United States v. Spearman , 254 F. App'x 178 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KELVIN LORENZO SPEARMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:05-cr-00060-RLW)
Argued: September 26, 2007 Decided: November 15, 2007
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and Joseph F.
ANDERSON, Jr., United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: John Bertram Mann, CANFIELD, BAER, HELLER & JOHNSTON,
L.L.P., Richmond, Virginia, for Appellant. Charles Everett James,
Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Kelvin Spearman (“defendant”) was charged in a four-
count superseding indictment for conspiracy to possess with intent
to distribute cocaine base (“crack cocaine”), in violation of 21
U.S.C. § 846 (“Count One”), possession with intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(iii) and 860 (“Count Two”), as well as two other
counts not at issue on appeal. Following the denial of his motion
to suppress evidence of crack cocaine discovered during the course
of a search of defendant’s vehicle, a jury convicted defendant on
all four counts. Defendant timely appeals his convictions on
Counts One and Two, arguing that the district court erred when it
denied the suppression motion and that the evidence did not support
his conviction on the conspiracy count. For the reasons that
follow, we affirm.
I.
Defendant first raises a Fourth Amendment challenge to the
traffic stop1 that preceded the seizure of crack cocaine from
underneath the driver’s seat of the vehicle that he was driving.
Defendant contends that the police officer who initiated the
1
This opinion uses the term “traffic stop” because the
parties’ briefs refer to the subject event as a traffic stop.
However, the parties conceded at oral argument that the police did
not effect a traffic stop, but that the defendant stopped his car
and the police pulled in behind him after he stopped, as described
more fully infra at page 4.
2
traffic stop lacked probable cause or reasonable suspicion to stop
the vehicle and, therefore, any evidence derived from that stop
should have been suppressed.
A.
At a hearing on the suppression motion, Richmond City Police
Detective Rahmel Logan testified that, with the use of a
confidential source, he and other officers conducted an undercover
buy operation on July 15, 2004 in the West Moore Street area of
Richmond, Virginia. Detective Logan testified that he observed
defendant’s maroon Cadillac slowly cruise through the block and
stop in the middle of the street. Detective Logan saw an
individual approach the vehicle and engage the driver in
conversation through the car window.
The confidential source milled around the area and returned to
Detective Logan’s car without making a drug purchase. The
confidential source informed Detective Logan that he attempted to
purchase drugs from an individual who did not have any to sell, but
who told him that he could get some from the maroon Cadillac. The
confidential source stated that he did not feel comfortable going
to the maroon Cadillac to buy drugs, so he left the area and was
picked up by Detective Logan at the other end of the block.
Detective Logan testified that he put the information from the
confidential source over the police radio. Richmond City Police
Detective Chris Salyer testified that he and Detective Michael
3
McCray were in their vehicle when they received the radio
transmission from Detective Logan about drugs being available from
the maroon Cadillac. Upon receiving the radio transmission,
Detective Salyer’s unmarked vehicle and the maroon Cadillac passed
one another going in opposite directions. While passing
defendant’s maroon Cadillac, Detective Salyer observed that the
driver was a black male whom Detective Salyer believed was another
individual known to be an armed drug dealer with a suspended
license.
Approximately half a block separated the vehicles when
Detective Salyer turned to follow defendant. After traveling
through a stop sign, defendant pulled to the shoulder of the curb
and parked within a row of parked vehicles. Detective Salyer also
drove through the stop sign, and, unable to observe the tag of
defendant’s vehicle, pulled to the shoulder and parked immediately
behind defendant. Detective Salyer did not activate his blue
lights. Both Detective Salyer and Detective McCray then observed
defendant looking in his rear-view mirror toward the detective’s
unmarked vehicle. As Detective Salyer exited the vehicle, he
pulled his badge from under his shirt and, at that point, observed
defendant’s left shoulder make a downward motion, as if defendant
were reaching under the seat with his left hand. As Detective
Salyer approached the driver’s side door, defendant still was
reaching under his seat and looking in his rear-view mirror, which
4
showed Detective McCray approaching from the defendant’s passenger
side.
Detective Salyer tapped on defendant’s driver-side window and
identified himself as a Richmond Police officer. Defendant then
pulled his hand out from under the seat. Detective Salyer asked
what defendant was doing under the seat, and defendant stated that
he dropped his cell phone and made a motion like he was going to
reach back under the seat. Detective Salyer, however, observed
that a cell phone was already in defendant’s lap and testified that
he believed defendant might be reaching for a weapon. Detective
Salyer asked defendant to step out of the vehicle and conducted a
pat-down search that did not reveal any contraband. Detective
Salyer guided defendant to the rear of the vehicle where defendant
produced identification. Detective Salyer returned to the vehicle
and, during a protective sweep under the driver’s seat, found a
plastic bag of individually-bagged rocks totaling 5.6 grams of
crack cocaine. Meanwhile, Detective McCray ran defendant’s
information, which revealed an outstanding arrest warrant.
Defendant was arrested for conspiracy to distribute, as well as for
a subsequently-discovered outstanding arrest warrant.
Defendant subsequently moved to suppress the admission of the
crack cocaine found under the driver’s seat. The district court
denied defendant’s motion. The court found that, based on the
information transmitted over the radio by Detective Logan,
5
Detective Salyer had information that the maroon Cadillac was a
vehicle in which drug transactions could take place. Therefore,
given the totality of the circumstances, a reasonable officer had
probable cause to stop and search the vehicle.
B.
“The Supreme Court has recognized three distinct types of
police-citizen interactions: (1) arrest, which must be supported by
probable cause; (2) brief investigatory stops, which must be
supported by reasonable articulable suspicion; and (3) brief
encounters between police and citizens, which require no objective
justification.” United States v. Weaver, 282 F.3d 302, 309 (4th
Cir. 2002) (citations omitted). In reviewing a denial of a motion
to suppress, “we review the factual findings of the district court
for clear error and its legal conclusions de novo.” See United
States v. Brown, 401 F.3d 588, 592 (4th Cir. 2005) (internal
quotation marks omitted).
The Fourth Amendment requires that a brief, investigatory stop
of an individual be supported by reasonable, articulable suspicion
that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonable suspicion
standard “is a less demanding standard than probable cause and
requires a showing considerably less than a preponderance of the
evidence.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,
145 L. Ed. 2d 570 (2000).
6
In deciding whether an officer had the requisite reasonable
suspicion to conduct an investigatory traffic stop, courts apply an
objective test rather than examining the subjective beliefs of the
investigating officer. Id. The “reasonable suspicion standard is
a commonsensical proposition. Courts are not remiss in crediting
the practical experience of officers who observe on a daily basis
what transpires on the street.” United States v. Lender, 985 F.2d
151, 154 (4th Cir. 1993). The Supreme Court has recognized that
individual factors consistent with innocent travel can, when taken
together, give rise to reasonable suspicion. United States v.
Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).
Here, Detective Salyer initially approached defendant in
response to a radio transmission that drugs were available from the
maroon Cadillac defendant was driving. Even if Detective Salyer
did not have reasonable suspicion for a Terry stop at that time,
cf. Florida v. J.L., 529 U.S. 266, 271-72, 120 S. Ct. 1375, 146 L.
Ed. 2d 254 (2000), the circumstances evolved to present a more
suspicious and dangerous climate when the detectives saw defendant
observing them approach his vehicle and ducking his left shoulder,
apparently reaching under his driver’s seat. Detective Salyer had
received a report over the police radio that drugs were available
from defendant’s car, and Detective Salyer thought, though
mistakenly, that defendant was another individual whose license had
been suspended, who was involved in drug trafficking, and who was
7
known to carry weapons. Defendant’s fixation in his rear-view
mirror on the detectives while reaching under his car seat created
heightened tension in an already-known high-crime area. When
defendant engaged in activity which Detective Salyer reasonably
perceived to be potentially dangerous in nature—-seeing the
detectives approach, unarmed, while reaching for a weapon under the
seat—-the totality of the facts known to Detective Salyer combined
to create a reasonable, articulable suspicion that he and Detective
McCray were in danger and that defendant was armed and dangerous.
As we have previously stated, “the very point of Terry was to
permit officers to take preventive action and conduct investigative
stops before crimes are committed, based on what they view as
suspicious-albeit even legal-activity.” United States v. Perkins,
363 F.3d 317, 326 (4th Cir. 2004)(emphasis in original). “We cannot
afford to read the Fourth Amendment to require officers to wait
until criminal activity occurs, and perhaps until innocent
bystanders are physically harmed, before taking reasonable,
preventive measures.” Id. at 328; see Adams v. Williams, 407 U.S.
143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (“The Fourth
Amendment does not require a policeman who lacks the precise level
of information necessary for probable cause to arrest to simply
shrug his shoulders and allow a crime to occur or a criminal to
escape. On the contrary, Terry recognizes that it may be the
essence of good police work to adopt an intermediate response.”).
8
Given the totality of the circumstances, we agree with the
district court that Detective Salyer was justified in seizing
defendant, and conducting a pat-down search and protective sweep
for weapons. We conclude that an officer in Detective Salyer’s
position would have had an objectively reasonable suspicion that
the maroon Cadillac that defendant was driving was connected with
illicit drug activities. The radio transmission had occurred only
minutes earlier. Independently, Detective Salyer thought the driver
was a known drug dealer who carried weapons and whose license had
been suspended. Finally, defendant made furtive movements under
the driver’s seat when he saw the detectives approaching his
vehicle and provided a unlikely excuse for his movements. We
conclude that these factors, taken together, give rise to
reasonable suspicion sufficient to justify the stop and search
under Terry.
Further, we find that the search under the defendant’s
driver’s seat for weapons was permissible as an extension of the
legitimate Terry stop. See Michigan v. Long, 463 U.S. 1032(1983)(search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden,
is permissible if the police officer possesses a reasonable belief
based on specific and articulable facts which, taken together with
the rational inferences from those facts, reasonably warrant the
officers in believing that the suspect is dangerous and the suspect
9
may gain immediate control of weapons). We find the district court
did not err in admitting evidence of the crack cocaine discovered
during Detective Salyer’s search for weapons under the seat. Id.
at 1050 (if while conducting a legitimate Terry search of the
interior of the automobile, the officer should discover contraband
other than weapons, he clearly cannot be required to ignore the
contraband, and the Fourth Amendment does not require its
suppression in such circumstances).
For the foregoing reasons, we affirm defendant’s conviction on
Count Two.
II.
Defendant next challenges the sufficiency of the evidence
underlying his conviction on the conspiracy charged in Count One.
The evidence at trial as to the conspiracy count included testimony
by a confidential informant named Chris Cox (“Cox”) who testified
that he purchased crack cocaine from defendant 60 to 70 times in
varying amounts, including amounts as large as one quarter ounce or
approximately seven (7) grams. Cox testified that when he bought
an amount that large, he and a group of people would pool their
money to purchase the crack. Cox also attempted two recorded
controlled crack cocaine buys of $200 each for law enforcement,
resulting in actual purchases of $80 and $150 worth. The
10
government expert testified that 5.6 grams2 of crack cocaine was
not a typical personal use amount, and that based on his training
and experience, such an amount of crack would be packaged for
resale. Cox testified that he met defendant through defendant’s
uncle, Sonny, who served as Cox’s former supplier. Cox testified
that the three of them met together at a Fourth of July block
party, where Sonny told Cox that defendant would “take care of him
if he needed anything” while Sonny was in Las Vegas for the week.
(J.A. 141).
A defendant challenging the sufficiency of the evidence to
support his conviction “bears a heavy burden.” United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). Where, as here, the
motion was based on a claim of insufficient evidence, “[t]he
verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
This court “ha[s] defined ‘substantial evidence’ as ‘evidence that
a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant's guilt beyond a reasonable
doubt.’” Alerre, 430 F.3d at 693 (quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc)). In evaluating the
2
The amount of crack found under defendant’s driver’s seat was
5.6 grams. The proof of the conspiracy did not involve the crack
seized from the car, but the expert testimony that 5.6 grams of
crack is not for personal use likewise supports the inference of
distribution for the 7 gram sale.
11
presence of substantial evidence, we “consider circumstantial as
well as direct evidence, and allow the government the benefit of
all reasonable inferences from the facts proven to those sought to
be established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). This court “may not weigh the evidence or review
the credibility of the witnesses.” United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997).
A.
To prove conspiracy to possess cocaine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, the
government “must establish that: (1) an agreement to possess
cocaine with intent to distribute existed between two or more
persons; (2) the defendant knew of the conspiracy; and (3) the
defendant knowingly and voluntarily became a part of this
conspiracy.” Burgos, 94 F.3d at 857.
Defendant contends that the evidence showed only that he and
Cox shared a buyer-seller relationship, not “an agreement to
possess cocaine with intent to distribute.” Id. Viewing the
evidence in the light most favorable to the government, we find
substantial evidence to support a finding that defendant's
involvement went beyond that of a buyer-seller. Cox specifically
testified as to his and defendant's involvement with defendant’s
uncle Sonny, including the three of them meeting to orchestrate the
details of who would be available when to distribute cocaine to
12
Cox.3 See United States v. Brown, 332 F.3d 363, 373 (6th Cir.
2003) (“[E]vidence of repeat purchases provides evidence of more
than a mere buyer-seller relationship.”); United States v.
Bourjaily, 781 F.2d 539, 545 (6th Cir. 1986) (“A large volume of
narcotics creates an inference of a conspiracy.”).
The court finds a conspiracy was established because (a) Cox’s
purchases were of an amount too great to be for only personal use,
even if the drugs were to be shared with friends (whose money was
pooled to make the purchase), thereby sufficiently establishing
intent to distribute; and (b) testimony that Cox purchased from
both defendant and his uncle, Sonny, and testimony that all three
of them met together at a Fourth of July block party and discussed
purchasing drugs from defendant establishes the existence of an
agreement.
For the foregoing reasons, the court finds no error in the
district court’s denial of defendant’s suppression motion and finds
that the evidence supports defendant’s conviction on the conspiracy
count. Accordingly, the judgment is affirmed.
AFFIRMED
3
Defendant also attacks on appeal the credibility of Cox.
However, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” United States v. Murphy, 35 F.3d 143, 148
(4th Cir. 1994). We find no reason to disturb the jury's
credibility determinations here.
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