United States v. Jesse Carter , 481 F. App'x 475 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 5, 2012
No. 11-11867
JOHN LEY
________________________
CLERK
D.C. Docket No. 4:10-cr-00074-RH-WCS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
JESSE CARTER,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 5, 2012)
Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Jesse Carter appeals his 120-month sentence for conspiracy to distribute 500
grams or more of powder cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(ii). On appeal, Carter argues that the district court erred in applying a
sentence enhancement under 21 U.S.C. § 841(b)(1)(B) based on a 2007 conviction
because that prior conviction was obtained as a result of an unconstitutional search
incident to arrest. We find that Carter did not prove the alleged constitutional
violation because the search was a valid automobile search. The district court
therefore did not err in applying the enhancement.
I.
We start with a discussion of the undisputed facts surrounding Carter’s prior
conviction, as presented at his sentencing hearing. In 2006, Tampa Police Officer
Petit frequently communicated with a concerned citizen about the drug activity in
her neighborhood. The concerned citizen received no compensation for her phone
calls and was generally considered a reliable source. In July 2006, she called
Officer Petit and advised him of a possible drug transaction. When he arrived,
Officer Petit observed two men standing near a building. One of the men walked
away from the other and conducted a drug transaction with a woman. The other
man (later identified as Carter) then approached a different woman who had just
arrived at the scene. From his vantage point, Officer Petit could not see what
happened between Carter and the second woman, but he could see that they “made
2
brief contact with their hands.” Given his prior experience as a narcotics officer,
Officer Petit was convinced that he had witnessed a hand-to-hand drug
transaction. During Petit’s observation of the transaction, he identified Carter and
discovered that he had a suspended driver’s license. He conveyed this information
to the concerned citizen and asked that she call him if she ever saw Carter driving.
In August 2006, the citizen called Officer Petit to report that Carter was
driving around her neighborhood. Officer Petit called for backup, and the backup
officer saw Carter near a local park. This officer saw Carter drive his car into a
parking space, get out of his car, and walk toward the nearby pavilion
approximately thirty to forty feet away from his car. When Officer Petit arrived,
the two officers positively identified Carter, verified that his license was still
suspended, approached him, and arrested him for driving with a suspended license.
The officers detected a strong smell of marijuana on Carter and discovered more
than $500 in small, disorganized bills stashed in various pockets. Carter stated
that he did not have drugs on his person, and the officers did not find drugs on
him.
The officers then searched Carter’s car. When they opened the door, they
detected a strong stench of marijuana. They found approximately 30 pieces of
crack cocaine, some grams of marijuana, and a digital scale. In early 2007, Carter
3
pled guilty to the charges stemming from this transaction.
II.
We review de novo a district court’s legal conclusion that a prior conviction
may be used to enhance a sentence under 21 U.S.C. §§ 841 and 851. United States
v. Mikell, 102 F.3d 470, 474, 477 (11th Cir. 1996) (reviewing de novo a district
court’s denial of a defendant’s § 851(c)(2) constitutional challenge of a prior-
conviction enhancement under § 841.).
A defendant convicted of conspiring to distribute between 500 grams and 2
kilograms of cocaine is subject to a mandatory minimum sentence of five years.
21 U.S.C. § 841(b)(1)(B)(ii). If the defendant has a prior conviction for a felony
drug offense, the mandatory minimum sentence is increased to ten years. Id. The
government may seek a § 841 sentence enhancement for a prior conviction by
complying with the requirements of § 851. See Mikell, 102 F.3d at 477. Under §
851, a defendant can challenge the prior-conviction enhancement if he proves by a
preponderance of the evidence that the prior conviction was “obtained in violation
of the Constitution of the United States.” 21 U.S.C § 851(c)(2). A guilty plea is a
conviction for the purposes of sentence enhancement under § 841. United States
v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (per curiam).
The Fourth Amendment protects “[t]he right of people to be secure in their
4
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. The Fourth Amendment generally guarantees this right by
requiring the government to obtain a search warrant prior to a search, but there are
exceptions to the general warrant requirement. United States v. Tamari, 454 F.3d
1259, 1261 (11th Cir. 2006). Two possible exceptions could apply here—the
automobile exception and the search incident to arrest. Under the automobile
exception, police officers may conduct a warrantless search of a vehicle if the
vehicle is readily mobile and if they have probable cause to believe that the
vehicle contains contraband. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.
Ct. 2485, 2487 (1996) (per curiam); United States v. Watts, 329 F.3d 1282, 1286
(11th Cir. 2003) (per curiam). Accordingly, under the automobile exception, a
vehicle search does not violate the Fourth Amendment if, “under the totality of the
circumstances, there is a fair probability that contraband or evidence of a crime
will be found in the vehicle.” Tamari, 454 F.3d at 1261–62 (internal quotation
marks omitted). Under the search incident to arrest exception, the Supreme Court
recently clarified that the “[p]olice may search a vehicle incident to a recent
occupant’s arrest only if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the vehicle
contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. 332, 351,
5
129 S. Ct. 1710, 1723 (2009).
III.
Carter argues that his 2007 conviction was obtained in violation of the
Constitution because the search of his vehicle was not a valid search incident to
arrest under Gant. He argues that because he was arrested for driving with a
suspended license thirty to forty feet away from his car, the police could not
constitutionally execute a search incident to arrest. Although this may be true, a
warrantless search that does not meet the requirements of a search incident to
arrest may still pass constitutional muster under a different exception to the
warrant requirement. Id. at 351, 129 S. Ct. at 1723–24 (Noting that when a
warrantless vehicle search is not a search incident to arrest, the search may still be
valid if “another exception to the warrant requirement applies.”). Because it is
undisputed that the car was operational at the time of the arrest, and because we
agree with the district court that Officer Petit had probable cause to believe that
the car contained contraband, we find that the search was valid under the
automobile search exception to the warrant requirement and did not violate the
Fourth Amendment. See Tamari, 454 F.3d at 1261–62; Gant, 556 U.S. at 351, 129
S. Ct. at 1723–24.
Carter failed to prove that his prior conviction was obtained in violation of
6
the Constitution, see 21 U.S.C. § 851(c), so his prior conviction was properly used
to enhance his sentence.
AFFIRMED.
7