4A 4C: Staying With Cooperating Witnesses Can Be Hazardous To Your Stealth

UNITED STATES v. MORELAND, 437 F.3d 424 (4th Cir. 2006), 2006 U.S.App. LEXIS 4166, on appeal from USDC-WVSD, before Chief USCJ Wilkins, USCJ Luttig, USDJ-VAED Kelley by designation, opinion by Wilkins, filed 22 Feb 2006.

LONG STORY SHORT: Defendant's host, who happened to be a CI, consented to a search of the residence by opening the door to police when they knocked, and evidence seized during Defendant's arrest would not be suppressed. Binding in MD, NC, SC, VA, WV.

FACTS: A confidential informant tipped off West Virginia state troopers that someone named Bones would be coming to CI's house to sell cocaine base. Bones showed up, but instead of staying, dropped off Defendant, and CI invited Defendant to stay. At CI's request, Trooper Perdue drove to CI's house with Trooper Berry, who gave Defendant marked currency in exchange for 5.93g cocaine base.

At 0200 the following morning, officers including Trooper Perdue knocked on CI's door and announced their presence. CI could not understand them through the door, and opened it. Once he saw the officers there, he considered them welcome to come in. They did so, even though they did not expressly ask permission and CI did not expressly give permission; rather, they directed CI to stand aside and he complied. Officers arrested Defendant, who had 1.92g cocaine base and $420 in marked bills that Trooper Perdue had given him for the earlier purchase.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of West Virginia on two counts of possession with intent to distribute cocaine base. Defendant moved to suppress all evidence taken after his arrest, arguing that the officers had neither a warrant nor the homeowner's consent to search. The trial court held that CI's close relationship with police and his implied consent were enough to make a warrant unnecessary. MOTION TO SUPPRESS DENIED. The U.S. introduced the cocaine base and money as evidence at trial, and the jury convicted Defendant on both counts. The trial court departed downward from the guideline of 30 to life as a career offender, holding that a sentence that severe would overrepresent Defendant's criminal history, and imposed the statutory 10-year minimum. Defendant appealed his convictions, and the U.S. cross-appealed his sentence, to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: The trial court made no clear factual errors in finding that CI had a close relationship with law enforcement and that he meant to consent to the officers' entry. Reasonable officers could have taken CI's voluntarily opening the door and not objecting to entry, combined with CI's cooperation in setting up the controlled buy earlier in the day, as a totality of circumstances establishing consent to entry and search for Defendant. DENIAL OF SUPPRESSION AFFIRMED. Since Defendant's trial was otherwise fair, his convictions would be affirmed as well.

However, while the trial court reasonably varied from the advisory guideline sentence, the amount of the variance was not reasonable. SENTENCE VACATED and remanded to the trial court for imposition of not less than 20 years.

EDITORIAL: Simple and sweet. I even agree with the sentencing decision. Gold star to whoever developed the CI here. The result was a dead-bang case and a safe, swift arrest.