United States v. Roberts ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4509
ZARENTEE A. ROBERTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-96-5)
Argued: July 8, 1997
Decided: September 10, 1997
Before HAMILTON and LUTTIG, Circuit Judges, and G. Ross
ANDERSON, Jr., United States District Judge for the District of
South Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Calvin Richard Depew, Jr., RABINOWITZ, RAFAL,
SWARTZ, TALIAFERRO & GILBERT, P.C., Norfolk, Virginia, for
Appellant. Janet S. Reincke, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In 1996, Zarentee Roberts was indicted on one count of possession
with intent to distribute heroin, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(B)(I) (West 1981 & Supp. 1996). The district court
denied Roberts' motion to suppress evidence discovered during a
search of his person and of his motel room. Roberts entered a guilty
plea pursuant to Fed. R. Crim. P. 11(a)(2), reserving the right to
appeal the denial of his suppression motion. He also appeals the cal-
culation of his criminal history under the Federal Sentencing Guide-
lines. We affirm the district court on both claims.
I
On December 12, 1995, Detectives Brereton and Kuehn of the Vir-
ginia Beach Police Department were called to the Courtyard Marriott
Motel. Staff at the motel had found a loaded handgun and a bag of
money in Room 148, which was registered to Zarentee Roberts. Rob-
erts listed nearby Portsmouth, Virginia, as his home address. Only
one key had been issued to Roberts when he checked in to the motel.
The phone log revealed numerous calls to nearby Portsmouth, a
source city for heroin in the Tidewater area. A computerized criminal
history check showed that Roberts had several arrests on drug and
gun charges.
Detective Brereton contacted the Portsmouth Police Department.
According to Brereton's testimony at the suppression hearing, Officer
Borges of Portsmouth told him Roberts had been convicted of drug
and weapon felonies. Brereton asked if he was sure Roberts had been
convicted, and Borges responded, "Yes. I am looking at his FBI num-
ber right now. He's been convicted of drug and weapon felonies."
Officer Kuehn, Brereton's partner, testified that he heard Brereton's
side of the conversation and heard him say, "So he's a convicted
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felon?" Borges testified at the hearing that he told Brereton that Rob-
erts had charges against him, rather than convictions. He stated, "[H]e
could have very well been saying conviction and me not understood
him. In trying to remember back . . ., I cannot remember that. There
is no way I could tell there's been a conviction from [the system he
was using]." In fact, Roberts was not a convicted felon.
When Brereton and Kuehn saw a black male approach the room
and insert a key, the officers approached him and identified them-
selves. As Roberts began to walk away, the officers arrested him as
a felon in possession of a firearm. A search of his person revealed a
digital scale, over $1000 in cash, and a baggie containing 16.5 grams
of a white powder that field tested positive for heroin. The officers
then applied for and received a search warrant for the room, where
they found 191 net grams of heroin and over $18,000 in cash.
Officer Brereton at that time had forty hours of training in basic
narcotics investigation, forty hours of training in undercover work,
and forty hours of training in drug interdiction. He was working with
the interdiction unit of the special investigative section with hotel and
motel drug interdiction. Brereton testified that drug dealers often used
hotel rooms to store drugs and conduct drug business.
Roberts' presentence report showed two convictions for possession
of marijuana in Portsmouth General District Court. He received jail
time for both convictions. The appeals to Virginia circuit court were
pending at the time of sentencing. Roberts argued that these convic-
tions should not be counted in his criminal history, but the district
court overruled the objection. Roberts was sentenced to 102 months
imprisonment, followed by four years of supervised release.
II
Following a suppression hearing, the district court held that the
officers had probable cause to arrest Roberts, even without the errone-
ous information that he was a convicted felon. The items revealed in
that search provided enough evidence to justify a search warrant for
the room. Alternatively, the court held that Officer Brereton was a
more credible witness than Officer Borges as to the contents of their
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conversation, based on the latter's uncertain testimony, his relative
inexperience on the job, and Officer Kuehn's testimony.
A warrantless arrest may be made if the officer has probable cause
to believe the suspect has committed a crime. Probable cause exists
if at the time of the arrest the facts and circumstances within the offi-
cer's knowledge would justify a prudent man's belief that the arrestee
had committed or was committing an offense. Beck v. State of Ohio,
379 U.S. 89, 91 (1964); United States v. Williams, 10 F.3d 1070,
1073-74 (4th Cir. 1993). Probable cause is evaluated based on the
totality of the circumstances. Illinois v. Gates , 462 U.S. 213, 238
(1983). We must sustain the district court's finding of probable cause
if the court had a substantial basis for its conclusion. Id. at 236;
United States v. Depew, 932 F.2d 324, 327 (4th Cir. 1991).
Here, the officers knew that hotel employees had found a loaded
handgun and a large amount of cash in a hotel room for which the
only key was issued to Roberts. They knew Roberts listed a nearby
Portsmouth address, and made frequent calls to numbers in Ports-
mouth; they knew he had been arrested five times from 1992 to 1995
on drug and gun charges. Brereton knew, based on his training, that
Portsmouth is a source city for heroin, and that drug dealers some-
times use hotel rooms as a base to run their operations. Police may
use their training and experience to draw limited inferences of crimi-
nal activity from behavior that is not facially criminal. See Texas v.
Brown, 460 U.S. 730, 742-43 (1983). We agree with the district court
that a reasonably prudent person could conclude that Roberts was
committing or had committed a crime. Once Roberts was searched,
the items found on him certainly gave probable cause to obtain a war-
rant to search the motel room.
Roberts cannot successfully attack the warrant affidavit. He has not
shown that there was a false statement made knowingly and intention-
ally, or with reckless disregard for the truth; nor has he shown that
the statement was necessary for a finding of probable cause. Franks
v. Delaware, 438 U.S. 154, 155-56 (1978); United States v. Jeffus, 22
F.3d 554, 558 (4th Cir. 1994). Therefore, we affirm the district court's
denial of the motion to suppress.
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III
Roberts argues that his two convictions in the general district court
of Virginia should not have been included in his criminal history
when his sentencing range under the federal sentencing guidelines
was computed, because he had appealed the convictions. In Virginia,
when a district court conviction is appealed, the defendant is entitled
to a trial de novo and the conviction is a nullity. See, e.g., Gaskill v.
Com., 144 S.E.2d 293, 296 (Va. 1965). The presentence report gave
Roberts two points in his criminal history based on convictions that
were then on appeal to the circuit court. The district court overruled
Roberts' objection, holding that the guidelines required consideration
of the convictions.
We hold that the district court correctly applied the relevant guide-
lines. Under USSG § 4A1.2(1) (Nov. 1, 1995), prior sentences on
appeal are to be counted in determining criminal history. The term
"prior sentences" is broadly defined. USSG§ 4A1.2(a). Under USSG
§ 4A1.2(a)(3), a conviction is counted as a prior sentence even if
imposition or execution of the sentence has been totally stayed or sus-
pended. Sentences on appeal are specifically included. USSG
§ 4A1.2(1). The guidelines are set up to be broadly inclusive, exclud-
ing only those prior convictions specifically excepted. As the type of
conviction at issue here has not been specifically excluded, we con-
clude that it was properly included.
We affirm Roberts' conviction and sentence.
AFFIRMED
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