United States v. Leones Lesane , 498 F. App'x 363 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONES LESANE,
Defendant - Appellant.
No. 11-5079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS GOODMAN,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr.,
District Judge. (3:09-cr-00392-JFA-1; 3:09-cr-00392-JFA-2)
Submitted: November 1, 2012 Decided: November 15, 2012
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
Cameron B. Littlejohn, Jr., Columbia, South Carolina; William W.
Watkins, Sr., Columbia, South Carolina, for Appellants. William
N. Nettles, United States Attorney, William K. Witherspoon,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Leones Lesane appeals from his conviction following a
guilty plea to conspiracy to possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 846 (2006). Lesane’s
codefendant, Marcus Goodman, appeals from his conviction
following a guilty plea to conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. § 846 (2006),
and possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006). Their appeals were
consolidated. Both Goodman and Lesane challenge the district
court’s denial of their motion to suppress evidence obtained
incident to their arrests and the qualification of the
Government’s agent as a potential expert witness. Goodman also
claims that the district court erred in finding him to be in
breach of his proffer agreement with the Government.
Following our review of the record, we directed
supplemental briefing on the validity of Goodman’s and Lesane’s
respective guilty pleas. The parties have now submitted their
supplemental briefs, and the appeal is ripe for consideration.
For the following reasons, we affirm Lesane’s conviction and
sentence. However, we vacate Goodman’s conviction and remand
for further proceedings consistent with this opinion.
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I.
Validity of pleas
We first examine whether Goodman’s and Lesane’s guilty
pleas are valid and properly preserved the issues Appellants
seek to raise on appeal.
A. Goodman
We conclude that Goodman’s plea failed to comply with
Rule 11(a)(2), which requires that a valid conditional guilty
plea be in writing, affirmatively consented to by the
Government, and approved by the district court. United States
v. Bundy, 392 F.3d 641, 645 (4th Cir. 2004). Although the
writing requirement may be excused when the record otherwise
clearly indicates the issues a defendant seeks to preserve, the
Government’s and the court’s approval are
indispensable. See id. Further, in the absence of language
evincing Government consent in a written plea agreement, Rule
11(a)(2) requires an affirmative display of agreement to a
defendant’s conditional plea; assent should not be inferred from
the Government’s silence or inaction. Id.Here, although the district court clearly approved
Goodman’s conditional plea during the Rule 11 hearing, the
Government made no comment, approving or otherwise. Such
silence from the Government, despite Government counsel’s
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presence at Goodman’s Rule 11 hearing and lack of objection to
the conditional nature of the plea, is simply not sufficient to
satisfy Rule 11(a)(2), thus rendering Goodman’s conditional plea
invalid. Consequently, and because it would be improper to
consider Goodman’s failed conditional plea as a knowing and
voluntary unconditional plea, we vacate his judgment of
conviction and remand to allow Goodman to reconsider whether, in
light of our decision, he desires to enter a plea of guilty or
proceed to trial. See id. at 649.
B. Lesane
Despite initial disagreement, the parties now agree
that Lesane’s plea properly preserved an appeal from the denial
of his motion to suppress. Because both the Government and the
district court made express statements during Lesane’s Rule 11
hearing clearly indicating to him that he would be able to note
such an appeal, we conclude that Lesane may appeal from the
denial of his suppression motion. See United States v. Wood,
378 F.3d 342, 347-50 (4th Cir. 2004) (“[W]here a district
court’s mischaracterization of a material term is sufficiently
pervasive to alter a defendant’s understanding of the terms of
his plea, the Government’s affirmative acquiescence in the
court’s explanation can serve to modify the terms of the plea
agreement.”); United States v. Martin, 25 F.3d 211, 217 (4th
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Cir. 1994). Lesane did not, however, properly preserve an
appeal from the district court’s qualification of the
Government’s agent as an expert, and therefore, he has waived
appellate review of the issue. See Bundy, 392 F.3d at 645.
II.
Denial of motion to suppress
Turning to the denial of Lesane’s motion to suppress,
we review for clear error the factual findings underlying the
district court’s ruling and the court’s legal conclusions de
novo. United States v. Foster, 634 F.3d 243, 246 (4th Cir.
2011). We construe the evidence in the light most favorable to
the Government, the prevailing party below. Id.A. Lesane’s seizure
Lesane first claims that his initial seizure, although
admittedly supported by a reasonable articulable suspicion of
criminal activity sufficient to justify a Terry 1 stop, went well
beyond a brief, investigatory detention, and amounted from the
outset to a full custodial arrest, unsupported by probable
cause. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004)
(noting that warrantless arrest must be supported by probable
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Terry v. Ohio, 392 U.S. 1, 22 (1968).
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cause). However, Lesane misinterprets the breadth of an
officer’s authority in conducting a lawful Terry stop.
“Brief stops in order to determine the identity of a
suspicious individual or to maintain the status quo while
obtaining more information are permitted if reasonable in light
of the facts known to the officers at the time.” United States
v. Perate, 719 F.2d 706, 709 (4th Cir. 1983). During a Terry
stop, an officer may take actions that are reasonably necessary
to assure his safety and effectuate the investigatory purpose of
the stop. United States v. Hensley, 469 U.S. 221, 235
(1985); United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir.
1995). Accordingly, we have repeatedly found that,
in situations in which officers are forced to approach a vehicle
in a high crime area that contains persons suspected of being
involved with the distribution of narcotics, it is certainly
reasonable for those officers to perceive a possible threat to
their safety, draw their weapons when approaching the vehicle,
order the occupants to exit, and perform a protective frisk of
those occupants, all without elevating the seizure to a full
custodial arrest. See United States v. Rooks, 596 F.3d 204, 210
(4th Cir. 2010); United States v. Sakyi, 160 F.3d 164, 169 (4th
Cir. 1998); United States v. Stanfield, 109 F.3d 976, 984 (4th
Cir. 1997); Perate, 703 F.2d at 709.
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Similarly, the fact that Lesane was immediately
handcuffed and was not free to leave did not convert his initial
seizure into a full arrest. See United States v. Elston, 479
F.3d 314, 319-20 (4th Cir. 2007). The distinction between
a Terry stop and an arrest is marked by the fact that a Terry
stop must last no longer and be no more intrusive than is
necessary to confirm or dispel the seizing officer’s suspicions,
not by a suspect’s impression that he is unable to leave the
officer’s presence. Id. Accordingly, on the reasonable belief
that a suspect may be dangerous, as justified in situations
involving narcotics, an officer may apply handcuffs to mitigate
that risk while effectuating a Terry stop. See United States v.
Newell, 596 F.3d 876, 879-80 (8th Cir. 2010) (approving use of
handcuffs in a Terry stop).
Moreover, as to the duration of Lesane’s initial
detention, the five-minute period during which he was handcuffed
before his attempted flight was clearly not longer than
necessary for the officers to confirm or dispel their suspicion
that Lesane might be involved in the distribution of
narcotics. See United States v. Sharpe, 470 U.S. 675, 686
(1985).
Here, Lesane does not contend that his seizure was
unreasonably delayed, and, considering circumstances analogous
to those at issue here, we have found periods of detention far
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longer than five minutes to be constitutional. See,
e.g., United States v. McFarley, 991 F.2d 1188, 1193-94 (4th
Cir. 1993) (upholding 38-minute detention). Accordingly, the
district court correctly held that Lesane’s seizure did not
ripen into a full custodial arrest until after he attempted to
flee the officers’ custody.
B. Search of pickup truck
Lesane also argues that no exception to the warrant
requirement permitted the subsequent search of the pickup truck
that he and Goodman occupied immediately before their arrest.
We disagree with Lesane’s argument.
A police officer may make a warrantless arrest as long
as he has probable cause to do so. United States v. Williams,
10 F.3d 1070, 1073 (4th Cir. 1993). Probable cause is present
when the “facts and circumstances within the officer’s
knowledge” are enough to justify a prudent person’s belief “that
the suspect has committed, is committing, or is about to commit
an offense.” 2 Id. (internal quotation marks omitted).
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The fact that Lesane was arrested for interfering with a
police investigation does not negate the fact that officers may
also have had probable cause to arrest him for a narcotics
offense. See Devenpeck, 543 U.S. at 154-55; United States v.
McNeill, 484 F.3d 301, 311 (4th Cir. 2007).
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Here, while officers were conducting a lawful Terry
stop, Lesane attempted to flee. Even disregarding Lesane’s
subsequent incriminating statements, we conclude that such
circumstances presented probable cause to support Lesane’s
warrantless arrest on suspicion that he might be possessing or
distributing narcotics. See United States v. Laville, 480 F.3d
187, 195 (3d Cir. 2007); United States v. Velazquez-Rivera, 366
F.3d 661, 664 (8th Cir. 2004); United States v. Dotson, 49 F.3d
227, 231 (6th Cir. 1995).
Incident to this lawful arrest, officers were
permitted to conduct a warrantless search of the vehicle from
which they seized Lesane so long as they had reason to believe
that the vehicle might contain evidence relevant to his
commission of a narcotics offense. 3 See Arizona v. Gant, 556
U.S. 332, 351 (2009). Because the circumstance here was
sufficient to support such a belief, the district court did not
err in so finding and denying the motion to
suppress. See United States v. Vinton, 594 F.3d 14, 25 (D.C.
Cir. 2010).
Based on the foregoing, we affirm Lesane’s conviction
and sentence, but vacate Goodman’s judgment of conviction and
3
We assume without deciding that Lesane has standing to
challenge the search of the vehicle, a point that is not clear
from the district court’s record.
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remand his case for proceedings consistent with this opinion.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED IN PART;
AND REMANDED
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