US v. Powe

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Brian J. Kornbrath, Assis-

tant Federal Public Defender, Charleston, West Virginia, for Appel-

lant. Rebecca A. Betts, United States Attorney, John J. Frail, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Reserving his right to appeal the district court's denial of his

motion to suppress evidence, Nathaniel Powe entered a plea of guilty

to possession with intent to distribute crack cocaine in violation of 21

U.S.C. § 841(a)(1) (1994). Following the district court's entry of the

judgment and commitment order imposing a forty-eight-month sen-

tence, Powe noted his appeal. Finding no error in the district court's

denial of the suppression motion, we affirm Powe's conviction.

The evidence presented to the district court during the hearing on

the motion to suppress is as follows. During the autumn of 1997,

members of the Metropolitan Drug Enforcement Network Team

(MDENT) received a number of complaints of suspected drug activity

at the residence of Bruce Johnson located at 128 Williams Street in

East Bank, West Virginia. These complaints concerned the heavy

vehicular traffic to and from the residence at all hours of the night.

The MDENT officers knew Bruce Johnson from having previously

arrested him for drug-related activities.

On November 4, 1997, Captain Larry Dodson of MDENT received

information from a reliable cooperating individual that drug dealers

from Detroit, Michigan, were returning to the East Bank area and

were bringing crack cocaine. The individual stated that these people,

black males, would be selling drugs at Bruce Johnson's residence on

Williams Street. The individual also informed Dodson that the "De-

troit boys" would be arriving in a rental car on November 4th or

November 5th.

Based on this information, MDENT established surveillance of

Johnson's residence at 7:00 p.m. on November 4, 1997. At that time,

a white Hyundai was parked outside the residence. It had a Kentucky

license plate and a small green and white "e" over the left taillight.

2

The "e" was believed to be the logo for Enterprise Car Rental Com-

pany. During the three or four hours of surveillance, a number of

vehicles were observed arriving at Johnson's house, staying for a

short time, and then leaving. The officers conducted investigatory

stops of two vehicles that left Johnson's house after staying for a short

time. However, no crack cocaine was found during the searches of the

occupants of these vehicles.

Around 9:00 p.m., MDENT Detective Hart observed the white

Hyundai leaving the Johnson residence. He reported by radio commu-

nication to MDENT Officer Carpenter a description of the vehicle

that had left the residence and its direction of travel. Officer Carpenter

spotted the vehicle and began to follow it. After following the Hyun-

dai for about a mile, Carpenter activated his blue lights and executed

a traffic stop.

The officers approached the driver's side door of the Hyundai and

requested that the driver produce his license, registration, and proof

of insurance. The driver--later identified as Powe--stated that he did

not have a driver's license. Powe was asked to step out of the vehicle.

The officers, noting a burnt marijuana smell, asked Powe if he had

any drugs or weapons. He admitted to having a marijuana joint in his

pocket. A pat-down search also uncovered in Powe's sock a baggie

containing marijuana. The officers arrested Powe for driving without

a license and for possession of marijuana. At the police department,

a strip search uncovered a quantity of crack cocaine.

In reviewing the district court's determination on a motion to sup-

press evidence, we review factual findings for clear error and legal

determinations de novo. See Ornelas v. United States, 517 U.S. 690,

699 (1996); United States v. McCraw, 920 F.2d 224, 227 (4th Cir.

1990). An investigative detention, such as occurred in this case,

requires "specific and articulable facts" to support the officers' "rea-

sonable suspicion" of criminal activity. See Terry v. Ohio, 392 U.S.

1, 21-22 (1968). The relevant inquiries are "whether the officer's

action was justified at its inception, and whether it was reasonably

related in scope to the circumstances which justified the interference

in the first place." Id. at 20. "If the initial traffic stop was illegal or

the officers exceeded the stop's proper scope, the seized contraband

is excluded under the `fruit of the poisonous tree doctrine.'" United

States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992).

To determine whether the officers had a reasonable articulable sus-

picion when they stopped the vehicle Powe was driving, "we must

consider `the totality of the circumstances--the whole picture.'"

United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States

v. Cortez, 449 U.S. 411, 417 (1981)). The facts known to the officers

at the time were: Powe had just left Bruce Johnson's residence,

where, based on citizen complaints and the officers' observations of

heavy traffic, it was suspected that a high volume of drug trafficking

occurred. See United States v. Moore, 817 F.2d 1105, 1107 (4th Cir.

1987) (quoting United States v. Constantine, 567 F.2d 266, 267 (4th

Cir. 1977)) ("[A]n area's disposition toward criminal activity is an

articulable fact," that may be considered along with more particular-

ized factors to support a reasonable suspicion.). Captain Dodson had

received information from a reliable source that black males were

traveling from Detroit to sell crack cocaine at Bruce Johnson's house

and that they were traveling in a rental car and expected to arrive on

November 4th or 5th. See Alabama v. White, 496 U.S. 325, 330-31

(1990) (finding that an informant's tip, if independently corroborated,

can provide reasonable suspicion). On November 4th, after observing

heavy traffic to and from Johnson's house, the officers saw a rental

car--driven by a black male--leave Bruce Johnson's house. Having

corroborated several pieces of the information provided by the coop-

erating individual, the officers had reasonable articulable suspicion

that the driver of the rental car was involved in criminal activity. See

Terry, 392 U.S. at 22-23 (officers' observations and inferences drawn

from observations in light of experience may support reasonable sus-

picion). Thus, under the totality of the circumstances, the officers

were authorized to conduct an investigatory detention of the driver,

Powe. The evidence acquired during this investigatory stop provided

the officers with probable cause to then arrest Powe and subsequently

conduct a post-arrest search.

Accordingly we affirm the district court's order denying Powe's

motion to suppress the evidence recovered as a result of this investi-

gatory detention. We also affirm Powe's conviction. We dispense

with oral argument because the facts and legal contentions are ade-

quately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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