4A 4C 2006: Plenty Of Reliable Intel Makes Lemonade From Dry Hole, But About That Crack/Powder Disparity ...

UNITED STATES v. EURA, 440 F.3d 625 (4th Cir. 2006), NO. 05-4437, 05-4533, 2006 U.S.App. LEXIS 4535, on appeal from USDC-VAED, before USCJs Wilkinson, Michael, SrUSCJ Hamilton, opinion by Hamilton, concurrence by Michael, filed 24 Feb 2006.

LONG STORY SHORT: Even though the warranted search of Defendant's house turned up no drugs, the police already had enough reasonable suspicion for a K9 sniff of Defendant's vehicle without offending the Fourth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: Fredericksburg, VA PD's narcotics unit knew Defendant to be a crack dealer. Relying on a confidential source who had repeatedly bought crack cocaine there, DEA agents obtained a search warrant for Defendant's house in Fredericksburg, VA. DEA agents served the warrant at 2130, finding Defendant at home and handcuffing him for safety reasons. Agents discovered several "automatic" weapons, which Defendant admitted were his. An unidentified person said, and DMV checks confirmed, that two cars on the street were Defendant's. After Defendant refused consent to search the cars, a K9 unit walked around the cars, alerting to the presence of drugs in one of them. Agents opened the car and with K9 assistance found 11g crack, 26.6g ecstasy, and a loaded firearm. They never did find any drugs in Defendant's house.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia for possession with intent to distribute 50g or more of crack, possession with intent to distribute 5g or more of crack, and possession of a firearm in furtherance of a drug trafficking offense. Defendant moved to suppress all evidence found in his car, arguing that once the warranted search of his house turned up empty, the Fourth Amendment required him to be left in peace. MOTION TO SUPPRESS DENIED. A jury acquitted Defendant of possessing 50g or more of crack, but convicted him of possessing 5g or more and of possessing a firearm in furtherance of a drug trafficking offense.

The trial court gave him 60 months for the crack conviction, which was the mandatory minimum and below the 78 months bottom guidelines, but consistent with the Sentencing Commission's repeated recommendations to narrow the 100:1 crack/powder ratio. Defendant also got 60 months minimum mandatory for the firearm count, which the trial court ran consecutively, for a total of 120 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit, arguing that the motion to suppress should have been granted. The United States cross-appealed the crack sentence as unreasonably not in keeping with congressional intent to sentence crack offenders to 100 times what the same amount of powder cocaine would justify.

DECISION: Agents needed reasonable suspicion that drugs might be found in Defendant's car in order to detain it long enough for a K9 sniff. Reasonable suspicion, though, is not reducible to a neat set of rules; it depends on common sense and practical considerations of everyday life. Less than probable cause, but at least a minimal level of objective justification, is the hallmark of reasonable suspicion. By no means may the police always search a subject's car in hopes of finding drugs that were not in his home, but neither does such a disappointment negate all of the information that established probable cause to issue the search warrant. Here, many pieces of reliable information about Defendant's drug dealing added up to reasonable suspicion for a K9 sniff. Once the K9 alerted to Defendant's car from the outside, the agents had probable cause, by Fourth Circuit standards at least, to open the car and search further. The trial court correctly denied Defendant's motion to suppress. CONVICTIONS AFFIRMED.

The trial court was not necessarily free to vary from the congressional intent of 100:1 crack/powder sentencing and substitute the Sentencing Commission's recommendations to bring crack and powder cocaine sentences closer together. While trial courts might be justified in thinking this treatment inequitable, some trial courts would fix it by reducing crack sentences, and others would increase powder sentences, leading to massive inconsistency. Trial courts may not categorically reject the 100:1 ratio because it seems unfair, but must identify individual aspects of each defendant's case that justify variance. Here, there were no facts about Defendant's case that removed it from the typical crack offense, so the trial court should not have dropped below the bottom of the advisory guidelines. SENTENCE VACATED as to the crack count and REMANDED for imposition of 78 months bottom guidelines, consecutive to 60 months for the firearm count.

The concurrence agreed with the suppression decision, but concurred only in the judgment of 78 months instead of 60, but extensively discussed the significant evidence for reduction of the 100:1 ratio as exaggerating the effects of crack over powder.

EDITORIAL: Another dry hole that became not so annoying after all. Now this dope-slinger knows that moving his stash off premises doesn't help him, because cars on a public street are much LESS protected than private homes on private lots are. Good on DEA for building a strong case before getting a warrant, and it saved their bacon. I put "automatic" weapon in quotes because they must have been only semi-automatic, otherwise this guy would have been charged with possession of unregistered machine guns.

Then there's those U.S. Sentencing Guidelines, which are supposed to be dead, but they rule us from their mass grave. Even when, for once, they seem to help the defendant, out they go, because of politics. Again, I'm uncomfortable with the government being allowed to appeal sentences for anything other than rank illegality. Crack is BAD but not 100 times badder. I'd increase the powder sentences to make things less unfair.