US v. Fisher

Before HALL and ERVIN, Circuit Judges, and JACKSON, United

States District Judge for the Eastern District of Virginia, sitting by

designation.

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Affirmed in part and vacated and remanded in part by unpublished

opinion. Judge Jackson wrote the majority opinion, in which Judge

Ervin joined. Judge Hall wrote a separate opinion concurring in part

and dissenting in part.

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COUNSEL

ARGUED: Donald H. Feige, Baltimore, Maryland, for Appellant

Fisher; Beth M. Farber, Assistant Federal Public Defender, Greenbelt,

Maryland, for Appellant Williams. Jamie M. Bennett, Assistant

United States Attorney, Baltimore, Maryland, for Appellee. ON

BRIEF: James K. Bredar, Federal Public Defender, Greenbelt, Mary-

land, for Appellant Williams. Lynne A. Battaglia, United States

Attorney, Baltimore, Maryland, 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Unpublished opinions are not binding precedent in this circuit.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

JACKSON, District Judge:

After the district judge denied Defendants' motion to suppress evi-

dence, Wheeler Williams pled guilty to violating 21 U.S.C. § 922(g)

(1994); his co-defendant, Telly Fisher, pled guilty to violating 21

U.S.C. § 841(a)(1) (1994). Williams and Fisher appeal the district

court's denial of their motion to suppress, as well as enhancements

imposed upon their sentences. We affirm the lower court's denial of

the suppression motion and the two-point enhancement imposed upon

Fisher; we reverse the four-point enhancement imposed upon Wil-

liams.

I.

On May 4, 1994, a confidential informant warned Drug Enforce-

ment Agency special agent David Shields that Defendants would

commit murder that night. Agent Shields testified that the informant

2

told him that Fisher, described as having a long face, buck teeth, and

beard, and Willard (later identified as "Wheeler") Williams, described

as an older man with a mustache and stocky build, would spend the

night at 1131 Carroll Street. They would depart at 7:30 a.m. in a 1989

gold Ford Taurus, Maryland tag BCD 097, and travel to Baltimore

County to rob and/or kill a "New York boy" who possessed heroin

and cocaine. A Baltimore County Police Detective testified that Agent

Shields' partner, Agent Tomaszewski, told him that a third person,

Biff, would also participate in the conspiracy. Biff was described as

a black male in his 20s, five foot nine inches, thin, and wearing a

black rain jacket. The police set up surveillance. While the police

watched, the informant later met with the suspects and corrected his

earlier information, stating that the murder would take place the fol-

lowing day.

At approximately 7:30 on the morning of May 5th, officers

observed a gold Taurus with the predicted license plates park in front

of 1128 Carroll Street. Only the driver, Fisher, was inside. At approx-

imately 8:30 a.m., another individual, Williams, got in the passenger's

seat, and the car headed into the city of Baltimore. 1 Because the

police, who followed them, feared they might lose the car in rush-

hour traffic, they stopped the car while it was still headed into the

city, about ten miles from Baltimore County. At least five police offi-

cers were present in three marked vehicles.

The officers approached the car, some with weapons drawn and

badges displayed, and told the two men to exit the car. One officer

saw the butt of a Colt .45 semiautomatic pistol beneath Williams'

seat. The police placed the two men against the car and patted them

down. The police found a magazine with live rounds in Williams'

clothing and fifty-nine glass vials of cocaine on Fisher's person. Both

men were handcuffed and arrested. According to the indictment and

presentence report, a loaded pump shotgun was also found in the rear

compartment of the car.

The district court denied Defendants' motion to suppress the fire-

arms and drugs, which they argued were the tainted fruit of a search

incident to the illegal arrests. The district judge reasoned that the

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1 Baltimore County surrounds Baltimore City in a concentric circle.

police officers had sufficiently corroborated specific facts to rely on

the informant's tip, which gave them probable cause to make the war-

rantless arrests. Williams subsequently pled guilty to one count of

possession of a firearm by a convicted felon, in violation of 21 U.S.C.

§ 922(g); Fisher pled guilty to the possession of "crack" cocaine with

intent to distribute, in violation of 21 U.S.C.§ 841(a)(1).

The district judge sentenced Williams to 110 months, which lay

within the sentencing guidelines range applicable to an offense level

of 24 and criminal history category of VI. United States Sentencing

Commission, Guidelines Manual, (Nov. 1994) ("USSG"). The district

judge calculated the base offense level as 20, pursuant to USSG

§ 2K2.1(a)(4)(A), which governs the offense of possession of a fire-

arm by a defendant who has one prior conviction for a violent felony.

The district judge further increased the base offense level by four

points under USSG § 2K2.1(b)(5), which governs the possession of

a firearm in connection with a felony offense, and added another two

points under USSG § 2K2.1(b)(4), which penalizes defendants for

possessing firearms that have obliterated serial numbers. Finally, he

decreased the offense level by two points for acceptance of responsi-

bility under USSG § 3E1.1(a).

Fisher had a criminal history category of I. He was sentenced to 41

months, the minimum provided by the guidelines. Fisher's base

offense level was 22, to which the district judge added two points for

possession of a dangerous weapon under USSG § 2D1.1(b)(1) and

subtracted two points for acceptance of responsibility under USSG

§ 3E1.1(a).

We review de novo the determination of probable cause for war-

rantless arrest, but we review factual findings in this context for clear

error. United States v. Williams, 10 F.3d 1070, 1074 (4th Cir. 1993)

(citing United States v. McCraw, 920 F.2d 224 (4th Cir. 1990)), cert.

denied, 115 S. Ct. 313 (1994). Similarly, we review legal questions

concerning sentencing guidelines de novo but factual conclusions

relating to sentencing for clear error. United States v. Blake, 81 F.3d

498, 503 (4th Cir. 1996) (citing United States v. Singh, 54 F.3d 1182,

1190 (4th Cir. 1995)).

4

II.

A.

The Fourth Amendment forbids police from conducting unreason-

able searches and seizures. U.S. CONST. amend. IV. When a police

officer makes an unconstitutional warrantless arrest, courts must sup-

press the evidence obtained from the search incident to that arrest.

Elkins v. United States, 364 U.S. 206, 223 (1960). Police officers may

arrest a suspect without a warrant, however, if they have probable

cause to believe the suspect had committed or was committing a fel-

ony. Draper v. United States, 358 U.S. 307, 310-11 (1959). Probable

cause exists if "at that moment the facts and circumstances within [the

officers'] knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that

the [suspect] had committed or was committing an offense." Beck v.

Ohio, 379 U.S. 89, 91 (1964).

Defendants argue that the arrests violated the Fourth Amendment

because the officers lacked probable cause to believe Defendants

were committing a robbery or murder. 2 To support this contention,

Defendants cite the unproven reliability of the confidential informant,

pointing to his lack of track record, certain incorrect information he

provided, and the officers' failure to corroborate some of the informa-

tion. We find this argument unpersuasive.

To assess probable cause for warrantless arrest on the basis of an

informant's tip, courts must look to the totality of the circumstances

surrounding the information available to the police officers. United

States v. Miller, 925 F.2d 695, 698 (4th Cir.), cert. denied, 502 U.S.

833 (1991) (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). The

degree to which an informant's tip is corroborated is important in

evaluating whether the tip establishes probable cause. Id. (citing

Draper v. United States, 388 U.S. 307 (1959)). We have expressly

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2 United States argues that Defendants' encounter with the police was

merely a brief investigatory stop and not a search, which therefore did

not require probable cause. Terry v. Ohio, 392 U.S. 1, 16-19 (1968). We

need not reach the issue, however, because we find that the police had

probable cause to stop appellants.

held that corroboration can derive from a police officer's observing

"a substantial portion" of what the informant predicted. This observa-

tion can in turn support a reasonable conclusion that the other infor-

mation supplied concerning the commission of a felony was correct.

Id. at 699. In addition, even if the informant is unknown, other indicia

of reliability may suffice to meet the corroboration requirement. In

Miller, which dealt with information supplied about drug trafficking

activity, we found that the informant's interest in obtaining leniency,

in conjunction with the observations by the police officer and his pre-

vious arrest of the defendant on drug charges, substantially corrobo-

rated the information and established reliability. Id.

Here, the correct information supplied by the informant signifi-

cantly outweighs the information Defendants characterize as incorrect

and uncorroborated. The latter information includes the following:

one of the predicted suspects, "Biff", failed to appear; Fisher did not

stay overnight at the Carroll Street home, but instead appeared at that

location the next morning; the suspects departed over an hour after

the predicted time; and the date the informant initially gave concern-

ing the expected offense was incorrect. The informant provided sig-

nificant detail, however, that proved correct, including the exact

location of the house; the color, make, and tag of the car; and descrip-

tions of the two men who departed in the car. In addition, the infor-

mant corrected the date of the planned offense after he spoke with the

suspects under police surveillance the day before the murder was to

take place. This corroboration of significant details provided the offi-

cers with probable cause for suspecting criminal activity.

Defendants also challenge the informant's reliability on the basis

that he provided merely "innocent" information: that is, he predicted

events and provided descriptions easily observed by the general pub-

lic, such as the suspects' appearances and their car. Defendants argue

that such public information merits greater corroboration before giv-

ing rise to probable cause for suspecting criminal activity. This asser-

tion is incorrect. In United States of America v. Wilhelm, 80 F.3d 116,

120 (4th Cir. 1996), this court recognized that"corroboration of inno-

cent details of an informant's report tends to indicate that other

aspects of the report are also correct." Further,"[i]nnocent behavior

frequently will provide the basis for a showing of probable cause

. . . ." United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir.), cert.

denied, 114 S. Ct. 485 (1993). In Lalor, confirmation of [defendant's]

address, vehicle and alias gave credence to the allegations of criminal

activity. Id. at 1581. Similar information was provided in the case at

bar, which, as outlined above, was sufficiently detailed to give rise to

probable cause. The district court's denial of the motion to suppress

the evidence was appropriate.

B.

Williams appeals the four-point enhancement imposed pursuant to

USSG § 2K2.1(b)(5). A sentencing court should apply this enhance-

ment "[i]f the defendant used or possessed any firearm or ammunition

in connection with another felony offense; or possessed or transferred

any firearm or ammunition with knowledge, intent, or reason to

believe that it would be used or possessed in connection with another

felony offense." USSG § 2K2.1(b)(5). The application note defines a

felony offense as any felony, whether or not a criminal charge was

brought or a conviction obtained. USSG § 2K2.1(b)(5), comment.

(n.7). In the case at bar, the connected felony offense was the alleged

plan to rob or murder the "New York boy," which the informant told

police Defendants intended to commit. 3 Williams contests the district

court's finding that the government proved by a preponderance of the

evidence the necessary connection between Williams' possession of

the guns and the underlying felony.

We find that the facts of this case do not support the district judge's

conclusion that the Government proved the underlying felony by a

preponderance of the evidence. The basis for his holding was the

same information that he found had established probable cause for the

police to arrest the suspects. Unlike warrantless arrests, which require

probable cause, Draper, 358 U.S. at 310-11, enhancements can only

be applied if the Government proves the underlying facts by the stric-

ter preponderance of the evidence standard, United States v. Urrego-

Linares, 879 F.2d 1234, 1238 (4th Cir.), cert. denied, 493 U.S. 943

(1989). 4 Although we hold that the informant's tip established proba-

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3 At oral argument, the Government conceded it had insufficient evi-

dence to indict Defendants for conspiracy to murder.

4 Noting the difference in the two standards, the Supreme Court has

stated that probable cause is not a finely tuned standard comparable to

the standard of proof by a preponderance of the evidence. Ornelas v.

United States, 116 S. Ct. 1657, 1661 (1996) (citing Gates, 462 U.S. at

235).

7

ble cause for the warrantless arrest, we find that the same information

was insufficient to prove by a preponderance of the evidence the plan

to kill or rob the "New York boy." The Government did not produce

the informant in court, nor did it present corroborating evidence of the

plot. Williams has denied the allegation, and the intended victim was

neither identified nor produced. We therefore find that the district

judge's enhancement was improper.

C.

Fisher challenges the two-point enhancement imposed pursuant to

USSG § 2D1.1(b)(1), which applies if a firearm was possessed during

commission of the offense. Fisher, who had fifty-nine vials of cocaine

on his person at the time of arrest, pled guilty to possession of crack

cocaine with intent to distribute. At the time of arrest, police officers

found two firearms in the car: one under Williams' seat and one hid-

den toward the rear of the car. Commentary accompanying USSG

§ 2D1.1(b)(1) notes that the enhancement "reflects the increased dan-

ger of violence when drug traffickers possess weapons. The enhance-

ment should be applied if the weapon was present, unless it is clearly

improbable that the weapon is connected with the offense." USSG

§ 2D1.1(b)(1), comment. (n.3). Fisher notes the lack of testimony

concerning the ownership and precise location of the gun in the car.

He further argues that he obtained the cocaine before the incident and

that his possession was unrelated to the guns or harm that he was

allegedly going to wreak upon the "New York boy." These arguments

are insufficient to overcome sentencing guidelines that justify attribu-

tion of the guns to Fisher.

The sentencing guidelines define relevant conduct to include, in the

case of a jointly undertaken criminal activity, all reasonably foresee-

able acts of others in furtherance of that activity. USSG

§ 1B1.3(a)(1)(B). The presence of guns to perpetrate illicit drug activ-

ity typically is reasonably foreseeable: "Absent evidence of excep-

tional circumstances, . . . it [is] fairly inferable that a codefendant's

possession of a dangerous weapon is foreseeable to a defendant with

reason to believe that their collaborative criminal venture includes an

exchange of controlled substances for a large amount of cash." United

States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994), cert. denied,

115 S. Ct. 131 (1994), (citing United States v. Bianco, 922 F.2d 910,

912 (1st Cir. 1991)), cert. denied, 115 S. Ct. 131 (1994); accord

United States v. Mena-Robles, 4 F.3d 1026, 1036 (1st Cir. 1993)

(approving enhancement whenever codefendant's possession of fire-

arm in furtherance of joint criminal activity was reasonably foresee-

able to defendant; since guns are common to drug trading, it is fairly

inferable that codefendant's possession of gun is foreseeable absent

exceptional circumstances), cert. denied, 114 S. Ct. 1550 (1994).

Although Fisher was convicted of possession with intent to distribute

and not of firearm possession, it is clearly inferable that Fisher could

have foreseen Williams' carrying firearms to complete the intended

illicit drug transaction. The Court may therefore add two points to

Fisher's base offense level for possession of a firearm.

There is a recognized connection between firearm possession and

drugs. In light of the common use of guns during the course of drug

trafficking, physical proximity of firearms to drugs can weigh signifi-

cantly in favor of establishing a sufficient connection for enhance-

ment under § 2D1.1(b)(1). E.g. United States v. White, 875 F.2d 427,

433 (4th Cir. 1989) (noting that weapons are now tools of the trade

in illegal drug operations), Kimberlin, 18 F.3d at 1159. United States

v. Sanders, 990 F.2d 582, 585 (10th Cir.) (finding sufficient the physi-

cal proximity of drugs and guns, which were in trunk of car in which

defendant was arrested) (citing United States v. Wheelwright, 918

F.2d 226, 227 (1st Cir. 1990)), cert. denied, 114 S.Ct. 216 (1993);

United States v. Condren, 18 F.3d 1190, 1197 (5th Cir.), cert. denied,

115 S.Ct. 161 (1994) (rejecting requirement that Government show

nexus between firearm and felony drug possession offense other than

fact of physical proximity of gun and drugs). In the case at bar, the

firearms and drugs, both of which were in the car at the time of the

arrest, were sufficiently related for purposes of§ 2D1.1(b)(1). The

informant met with Fisher and Williams to discuss their joint plans

the day before. We find that Fisher could have foreseen that Williams

would carry a gun to accomplish the drug distribution that Fisher

intended. The district court's finding was not in error and was sup-

ported by a preponderance of the evidence.

III.

Accordingly, we affirm the denial of the motion to suppress and the

imposition of the two-level enhancement to Fisher's base offense

level. We vacate, however, the application of the four-level enhance-

ment to Williams' base offense level and remand the case for resen-

tencing not inconsistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

HALL, Circuit Judge, concurring in part and dissenting in part:

I do not agree that the informant's tip, standing alone, contained

sufficient material details to provide the police with probable cause

to arrest the defendants. See Section II-A, supra. The tip was, how-

ever, more than sufficient to give rise to a reasonable and articulable

suspicion that criminal activity was afoot, thereby permitting the

police to stop the defendants' vehicle and conduct a brief investiga-

tion. See ante, at 5 n.2. Of course, once the police discovered the pis-

tol beneath Williams' seat, probable cause to arrest was established.

I therefore concur in the majority's conclusion that the defendants'

convictions must be affirmed.

Unlike the majority, however, I would affirm the district court's

enhancement of Williams' sentence pursuant to USSG Section

2K2.1(b)(5). Were I required to decide the matter in the first instance,

I might agree with the majority that the informant's tip and the evi-

dence seized from the vehicle did not establish, by a preponderance

of the evidence, the government's contention that Williams would

possess the pistol in connection with a subsequent felony offense. The

district court's finding to the contrary, though, is one of fact, and I

cannot conclude that it was clearly erroneous. I therefore dissent from

the majority's holding in Section II-B, supra .

Notwithstanding my disagreement with Sections II-A and B of the

majority's opinion, I agree that Fisher was properly sentenced, and

thus join the opinion as to Part II-C.

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