                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2008

USA v. Carter
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4021




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-4021
                                    ____________

                           UNITED STATES OF AMERICA

                                            v.

                                   RAKIEM CARTER,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 05-cr-00601-1)
                      District Judge: Honorable John R. Padova
                                    ____________

                            Argued January 10, 2008
          Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                               (Filed: February 15, 2008)

Mark E. Cedrone (Argued)
Cedrone & Janove
150 South Independence Mall West
Suite 940, Public Ledger Building
6th and Chestnut Streets
Philadelphia, PA 19106
       Attorney for Appellant

Maria M. Carrillo (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Attorney for Appellee
                                       ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

       Rakiem Carter was convicted of (1) conspiracy to distribute crack cocaine,

(2) possession with intent to distribute more than five grams of cocaine base and aiding

and abetting, and (3) possession of a firearm in furtherance of a drug trafficking crime

and aiding and abetting. He appeals the District Court’s judgment, arguing that physical

evidence should have been suppressed and that there was insufficient evidence to convict

him of possession of a firearm in furtherance of a drug trafficking crime. For the reasons

that follow, we will affirm.

                                              I.

       Because we write exclusively for the parties, who are familiar with the factual

context and legal history of this case, we will set forth only those facts necessary to our

analysis.

       In August 2004, Officer Henry of the Philadelphia Police Department Narcotic

Field Unit participated in an investigation in the 2600 block of North 30th Street. That

investigation resulted in the arrest of Rakiem Carter. The police recovered marijuana

from Carter’s person and more drugs from a duffel bag that was on the porch of his




                                              2
residence at 2614 North 30th Street. The record does not reveal what happened after the

arrest.

          On December 2, 2004, Officer Henry conducted another investigation in the 2600

block of North 30th Street, and as the investigation unfolded, he began to specifically

target Carter’s residence. From an unmarked police vehicle, Officer Henry observed

Maurice Cunningham, who was on the sidewalk in front of Carter’s residence, participate

in three transactions that appeared to be drug sales. Individuals approached Cunningham

and gave him money, and he gave them small items from a plastic baggie.

          During this time period, police observed that Carter exited the residence, spoke

with Cunningham, walked away northbound, and returned carrying a green book bag.

Carter again spoke with Cunningham, then walked up the steps and into the house

carrying the bag.

          Another transaction took place between Cunningham and an individual in a silver

BMW. After the BMW drove away, the driver was arrested. Pink-capped vials

containing crack cocaine were recovered from the driver’s person and from the car.

          Officer Henry decided to attempt a controlled buy through a confidential

informant. Shortly afterward, police observed Cunningham on the porch of 2614 North

30th Street with two other men. The three men then entered the house. When the

confidential informant arrived, he went up the steps and knocked on the door. Almost

immediately, the informant jumped off the porch and headed quickly up the street,



                                               3
pursued by Cunningham, Carter, and one or two other men who had all come out of the

house. Carter yelled at the informant, “Don’t you ever knock on my fucking door. You

ain’t the fuck from around here, you know that.”

       Cunningham, Carter, and the others went back into the house. A few minutes

later, police observed that a man came out of the house and walked away while looking

up and down the street and talking on a mobile telephone. Immediately after this

individual ended his call, Cunningham and Carter came out of the house. Carter was

carrying the green book bag and holding a key. After Cunningham and Carter walked

around the corner, the police lost sight of them. A few moments later, the police saw

Cunningham and Carter standing beside a Nissan Maxima with its trunk open. Carter

leaned into the trunk, then leaned away and closed the trunk. Cunningham stood on the

pavement at the rear of the car.

       Cunningham and Carter were arrested as they walked away from the car. Police

officers remained on the scene in an unmarked car to guard the Maxima. Unknown

individuals twice attempted to gain access to the Maxima, but fled when the officers got

out of the unmarked car. A narcotics dog indicated that it detected drugs on all four doors

and the trunk, and the police took the Maxima to their headquarters in order to keep it and

its contents safe. They obtained a search warrant for the Maxima and found the green

book bag in its trunk. Inside the book bag were powder cocaine, a bowl with cocaine

residue, scales, bulk marijuana, jars for bottling marijuana, and 153 pink-topped vials of



                                             4
crack cocaine (identical to the vials recovered from the silver BMW). The total net

weight of the crack cocaine was 5.761 grams.

       Carter and Cunningham were indicted. The District Court denied Carter’s pretrial

motion to suppress the drugs, gun, and other items found in the green backpack, finding

that there was probable cause for Carter’s arrest and search. Carter and Cunningham

were tried together before a jury. The jury found Carter guilty of the three charges

against him, and Carter filed this timely appeal.

                                               II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291.

       “We review the denial of a suppression motion for clear error as to the underlying

facts, but exercise plenary review as to its legality in light of the district court’s properly

found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006). When reviewing

a jury verdict for sufficiency of the evidence, we “view[] the evidence in the light most

favorable to the government [and] . . . sustain the verdict if any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” United States

v. Greenidge, 495 F.3d 85, 100 (3d Cir. 2007) (internal quotation marks and citation

omitted).




                                               5
                                             III.

       Carter argues that the District Court erred in denying his pretrial motion to

suppress physical evidence (the keys he was holding at the time of his arrest and the

contents of the backpack, which included a gun, drugs, and drug paraphernalia). Carter

claims that there was no probable cause for the arrest or for the search warrant, so all

items seized incident to the arrest, following the arrest, and pursuant to the warrant should

have been suppressed.

       As we have explained:

       Police have probable cause to arrest if the circumstances are sufficient to
       cause a prudent person to believe that a crime has been committed and the
       person to be arrested committed it. Probable cause is determined by the
       totality of the circumstances. We must assess the knowledge and
       information which the officers possessed at the time of arrest, coupled with
       the factual occurrences immediately precipitating the arrest in determining
       if probable cause existed.

United States v. Stubbs, 281 F.3d 109, 122 (3d Cir. 2002) (internal quotation marks and

citations omitted). Therefore, when deciding whether Carter’s arrest was supported by

probable cause, we must consider what the police officers knew and the events they

observed on the morning of the arrest.

       Contrary to Carter’s assertion, he was not arrested simply because of his

interactions with Cunningham. As Carter points out, mere fraternization with drug

dealers does not provide probable cause for arrest. United States v. Harris, 482 F.2d




                                              6
1115, 1118 (3d Cir. 1973). However, fraternization in combination with other

interrelated factors can provide probable cause. Id.

       In Carter’s case, the facts known and observed by the police allowed them to

conclude, based on the totality of the circumstances, that there was probable cause to

believe that Carter was engaged in drug trafficking. First, the police knew that Carter had

been arrested four months earlier and was found to possess drugs at that time. Carter’s

prior arrest, by itself, does not provide probable cause, but it is one of the facts that make

up the totality of the circumstances. Second, Carter’s interaction with Cunningham was

ongoing throughout the morning: he spoke with Cunningham as he left his house and as

he returned; Cunningham was selling drugs in front of his doorstep; Cunningham stood

on his front porch and went into his house; and Cunningham and Carter (together with

one or two others) chased away the confidential informant.1 Third, Cunningham and

Carter left the house together shortly after the confidential informant’s attempted buy, and

they went around the corner and put Carter’s book bag in the trunk of a parked car. The

time line of events supports an inference that Carter’s suspicions had been aroused by the




       1
        Carter asserts that his response to the confidential informant is probative of
innocence, not guilt. However, we find it at least equally plausible that Carter’s actions
and remarks showed his involvement in drug dealing. The police could have reasonably
concluded that Carter’s angry response was due to the fact that the confidential informant
was an unknown person, was not to be trusted, and could pose a threat to a drug dealing
operation.

                                               7
confidential informant and that he was concealing the book bag in order to avoid

detection of his drug-related activities.

       The totality of the circumstances was sufficient to cause the police to conclude that

a drug trafficking crime was being committed and that Carter was one of the persons

committing it. Therefore, Carter’s arrest was based on probable cause, and the District

Court did not err when it denied Carter’s suppression motion on this ground.

       Carter also argues that the Maxima was seized incident to an unlawful arrest, and

therefore its contents should have been suppressed. Even if the arrest had been unlawful,

this argument would fail, because the Maxima was not seized or searched incident to the

arrest.2 Hours after Carter’s arrest, the Maxima was briefly impounded to secure its

contents because unknown individuals twice attempted to gain access to it. The car was

searched after Carter was long gone from the scene and after the police had obtained a

search warrant from a magistrate. Thus, the Maxima was neither seized nor searched

incident to the arrest, so evidence in the green book bag need not have been suppressed as

the fruit of the poisonous tree.


       2
         Carter argues that the police seized the Maxima by seizing its keys upon his arrest.
However, the seizure of the keys could not have amounted to a seizure of the car, because
after the police seized the keys, unknown individuals repeatedly attempted to gain access
to the car. It was because the car had not been seized incident to Carter’s arrest that the
police found it necessary to move the car to headquarters to safeguard its contents. The
fact that Carter was carrying Nissan keys when he was arrested strengthened the warrant
affidavit by helping to demonstrate that there was probable cause to search the Maxima,
but the keys did not provide the only link between Carter and the car, since the police
observed him walking toward the car, and a few moments later, closing its trunk.

                                             8
       Carter next asserts that the search warrant for the Maxima was not supported by

probable cause. He argues that there was no evidentiary link, or nexus, between the

illegal activities and the Maxima.3

       “A magistrate judge may find probable cause when, viewing the totality of the

circumstances, ‘there is a fair probability that contraband or evidence of a crime will be

found in a particular place.’” United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001)

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). We do not require direct evidence

that contraband is in a particular place. Hodge, 246 F.3d at 306. “Instead, probable cause

can be, and often is, inferred by considering the type of crime, the nature of the items

sought, the suspect’s opportunity for concealment and normal inferences about where a

criminal might hide the fruits of his crime.” Id. at 305 (internal quotation marks and

citations omitted).

       The warrant affidavit, which is four pages long, contains detailed information

about the occurrences on the morning of Carter’s arrest. Just as this information was

sufficient to provide probable cause to arrest Carter, it, combined with the intervening




       3
        Carter also asserts that there were factual inaccuracies in the warrant affidavit.
We need not address this argument in any detail. First, Carter states that the inaccuracies
would take the warrant outside the ambit of the good faith exception, but since the
warrant was supported by probable cause, there is no need to invoke the good faith
exception. See United States v. Leon, 468 U.S. 897, 915 (1984). Second, Carter does not
argue or prove – as required by our case law – that the supposed misstatements were the
result of bad faith or reckless disregard and that probable cause would have been lacking
but for the factual errors. United States v. Frost, 999 F.2d 737, 743 (3d Cir. 1993).

                                              9
alert of the police narcotics dog, provided ample basis for the magistrate to determine that

there was probable cause to search the Maxima. There was a fair probability, based on

the activities of the morning, that the green backpack contained evidence or contraband.

The police saw that Carter had the backpack as he approached the Maxima, and that he no

longer had the backpack when he closed the Maxima’s trunk. Therefore, it was logical to

conclude that the backpack was in the car’s trunk. The District Court did not err when it

found that the warrant was supported by probable cause and denied the suppression

motion.

       Finally, Carter attacks his conviction for possession of a firearm, arguing that the

evidence was insufficient to show that he possessed the gun in the green backpack in

furtherance of a drug trafficking crime, as required by 18 U.S.C. § 924(c). We have

explained:

       Under § 924(c), the mere presence of a gun is not enough. What is instead
       required is evidence more specific to the particular defendant, showing that
       his or her possession actually furthered the drug trafficking offense . . . . In
       making this determination, the following nonexclusive factors are relevant:
       the type of drug activity that is being conducted, accessibility of the firearm,
       the type of the weapon, whether the weapon is stolen, the status of the
       possession (legitimate or illegal), whether the gun is loaded, proximity to
       drugs or drug profits, and the time and circumstances under which the gun
       is found.

United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004) (internal quotation marks and

citations omitted).




                                             10
       The type of drug activity being conducted was street sales by Cunningham, who

was apparently working together with Carter in some fashion. The firearm was accessible

to Carter, since he could have easily retrieved it from the backpack if he had encountered

any threat. The record does not show whether the gun was stolen and whether Carter

possessed it legally, but the gun was loaded when the police recovered it from the

backpack. In addition, the gun was in close proximity to drugs, since all of the items

were being carried together in the same bag. The time and circumstances under which the

gun was found are relevant, since it would have been reasonable for the jury to infer that

Carter was concealing the gun and drugs in response to a perceived threat from the

confidential informant.

       Viewing the evidence in the light most favorable to the government, a rational jury

could have found beyond a reasonable doubt that Carter’s possession of the gun actually

furthered a drug trafficking offense and thus met the requirements of 18 U.S.C. § 924.

                                            IV.

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                            11
