United States v. Grady ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4200
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDELL TOBIAS GRADY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00247-WLO-1)
Submitted: January 8, 2007 Decided: January 23, 2007
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Kearns Davis, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following the district court’s denial of his motion to
suppress, Randell Tobias Grady (Grady) conditionally pled guilty to
one count of possession with intent to distribute cocaine base
(crack) and one count of possession with intent to distribute
cocaine. Grady received concurrent sentences of 120 months’
imprisonment. We affirm.
On December 16, 2004, Larry Hubbard (Officer Hubbard), an
officer with the City of Concord, North Carolina Police Department,
was working secondary employment at the Carolina Mall in Concord.
In the weeks prior to that day, there had been reports of vehicles
being stolen in the mall parking lot, and Officer Hubbard was
providing parking lot security. During his patrol, he received
information that a mall patron had seen an individual reach through
a partially-opened window of a van parked in the parking lot, open
the van door, enter the van, and drive away.
Suspecting that the van might just have been stolen, Officer
Hubbard identified the van as it left the parking lot and followed
it. Officer Hubbard saw that the driver, Grady, was not wearing a
seat belt. Officer Hubbard signaled for the van to pull over, and
Grady moved the van to the left side of the road and stopped.
Officer Hubbard reported by radio to a dispatcher that he had
stopped a possible stolen vehicle, and he requested registration
information based on the van’s license plate number.
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Officer Hubbard walked to the driver’s side window and asked
Grady for his license and registration. Officer Hubbard then asked
Grady to step out of the van. During the ensuing patdown search,
Officer Hubbard felt a large, hard object inside Grady’s jacket.
Upon removing it, Officer Hubbard determined that it was a large
roll of cash. The volume and denominations of the bills led
Officer Hubbard to suspect drug activity. Officer Hubbard asked
Grady to sit in a patrol car belonging to another officer who had
recently arrived.
While Grady was in the patrol car, Officer Hubbard made
several radio and telephone calls. One of those was a call to
Officer Anthony Atwell (Officer Atwell), requesting that Officer
Atwell bring his narcotic detection dog to Officer Hubbard’s
location. Through the remaining calls, Officer Hubbard learned
that Grady was involved in drug activity. Officer Todd McGee
informed him that Grady was an active drug dealer. Officer Javonne
Clark stated that Grady was a prominent drug dealer. Detective
DeGrace (Detective DeGrace) told Officer Hubbard that Grady was the
subject of an ongoing drug investigation. In fact, Detective
DeGrace knew that, approximately forty-five minutes before the
traffic stop, a confidential informant had arranged to purchase
cocaine from Grady.
Approximately fifteen minutes after initiating the stop,
Officer Hubbard received a response from the dispatcher that
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confirmed that Grady was the owner of the van. Officer Hubbard
then moved Grady to a different patrol car, where he began to issue
a citation for failure to wear a seat belt. Before Officer Hubbard
finished issuing the citation, Officer Atwell arrived and had his
narcotic detection dog scan the exterior of Grady’s van. The scan
resulted in the dog alerting to the odor of narcotics. The period
of time from the initial traffic stop to the alert by the dog was
approximately thirty to thirty-five minutes.
After the narcotic detection dog alerted, the officers present
entered the van and searched it. Inside the van, the officers
recovered a black fanny pack containing cocaine and crack, and
Grady was subsequently arrested.
On July 25, 2005, Grady was charged with several drug offenses
arising from his alleged participation in a drug conspiracy and
from the December 16, 2004 stop of his van. After the district
court denied his motion to suppress, Grady conditionally pled
guilty to two counts related to the December 16, 2004 stop, that
is, one count of possession with intent to distribute crack and one
count of possession with intent to distribute cocaine.1 On
February 3, 2006, Grady was sentenced to 120 months’ imprisonment
on both counts, to be served concurrently. Grady filed a timely
notice of appeal.
1
In his plea agreement, Grady reserved the right to appeal the
district court’s denial of his motion to suppress.
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Grady first contends that the district court erred when it
denied his motion to suppress. In pressing this argument, Grady
concedes that Officer Hubbard was justified in stopping his van for
the seatbelt violation and to conduct a brief investigation to
ascertain whether the van was stolen. Grady also does not
challenge the patdown search following the stop. According to
Grady, the length of the stop was improper because the stop should
have concluded before the arrival of the narcotic detection dog.
Grady’s position is premised on the propositions that, by the time
the narcotic detection dog arrived, Officer Hubbard had: (1)
verified that Grady owned the van; and (2) had sufficient time to
issue a citation for the seatbelt violation.
The Terry2 reasonable suspicion standard requires an officer
to have a reasonable suspicion that criminal activity is afoot
before he may conduct a brief investigatory stop of a person, 392
U.S. at 30, or continue to seize a person following the conclusion
of the purposes of a valid stop, see, e.g., United States v.
Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992) (holding that, during
a routine traffic stop, the officer may request a driver’s license
and vehicle registration, run a computer check, and issue a
citation, but that “[a]ny further detention for questioning is
beyond the scope of the Terry stop and therefore illegal unless the
officer has a reasonable suspicion of a serious crime”). The
2
Terry v. Ohio, 392 U.S. 1 (1968).
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standard “is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the
evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
However, the Terry reasonable suspicion standard does require “a
minimal level of objective justification” for the police action.
Id. “The officer must be able to articulate more than an inchoate
and unparticularized suspicion or hunch of criminal activity.” Id.
at 123-24 (citation and internal quotation marks omitted). We have
said that the Terry reasonable suspicion standard is “a
commonsensical proposition” and that “[c]ourts are not remiss in
crediting the practical experience of officers who observe on a
daily basis what transpires on the street.” United States v.
Lender, 985 F.2d 151, 154 (4th Cir. 1993).
The reasonable suspicion determination does not depend upon
any one factor, but on the totality of the circumstances. United
States v. Sokolow, 490 U.S. 1 (1989). In assessing whether
reasonable suspicion is present, we review the district court’s
findings of historical fact for clear error and the determination
of reasonable suspicion de novo. Ornelas v. United States, 517
U.S. 690, 699 (1996).
We need not decide whether the seatbelt citation should have
been issued prior to the time the narcotic detection dog alerted on
the van because Officer Hubbard had reasonable suspicion that Grady
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was involved in drug activity, thus justifying the detention of
Grady for the short period of time necessary to allow for the scan.
The large amount of cash found on Grady clearly suggested that
Grady was involved in drug activity. See United States v. Thomas,
913 F.2d 1111, 1115 (4th Cir. 1990) (noting that carrying large
amounts of cash can help to establish the link to drug activity).
Moreover, the officers knew that within an hour before the stop a
confidential informant had arranged to purchase cocaine from Grady.
These facts unquestionably justified the continued detention of
Grady for the short period of time necessary to allow for the scan.
Accordingly, the district court did not err when it denied Grady’s
motion to suppress.
Grady also contends that he qualified for a sentence below the
mandatory minimum and that the district court erred by not giving
him the benefit of the safety valve provisions in 18 U.S.C.
§ 3553(f) and United States Sentencing Guidelines Manual (USSG)
§ 5C1.2.
A defendant who meets all five criteria set out in USSG
§ 5C1.2 (incorporating §§ 3553(f)(1)-(5)) is eligible for a
sentence below the mandatory minimum. One of the factors requires
that a defendant must truthfully disclose to the government all
information and evidence he has concerning the offense of
conviction and all relevant conduct. USSG § 5C1.2(5). In support
of his claim, Grady states that he cooperated with the government.
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However, the record reflects that Grady was less than forthcoming
concerning his drug activities. Accordingly, we cannot take issue
with the district court’s conclusion that Grady was ineligible for
application of the safety valve provision of USSG § 5C1.2.
Grady also contends that a sentence below the mandatory
minimum was required under United States v. Booker, 543 U.S. 220(2005). However, “Booker did nothing to alter the rule that judges
cannot depart below a statutorily provided minimum sentence.
. . . [A] district court has no discretion to impose a sentence
outside of the statutory range established by Congress for the
offense of conviction.” United States v. Robinson, 404 F.3d 850,
862 (4th Cir.), cert. denied, 126 S. Ct. 288 (2005).
For the reasons stated herein, the judgment of the district
court is affirmed. 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
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