Filed: Aug. 23, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-60912 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL CLARK, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:99-CR-94-1-P August 22, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Michael Clark appeals from his conviction based on his conditional guilty plea for possession with intent to distribute co
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-60912 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL CLARK, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:99-CR-94-1-P August 22, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Michael Clark appeals from his conviction based on his conditional guilty plea for possession with intent to distribute coc..
More
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60912
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL CLARK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:99-CR-94-1-P
August 22, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Michael Clark appeals from his conviction based on his
conditional guilty plea for possession with intent to distribute
cocaine base. He argues that the district court erred in denying
his motion to suppress evidence allegedly seized in violation of
his Fourth Amendment rights.
Because the district court did not make factual findings as
required by Fed. R. Crim. P. 12(e) following the hearing on the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
motion to suppress, we review the record to determine whether any
reasonable view of the evidence supports the district court’s
decision, looking particularly to the testimony and other evidence
presented at the suppression hearing.1 A traffic stop constitutes
a permissible Terry stop if the officer's action was justified at
its inception and the detention was reasonably related in scope to
the circumstances that justified the interference in the first
place.2 A review of the evidence presented at the evidentiary
hearing indicates that the initial stop of Clark’s vehicle was
based on the officers’ observation that the vehicle had no
inspection sticker and that the vehicle made an improper lane
change without using a turn signal. Therefore, the initial stop of
the vehicle for traffic violations was justified at its inception.3
It was also permissible for Officer Jeff Cunningham to require
Clark and his passenger to exit the vehicle during the stop and to
question Clark while Officer Harrison Cook obtained a computer
check of Clark's driving record.4
1
United States v. Paige, 136 F.3d 1012, 1017 (5th Cir.
1998); United States v. Schinnell,
80 F.3d 1064, 1067 & n.4 (5th
Cir. 1996).
2
United States v. Jones, 234 F.3d 234, 240 (5th Cir. 2000);
United States v. Zucco,
71 F.3d 188, 190 (5th Cir. 1995).
3
See Whren v. United States, 517 U.S. 806, 810 (1996);
United States v. Shabazz,
993 F.2d 431, 435 (5th Cir. 1993).
4
United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th
Cir. 1999);
Shabazz, 993 F.2d at 437 n.7.
2
Clark was detained, however, even after Officer Cunningham
received a report from the computer check and beyond the time
necessary to issue citations based on the lack of an inspection
sticker and the improper lane change. Absent other grounds of
reasonable suspicion for extending Clark's detention, Officer
Cunningham's questioning about the presence of drugs in the vehicle
while maintaining control of Clark's identification card would
violate the Fourth Amendment.5 However, Officer Cunningham also
testified that he observed that, when the passenger, Therion Clark,
saw the police car, Therion reached into the back seat to get a
jacket and then leaned forward, dropping his shoulder as if to
retrieve or hide something under the front passenger seat. Officer
Cunningham testified that these actions made him suspicious that
the passenger was reaching for or hiding something. These
suspicious movements, taken before the officers detained the
occupants of the vehicle, created a reasonable suspicion that
justified the further detention of Clark in order to question him
about the presence of drugs in the vehicle and to ask for consent
to search the vehicle.6 Officer Cunningham testified that Clark’s
consent to search the vehicle was obtained within approximately ten
5
Jones, 234 F.3d at 241; United States v. Dortch,
199 F.3d
193, 198-200 (5th Cir. 1999), revised on other grounds on denial of
rehearing,
203 F.3d 883 (5th Cir. 2000); see also
Shabazz, 993 F.2d
at 436-37.
6
See United States v. Watson, 953 F.2d 895, 897 (5th Cir.
1992).
3
minutes of the initial stop. Under such circumstances, Clark has
not shown that the stop, his removal from the vehicle, and his
detention for investigation exceeded the scope of a permissible
Terry stop.7
Clark argues that his consent to search the vehicle was
vitiated by his illegal detention. We have already held that Clark
was not illegally detained and so do not address this argument.8
Clark also argues that his consent was limited to a search of
the trunk and so, by searching the passenger compartment, Officer
Cunningham exceeded the permissible scope of the consent search.
A consent to search a vehicle may be limited or qualified by the
person consenting, and the officers must then conform to the limits
or conditions placed upon the right granted to search.9 A
reasonable view of the evidence, however, shows that Clark
consented to a search of the vehicle, including the passenger
compartment. Officer Cunningham asked permission to search the
vehicle, and Clark consented but asked to stay with Officer
Cunningham during the search. Officer Cunningham explained that
Clark could not stay with him during the search for “officer safety
7
See Terry v. Ohio, 392 U.S. 1, 19 (1968);
Zucco, 71 F.3d at
191.
8
See United States v. Navarro, 169 F.3d 228, 231-32 (5th
Cir. 1999).
9
Fla. v. Jimeno,
500 U.S. 248, 252 (1991); United States
v. Ho,
94 F.3d 932, 936 n.5 (5th Cir. 1996).
4
reasons” and again asked Clark for permission to search the
vehicle. Officer Cunningham further advised Clark that he did not
have to allow the search of the vehicle. Officer Cunningham
testified that Clark then stated that the officer could search the
car, and Clark was allowed to watch the search from the rear of the
vehicle. A reasonable view of the record reveals that a typical
reasonable person would have understood from the exchange between
Officer Cunningham and Clark that Clark consented to the search of
the passenger compartment.10 Furthermore, at the time Clark
consented to the search, he was not under arrest, and the record
contains no evidence that the police officers coerced Clark in any
way. Clark cooperated with the officers, provided his
identification card, and answered questions asked of him. A review
of the evidence thus indicates that Clark voluntarily consented to
a search of the vehicle and that the search did not exceed the
scope of the consent.11 Clark has not shown that the district court
erred in denying his motion to suppress the evidence seized during
the search of the vehicle.
Clark also argues that the district court erred in determining
that he was not a minimal participant in the offense for purposes
of a reduction under U.S.S.G. § 3B1.2. The defendant bears the
10
Jimeno, 500 U.S. at 251; United States v. Rich,
992 F.2d
502, 505, 507 (5th Cir. 1993).
11
Navarro, 169 F.3d at 231; United States v. Kelley,
981 F.2d
1464, 1470 (5th Cir. 1993);
Shabazz, 993 F.2d at 438-39.
5
burden of proving his role as a minimal participant in the offense
by a preponderance of the evidence.12 Whether Clark was a minimal
participant entitled to a four-level reduction pursuant to U.S.S.G.
§ 3B1.2(a) is a factual determination that we review only for clear
error.13 This Circuit's case law holds that a defendant is not
automatically entitled to a minimal participation reduction simply
because, like Clark, he is a drug courier.14 The commentary to
section 3B1.2 makes clear that a defendant's lack of knowledge or
understanding of the activities of others is indicative of a role
as minimal participant.15 Clark acknowledged that he had knowledge
that his passenger, Therion, had possession of the cocaine base,
and Clark knowingly provided transportation to Therion to enable
him to deliver the cocaine base. Although there was no direct
evidence that Clark was paid for providing the transportation,
police officers found 3.6 grams of marijuana and 8.57 grams of
cocaine base in Clark’s jacket in the vehicle. The commentary to
U.S.S.G. § 3B1.2 provides as an example of a minimal participant in
a drug offense an individual was recruited as a courier for a
12
United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995).
13
United States v. Becerra, 155 F.3d 740, 757 (5th Cir.
1998).
14
Rosier v. United States Parole Comm’n, 109 F.3d 212, 214
(5th Cir. 1997); United States v. Buenrostro,
868 F.2d 135, 138
(5th Cir. 1989).
15
U.S.S.G. § 3B1.2, cmt. n.1 (1998).
6
single smuggling transaction involving a small amount of drugs.16
While Clark may have been a courier for only a single drug
transaction, the transaction involved a large amount of cocaine
base, 261.91 grams. On the facts in the record before us, the
district court did not err in determining that Clark was not a
minimal participant in the offense under section 3B1.2.
AFFIRMED.
16
Id. § 3B1.2, cmt. n.2.
7
