APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]
Sarah A. Churchill, with whom Nicholas & Webb, P.A., was on brief, for appellant Campbell.
Timothy E. Zerillo, with whom John M. Burke and Zerillo Law LLC, were on brief, for appellant Porteous.
Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief for appellee.
Before Torruella, Ripple [*] and Thompson, Circuit Judges.
RIPPLE, Circuit Judge.
Terrell Campbell and Esley Porteous both pleaded guilty to conspiracy to possess fifteen or more counterfeit access devices, in violation of 18 U.S.C. §§ 371 and 1029(b)(2) (Count One), and possession of fifteen or more counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count Two). Mr. Campbell also pleaded guilty to the use of one or more counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(1) (Count Six). The district court sentenced Mr. Campbell to eighteen months' imprisonment and three years' supervised release and sentenced Mr. Porteous to twelve months' imprisonment and three years' supervised release. Both defendants were ordered to pay restitution in the amount of $8, 687.01, for which they are jointly and severally liable.
The defendants timely appealed. They now argue that law enforcement officers lacked reasonable suspicion for the vehicle stop under Terry v. Ohio, 392 U.S. 1 (1968), that law enforcement's ensuing warrantless search of the vehicle violated the Fourth Amendment, that the search warrant later obtained for the vehicle did not issue on probable cause and that admission of the defendants' uncounseled statements made at the scene of the Terry stop violated the Fifth Amendment because they were obtained without warnings, in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Additionally, Mr. Campbell challenges his sentence.
We affirm the judgment of the district court for the following reasons. First, the district court correctly held that the stop of the defendants' vehicle did not violate the Fourth Amendment. Accordingly, the warrant issued for the search of the car was not tainted by an illegal stop. Second, the defendants have failed to establish that they had a reasonable expectation of privacy in the vehicle searched after the stop. Therefore, they can neither object to the search nor seek suppression of the evidence obtained in that search. Third, the admission of statements obtained through the officers' questioning of the defendants at the traffic stop did not violate the Fifth Amendment. Consequently, the district court properly refused to suppress evidence gained as a result of the questioning. Finally, the district court did not abuse its discretion in imposing a mid-guidelines-range sentence on Mr. Campbell.
On May 21, 2011, Scarborough Police Department Patrol Officer Craig Hebert responded to a report of suspicious conduct at an electronics store, Bull Moose, in Scarborough, Maine. Officer Hebert and a colleague, Officer Tim Dalton, interviewed the store's clerks. The clerks told the officers that three black men had come to the store. Each one entered separately and departed before the arrival of the next one. Each had attempted to purchase video game systems. The first man successfully used a credit card to pay $700 for two systems. The second man attempted a similar purchase, but both credit cards he presented were declined. The name on both of the declined credit cards was the same name as the one on the credit card presented earlier by the first man. The third man entered the store and expressed an interest in purchasing video game systems. A clerk told him that Bull Moose could not sell him a game system and suggested that he go to the Toys "R" Us store in South Portland, Maine. The three men departed together in the same SUV, which had New York license plates. The clerks told the officers the vehicle's license plate number and said that the men likely were headed to Toys "R" Us.
Officer Hebert called dispatch; he provided a description of the vehicle and its license plate number, and he said that the vehicle was occupied by three black males. South Portland Police Department Patrol Officer Kevin Gerrish heard the dispatch call to look for the SUV in the Toys "R" Us parking lot. He identified an unoccupied vehicle matching the description. Officer Gerrish waited in the parking lot and saw three black males exiting Toys "R" Us carrying bags of merchandise. The men got into the vehicle and left the store parking lot. Officer Gerrish called dispatch, and either dispatch or Officer Hebert told Officer Gerrish to stop the vehicle.
Officer Gerrish stopped the vehicle in a hotel parking lot. He approached the vehicle and requested a license from the driver, Michael Barnes, as well as the vehicle's registration and proof of insurance. Barnes was unable to produce a license. Mr. Campbell and Mr. Porteous both provided valid identification at Officer Gerrish's request. Officer Gerrish told the men that there was a report that they had had trouble with credit cards at Bull Moose. Their response was "evasive"; one man said that he was not at Bull Moose, and the others confirmed the assertion. Officer Gerrish testified that, at some point during this initial exchange of information, he smelled the scent of marijuana coming from the vehicle.
Officer Gerrish asked Barnes to get out of the car. Barnes got out of the car and spoke with Officer Gerrish away from Mr. Campbell and Mr. Porteous. Barnes told Officer Gerrish that the vehicle was rented and that the men were visiting friends in the area. Officer Gerrish patted down and handcuffed Barnes.
In the meantime, Officer Hebert arrived on the scene. Officer Hebert asked Mr. Campbell, who was sitting in the rear passenger-side seat, to exit the vehicle. Mr. Campbell complied, and Officer Hebert led him away from the vehicle for questioning. Mr. Campbell identified himself, said that he was from Brooklyn and said that he and the other men were visiting family in the area. Mr. Campbell initially said that he had been at Bull Moose, but later denied being there and said that he had been in a nearby Subway sandwich shop. When asked about using credit cards at Bull Moose, Mr. Campbell said, according to Officer Hebert, "what cards, what credit cards."
Two additional officers also arrived on the scene, Officer Dalton and Scarborough Police Department Sergeant Tom Chard. Sergeant Chard brought a "K-9 partner, " a Belgian Malinois named Chesca. Sergeant Chard asked Mr. Porteous, who was seated in the front passenger-side seat, to exit the vehicle. Sergeant Chard asked Mr. Porteous what the men were doing in the area, and Mr. Porteous said they were looking for jobs. Mr. Porteous said that he had rented the vehicle.
None of the defendants were given Miranda warnings at any time during the stop. While other officers were speaking to the defendants, Officer Gerrish entered the driver's side of the vehicle, front and back, and briefly looked over the passenger compartment. He also opened the hatchback and briefly looked over merchandise located there.
Then, Sergeant Chard asked Mr. Porteous whether he could put Chesca in the car. Mr. Porteous responded affirmatively. Sergeant Chard put Chesca into the vehicle, and he observed her alerting in three areas: the glove box, the pocket of the passenger-side front door and the center console. Without requesting additional consent, Sergeant Chard searched the glove box and the center console and found only marijuana residue. When Chesca alerted to the glove box, it was locked. Sergeant Chard retrieved a vehicle key, unlocked the glove box and searched inside. In the glove box, he found a box, which he also opened. Inside the box, he found approximately fifty identification and credit cards and three wallets.
After finding the box containing the cards, the officers handcuffed the defendants and transported them for processing. The officers seized the vehicle and impounded it. The South Portland Police Department received a warrant from a judge of the Maine district court to search the vehicle. The warrant authorized the police to ...