United States v. Cotton ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4530
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARC COTTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00409-RDB)
Submitted: January 19, 2007 Decided: March 6, 2007
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVENELL,
PA, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Philip S. Jackson, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marc Cotton pled guilty to possession with intent to
distribute cocaine, pursuant to a conditional plea agreement that
reserved his right to challenge the denial of his motion to
suppress evidence found in his car. He contends that the district
court improperly concluded that the officers had the reasonable
suspicion necessary to arrange a canine sniff of his car. We
affirm.
On August 24, 2005, between two and three o’clock in the
afternoon, officers began surveilling an individual named Keith
Waller. Waller was a federally convicted drug felon, and the
officers had been told by a confidential informant that Waller was
distributing large amounts of cocaine in Baltimore. For the next
three to four hours, officers observed Waller meet “for a very
short period of time” with at least three different people, twice
in homes and once in Waller’s car. An officer testified that the
meetings bore the indicia of drug deals.
At around 7:30 p.m., Waller stopped near an intersection.
His location was in an area known for drug-dealing and only a
couple of blocks away from where approximately eight months before
one of the officers had witnessed several deals. A BMW X5 vehicle
pulled up and stopped, and the driver, later identified as Marc
Cotton, got out of the BMW and got into Waller’s car. After
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staying for less than a minute, Cotton returned to his BMW and
left. The officers followed Cotton to a nearby Chinese restaurant.
Officers approached Cotton and identified themselves as
police officers. They told Cotton that they were investigating an
armed robbery and that Cotton matched the description of the armed
person. An officer then asked Cotton where he was coming from, and
Cotton responded that he was coming from his son’s football
practice. He said that he came directly from practice and did not
make any other stops.1
The officers then detained Cotton and called for a
drug-sniffing canine. Within fifteen minutes, the canine officer
arrived, and the dog alerted to the presence of drugs in the
vehicle. The officers then arrested Cotton and obtained a search
warrant for the car. The search produced 500 grams of cocaine.
Officers are permitted, consistent with the Fourth
Amendment, to “conduct a brief, investigatory stop when the officer
has a reasonable, articulable suspicion that criminal activity is
afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry v.
Ohio, 392 U.S. 1, 30 (1968). Reasonable suspicion requires more
than a hunch but less than probable cause. United States v.
Perkins, 363 F.3d 317, 320 (4th Cir. 2004). Officers conducting a
1
The district court found that, because Cotton was not free to
leave when he made this statement, it should be suppressed. Thus,
we do not consider the statement in our determination of whether
reasonable suspicion existed to order the canine sniff.
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lawful Terry stop may check for identification, question the
suspect about his travel plans, briefly detain the suspect, and
conduct a dog sniff. See Illinois v. Caballes, 543 U.S. 405, 409
(2005); United States v. Hensley, 469 U.S. 221, 232 (1985); United
States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). Thus, if
there was reasonable suspicion to believe that Cotton was involved
in criminal activity when the officers approached him, the officers
properly arranged for a prompt canine sniff. Cotton does not
dispute that, if the canine alert was proper, there was probable
cause to issue the warrant. See Caballes, 543 U.S. at 409 (holding
that positive canine alert may provide probable cause).
Several factors have been held to contribute to
reasonable suspicion. One contributing factor is the defendant’s
presence in a high-crime area. Perkins, 363 F.3d at 320.
Additionally, officers are permitted to draw on their experience
and specialized training to make inferences from and deductions
about cumulative evidence. United States v. Arvizu, 534 U.S. 266,
273 (2002).
The court based its ruling that there was reasonable
suspicion upon the following facts: (1) the area was known for drug
trafficking; (2) Cotton was observed parking his vehicle in the
area, leaving his vehicle and entering another vehicle, remaining
only briefly, and returning to his vehicle; (3) the vehicle Cotton
got into was driven by Keith Waller, a convicted drug dealer;
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(4) the police had confidential information that Waller was still
dealing drugs; and (5) based on his training and experience, an
officer concluded that this activity was consistent with a
narcotics transaction. We find that these circumstance, taken
together, provided the officers with reasonable, articulable
suspicion that Cotton was engaged in criminal activity, thus
justifying his detention and the canine sniff.
Cotton cites United States v. Sprinkle, 106 F.3d 613 (4th
Cir. 1997), as a case with similar facts where we upheld the
district court’s granting of a suppression motion. However, we
conclude that Sprinkle is distinguishable. In Sprinkle, an officer
saw a relative, who had recently been in prison on narcotics
charges, in a high crime area and sitting in a car. Sprinkle
walked up to the car and sat in the passenger’s seat next to the
relative. The driver and Sprinkle huddled together, and Sprinkle
put his hand in front of his face when he saw the officer.
However, we held that the police did not have reasonable suspicion
of criminal activity because the officers walked by and saw that
the hands of the driver and Sprinkle were empty. Id. at 616-17.
While the officers in Sprinkle knew that the driver of
the car was a convicted drug dealer, they had no information about
his current activities or those of Sprinkle. Here, the officers
had confidential information that Waller was dealing large
quantities of drugs. In addition, they had observed Waller spend
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his day conducting what appeared to be drug deals. Second, while
the officers could plainly see that neither Sprinkle nor the other
person had drugs or money in their hands, the officers in this case
observed what appeared to be a drug deal between Waller and Cotton.
Thus, the district court properly found that the officers had
reasonable suspicion sufficient to conduct a Terry stop of Cotton
and a dog sniff of his car.2
Because the positive alert was properly obtained, it was
properly included in the affidavit and provided ample support for
the finding of probable cause. Accordingly, the warrant was
properly issued, and we therefore affirm Cotton’s conviction. 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
2
This holding calls into question the district court’s
determination that Cotton’s false statements to the police should
be suppressed. However, that ruling is not before us on appeal.
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