United States v. Naarl Richard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NAARL JOSEPH RICHARD, a/k/a Noel H. Richard, a/k/a Richard
Earl, a/k/a Richard Narrl,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00992-PMD-1)
Argued: May 17, 2013 Decided: June 13, 2013
Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: G. Wells Dickson, Jr., WELLS DICKSON, PA, Kingstree,
South Carolina, for Appellant. Nathan S. Williams, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Naarl Joseph Richard appeals his conviction for possession
of heroin with the intent to distribute, 21 U.S.C. § 841(a)(1).
We affirm.
I
A
In the Spring of 2009, detectives from the North Charleston
Police Department (NCPD) were investigating drug sales in North
Charleston, South Carolina. One of the persons under
investigation was Richard.
While conducting surveillance of an apartment that the
detectives suspected was associated with drug trafficking, the
detectives observed Richard leaving the apartment and entering a
white Pontiac Gran Prix (the Car). On May 6, 2009, Detective
Jason Roy placed a GPS tracking device underneath the rear
bumper of the Car, while the Car was parked in a public place.
The placement of the GPS tracking device enabled Detective Roy
to monitor the Car’s whereabouts on a laptop computer.
On May 31, 2009, the Car left North Charleston at
approximately 1:33 a.m. and arrived in Newark, New Jersey at
approximately 2:30 p.m. that same day. The Car remained in
Newark a little over an hour before departing at 3:49 p.m. At
approximately 2:30 a.m. on June 1, 2009, the Car entered South
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Carolina on Interstate 95. Based on the Car’s travel itinerary,
Detective Roy and another NCPD detective, Detective Dan Bailey,
decided to conduct a traffic stop of the Car as it entered the
North Charleston area on Interstate 26. As the Car was leaving
the interstate, the detectives saw the driver of the Car change
lanes without using a turn signal, a traffic violation under
South Carolina law. Having witnessed this traffic violation,
the detectives initiated a traffic stop.
As the detectives approached the Car, Richard was in the
passenger’s seat. His girlfriend, Katia Coney, was in the
driver’s seat. Richard appeared nervous. He was sweating, and
his legs were shaking. Richard and Coney were asked to step out
of the Car, which they did. The detectives questioned Richard
and Coney individually concerning their travel itinerary, and
they gave inconsistent accounts concerning where they had been.
While Detectives Roy and Bailey were speaking with Richard
and Coney, an NCPD Canine Officer, Officer Anthony Danielle,
arrived on the scene. During a perimeter canine sniff of the
vehicle, the drug detection dog (Canine Foster) positively
alerted to the exterior driver’s side door. Officer Danielle
then opened the driver’s door, allowing Canine Foster to enter
the Car. Canine Foster then alerted on the Car’s center console
and on its rear passenger floorboards.
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By this time, Detective Daniel Prichard had arrived on the
scene and was advised of Canine Foster’s positive alerts and the
inconsistent accounts given by Richard and Coney. Upon
searching the Car, Detective Prichard noticed that the
passenger’s side rocker panel was loose. After a search of the
area behind the panel, Detective Prichard recovered five
glassine bags, each containing light brown powder. This powder
field-tested positive for heroin.
A search warrant was then obtained for the Car. During
that search, a secret compartment, operated by a hydraulic
piston, was discovered under the center console of the Car.
Inside this compartment, the officers found 1,000 glassine bags
containing heroin, plastic bags, a passport in Richard’s name,
and a rubber stamp. The total amount of heroin recovered from
the Car that day was 36.2 grams.
B
On September 8, 2009, a grand jury sitting in the District
of South Carolina returned a one-count indictment charging
Richard with possession of heroin with the intent to distribute,
id. § 841(a)(1). Prior to trial, Richard filed a motion to
suppress, which the district court denied.
Richard’s jury trial began on October 3, 2011 and concluded
on October 5, 2011. A guilty verdict was returned by the jury.
Prior to his sentencing, Richard filed a motion to reconsider
4
his motion to suppress, and, also, a motion for a new trial,
based upon the Supreme Court’s January 23, 2012 decision in
United States v. Jones, 132 S. Ct. 945 (2012), which held that
the installation of a GPS tracking device on a target’s vehicle,
and its subsequent use, without a valid warrant, constituted an
unlawful search under the Fourth Amendment. Id. at 949-54. The
district court granted Richard’s motion for a new trial,
ordering that any evidence relating to the use of the GPS
tracking device be suppressed. However, the district court
denied in part the motion to suppress, concluding that
suppression of the heroin found in the Car was not warranted.
The district court reasoned that a “legal traffic stop based on
probable cause that a new, distinct crime occurred−the failure
to use the turn signal−purged the taint of the illegal use of
the GPS.” (J.A. 276).
Richard’s retrial before a new jury began on July 9, 2012
and concluded on July 10, 2012. No reference to the use of the
GPS tracking device was made, and no evidence of any data from
the GPS tracking device was presented to the jury. At the
conclusion of the trial, Richard was found guilty. On August 9,
2012, Richard was sentenced to 262 months’ imprisonment. He
filed a timely notice of appeal.
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II
Richard first contends that the district court erred when
it denied the motion to suppress he filed while awaiting
sentencing following the conclusion of his first trial. When
considering a district court’s denial of a motion to suppress,
we review the district court’s factual findings for clear error
and legal conclusions de novo. United States v. Lewis, 606 F.3d
193, 197 (4th Cir. 2010). We also construe the evidence in the
light most favorable to the government, as the prevailing party
below. Id.Prior to Richard’s second trial, the district court held
that “[a]ll of the evidence relating to [Richard’s] travelling
to New Jersey and other evidence gathered using the GPS tracking
device is hereby excluded, but the evidence uncovered subsequent
to the legal traffic stop is not suppressed because the new
crime purged the taint of the illegal GPS search.” (J.A. 276-
77). Richard contends that, because the traffic stop would not
have taken place but for the information illegally obtained by
virtue of the placement of the GPS, including information
concerning the Car’s location on May 31 and June 1, 2009, the
district court erred when it determined that the improper lane
change constituted a new crime that purged the taint of the
illegal search.
6
The Fourth Amendment protects the “right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. In
general, evidence discovered as a result of a Fourth Amendment
violation is subject to suppression under the exclusionary rule.
United States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009).
However, not all evidence discovered as a result of a Fourth
Amendment violation is “fruit of the poisonous tree” and
necessarily inadmissible at trial. Evidence derived from an
illegal search may be admissible depending upon “whether,
granting establishment of the primary illegality, the evidence
to which [the] instant objection is made has been come at by
exploitation of that illegality, or instead by means
sufficiently distinguishable to be purged of the primary taint.”
Wong Sun v. United States, 371 U.S. 471, 488 (1963) (citation
and internal quotation marks omitted).
“Thus, where there is sufficient attenuation between the
unlawful search and the acquisition of evidence, the ‘taint’ of
that unlawful search is purged.” United States v. Gaines, 668
F.3d 170, 173 (4th Cir. 2012). In determining whether the taint
of the illegal search is purged, we evaluate several factors,
including: (1) the amount of time between the illegal action and
the acquisition of the evidence; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the official
7
misconduct. Id.; see also Brown v. Illinois, 422 U.S. 590, 603–
04 (1975). In this case, we must determine whether the improper
lane change is an intervening circumstance sufficient to purge
the taint of an illegal search. For purposes of our discussion,
we accept the government’s apparent concession that the illegal
search continued until the NCPD detectives witnessed the
improper lane change.
In United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997),
the police stopped the defendant for what they mistakenly
believed was reasonable suspicion of criminal activity. Id. at
616. When the police told the defendant they were going to
frisk him for weapons, he fled and later pulled a handgun from
his pants and fired at the pursuing officers. Id. The district
court held that the firearm was the fruit of an unlawful stop,
and, thus, the firearm was inadmissible at trial. Id.On appeal, we reversed, holding that “[i]f a suspect’s
response to an illegal stop is itself a new, distinct crime,
then the police constitutionally may arrest the suspect for that
crime.” Id. at 619 (citation, alteration, and internal
quotation marks). In so holding, we noted that, “[b]ecause the
arrest for the new, distinct crime is lawful, evidence seized in
a search incident to that lawful arrest is admissible.” Id.In Sprinkle, we recognized the “strong policy reason for
holding that a new and distinct crime, even if triggered by an
8
illegal stop, is a sufficient intervening event to provide
independent grounds for arrest.” Id. “[A] contrary rule would
virtually immunize a defendant from prosecution for all crimes
he might commit that have a sufficient causal connection to the
police misconduct.” Id. (quoting United States v. Bailey, 691
F.2d 1009, 1017 (11th Cir. 1982) (internal quotation mark
omitted)).
In this case, the government argues that, pursuant to
Sprinkle, the illegal lane change purged the taint of the
unlawful search. Richard argues that the taint was not so
purged. We agree with the government’s position.
The stop of the Car was the result of Coney’s improper lane
change. This act gave the NCPD detectives probable cause to
stop the Car. United States v. Branch, 537 F.3d 328, 335 (4th
Cir. 2008) (noting that a traffic violation “provides sufficient
justification for a police officer to detain the offending
vehicle for as long as it takes to perform the traditional
incidents of a routine traffic stop”). A lawful traffic stop
justifies detaining the vehicle’s occupants for the time
necessary to request a driver’s license and vehicle
registration, run a computer check, and issue a citation.
United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011).
During the stop, an officer may briefly inquire into unrelated
matters, but may not definitively abandon the prosecution of the
9
traffic stop and embark on another sustained course of
investigation absent additional justification. Id. at 507-08.
The officer may take other actions that do not constitute a
search within the meaning of the Fourth Amendment, such as
conducting a perimeter canine sniff of the vehicle, Illinois v.
Caballes, 543 U.S. 405, 409 (2005), but again only “so long as
those inquiries [or other actions] do not measurably extend the
duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333
(2009).
In this case, the perimeter canine sniff occurred while the
detectives were resolving the inconsistencies given by Richard
and Coney. Canine Foster alerted on the perimeter of the Car,
which provided probable cause to search the car. Branch, 537
F.3d at 340 n.2 (positive alert from the canine unit was
sufficient to provide probable cause to search defendant’s car).
Heroin initially was found pursuant to a warrantless probable
cause search and additionally found pursuant to a search
warrant. Under the circumstances of this case, although the
time between the illegal search and the discovery of the heroin
was not substantial, the improper lane change was an intervening
circumstance which purged the taint, especially since the
conduct of the detectives was not flagrant.
In reaching our decision, we make two observations. First,
a contrary result would run afoul of our decision in Sprinkle
10
because suppressing the heroin in this case would “virtually
immunize” defendants who commit crimes following any police
misconduct. Sprinkle, 106 F.3d at 619 (citation and internal
quotation marks omitted). Second, our decision is consistent
with our recent decision in Gaines. In that case, the officers
illegally stopped the defendant. 668 F.3d at 171. During a
subsequent illegal pat-down of the defendant, one of the
officers discovered a handgun. Id. The defendant then
assaulted the two police officers. Id. The defendant was
indicted on one count of possession of a firearm by a convicted
felon. Id. Prior to trial, the defendant moved to suppress the
firearm because the stop and search of his person violated the
Fourth Amendment. Id. The government argued that, pursuant to
Sprinkle, the taint of the unlawful stop was purged when
defendant assaulted the officers. Id. at 174. However, we
distinguished Sprinkle by noting that the firearm in that case
“was only discovered after the defendant engaged in illegal
activity subsequent to an earlier unlawful stop.” Id. In
Gaines, the discovery of the firearm took place before the
defendant’s subsequent criminal conduct; therefore, the
subsequent criminal conduct could not constitute an intervening
event for purposes of suppressing the firearm. Id.In this case, similar to Sprinkle, there was an intervening
circumstance, namely the traffic violation, that severed the
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causal connection between the unlawful search and the discovery
of the evidence. The detectives discovered the heroin after
another crime was committed. Consistent with Sprinkle and
Gaines, we hold that the traffic violation purged the taint of
the unlawful search, and that the actions of the detectives
following the stop were reasonable under the Fourth Amendment.
Accordingly, the district court did not err when it denied the
motion to suppress Richard filed while awaiting sentencing
following the conclusion of his first trial.
III
Richard also challenges the 262-month sentence imposed by
the district court. We review a sentence for reasonableness,
applying a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). In conducting this
review, we must first ensure that the district court committed
no significant procedural error, such as improper calculation of
the Sentencing Guidelines range, insufficient consideration of
the 18 U.S.C. § 3553(a) factors and the parties’ sentencing
arguments, and inadequate explanation of the sentence imposed.
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). If
the sentence is free from significant procedural error, we also
review the substantive reasonableness of the sentence. Id. The
sentence imposed must be “sufficient, but not greater than
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necessary, to comply with the purposes” of sentencing. 18
U.S.C. § 3553(a). A within-Guidelines sentence is presumed
reasonable on appeal, and the defendant bears the burden to
rebut the presumption by demonstrating that the sentence is
unreasonable when measured against the § 3553(a) factors.
United States v. Montes–Pineda, 445 F.3d 375, 379 (4th Cir.
2006).
A
Richard first challenges the procedural reasonableness of
his sentence, arguing that the district court erred when it
designated him as a career offender. * Pursuant to United States
Sentencing Commission, Guidelines Manual (USSG), § 4B1.1(a), a
defendant is a career offender if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
USSG § 4B1.1(a).
*
As a career offender, Richard was placed at an Offense
Level 34, Criminal History Category VI, which produced a
sentencing range of 262 to 327 months’ imprisonment. Without
the career offender designation, Richard would have been placed
at an Offense Level 20, Criminal History Category VI, which
would have produced a sentencing range of 70 to 87 months’
imprisonment.
13
In designating Richard a career offender, the probation
officer did not specify which prior convictions satisfied the
dictates of USSG § 4B1.1(a). Instead, the probation officer
stated that “[a]s is shown in Part B (Criminal History) above,
the defendant has been convicted of at least two (2) prior
felony convictions of either a crime of violence or a controlled
substance offense.” (J.A. 539). The district court adopted the
Guidelines calculations of the probation officer.
On appeal, Richard takes issue with three prior convictions
in the PSR. First is his prior conviction for attempted murder
under New Jersey law. This offense occurred on August 3, 1992,
and Richard was arrested on October 7, 1992. He was sentenced
on April 26, 1993. The second and third convictions are for
possession of a controlled dangerous substance under New Jersey
law. The offenses occurred on different days, one on February
24, 2001, the other on June 15, 2001. Richard was arrested on
the occurrence date for these offenses, and he was sentenced on
the same day for these offenses, July 12, 2002.
With respect to the attempted murder conviction, Richard
argues that the conviction occurred more than fifteen years
prior to the instant offense and should not count as a crime of
violence. See USSG § 4A1.2(e)(1) (setting forth fifteen-year
operative window). Richard’s instant offense occurred on June
1, 2009, making the fifteen-year operative window for prior
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convictions June 1, 1994. On October 7, 1992, Richard was
arrested for attempted murder, and he was sentenced to twelve
years’ imprisonment on April 26, 1993. Richard was paroled on
December 24, 1997 and his supervision expired on July 25, 2000.
USSG § 4B1.2(c) provides that a “prior felony conviction”
is measured by the date the conviction is established.
Application Note 3 to USSG § 4B1.2 states that USSG § 4A1.2
applies to the counting of convictions under USSG § 4B1.1. This
Guideline provides in pertinent part:
Any prior sentence of imprisonment exceeding one year
and one month that was imposed within fifteen years of
the defendant’s commencement of the instant offense is
counted. Also count any prior sentence of
imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-year
period.
USSG § 4A1.2(e)(1).
Because Richard was incarcerated within fifteen years of
the commencement of the instant offense, his prior attempted
murder conviction qualifies as a predicate offense pursuant to
USSG § 4B1.1(a) and USSG § 4A1.2(e)(1).
Richard also takes issue with the two offenses for
possession of a controlled dangerous substance. According to
Richard, both convictions could not be used because he received
concurrent sentences on the same day for these offenses.
15
Putting aside for the moment the fact that only one of
these convictions is necessary to uphold Richard’s designation
as a career offender, both convictions qualify as predicate
prior convictions. Under USSG § 4A1.2(a)(2), “[p]rior sentences
always are counted separately if the sentences were imposed for
offenses that were separated by an intervening arrest (i.e., the
defendant is arrested for the first offense prior to committing
the second offense).” USSG § 4A1.2(a)(2). Richard committed
one possession of a controlled dangerous substance offense on
February 24, 2001, and he was arrested on that same day for the
offense. He committed the second offense on June 15, 2001.
Because there was an intervening arrest between these two
offenses, the convictions must be counted separately for
purposes of determining whether Richard qualifies as a career
offender.
B
Richard also challenges the substantive reasonableness of
his sentence, arguing that he should have received a sentence
significantly below the sentence imposed by the district court.
According to Richard, his designation as a career offender
overstated the seriousness of his actual criminal history. The
district court considered this argument but rejected it,
stating, “I’m looking at [the] Guidelines that tell me what I
should do. And I haven’t heard anything from you, though you’ve
16
tried, that would take you outside those Guidelines.” (J.A.
519).
Here, the district court adopted the extensive findings
contained in the PSR, considered the § 3553(a) factors, provided
a detailed individualized assessment, responded to defense
counsel’s argument for a below-Guidelines sentence, and clearly
explained the imposed sentence. In our view, neither Richard
nor the available record rebuts the presumption of
reasonableness accorded his within-Guidelines sentence. Montes–
Pineda, 445 F.3d at 379.
IV
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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