United States v. Deangelo Jenkins ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2020 Decided January 8, 2021
No. 19-3023
UNITED STATES OF AMERICA,
APPELLEE
v.
DEANGELO TYRONE JENKINS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cr-00223-1)
Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Eric Hansford, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman
and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: HENDERSON and ROGERS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: In the course of investigating a
shooting, the police identified two automobiles that drove over
three miles in tandem to the area, arrived shortly before shots
were fired, and left immediately afterwards, driving rapidly
back the same way they came. Appellant was later identified
as the usual driver of one of the vehicles. Based on evidence
collected during searches of his vehicle and person, appellant
was charged with two counts of possession of a firearm by a
felon, 18 U.S.C. § 922(g), and one count of simple possession
of a controlled substance, 21 U.S.C. § 844(a). He conditionally
pleaded guilty to the firearms charges, preserving his ability to
appeal the denial of his motion to suppress evidence. Appellant
contends that the police acted on evidence showing merely that
his vehicle was near the shooting and associated with another
car, which was insufficient to establish probable cause to seize
and search his vehicle. Further, appellant contends that any
probable cause to search his vehicle had dissipated by the time
the police seized it 52 days after the shooting. Settled Fourth
Amendment principles defeat appellant’s challenges.
Separately, appellant fails to show plain error occurred at his
sentencing. Accordingly, we affirm the judgment.
I.
The following facts are uncontested. On September 2,
2017, at approximately 6:56 p.m., ShotSpotter — a system that
alerts the Metropolitan Police Department (“MPD”) to the
location of potential gunfire — indicated that twelve rounds
had been fired at 1502 Tubman Road, S.E. Upon arrival,
officers discovered three victims: one who was pronounced
dead on the scene, and two others who neither saw the shooter
nor identified a motive for the shooting. During the
investigation, detectives interviewed the driver and passenger
in another car that was near the scene of the shooting. The
driver had observed a black Chrysler Crossfire by the mouth of
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an alley that was approximately 100 feet from where the
shooting occurred. After passing the Crossfire and driving one
more block, the witnesses heard gunshots. They drove out of
the neighborhood to an intersection with Suitland Parkway,
where the driver saw the Crossfire again, this time in the
rearview mirror. The witnesses turned out onto Suitland
Parkway, where they observed the Crossfire driving at a high
rate of speed, followed closely by a white Infiniti SUV. The
driver and passenger gave consistent accounts of these events
to detectives, and the driver opined that the Crossfire and
Infiniti were travelling together. The two vehicles turned off
Suitland Parkway onto Firth Sterling Avenue, S.E., at which
point the witnesses lost sight of them.
Using a license plate reader at the intersection of Suitland
and Firth Sterling, and security cameras near the scene of the
shooting, MPD Detective Thomas Roy developed additional
information concerning the movements of the Crossfire and the
Infiniti around the time of the shooting. Evidence showed that
the two vehicles travelled together to the area of the shooting,
arrived just before it occurred, left just afterwards, and
remained together while fleeing the scene. Tag numbers
recorded by the license plate reader identified the registered
owner of the Crossfire as Lajuan Johns and the registered
owner of the Infiniti as Tyrhonda Webster. Webster’s current
address was on Columbia Road N.W., and Lajuan Johns had a
previous address on the same block. Detective Roy looked for
the Infiniti on that block, without success; but in the same area
he saw a man, Stephon Johns, in control of the Crossfire.
On October 10, 2017, Stephon Johns was the subject of a
traffic stop in Texas. He was arrested pursuant to a District of
Columbia arrest warrant for unlawful possession of a firearm
and for a parole violation. The next day, Detective Roy located
the Crossfire in the Providence Hospital parking lot and saw
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three bullet strikes on its rear. Five days later, detectives
interviewed Webster, who confirmed that she owned the
Infiniti but stated that appellant, her brother, was the exclusive
driver of the vehicle. An MPD database indicated appellant
had been driving the Infiniti on October 11, 2017, when it was
involved in a traffic accident.
On October 24, 2017, detectives saw the Infiniti parked at
the corner of 14th and Harvard Streets, N.W. The police seized
the Infiniti, which was taken to the D.C. Department of
Forensic Sciences while Detective Roy applied for a search
warrant. Upon execution of the search warrant on October 25,
Detective Roy found in the Infiniti a loaded .45 caliber Taurus
handgun, appellant’s driver’s license, and a notice of infraction
that he had received in Montgomery County on September 21,
2017. Appellant was arrested pursuant to a separate warrant on
November 9, 2017, and the police recovered a loaded .357
caliber Ruger revolver from his waistband and a rock-like
substance from his pants pocket that field-tested positive for
cocaine.
Appellant was indicted on two counts of possession of a
firearm by a person convicted of a felony, under 18 U.S.C.
§ 922(g), and one count of simple possession of a controlled
substance, under 21 U.S.C. § 844(a). He moved to suppress
the guns and drugs, arguing that they were fruits of an unlawful
seizure of the Infiniti without probable cause. The district court
denied the motion, concluding that there was probable cause to
believe the Infiniti contained evidence of a crime and was itself
an instrumentality of a crime. Having decided that the search
of the Infiniti was lawful, the district court rejected appellant’s
argument that the evidence recovered during the search
incident to his arrest was fruit of a poisonous tree.
Alternatively, the district court ruled that the evidence from
both searches would be admissible under the good-faith
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exception to the exclusionary rule. Following appellant’s
conditional plea to the indictment, the district court sentenced
him to 47 months’ imprisonment. He appeals.
II.
It is long established that “there is a diminished
expectation of privacy in automobiles, which often permits
officers to dispense with obtaining a warrant before conducting
a lawful search.” Byrd v. United States, 138 S. Ct. 1518, 1526
(2018) (citing California v. Acevedo, 500 U.S. 565, 579
(1991)). This “so-called ‘automobile exception’ to the warrant
requirement,” Acevedo, 500 U.S. at 566, rests on two principal
justifications: (1) the readiness with which vehicles can be
moved out of the investigating jurisdiction and (2) the
“pervasive and continuing governmental regulation” of
vehicles. Collins v. Virginia, 138 S. Ct. 1663, 1669–70 (2018)
(quoting Dakota v. Opperman, 428 U.S. 364, 368 (1976)). So
“officers may search an automobile without having obtained a
warrant so long as they have probable cause to do so.” Id. at
1670 (citing California v. Carney, 471 U.S. 386, 392–93
(1985)). Officers have the option of either “carrying out an
immediate search without a warrant” or “seizing and holding a
car before presenting the probable cause issue to a magistrate.”
Chambers v. Maroney, 399 U.S. 42, 52 (1970). “A police
officer has probable cause to conduct a search when ‘the facts
available to him would “warrant a person of reasonable caution
in the belief”’ that contraband or evidence of a crime is
present.” Florida v. Harris, 568 U.S. 237, 243 (2013)
(alterations omitted) (quoting Texas v. Brown, 460 U.S. 730,
742 (1983) (plurality opinion)). This test requires only “the
kind of ‘fair probability’ on which ‘reasonable and prudent
people, not legal technicians, act.’” Id. (alteration omitted)
(quoting Illinois v. Gates, 462 U.S. 213, 231, 238 (1983)).
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Appellant frames his Fourth Amendment challenge in
terms of whether the Crossfire could be linked to the shooting,
whether the Infiniti could be linked to the Crossfire, and
whether any probable cause had gone stale by the time the
Infiniti was seized on October 24, 2017, which was 52 days
after the shooting. The single question that the court must
decide is whether the police had probable cause to seize the
Infiniti on October 24.
A.
Evidence collected from eyewitnesses, the Firth Sterling
license plate reader, and security cameras established that the
two vehicles drove together from miles away to within a few
blocks of the shooting, arriving minutes before the shooting
occurred; that the Crossfire was at the mouth of an alley
approximately 100 feet from the shooting just before it
occurred; and that after the shooting the two vehicles drove
away together at a high rate of speed, returning along Suitland
Parkway to the same area that they had come from. That
particularly timed behavior is sufficient to establish a fair
probability that the vehicles contained evidence about the
shooting. Probable cause was bolstered by the Texas arrest of
Johns, which supported an inference that he “could have been
trying to escape the consequences of the homicide (whether
police scrutiny or reprisals from rival groups).” Appellee’s Br.
19. Likewise, the bullet strikes on the Crossfire indicated that
the vehicle had been near gunfire, potentially on the night of
the shooting under investigation. Id. at 19–20. Although the
arrest and bullet strikes alone would not have established
probable cause to search the Infiniti, they add to the totality of
circumstances that must be considered. See District of
Columbia v. Wesby, 138 S. Ct. 577, 588 (2018).
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Appellant’s arguments to the contrary are not persuasive.
Relying on Illinois v. Wardlow, 528 U.S. 119 (2000), appellant
maintains that there was no probable cause to believe that the
Crossfire was involved in the shooting because “mere presence
at a scene of a crime cannot establish probable cause to believe
that the person committed the crime in question or possesses
evidence of the crime” and flight from gunfire is a natural
human response. Appellant’s Br. 20–21. Even accepting both
premises, they do nothing to address the suspicious fact that the
Crossfire and Infiniti arrived in the area just two minutes before
the shooting. Wardlow itself is no help to appellant; there the
Court found reasonable suspicion for an investigative stop
when the defendant was present in an area known for narcotics
trafficking and, upon seeing police officers, immediately
turned and fled. 528 U.S. at 124–25. “Headlong flight,” the
Court explained, “is the consummate act of evasion.” Id. at
124.
Appellant maintains that even if the Crossfire can fairly be
linked to the shooting, the Infiniti cannot be based on its “mere
association” with the Crossfire. He relies on United States v.
Di Re, 332 U.S. 581 (1948), where an informant, Reed, had told
investigators that he was to purchase counterfeit gasoline ration
coupons from a man named Buttitta. Id. at 583. When officers
went to intercept the transaction, they found Reed in the back
seat of a vehicle, holding two ration coupons. Id. Reed said he
had received the coupons from Buttitta, who was in the driver’s
seat. Id. Di Re was in the front passenger’s seat. Id. All three
men were arrested, and during processing Di Re was found to
be in possession of additional ration coupons, which proved to
be counterfeit. Id. The Court held, on these “peculiar facts,”
that officers lacked probable cause to arrest Di Re, because
The argument that one who ‘accompanies a criminal
to a crime rendezvous’ cannot be assumed to be a
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bystander, forceful enough in some circumstances, is
farfetched when the meeting is not secretive or in a
suspicious hide-out but in broad daylight, in plain
sight of passersby, in a public street of a large city,
and where the alleged substantive crime is one which
does not necessarily involve any act visibly criminal.
If Di Re had witnessed the passing of papers from
hand to hand, it would not follow that he knew they
were ration coupons, and if he saw that they were
ration coupons, it would not follow that he would
know them to be counterfeit. . . . . Presumptions of
guilt are not lightly to be indulged from mere
meetings.
Moreover, whatever suspicion might result from Di
Re’s mere presence seems diminished, if not
destroyed, when Reed, present as the informer,
pointed out Buttitta, and Buttitta only, as a guilty
party. . . . . Any inference that everyone on the scene
of a crime is a party to it must disappear if the
Government informer singles out the guilty person.
Id. at 593–94. Di Re is easily distinguished. Here, the vehicles’
in-tandem driving to and from the scene of a shooting is
suggestive of a conspiracy to perpetrate the shooting, in a way
that mere presence as a passenger during what might have been
an outwardly lawful transaction is not.
Ybarra v. Illinois, 444 U.S. 85 (1979), is similarly
distinguishable. There an informant had told police that a
bartender at the Aurora Tap Tavern was regularly in possession
of tin-foil packets of the type used to distribute heroin. Id. at
87–88. Based on this information, police obtained a warrant to
search the tavern and the bartender. Id. at 88. When officers
arrived at the tavern, they frisked all the patrons, ostensibly for
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weapons. Id. During the frisk of Ybarra, the officer felt a
cigarette pack with objects in it and, after removing the pack
from Ybarra’s pocket, found heroin therein. Id. at 88–89.
There was no probable cause to search Ybarra, the Supreme
Court held, because the police “knew nothing in particular
about Ybarra, except that he was present, along with several
other customers, in a public tavern at a time when the police
had reason to believe that the bartender would have heroin for
sale.” Id. at 91. While “a person’s mere propinquity to others
independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person,” id., the
evidence in the instant case did not merely show that the Infiniti
was in proximity to the Crossfire, but rather suggested that the
two vehicles were acting in concert.
Cases cited by the government are also distinguishable in
various ways, but on the whole accord with the common-sense
view that there would have been probable cause to search the
Infiniti had it been intercepted on the night of the shooting. For
instance, in Chambers, 399 U.S. at 44–47, there was probable
cause to search a blue station wagon containing four men based
on an eyewitness account that such a vehicle had fled the scene
of a robbery, where descriptions of two occupants’ clothing
also matched the witnesses’ description. Our precedent in
United States v. Robinson, 533 F.2d 578, 583 & n.10 (D.C. Cir.
1975), is to the same effect; there was probable cause to search
a vehicle seen leaving the area in which a robbery occurred,
where an eyewitness identified the car as the getaway vehicle.
Our sister circuits have likewise found probable cause to search
vehicles whose movements suggested that they were engaged
in coordinated criminal activity. See United States v. Howard,
883 F.3d 703, 708 (7th Cir. 2018) (probable cause to arrest
occupants of vehicle that suspiciously lingered in front of store
that was robbed, drove to the store’s rear door just as the
robbery began, and sped away as the robber fled); United States
10
v. Slone, 636 F.3d 845, 849–51 (7th Cir. 2011) (probable cause
to arrest truck occupant who had followed closely behind an
SUV that was known to contain 500 kg. of marijuana); United
States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1228 (10th Cir.
2008) (“Sufficient evidence that two vehicles are driving in
tandem plus evidence that one vehicle contains contraband can
provide probable cause sufficient to support arresting the driver
of the other vehicle.”).
B.
Appellant contends that any probable cause to search the
Infiniti became stale during the 52 days between the September
2 shooting and the October 24 seizure of the car. This court
has emphasized that “the facts supporting a warrant must be ‘so
closely related to the time of the issue of the warrant as to
justify a finding of probable cause at that time.’” United States
v. Webb, 255 F.3d 890, 904 (D.C. Cir. 2001) (quoting Sgro v.
United States, 287 U.S. 206, 210 (1932)). “[A]lthough the time
between the application for a warrant and the discovery of the
evidence supporting that application is ‘not controlling,’ it is
nonetheless important.” Id. (quoting Schoeneman v. United
States, 317 F.2d 173, 177 (D.C. Cir. 1963)). For example, there
was no probable cause to search a home where the application
for a warrant was made 107 days after an informant had
observed contraband in that location. Schoeneman, 317 F.2d
at 175–76. But it is not simply a matter of counting days; a
wide range of factual circumstances may be relevant to the
inquiry:
The likelihood that the evidence sought is still in place
is a function not simply of watch and calendar but of
variables that do not punch a clock: the character of
the crime (chance encounter in the night or
regenerating conspiracy?), of the criminal (nomadic
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or entrenched?), of the thing to be seized (perishable
and easily transferable or of enduring utility to its
holder?), of the place to be searched (mere criminal
forum of convenience or secure operational base?),
etc.
United States v. Matthews, 753 F.3d 1321, 1325 (D.C. Cir.
2014) (quoting United States v. Bruner, 657 F.2d 1278, 1298
(D.C. Cir. 1981)). In evaluating staleness claims, this court has
found it “troubling” that a search warrant issued more than 100
days after investigators last had information of a drug
transaction in the location to be searched, but nonetheless held
the evidence was admissible under the good-faith exception.
Webb, 255 F.3d at 904–05. In another case, evidence of drug
dealing within four-and-a-half weeks was held sufficiently
“fresh” to support probable cause. United States v. (Curtistine)
Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006).
Under the guidance in Matthews, 753 F.3d at 1325, there
was probable cause sufficiently fresh to support seizure of the
Infiniti. Appellant focuses on the recovered firearm,
maintaining that a person who participated in a fatal shooting
would be unlikely to retain the murder weapon for long. Yet a
murder weapon was not the only type of relevant evidence that
might be found. As the recovered Crossfire exemplifies, some
types of evidence are not easily removed from a car, like bullet
scrapes. Even outwardly innocuous evidence — such as a
driver’s license or gas receipts — might indicate who operated
the Infiniti, and paper records or a cell phone might contain
evidence related to the shooting but be less likely to be
discarded within a matter of weeks. So understood, the court
has no need to address how rapidly probable cause dissipates
for inherently incriminating evidence like a murder weapon or
illegal drugs. Despite the passage of time, the evidence
gathered by the police was sufficient to establish probable
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cause to search the Infiniti when it was seized. Appellant’s
motion to suppress was therefore properly denied. Having so
held, the court need not reach the Government’s alternative
arguments that the Infiniti could have been seized as an
instrumentality of a crime or that improperly collected
evidence could have nonetheless been admitted under
exceptions to the exclusionary rule.
III.
Federal Rule of Criminal Procedure 32(i)(3)(B) provides
that the sentencing court “must — for any disputed portion of
the presentence report or other controverted matter — rule on
the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” (emphases
added). Appellant’s sentencing memorandum objected to two
criminal history points that the Probation Office included in the
presentence report on the theory that his present offense was
committed while on probation from a 2006 Maryland case.
Appellant countered that he had successfully completed his
probation in that matter. The presentence report also suggested
a possible upward departure on the basis that the criminal
history category was inadequate. See U.S. SENT’G GUIDELINES
MANUAL §§ 4A1.2 n.6, 4A1.3 (U.S. Sent’g Comm’n 2018).
Defense counsel acknowledged that removing the two points
would not change appellant’s criminal history category or his
Sentencing Guidelines range.
At sentencing, defense counsel again objected to the two
criminal history points. The district court stated that it would
“just not resolve this issue” because it “doesn’t affect his
criminal history category one way or the other.” Sent’g Tr. 7.
The district court also noted that the two points would not
change the criminal history calculation underlying the
13
presentence report’s suggestion of an upward departure. As the
district court stated, “I don’t think, under any scenario, it
actually matters one way or the other, and so I’m just going to
— I’m certainly not going to, you know — it just doesn’t matter
. . . for these purposes.” Id. at 8. So “regardless of” the two
disputed points, appellant “would be in Criminal History
Category V” and would have a Guidelines range of 30 to 37
months. Id. Following these observations, the district court
asked whether there were any objections to the Guidelines
calculation; defense counsel replied, “No, Your Honor.” Id.
Appellant contends that the sentencing judge cannot
“simply decline to rule on an objection that is in fact used in
the defendant’s sentencing calculation.” Appellant’s Br. 42. In
his view, the two points might have affected the sentence,
despite the district court’s statements to the contrary. He relies
on United States v. Graham, 83 F.3d 1466 (D.C. Cir. 1996), for
the proposition that “when defendants allege any factual
inaccuracy in the presentence report, the court should either
make a finding resolving the controverted matter or determine
that it will not consider the controverted matter in sentencing
the defendant.” Id. at 1477. Here, the district court did not
state that it would “not consider” the two disputed points; it
instead observed that appellant would fall in the same criminal
history category whether or not the disputed points were
included. Appellant contends that this was insufficient to
comply with Rule 32(i)(3)(B).
But appellant never raised this objection in district court,
and our review is therefore limited to plain error. United States
v. Flores, 912 F.3d 613, 618 (D.C. Cir. 2019). Although the
district court did not expressly omit the disputed points from
its calculation of the criminal history score, the record is
sufficiently clear that the points did not affect the sentence, and
a remand is unnecessary. In addition to stating the two points
14
would not affect the sentencing of appellant, the district court
ultimately varied upwards by ten months from what would
have been the top of the Guidelines range even if the two points
were included. In particular, the district court reasoned that
prior sentences of 22, 36, and 38 months had failed to deter
appellant from reoffending and thus that a longer sentence was
required. There is consequently no reason to think that
resolution of the disputed points in appellant’s favor would
have resulted in a lower sentence. While it would have been
better if the district court had expressly omitted the disputed
points from its calculation of the criminal history score, the
record is sufficiently clear that the points did not affect the
sentence.
Accordingly, we affirm the judgment of conviction.