United States v. Wright ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4127
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN OLUYEMI WRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:08-cr-00386-CCB-2)
Submitted: March 22, 2010 Decided: April 15, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Baltimore, Maryland, Joanna
Silver, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James G. Warwick, Assistant
United States Attorney, Brian Murray, Legal Intern, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Oluyemi Wright appeals his convictions for
conspiracy to import one hundred grams or more of heroin, 21
U.S.C. §§ 960(a)(1) and 963, and conspiracy to distribute and to
possess with intent to distribute one hundred grams or more of
heroin, id. §§ 841(a)(1) and 846. Finding no error, we affirm.
I
In late July 2008, DEA Agent Lawrence Baumeister learned
that police officers in New Delhi, India had intercepted a DHL
package containing approximately 400 grams of heroin destined
for Baltimore, Maryland. Castor George was listed as the
addressee on the package, with an address of 621 Cator Avenue,
Baltimore, Maryland (the Townhouse).
In coordination with the Indian authorities, DEA agents in
India took the package to the airport in New Delhi and placed it
on a plane bound for Newark, New Jersey. The package arrived in
Newark on July 29 and was transported to Baltimore by Agent
Baumeister.
On July 30, 2008, DEA Agent Alfred Cooke set up
surveillance near the Townhouse in preparation for a planned
controlled delivery of the package. During this surveillance,
Agent Cooke observed a 2001 BMW arriving at the Townhouse. The
sole occupant of the vehicle entered the Townhouse and, a short
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time later, exited it, carrying a black bag and wearing a latex
glove on one hand. A license plate check was run around this
time, and the check revealed that the vehicle was registered to
Wright. Later that day, Agent Cooke reviewed Wright’s
Department of Motor Vehicle (DMV) photograph and indentified him
as the individual he saw entering and exiting the Townhouse.
A short time later, several more DEA agents, including
Agent Baumeister, joined Agent Cooke near the Townhouse in order
to assist monitoring the controlled delivery. Once the entire
surveillance team was in place, a controlled delivery of the
package was attempted by a DEA agent posing as a DHL employee.
Upon arriving at the door, the agent noticed a handwritten note
taped to the door, instructing the delivery person to leave the
package at the door. Instead, the agent left his own
handwritten note, instructing Castor George to contact DHL at a
particular number to arrange a delivery time. The phone number
provided actually was the phone number of a DEA agent, Agent
Robert Hladun.
On the morning of July 31, 2008, Wright, identifying
himself as Castor George, left two messages on Agent Hladun’s
voicemail, instructing DHL to leave the package inside the
unlocked front door of the Townhouse. Eventually, Wright spoke
with Agent Hladun several times that morning. In the last
conversation, Agent Hladun was informed that Castor George’s
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neighbor, “Javier,” was going to be able to receive the package.
(J.A. 42).
That afternoon, Agent Jeffrey Hostelley set up surveillance
at the Townhouse. During the surveillance, he observed both
Wright and Jonathan Grullon down the street from the Townhouse.
Wright repeatedly approached Agent Hostelley’s surveillance van,
which was about 150 feet from the Townhouse, circling it
approximately four times and looking closely at the interior of
the van. On one occasion, Wright made hand gestures in an
attempt to determine if anyone was inside.
Approximately an hour after Agent Hostelley set up
surveillance, additional DEA agents arrived to assist. Although
Agents Cooke and Baumeister were not at the scene, Agent Brendan
O’Meara, who was present, was aware that Agent Cooke had
indentified Wright as the person who entered and exited the
Townhouse on July 30. At this point in time, all the agents,
save the agent responsible for delivering the package, were in
constant radio communication with one another.
An undercover DEA agent posing as a DHL employee went to
the Townhouse to attempt delivery. After no one answered the
door, he returned to the delivery truck. Grullon then ran up
the street to meet the agent near the truck. Grullon identified
himself as Javier, signed for the package, and accepted
delivery. Grullon carried the parcel to the Townhouse and
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entered it with the use of a key. He left the Townhouse shortly
thereafter without the parcel. Grullon walked down the street
and met up with Wright. After a brief conversation, they
entered a red sport utility vehicle (SUV).
While Wright and Grullon were conversing, the DEA agents
were discussing whether to effectuate a stop. The agents
decided to effectuate a stop and this was done by Agent Thomas
Martin, after he pulled his vehicle, in which Agent O’Meara was
a passenger, in front of the parked red SUV.
Grullon was in the driver’s seat and Wright was seated in
the front passenger seat as Agent O’Meara and other agents
approached the SUV. Agent O’Meara asked Grullon what he was
doing in the area. Grullon stated that he was just driving
through the neighborhood and had stopped at the convenience
store located across the street to purchase a drink, which was
inconsistent with the agents’ observations of Grullon’s
activities. When asked if he had been anywhere else in the
area, Grullon stated that he had only gone to the store and no
other place. Both Grullon and Wright were then arrested and
handcuffed.
Incident to their arrests, both men were searched. A set
of keys and $860 were recovered from Wright. One of those keys
fit the door to the Townhouse. A cellular phone was found on
Grullon. Another cellular phone was near the console of the
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vehicle and two more were on the floor of the front passenger
compartment where Wright had been seated. One of these cell
phones was used to call Agent Hladun.
On August 13, 2008, a grand jury sitting in the District of
Maryland indicted Wright and Grullon, charging them with
conspiracy to import one hundred grams or more of heroin, 21
U.S.C. §§ 960(a)(1) and 963, and conspiracy to distribute and to
possess with intent to distribute one hundred grams or more of
heroin, id. §§ 841(a)(1) and 846. On September 5, 2008, Wright
moved to suppress certain physical evidence and statements. The
district court granted suppression of the statements but denied
suppression of the physical evidence after an evidentiary
hearing which concluded on October 16, 2008.
Before the start of Wright’s jury trial, Grullon pleaded
guilty to the charge of conspiracy to import heroin. Following
his trial, Wright was convicted of both charges. On January 23,
2009, he was sentenced to concurrent terms of 92 months’
imprisonment on each count. He noted a timely appeal.
II
A
We review the district court’s factual findings underlying
the denial of a motion to suppress for clear error, and its
legal determinations de novo. United States v. Perry, 560 F.3d
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246, 251 (4th Cir.), cert. denied, 130 S. Ct. 177 (2009). When
a suppression motion has been denied, we view the evidence in
the light most favorable to the government. United States v.
Neely, 564 F.3d 346, 349 (4th Cir. 2009).
A warrantless arrest is constitutionally permissible if
there is probable cause for the arresting officers to believe
that a felony is being or has been committed by the arrested
individual. United States v. McCraw, 920 F.2d 224, 227 (4th
Cir. 1990). Probable cause to arrest exists if the facts and
circumstances within the arresting officers’ knowledge at the
moment the arrest is made would be sufficient for a prudent man
to believe that the defendant had committed an offense. United
States v. Dorlouis, 107 F.3d 248, 255 (4th Cir. 1997). “While
probable cause requires more than bare suspicion, it requires
less than that evidence necessary to convict.” United States v.
Gray, 137 F.3d 765, 769 (4th Cir. 1998) (internal quotation
marks omitted). Even “[s]eemingly innocent activity” can
provide the basis for probable cause when considered in the
context of the surrounding circumstances. Taylor v. Waters, 81
F.3d 429, 434 (4th Cir. 1996).
Moreover, probable cause can rest on the collective
knowledge of the officers involved in an operation rather than
solely on that of the officer who makes the arrest. United
States v. Pitt, 382 F.2d 322, 324 (4th Cir. 1967). Under the
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collective knowledge doctrine, law enforcement officers
cooperating in an investigation are entitled to rely upon each
other’s knowledge of facts when forming the conclusion that a
suspect has committed or is committing a crime. See United
States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996) (“And,
although the agent who actually seized the weapon pursuant to
the supervising agent’s instructions had no personal knowledge
that Wells was a convicted felon, it is sufficient that the
agents collectively had probable cause to believe the weapon was
evidence of a crime at the time of the seizure.”).
The district court concluded that the DEA agents had
probable cause to arrest Wright on July 31, 2008, based on the
collective knowledge known to the agents. In so concluding, the
district court stated:
I think what happens at that point, again, with the
collective knowledge of law enforcement, and Mr.
Wright’s previous entry into 621 Cator, Mr. Grullon’s
entry with the actual package, the circumstance of
those phone calls having been made, and it’s obviously
not a coincidence that somebody named Javier in fact
is the one that shows up and signs for that package, I
think that at the time the car is stopped, . . .
there is indeed probable cause.
(J.A. 193).
Wright’s main challenge to the district court’s decision
concerns what information was within the collective knowledge of
the DEA agents. None of the agents present near the Townhouse
on July 31 had ever seen a photo of Wright prior to that date.
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Given this fact, Wright posits that the district court could not
rely on Wright’s entry into the Townhouse on July 30 in its
probable cause determination, and without the link between his
presence on July 30 and July 31, there simply was no probable
cause to arrest. *
We need not decide whether the evidence positively
indentifying Wright as present at the Townhouse on July 30
properly can be considered as part of the pool of collective
knowledge justifying his arrest on July 31 because, even without
the information indentifying Wright, the information within the
collective knowledge of the DEA agents on July 31 unquestionably
justified the arrest.
The DEA agents at the scene on July 31 knew that a DHL
package with a substantial amount of heroin was mailed in India,
with the intended destination being the Townhouse. The agents
also knew that the previous delivery attempt failed, and that an
individual was seen entering the Townhouse on July 30 and
exiting a short time later wearing a latex glove. The agents
also knew, based on the phone messages and conversations, that
*
Wright also posits that Agent Hostelley’s observations
concerning his counter-surveillance activities on July 31 were
not communicated to the other DEA agents. However, this
position is in direct contravention to the testimony of Agent
O’Meara, which we are bound to accept under the standard of
review governing here.
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Castor George was not keen on being present when the package
arrived for delivery.
At the time of the delivery on July 31, Wright was in the
vicinity of the Townhouse, and engaged in highly suspicious
activity. He circled Agent Hostelley’s surveillance van in an
attempt to determine if it was empty, and he waited down the
block from the Townhouse so that he could monitor the delivery.
Immediately after he took delivery of the package, Grullon met
up with Wright and had a short discussion with him before they
both entered the red SUV. Grullon’s deceptive responses to
Agent O’Meara’s questions further supports the agents’
conclusion that probable cause to arrest both individuals was
present. In short, we harbor no doubt that, at the moment of
Wright’s arrest, a prudent man would believe that Wright was
involved in a heroin importation conspiracy. Dorlouis, 107 F.3d
at 255.
B
In his reply brief, Wright argues that the search of the
red SUV contravenes the Supreme Court’s decision in Arizona v.
Gant, 129 S. Ct. 1710 (2009). In Gant, the Court held that a
search of a vehicle’s passenger compartment incident to the
arrest of a recent occupant is lawful only “when the arrestee is
unsecured and within reaching distance of the passenger
compartment at the time of the search” or “when it is reasonable
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to believe evidence relevant to the crime of arrest might be
found in the vehicle.” Id. at 1719. (internal quotation marks
omitted).
Our prudential doctrines require that a claim be raised in
a party’s opening brief. Failure to do so waives consideration
of the claim. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir.
2001) (declining to consider claim raised for the first time in
reply brief); Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995)
(same); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999) (holding that failure to raise a specific issue in
the opening brief constitutes abandonment of the issue under
Fed. R. App. P. 28(a)(9)(A), requiring that the argument section
of the opening brief contain contentions, reasoning, and
authority); see also United States v. Jones, 308 F.3d 425, 427
n.1 (4th Cir. 2002) (finding Apprendi v. New Jersey, 530 U.S.
466 (2000) argument raised for the first time in a Fed. R. App.
P. 28(j) filing was waived). We therefore find that Wright has
waived review of his Gant argument.
In any event, even if Wright’s Gant argument were properly
before us, we would reject it, as it was reasonable for the DEA
agents to believe that evidence relevant to Wright’s involvement
in a heroin conspiracy might be found in the red SUV. Because
the agents could have reasonably believed that evidence relating
to Wight’s involvement in a heroin conspiracy might be located
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in the passenger compartment of the vehicle, Wright’s Gant
argument fails on the merits. Gant, 129 S. Ct. at 1719 (noting
that drug offenses are the type of offense for which it may be
reasonable to believe that evidence relating to the crime might
be located in the vehicle).
III
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 oral argument would not aid the decisional process.
AFFIRMED
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