United States v. Romelle Smith ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2912
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Romelle Darryl Smith,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 13, 2023
Filed: August 11, 2023
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Before LOKEN, COLLOTON, and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
Romelle Smith pleaded guilty to unlawful possession of a firearm as a felon.
See 18 U.S.C. § 922(g)(1). The district court1 sentenced Smith to 180 months’
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The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
imprisonment as an armed career criminal under 18 U.S.C. § 924(e). Smith appeals
an order denying his motion to suppress evidence and challenges his sentence. We
affirm.
I.
Police seized Smith in a case of mistaken identity. The principal question on
appeal is whether the seizure was nonetheless reasonable, and whether evidence
discovered in the course of the seizure was admissible in Smith’s prosecution.
On July 16, 2020, a man was shot in the head in Minneapolis. Officer Jason
Schmitt was assigned to investigate the case. An eyewitness identified the shooter
as a man whose street name was “Bam.” Officer Schmitt learned that “Bam” was an
alias for Jamichael Ramey.
To find Ramey, Schmitt contacted a confidential informant on the day of the
shooting. Schmitt had worked with this informant on at least twenty-five occasions,
and the informant had provided accurate information about Ramey’s possession of
guns and drugs. The informant gave Schmitt a telephone number for Ramey, and told
Schmitt that he had spoken to Ramey on this phone number earlier that day.
Based on this information, Schmitt obtained a search warrant for the cellular
phone that allowed him to monitor the location of the phone through a global
positioning system (GPS). On Saturday, July 18, the phone’s service provider, T-
Mobile, began to send Schmitt emails with the phone’s GPS location every 15
minutes.
Schmitt developed a written operations plan for arresting Ramey. The plan
included two photographs of Ramey, and described him as a black man who stood
five-foot eleven-inches tall and weighed 172 pounds. Over the weekend of July 18-
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19, Schmitt observed that the suspect phone repeatedly returned to an apartment
building on 33rd Avenue South in Minneapolis.
On Monday, July 20, Schmitt and other officers conducted surveillance at the
apartment building. Throughout the surveillance, Schmitt received e-mails from T-
Mobile showing that the phone was at the building. Schmitt parked between 100 and
125 yards away from the building, and used binoculars to observe the front door.
Although his view was partially obstructed by trees, cars, and light poles, he saw a
black man of approximately Ramey’s age whom he believed was Ramey.
Another officer, Lepinski, later assumed the surveillance, and parked a half to
three-quarters block north of the apartment building on the opposite side of the street.
Lepinski did not have a clear view of the front door, but he could see the sidewalk in
front of the building. He used binoculars to watch this area, although his view was
partially obscured by trees and light poles. Lepinski saw the same man whom
Schmitt had observed. Based on the man’s build, age, and complexion, Lepinski also
believed the man was Ramey.
Officer Lepinski watched this man enter the passenger seat of a red GMC
Envoy automobile that drove away from the apartment building. Surveillance officers
followed. An officer soon saw the car parked at a gas station on 60th Street and
Portland Avenue.
Meanwhile, Officer Schmitt continued to monitor the location of the suspected
Ramey cell phone. The first e-mail that Schmitt received from T-Mobile after the red
GMC Envoy left the apartment building showed that the phone was located at 60th
Street and Portland Avenue—the address of the gas station where the car was parked.
Based on this information, the officers concluded that the suspected Ramey phone
was in the red GMC Envoy, and that the man they observed outside the apartment
building was Ramey.
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Officers stopped the car after it departed the gas station, and directed the man
in the passenger seat to exit the vehicle. He identified himself as Romelle Smith, and
acknowledged that he was carrying a firearm. Investigators later determined that
Smith was a convicted felon.
Ramey, the suspect in the shooting, was not in the car with Smith. Officers
later determined that the suspected Ramey cell phone that they had been tracking
actually belonged to the driver of the red GMC Envoy. The driver was an associate
of Ramey’s.
A grand jury charged Smith with unlawful possession of a firearm as a felon.
See 18 U.S.C. § 922(g)(1). He moved to suppress evidence obtained as a result of the
traffic stop. He argued that officers violated his rights under the Fourth Amendment
by seizing him. The district court concluded the officers had reasonable suspicion to
stop the vehicle and to seize Smith, because “they saw someone who they believed
might be Ramey and corroborated their suspicion with the GPS location of the phone
they believed to be Ramey’s.”
Smith pleaded guilty and reserved his right to appeal the denial of his motion
to suppress. Fed. R. Crim. P. 11(a)(2). At sentencing, the district court determined
that Smith was an armed career criminal under 18 U.S.C. § 924(e) because he had
sustained three previous convictions for a violent felony. The court rejected Smith’s
contention that neither his 2008 Illinois conviction for vehicular hijacking nor his
2011 Illinois conviction for aggravated vehicular hijacking qualified. The court then
sentenced Smith to the statutory minimum term of 180 months’ imprisonment.
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II.
A.
A law enforcement officer may conduct an investigative stop of a vehicle when
he has “a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981).
Smith does not dispute that the officers had probable cause to arrest Ramey, but
argues that they lacked reasonable suspicion to believe that Ramey was in the red
GMC Envoy or to stop the vehicle. In evaluating this contention, we bear in mind
that “[t]o be reasonable is not to be perfect,” so officers do not violate the Fourth
Amendment if they reasonably, but mistakenly, believe that there are sufficient
grounds to conduct an investigative stop. Heien v. North Carolina, 574 U.S. 54, 60-
61 (2014).
We conclude that the totality of the circumstances provided the officers with
a reasonable, articulable basis to believe that Ramey was in the car that they stopped.
Officers had reasonable suspicion that Ramey used a particular cellular telephone.
Officer Schmitt received the telephone number from a known informant. The
informant had proved reliable by providing accurate information about Ramey’s
possession of guns and drugs in the past. The informant reported recently speaking
with Ramey at the specified phone number. Officers were armed with a judicial
warrant based on a finding of probable cause that Ramey used the target phone
number.
GPS location data showed that the phone was located at the apartment building
on 33rd Avenue South on July 20. Officer Schmitt and Officer Lepinski each
observed a man who appeared from a distance to match Ramey’s description at the
apartment building—a black man in his twenties with a medium build. After officers
observed this man drive away from the building, they determined that his location
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continued to match the location of the suspect cell phone. This location information
further suggested that the man was Ramey.
Smith asserts that aside from age and race, the physical appearances of Ramey
and Smith were not particularly close: Ramey was four inches taller and nearly 40
pounds heavier than Smith. But both officers observed Smith from a significant
distance through binoculars with a view that was partially obscured. From these
vantage points, and without reference points against which to measure height or
weight, a reasonable officer could have perceived a “medium build,” and was not
required to exclude the possibility that the man was Ramey. When officers then
determined that the man traveled the same route as the telephone associated with
Ramey, a reasonable officer could have believed, mistakenly, that the man under
surveillance was Ramey. Accordingly, the stop did not violate Smith’s rights under
the Fourth Amendment, and the district court properly denied the motion to suppress.
B.
With respect to his sentence, Smith contends that he was not an armed career
criminal under 18 U.S.C. § 924(e), because he had not sustained three previous
convictions for a violent felony. A “violent felony” includes “any crime punishable
by imprisonment for a term exceeding one year” that “has as an element the use,
attempted use, or threatened use of physical force against the person of another.” Id.§ 924(e)(2)(B)(i). An offender who qualifies as an armed career criminal is subject
to a statutory minimum sentence of fifteen years’ imprisonment.
Smith admits to one qualifying conviction, but contends that his 2008 Illinois
conviction for vehicular hijacking and his 2011 Illinois conviction for aggravated
vehicular hijacking were not convictions for a violent felony. He argues that a person
hypothetically could commit vehicular hijacking without using or threatening to use
force against another person.
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This contention is foreclosed by the reasoning of United States v. Pulley, No.
22-2858, 2023 WL 4876447, at *2 (8th Cir. Aug. 1, 2023). There, this court held that
the vehicular hijacking statute under which Smith was convicted qualifies as a crime
of violence under the sentencing guidelines, because it required the use or threatened
use of physical force against another. Id. at *2-3. For the same reason, the offense
qualifies as a violent felony under § 924(e)(2)(B)(i). Smith’s aggravated offense
required the same elements as vehicular hijacking plus an aggravating circumstance,
720 Ill. Comp. Stat. 5/18-4 (amended 2013), so it also qualifies. The district court
correctly concluded that Smith previously had been convicted of three violent
felonies, and properly sentenced him accordingly.
* * *
The judgment of the district court is affirmed.
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