United States v. Sandridge ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Sandridge No. 03-6046
ELECTRONIC CITATION: 2004 FED App. 0332P (6th Cir.)
File Name: 04a0332p.06 Tennessee, for Appellant. Steven S. Neff, ASSISTANT
UNITED STATES ATTORNEY, Chattanooga, Tennessee,
for Appellee. ON BRIEF: Nikki C. Pierce, FEDERAL
UNITED STATES COURT OF APPEALS DEFENDER SERVICES OF EASTERN TENNESSEE,
Greeneville, Tennessee, for Appellant. Steven S. Neff,
FOR THE SIXTH CIRCUIT ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
_________________ Tennessee, for Appellee.
UNITED STATES OF AMERICA , X _________________
Plaintiff-Appellee, -
- OPINION
- No. 03-6046 _________________
v. -
> R. GUY COLE, JR., Circuit Judge. Defendant-Appellant,
, Seneca Sandridge, brings this appeal following his plea of
SENECA SANDRIDGE, -
Defendant-Appellant. - guilty to one count of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
N (b)(1)(B). Sandridge appeals the district court’s denial of his
Appeal from the United States District Court motion to suppress evidence that was seized from his vehicle
for the Eastern District of Tennessee at Chattanooga. and person pursuant to a traffic stop on March 27, 2002.
No. 02-00049—Curtis L. Collier, District Judge. Sandridge also appeals the sentence imposed by the district
court; he contends that the district court erred when, for drug
Argued: August 12, 2004 quantity determination purposes, it converted $919 in cash
seized from him at the time of his arrest into an equivalent
Decided and Filed: September 30, 2004 amount of cocaine base.
Before: MOORE and COLE, Circuit Judges; MARBLEY, For the reasons discussed below, we AFFIRM the denial
District Judge.* of Sandridge’s motion to suppress. However, we VACATE
the sentence imposed by the district court and REMAND the
_________________ case to that court for re-sentencing based on a base offense
level reflecting only the amount of drugs possessed by
COUNSEL Sandridge.
ARGUED: Nikki C. Pierce, FEDERAL DEFENDER I. THE SUPPRESSION MOTION
SERVICES OF EASTERN TENNESSEE, Greeneville,
On March 27, 2002, Officer Phillip Grubb of the
Chattanooga Police Department observed Sandridge driving
a yellow Cadillac in downtown Chattanooga, Tennessee. At
*
The Honorable Algenon L. Marbley, United States District Judge for the first evidentiary hearing held by the magistrate judge,
the So uthern District o f Ohio , sitting by de signation.
1
No. 03-6046 United States v. Sandridge 3 4 United States v. Sandridge No. 03-6046
Officer Grubb testified that “a day or two” earlier, he had seen Defendant’s license during that time. Hackett also testified
Sandridge driving in the same vehicle and had run a license that he had spoken with Shirley Varner, Technical Services
check on the mobile data terminal (“MDT”) – a police-wired Operator for the Chattanooga Police Department, and that she
laptop – in his patrol car. At a second evidentiary hearing, told him that any check on Sandridge’s license would have
Grubb testified that he was not sure of the exact day he appeared on the MDT records.
conducted the license check and that he might have conducted
it a few weeks before the March 27 stop, rather than a few At the second evidentiary hearing, Sandridge presented
days earlier, as he previously testified. In any event, Grubb additional MDT records – this time, dating back to February
testified that the license check revealed that Sandridge did not 2002. These records, too, contained no indication that Officer
have a valid driver’s license. Accordingly, when Officer Grubb had run a check on Sandridge’s license prior to the one
Grubb saw Sandridge driving in Chattanooga again, on March conducted on March 27, 2002, the day of the stop. When
27, 2002, he stopped him on the suspicion that he was still confronted with these computer records, Officer Grubb
driving without a valid license. At this point, Grubb ran insisted that he had made an inquiry on Sandridge’s license
another license check, which confirmed that Sandridge was, prior to March 27, 2002, although he was not sure why there
indeed, still driving without a valid license. was no record of it.
While Officer Grubb was checking Sandridge ’s license, Despite the lack of evidence supporting Grubb’s testimony,
another officer arrived on the scene. The two officers then the magistrate judge found Grubb credible, and recommended
approached Sandridge and asked him to get out of the car. denial of Sandridge’s motion to suppress. The district court
Sandridge refused and attempted to restart the engine and adopted the magistrate judge’s recommendation to deny the
drive off, at which point an altercation ensued between motion to suppress, stating that “computers do make mistakes
Sandridge and the police officers. Eventually, Sandridge was as anyone who has worked with them is well aware.”
arrested for driving without a valid driver’s license and
resisting arrest. The officers then searched the vehicle and Sandridge then moved the district court to reconsider its
Sandridge. In the car, they found 20.9 grams of cocaine base, denial of his suppression motion and explained that he had
a set of electronic scales, and marijuana. (The marijuana recently discovered new evidence – namely that, previously,
appears never to have been part of this federal action). In no MDT record was submitted for March 5, 2002; instead,
addition, the officers found $919 in cash on Sandridge’s records for September 5, 2002 had been mistakenly
person. submitted. When a printout of the MDT records for March 5,
2002 was obtained, it showed that a license check had, in fact,
Sandridge attacked Grubb’s credibility with respect to been run for Sandridge on March 5, 2002. There was no
Grubb’s contention that he ran a license check on him prior to dispute before the district court that Officer Grubb ran that
March 27. Specifically, Sandridge contended that there was check.
no evidence that Grubb ran any license check prior to March
27. Brian Hackett, an investigator for the Federal Defender Based on this new information, Sandridge renewed his
Service of Eastern Tennessee, testified at the first evidentiary attack on Grubb’s credibility. He argued that the new
hearing that he had obtained the MDT records from the evidence proved Grubb’s lack of credibility, since Grubb
Chattanooga Police Department for a two-week period prior testified that he had performed a license check “a day or two”
to March 27, 2002, and that there was no record of a check on before he stopped Sandridge on March 27, 2002, when the
No. 03-6046 United States v. Sandridge 5 6 United States v. Sandridge No. 03-6046
check was actually performed twenty-two days before. Officer Grubb did not take steps to further investigate by
(Puzzlingly, Sandridge fails to acknowledge Grubb’s effecting a traffic stop on Mr. Sandridge on March 5,
subsequent testimony that it may have been a few weeks 2002. Prior to stopping Mr. Sandridge [on] March 27,
before March 27 that he ran the check). In addition to 2002, Officer Grubb did not perform another license
attacking Grubb’s credibility, Sandridge also argued that the inquiry to ascertain the status of his license, instead he
March 5 license check was too “stale” to be relied on by relied on the information from a check made three weeks
Officer Grubb three weeks later, on March 27, 2002, when he earlier. Officer Grubb knew from the inquiry on
pulled Sandridge over on the traffic stop. March 5, 2002 that all Mr. Sandridge had to do was to
go get his driver’s license . . . .
The district court rejected both the credibility and staleness
arguments, and adhered to its decision to deny Sandridge’s The arguments in his brief on appeal are also based on the
motion to suppress. After Sandridge pleaded guilty to one fact that Officer Grubb was the one who ran the March 5
count of possession with intent to distribute cocaine base, this check. For instance, Sandridge renews his argument that
timely appeal followed. Grubb’s March 5 search did not provide reasonable suspicion
for the March 27 stop because, by March 27, the information
At issue is whether Officer Grubb had reasonable suspicion gleaned on March 5 was “stale.” Never does Sandridge
to stop Sandridge’s car on March 27, 2002. As explained contend that anyone other than Officer Grubb conducted the
above, Grubb initially testified that he ran the license check search. However, Sandridge’s brief makes several vague and
a day or two before the stop; but at the second suppression indirect references to the contrary, apparently to support his
hearing, Grubb testified that he was not certain of the date and request for a supplemental evidentiary hearing based on the
may have run the check a few weeks before. Although March 5 MDT record he presented in his motion for
initially, police records did not support Grubb’s testimony reconsideration.
that he ran a license check prior to March 27, 2002, the
subsequently-uncovered MDT record showed that a license Because such references contradict other arguments that
check was, in fact, run on Sandridge on March 5, 2002. Sandridge presents, we reject them as a basis for a new
evidentiary hearing. “The case precedent in this circuit
Before analyzing whether the March 5 check provided instructs courts to withhold judgment on issues not fully
Officer Grubb with reasonable suspicion on March 27, we developed by the briefs or in the record. Issues adverted to in
first address Sandridge’s request for a new evidentiary a perfunctory manner, unaccompanied by some effort at
hearing based on his insinuation – made for the first time on developed argumentation, are deemed waived. It is not
appeal – that the March 5 check might not have been sufficient for a party to mention a possible argument in the
conducted by Officer Grubb (but rather, by some other most skeletal way, leaving the court to . . . put flesh on its
officer). There was never any dispute in the district court that bones.” Popovich v. Cuyahoga County Court of Common
Officer Grubb was the one to order the March 5 check. Pleas, 276 F.3d 808, 823 (6th Cir. 2002) (internal quotations
Indeed, in his motion for reconsideration, Sandridge made and citation omitted). More importantly, as already
repeated representations that the March 5 license check was explained, the record leaves little question that it was Officer
run by Officer Grubb. The following excerpt from Grubb who ran the March 5 license check on Sandridge’s car.
Sandirdge’s motion for reconsideration is but one example of
that:
No. 03-6046 United States v. Sandridge 7 8 United States v. Sandridge No. 03-6046
We now turn to the central legal question: Whether Officer a valid license is a continuing offense – in contrast, say, to a
Grubb had reasonable suspicion to stop Sandridge’s car on speeding or parking violation – and there are no facts in the
March 27, 2002. This Court reviews de novo the district record suggesting that Officer Grubb should have assumed
court’s conclusion that the traffic stop was constitutional, that Sandridge’s ongoing offense had ceased between
giving due weight to the factual inferences drawn by the March 5 and March 27, 2002. Accordingly, Officer Grubb
district court. United States v. Ridge, 329 F.3d 535, 540 (6th had a reasonable basis for suspecting that Sandridge still
Cir. 2003). lacked a valid license on March 27 and, therefore, Grubb was
permitted to stop Sandridge briefly to determine whether the
When a police officer conducts a brief investigatory stop of crime was still being committed. See United States v. Mans,
a person in a vehicle, “the Fourth Amendment is satisfied if 999 F.2d 966, 968 (6th Cir. 1993) (holding that an officer’s
the officer’s action is supported by reasonable suspicion to stop of a defendant was reasonable, and not pretextual, where
believe that criminal activity may be afoot.” Id. (quoting the officer recognized the defendant from prior arrests and
United States v. Arvizu, 534 U.S. 266, 273 (2002)). When knew that his driver’s license had been revoked).
Officer Grubb observed Sandridge driving on March 27,
2002, he reasonably suspected that he was driving without a For those reasons, we affirm the district court’s denial of
valid license because, just three weeks earlier, on March 5, Sandridge ’s motion to suppress evidence seized during the
2002, Grubb ran a license check on Sandridge’s car and traffic stop of March 27, 2002.
learned that he did not have a valid license. With respect to
Sandridge’s argument that Officer Grubb was not a credible II. DRUG QUANTITY AND SENTENCING
witness because he first testified that the computer check was
run a few days prior to the stop, we agree with the district Sandridge also challenges the sentence imposed by the
court that the belatedly-discovered records of the March 5 district court. He contends that the district court erred when,
check bolstered Officer Grubb’s credibility, since Grubb for sentencing purposes and pursuant to U.S.S.G. § 2D1.1, it
testified all along that he ran a license check at some point converted the $919 in cash seized from his person at the time
prior to March 27, and, at the second suppression hearing, he of his arrest into an equivalent drug amount – 21.71 grams of
specifically stated that the check might have occurred a few cocaine base – and then added that to the 20.9 grams of
weeks before the stop, rather than a few days before. The cocaine base found in his car, leading to a total drug quantity
documentary evidence, however, confirms that Grubb ran the finding of 42.61 grams of cocaine base. With that drug
check on March 5, 2002. quantity finding, Sandridge’s base offense level was 30.
Sandridge contends that he should have been sentenced
Sandridge also argues that, even assuming that Grubb was pursuant to a drug quantity finding of only 20.9 grams of
credible, any reasonable suspicion stemming from the cocaine base – that is, only the amount of cocaine base found
March 5 license check was “stale” by the next time Officer in his car. This would have made his base offense level 28.
Grubb saw Sandridge driving again, on March 27, 2002. We
reject that argument. In situations where the criminal activity This Court reviews the district court’s drug quantity finding
is of an ongoing nature, it will take longer for the information – a factual finding – for clear error. United States v.
to become stale. See United States v. Greene, 250 F.3d 471, Keszthelyi, 308 F.3d 557, 576 (6th Cir. 2002). We have held
480 (6th Cir. 2001) (“Evidence of ongoing criminal activity that when “the exact amount of drugs involved is uncertain,
will generally defeat a claim of staleness.”). Driving without the court may make an estimate supported by competent
No. 03-6046 United States v. Sandridge 9 10 United States v. Sandridge No. 03-6046
evidence,” but the evidence supporting the estimate “must past.” In addition, the Government argued at sentencing –
have a minimal level of reliability beyond mere allegation, and continues to argue on appeal – that the $919 in cash was
and the court should err on the side of caution in making its “about the same amount of money that could have bought
estimate.” United States v. Owusu, 199 F.3d 329, 338 (6th about as much crack as he had with him on that day,” and that
Cir. 2000) (quotation omitted). The commentary to § 2D1.1 that proves the money was proceeds from Sandridge’s sale of
of the U.S. Sentencing Guidelines provides some guidance for other cocaine base or money to buy more cocaine base.
estimating drug quantity:
The district court erred, for several reasons. Even
Where there is no drug seizure or the amount seized does assuming, arguendo – based on Defendant’s lack of gainful
not reflect the scale of the offense, the court shall employment, his admitted drug dealing, and the sizable
approximate the quantity of the controlled substance. In amount of cash – that the $919 was connected to some sort of
making this determination, the court may consider, for drug business, the Government failed to show by a
example, the price generally obtained for the controlled preponderance of the evidence that the money was connected
substance, financial or other records, similar transactions to the purchase or sale of cocaine base other than the cocaine
in controlled substances by the defendant, and the size or base found in Defendant’s car. That is, the $919 in cash
capability of any laboratory involved. cannot be used as a proxy for an additional quantity of
cocaine base above and beyond the quantity found in
U.S.S.G. § 2D1.1, commentary, applic. note 12. Defendant’s car unless a preponderance of the evidence
shows that the cash was either proceeds from other cocaine
Applying those principles, we have previously approved the base that was just sold or money to purchase additional
conversion of seized funds into an equivalent amount of cocaine base. Moreover, in this case, a preponderance of the
drugs. See United States v. Samour, 9 F.3d 531, 537 (6th Cir. evidence would have to show that the money represented
1993), overruled on other grounds by United States v. Reed, proceeds from or money to purchase cocaine base, as opposed
77 F.3d 139 (6th Cir. 1996); United States v. Jackson, 990 to some other drug, such as marijuana, which was also found
F.2d 251, 253 (6th Cir. 1993). In order to prove drug quantity in Defendant’s car.
by such a method, the Government must prove by a
preponderance of the evidence both the amount of money At the sentencing hearing, the Government presented no
attributable to drug activity and the conversion ratio – i.e., the witnesses and entered no documents into evidence; it relied
price per unit of drugs. Jackson, 990 F.3d at 253. entirely on the information in the PSR and asked the district
court to do the same. Defendant only pleaded guilty to
A review of the sentencing transcripts reveals that the possessing with intent to distribute the 20.9 grams of cocaine
district court decided to convert the cash into an equivalent base found in his car; there was no allocution by Sandridge –
amount of cocaine base in reliance on information contained in either the plea agreement or at sentencing – concerning the
in the probation office’s pre-sentence report (“PSR”) – purpose of the cash. Accordingly, the information relied on
namely, that Sandridge is a “young man with no history of by the district court – i.e. that Defendant had no legitimate
gainful employment who was found in possession of source of income in the years prior to his arrest and that he
controlled substances plus a fairly large quantity of cash,” as had a history of prior drug arrests – could suggest, at most,
well as “some indications in his criminal history that he’s that Defendant was engaged in drug dealing, which he
been either charged [with] or convicted of drug offenses in the acknowledged in his guilty plea. But those facts shed no light
No. 03-6046 United States v. Sandridge 11 12 United States v. Sandridge No. 03-6046
on the question of whether the $919 was related to cocaine sentencing scheme set forth in the U.S. Sentencing
base other than the cocaine base found in Defendant’s car. Guidelines, see United States v. Koch, No.02-6278 — F.3d
—, 2004 WL 1899930 (6th Cir. Aug. 13, 2004) (en banc), we
Of significance here is the fact that the Government reject Defendant’s Blakely-based arguments, which were
believes that the $919 in cash was about the same amount of presented to the Court in a supplemental briefing. However,
money that could have bought the amount of concaine base Sandridge may, of course, raise any Blakely issues on remand
Sandridge had with him on March 27, 2002. Pursuant to the to the district court in the event that an intervening decision
Government’s logic, the almost-exact correlation between the from the United States Supreme Court renders them viable.
$919 and the 20.9 grams of cocaine base found in Sandridge’s See United States v. Booker, 04-104, — S. Ct. —, 2004 WL
car means one of two things: either (a) that the cash was 1713654 (U.S. cert. granted Aug. 2, 2004) (mem.) and United
proceeds from a previous sale of a similar quantity of drugs, States v. Fanfan, No. 04-105, — S. Ct. —, 2004 WL 171
or (b) that Sandridge intended to use the cash in the near 3655 (U.S. cert. granted Aug. 2, 2004) (mem.).
future to purchase more drugs, of a similar quantity.
Although those hypotheses are plausible, it is equally III. CONCLUSION
plausible that the cash was related to the 20.9 grams of
equivalently-valued cocaine base found in Sandridge ’s car: For the reasons discussed above, we AFFIRM the district
the cash may have been from a buyer to whom he was about court’s denial of Defendant’s motion to suppress but
to deliver the cocaine base or for a seller from whom he had VACATE the sentence imposed by the district court and
recently procured it. The Government provided no evidence REMAND for re-sentencing consistent with this opinion.
showing why its theories of the cash as a proxy for drugs-not-
found should trump a theory that the cash was related to the
equivalently-valued drugs found in Sandridge’s car.
There was also no evidence – and no explicit finding by the
district judge – that the drugs found in Defendant’s car did
not represent the full scale of the offense, as required by
U.S.S.G. § 2D1.1, commentary, applic. note 12. In addition,
no evidence was presented to show that the cash was related
to the sale of cocaine base, as opposed to marijuana, the other
drug found in Sandridge’s car. For those reasons, the district
court erred in converting the $919 in cash to 21.7 grams of
cocaine base and in adding that to the 20.9 grams found in
Sandridge ’s car, for a total 42.61 grams of cocaine base. We
hold that Defendant only should have been sentenced
pursuant to a drug quantity finding of 20.9 grams of cocaine
base.
Lastly, because this Court recently determined that Blakely
v. Washington, 542 U.S. ___ (2004) does not invalidate the