Court. In addition to the information also presented in the
affidavit for the Thistledown Road search warrant, the affidavit
for the Rudisill Court search warrant contained information
about Jones’s relationship with Felicia Covel. An informant
provided a cell phone number used by Jones, which was listed to
Covel at the Thistledown Road address. While police were
executing the search warrant at the Thistledown Road apartment,
Covel arrived and told them that she dated Jones. She said she
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resided in an apartment at 7047 Rudisill Court and would consent
to its search. She asked the detectives to meet her there after
5 p.m. because she needed to return to work.
Instead of returning to work, Covel drove immediately to
Rudisill Court where detectives intercepted her and kept her
from entering the apartment while a search warrant was obtained.
Other detectives who sought the warrant swore that drug dealers
commonly store controlled substances and conceal proceeds at
their girlfriends’ residences to avoid detection by police and
rival dealers. The detectives believed Covel was seeking to
remove or destroy evidence inside Rudisill Court based on her
false statement that she was returning to work after she left
Thistledown Road.
This information provided a substantial basis for the
magistrate to conclude there was a fair probability that
contraband or evidence of a crime would be found in the Rudisill
Court apartment. Covel’s statements connected herself to Jones
and the apartment, and her actions were reasonably interpreted
as an attempt to conceal illegal items from police.
Accordingly, we affirm the finding of probable cause to search
the Rudisill Court apartment.
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II. Evidentiary Rulings
Jones claims the district court erred regarding the trial
testimony of two police officers who allegedly informed the jury
about Jones’s criminal history.
A. Testimony of Officer Fisher
Trial courts are afforded broad discretion on evidentiary
rulings and will not be overturned except in the most
extraordinary circumstances. United States v. Rosen, 557 F.3d
192, 199 (4th Cir. 2009). Jones did not object after the
challenged testimony; in fact, counsel cross-examined Officer
Fisher on the subject about which he now complains.
Accordingly, the Court reviews the district court’s action for
plain error, which must affect substantial rights to warrant
correction. United States v. Olano, 507 U.S. 725, 731-32
(1993).
Our review of the record discloses no error by the district
court regarding the testimony of Officer Fisher. The challenged
portion came when Officer Fisher was attempting to explain why
the evidence seized from Breezy Tree Court in 2002 was no longer
available to present to the jury in 2008. After he described
letters sent by the police department’s evidence management unit
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to officers on old cases asking whether evidence needed to be
preserved, the following exchange occurred:
OFFICER FISHER: When I got one of those letters,
because the case was so old, I believe it was four
years old at that point, four or five years old, I was
under the impression that the defendants had already –
MR. NEEDLEMAN: Objection.
THE COURT: Well, right.
MR. JACKSON: Yeah. Thank you.
THE COURT: Don’t worry about what was your
impression. What did you do at that point in response
to that letter?
OFFICER FISHER: I had the evidence destroyed.
(JA 238-39). Jones’s counsel did not object to Officer Fisher’s
testimony. During cross-examination, counsel attempted to
establish that the prior state prosecution had been nolle
prossed.
Jones now argues that Officer Fisher’s testimony implied
that Jones and his co-defendants had been convicted of the same
charges in state court. This argument reads too much into this
limited exchange that was fairly begun to explain the absence of
physical evidence from Breezy Tree Court. Officer Fisher’s
words do not hint at a state court prosecution, much less a
resulting criminal conviction. There is no basis to conclude
that the jury drew any prejudicial conclusions from the
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interrupted response from which the government promptly moved on
to another topic. Additionally, the jury was later instructed
not to consider or speculate about state charges. Accordingly,
we find that the defendant has failed to carry his burden to
show plain error regarding Officer Fisher’s testimony.
B. Testimony of Det. Walsh
Next, Jones claims the district court should have struck
the testimony of Det. Walsh about Jones’s use of another name in
2001. Counsel objected at the time and accepted the trial
court’s curative instruction. Jones now claims that the
testimony constituted inadmissible “other crimes” evidence
governed by FED. R. EVID. 404(b). Again, the defendant’s argument
puts words in the mouth of the detective that were never heard
by the jury.
Det. Blake had testified that he found three pieces of
identification in the Jeep Cherokee Jones exited at Breezy Tree
Court in 2002. Two bore the name of “Jermarl Miles” and the
other “Jermarl Jones.” Det. Blake testified that Jones used the
name “Jamal Miles” at booking. During the booking process, Det.
Walsh arrived at the precinct station and recognized Jones.
Det. Walsh testified as follows:
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MR. JACKSON: Had you previously encountered this
defendant before?
DET. WALSH: Yes, sir, back in 2001.
MR. JACKSON: Had he identified himself to you at
that prior encounter?
DET. WALSH: Yes, as Jermarl Jones.
(JA 321-22). Jones’s counsel asked that the testimony be
stricken on the basis that it informed the jury about a previous
arrest. The court disagreed, but offered to give a curative
instruction, which counsel accepted.
The court then instructed the jury as follows:
THE COURT: We’re just clarifying. The reference
to 2001, ladies and gentlemen, has nothing to do with
this case, and there is no suggestion that it involved
any wrongdoing on Mr. Jones’s part at all. It is simply
a previous opportunity that the two people had to speak,
and that’s all.
(JA 324).
Det. Walsh’s testimony was properly offered to establish
that Jones gave police an alias following his arrest at Breezy
Tree Court. See United States v. Burgos, 94 F.3d 849, 872 (4th
Cir. 1996)(“Employing an alias and attempting to conceal
identity reinforces the conclusion of the existence of a
conspiracy.”). The prosecutor’s question was appropriately
limited to asking whether the detective had “previously
encountered” Jones, and the detective responded without
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elaboration. Any remote risk that the jury would draw a
prejudicial inference from the exchange was alleviated by the
district court’s curative instruction. United States v.
Johnson, 114 F.3d 435, 444 (4th Cir. 1997)(absent extreme
circumstances, juries are presumed to follow instructions to
disregard potentially prejudicial evidence). Jones has not
shown this was an extraordinary circumstance that requires us to
overturn the district court’s evidentiary ruling.
III. Sufficiency of the Evidence
Finally, Jones challenges the sufficiency of the evidence
presented at trial. In resolving issues of sufficiency of the
evidence, this Court does not reassess the fact finder’s
determination of witness credibility. United States v. Sun, 278
F.3d 302, 313 (4th Cir. 2002). Jones’s jury conviction must be
sustained if, taking the view most favorable to the Government,
there is substantial evidence to support the verdict. Glasser
v. United States, 315 U.S. 60, 80 (1942). Substantial evidence
is evidence that a rational trier of fact could have found
adequate and sufficient to establish the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979). Reversal is reserved for cases where the
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prosecution’s failure to produce such evidence is clear. United
States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984).
The elements of a conspiracy to possess with intent to
deliver a controlled substance under 21 U.S.C. § 846 are “(1) an
agreement between two or more persons to violate federal law
relating to controlled substances; (2) knowledge of the
essential objectives of the conspiracy; (3) knowing and
voluntary involvement therein; and (4) interdependence among the
conspirators.” United States v. Hall, 551 F.3d 257, 268 n.13
(4th Cir. 2009). Jones does not dispute that there was a
criminal conspiracy at work in relation to the seized heroin.
Rather, he argues that there was insufficient evidence showing
his involvement in the conspiracy.
When the evidence is viewed in the light most favorable to
the Government, a reasonable jury could find that the Government
proved all the necessary elements beyond a reasonable doubt,
including Jones’s participation in the conspiracy. Jones was
present at an apartment obviously used in packaging heroin for
distribution. When confronted by police there, he attempted to
flee and gave an alias and a false address. He possessed
several forms of identification with various names and
birthdates. Following his initial arrest on state charges,
Jones lived for months in a hotel room listed in the same name
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as the stash-house apartment lease. Therefore, there was
sufficient evidence to connect Jones to the drug operation at
the Breezy Tree Apartment.
Additionally, evidence located at Jones’s Thistledown Road
apartment and his girlfriend’s Rudisill Court apartment further
supports the jury’s verdict. In those locations, police found
items tending to show participation in drug trafficking,
including large amounts of currency, a money counter, a loaded
handgun, and additional identification documents in different
names. Accordingly, the jury had before it evidence from which
it could rationally conclude beyond a reasonable doubt that
Jones was involved in the charged narcotics conspiracy.
IV. Conclusion
For the reasons stated herein, the judgment of the district
court is
AFFIRMED.
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