United States v. Spearman, 4th Cir. (2007)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 06-4244
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
KELVIN LORENZO SPEARMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:05-cr-00060-RLW)
Argued:
September 26, 2007
Decided:
November 15, 2007
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and Joseph F.

ANDERSON, Jr., United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: John Bertram Mann, CANFIELD, BAER, HELLER & JOHNSTON,

L.L.P., Richmond, Virginia, for Appellant. Charles Everett James,
Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Kelvin Spearman (defendant) was charged in a fourcount superseding indictment for conspiracy to possess with intent
to distribute cocaine base (crack cocaine), in violation of 21
U.S.C. 846 (Count One), possession with intent to distribute
cocaine
base,
in
violation
of
21
U.S.C.
841(a)(1),
841(b)(1)(B)(iii) and 860 (Count Two), as well as two other

counts not at issue on appeal.
Following the denial of his motion
to suppress evidence of crack cocaine discovered during the course

of a search of defendants vehicle, a jury convicted defendant on
all four counts.
Defendant timely appeals his convictions on
Counts One and Two, arguing that the district court erred when it
denied the suppression motion and that the evidence did not support
his conviction on the conspiracy count.
For the reasons that
follow, we affirm.
I.
Defendant first raises a Fourth Amendment challenge to the
traffic stop1 that preceded the seizure of crack cocaine from
underneath the drivers seat of the vehicle that he was driving.
Defendant contends that the police officer who initiated the
This opinion uses the term traffic stop because the

parties briefs refer to the subject event as a traffic stop.
However, the parties conceded at oral argument that the police did
not effect a traffic stop, but that the defendant stopped his car
and the police pulled in behind him after he stopped, as described
more fully infra at page 4.
2
traffic stop lacked probable cause or reasonable suspicion to stop

the vehicle and, therefore, any evidence derived from that stop
should have been suppressed.
A.
At a hearing on the suppression motion, Richmond City Police
Detective
Rahmel
Logan
testified
that,
with
the
use
of
confidential source, he and other officers conducted an undercover

buy operation on July 15, 2004 in the West Moore Street area of
Richmond, Virginia.
Detective Logan testified that he observed
defendants maroon Cadillac slowly cruise through the block and

stop
in
the
individual
middle
approach
of
the
the
street.
vehicle
and
Detective
engage
Logan
the
saw
an
driver
in
conversation through the car window.

The confidential source milled around the area and returned to
Detective
Logans
car
without
making
drug
purchase.
The
confidential source informed Detective Logan that he attempted to

purchase drugs from an individual who did not have any to sell, but
who told him that he could get some from the maroon Cadillac.
The
confidential source stated that he did not feel comfortable going

to the maroon Cadillac to buy drugs, so he left the area and was
picked up by Detective Logan at the other end of the block.
Detective Logan testified that he put the information from the
confidential source over the police radio.
Richmond City Police
Detective Chris Salyer testified that he and Detective Michael
McCray
were
in
their
vehicle
when
they
received
the
radio
transmission from Detective Logan about drugs being available from

the maroon Cadillac.
Upon receiving the radio transmission,
Detective Salyers unmarked vehicle and the maroon Cadillac passed

one
another
going
in
opposite
directions.
While
passing
defendants maroon Cadillac, Detective Salyer observed that the

driver was a black male whom Detective Salyer believed was another
individual known to be an armed drug dealer with a suspended
license.
Approximately
half
block
separated
the
Detective Salyer turned to follow defendant.
vehicles
when
After traveling
through a stop sign, defendant pulled to the shoulder of the curb

and parked within a row of parked vehicles.
Detective Salyer also
drove through the stop sign, and, unable to observe the tag of
defendants vehicle, pulled to the shoulder and parked immediately
behind defendant.
lights.
Detective Salyer did not activate his blue
Both Detective Salyer and Detective McCray then observed
defendant looking in his rear-view mirror toward the detectives

unmarked vehicle.
As Detective Salyer exited the vehicle, he
pulled his badge from under his shirt and, at that point, observed
defendants left shoulder make a downward motion, as if defendant
were reaching under the seat with his left hand.
As Detective
Salyer approached the drivers side door, defendant still was

reaching under his seat and looking in his rear-view mirror, which
showed Detective McCray approaching from the defendants passenger

side.
Detective Salyer tapped on defendants driver-side window and
identified himself as a Richmond Police officer.
pulled his hand out from under the seat.
Defendant then
Detective Salyer asked
what defendant was doing under the seat, and defendant stated that
he dropped his cell phone and made a motion like he was going to
reach back under the seat.
Detective Salyer, however, observed
that a cell phone was already in defendants lap and testified that
he believed defendant might be reaching for a weapon.
Detective
Salyer asked defendant to step out of the vehicle and conducted a

pat-down search that did not reveal any contraband.
Detective
Salyer guided defendant to the rear of the vehicle where defendant

produced identification.
Detective Salyer returned to the vehicle
and, during a protective sweep under the drivers seat, found a

plastic bag of individually-bagged rocks totaling 5.6 grams of
crack
cocaine.
information,
Meanwhile,
which
Detective
revealed
an
McCray
outstanding
ran
defendants
arrest
warrant.
Defendant was arrested for conspiracy to distribute, as well as for

a subsequently-discovered outstanding arrest warrant.
Defendant subsequently moved to suppress the admission of the
crack cocaine found under the drivers seat.
denied defendants motion.
information
transmitted
The district court
The court found that, based on the
over
the
radio
by
Detective
Logan,
Detective Salyer had information that the maroon Cadillac was a

vehicle in which drug transactions could take place.
Therefore,
given the totality of the circumstances, a reasonable officer had

probable cause to stop and search the vehicle.
B.
The Supreme Court has recognized three distinct types of
police-citizen interactions: (1) arrest, which must be supported by
probable cause; (2) brief investigatory stops, which must be
supported
by
reasonable
articulable
suspicion;
and
(3)
brief
encounters between police and citizens, which require no objective

justification. United States v. Weaver, 282 F.3d 302, 309 (4th
Cir. 2002) (citations omitted). In reviewing a denial of a motion
to suppress, we review the factual findings of the district court
for clear error and its legal conclusions de novo. See United
States v. Brown, 401 F.3d 588, 592 (4th Cir. 2005) (internal
quotation marks omitted).
The Fourth Amendment requires that a brief, investigatory stop
of an individual be supported by reasonable, articulable suspicion
that criminal activity is afoot.
Terry v. Ohio, 392 U.S. 1, 30, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonable suspicion

standard is a less demanding standard than probable cause and
requires a showing considerably less than a preponderance of the
evidence. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,
145 L. Ed. 2d 570 (2000).
In deciding whether an officer had the requisite reasonable

suspicion to conduct an investigatory traffic stop, courts apply an
objective test rather than examining the subjective beliefs of the
investigating officer.
Id.
The reasonable suspicion standard is
a commonsensical proposition.
Courts are not remiss in crediting
the practical experience of officers who observe on a daily basis

what transpires on the street.
151, 154 (4th Cir. 1993).
United States v. Lender, 985 F.2d
The Supreme Court has recognized that
individual factors consistent with innocent travel can, when taken

together, give rise to reasonable suspicion.
United States v.
Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

Here,
Detective
Salyer
initially
approached
defendant
in
response to a radio transmission that drugs were available from the

maroon Cadillac defendant was driving.
Even if Detective Salyer
did not have reasonable suspicion for a Terry stop at that time,
cf. Florida v. J.L., 529 U.S. 266, 271-72, 120 S. Ct. 1375, 146 L.
Ed. 2d 254 (2000), the circumstances evolved to present a more
suspicious and dangerous climate when the detectives saw defendant
observing them approach his vehicle and ducking his left shoulder,
apparently reaching under his drivers seat.
Detective Salyer had
received a report over the police radio that drugs were available
from
defendants
car,
and
Detective
Salyer
thought,
though
mistakenly, that defendant was another individual whose license had

been suspended, who was involved in drug trafficking, and who was
known to carry weapons.
Defendants fixation in his rear-view
mirror on the detectives while reaching under his car seat created
heightened tension in an already-known high-crime area.
When
defendant engaged in activity which Detective Salyer reasonably

perceived to be potentially dangerous in nature-seeing
the
detectives approach, unarmed, while reaching for a weapon under the

seat-the totality of the facts known to Detective Salyer combined
to create a reasonable, articulable suspicion that he and Detective
McCray were in danger and that defendant was armed and dangerous.
As we have previously stated, the very point of Terry was to
permit officers to take preventive action and conduct investigative
stops before crimes are committed, based on what they view as
suspicious-albeit even legal-activity. United States v. Perkins,
363 F.3d 317, 326 (4th Cir. 2004)(emphasis in original). We cannot
afford to read the Fourth Amendment to require officers to wait
until
criminal
bystanders
are
activity
physically
occurs,
harmed,
and
perhaps
before
until
taking
innocent
reasonable,
preventive measures. Id. at 328; see Adams v. Williams, 407 U.S.

143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (The Fourth
Amendment does not require a policeman who lacks the precise level
of information necessary for probable cause to arrest to simply
shrug his shoulders and allow a crime to occur or a criminal to
escape. On the contrary, Terry recognizes that it may be the
essence of good police work to adopt an intermediate response.).
Given the totality of the circumstances, we agree with the

district court that Detective Salyer was justified in seizing
defendant, and conducting a pat-down search and protective sweep
for weapons.
We conclude that an officer in Detective Salyers
position would have had an objectively reasonable suspicion that

the maroon Cadillac that defendant was driving was connected with
illicit drug activities. The radio transmission had occurred only
minutes earlier. Independently, Detective Salyer thought the driver
was a known drug dealer who carried weapons and whose license had
been suspended.
Finally, defendant made furtive movements under
the drivers seat when he saw the detectives approaching his

vehicle and provided a unlikely excuse for his movements.
We
conclude
to
that
these
factors,
taken
together,
give
rise
reasonable suspicion sufficient to justify the stop and search

under Terry.
Further,
we
find
that
the
search
under
the
defendants
drivers seat for weapons was permissible as an extension of the

legitimate
Terry
(1983)(search
of
stop.
the
See
Michigan
passenger
v.
Long,
compartment
of
463
an
U.S.
1032
automobile,
limited to those areas in which a weapon may be placed or hidden,

is permissible if the police officer possesses a reasonable belief
based on specific and articulable facts which, taken together with
the rational inferences from those facts, reasonably warrant the
officers in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons). We find the district court

did not err in admitting evidence of the crack cocaine discovered
during Detective Salyers search for weapons under the seat.
Id.
at 1050 (if while conducting a legitimate Terry search of the

interior of the automobile, the officer should discover contraband
other than weapons, he clearly cannot be required to ignore the
contraband,
and
the
Fourth
Amendment
does
not
require
its
suppression in such circumstances).

For the foregoing reasons, we affirm defendants conviction on
Count Two.
II.
Defendant next challenges the sufficiency of the evidence
underlying his conviction on the conspiracy charged in Count One.
The evidence at trial as to the conspiracy count included testimony
by a confidential informant named Chris Cox (Cox) who testified
that he purchased crack cocaine from defendant 60 to 70 times in
varying amounts, including amounts as large as one quarter ounce or
approximately seven (7) grams.
Cox testified that when he bought
an amount that large, he and a group of people would pool their

money to purchase the crack.
Cox also attempted two recorded
controlled crack cocaine buys of $200 each for law enforcement,

resulting
in
actual
purchases
of
10
$80
and
$150
worth.
The
government expert testified that 5.6 grams2 of crack cocaine was

not a typical personal use amount, and that based on his training
and experience, such an amount of crack would be packaged for
resale.
Cox testified that he met defendant through defendants
uncle, Sonny, who served as Coxs former supplier.
Cox testified
that the three of them met together at a Fourth of July block

party, where Sonny told Cox that defendant would take care of him
if he needed anything while Sonny was in Las Vegas for the week.
(J.A. 141).
A defendant challenging the sufficiency of the evidence to
support his conviction bears a heavy burden.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
United States v.
Where, as here, the
motion was based on a claim of insufficient evidence, [t]he

verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.
Glasser v. United States, 315 U.S. 60, 80 (1942).
This court ha[s] defined substantial evidence as evidence that

a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant's guilt beyond a reasonable
doubt. Alerre, 430 F.3d at 693 (quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc)). In evaluating the
The amount of crack found under defendants drivers seat was

5.6 grams. The proof of the conspiracy did not involve the crack
seized from the car, but the expert testimony that 5.6 grams of
crack is not for personal use likewise supports the inference of
distribution for the 7 gram sale.
11
presence of substantial evidence, we consider circumstantial as

well as direct evidence, and allow the government the benefit of
all reasonable inferences from the facts proven to those sought to
be established. United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). This court may not weigh the evidence or review
the credibility of the witnesses. United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997).
A.
To
prove
distribute
in
conspiracy
violation
to
of
possess
21
cocaine
U.S.C.
with
841(a)(1),
intent
to
846,
the
government must establish that: (1) an agreement to possess

cocaine with intent to distribute existed between two or more
persons; (2) the defendant knew of the conspiracy; and (3) the
defendant
knowingly
and
voluntarily
became
part
of
this
conspiracy. Burgos, 94 F.3d at 857.

Defendant contends that the evidence showed only that he and
Cox shared a buyer-seller relationship, not an agreement to
possess
cocaine
with
intent
to
distribute.
Id.
Viewing
the
evidence in the light most favorable to the government, we find

substantial
evidence
to
support
finding
that
defendant's
involvement went beyond that of a buyer-seller. Cox specifically

testified as to his and defendant's involvement with defendants
uncle Sonny, including the three of them meeting to orchestrate the
details of who would be available when to distribute cocaine to
12
Cox.3
See United States v. Brown, 332 F.3d 363, 373 (6th Cir.
2003) ([E]vidence of repeat purchases provides evidence of more

than
mere
buyer-seller
relationship.);
United
States
v.
Bourjaily, 781 F.2d 539, 545 (6th Cir. 1986) (A large volume of
narcotics creates an inference of a conspiracy.).
The court finds a conspiracy was established because (a) Coxs
purchases were of an amount too great to be for only personal use,
even if the drugs were to be shared with friends (whose money was
pooled to make the purchase), thereby sufficiently establishing
intent to distribute; and (b) testimony that Cox purchased from
both defendant and his uncle, Sonny, and testimony that all three
of them met together at a Fourth of July block party and discussed
purchasing drugs from defendant establishes the existence of an
agreement.
For the foregoing reasons, the court finds no error in the
district courts denial of defendants suppression motion and finds
that the evidence supports defendants conviction on the conspiracy
count.
Accordingly, the judgment is affirmed.

AFFIRMED
Defendant also attacks on appeal the credibility of Cox.

However, [t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented. United States v. Murphy, 35 F.3d 143, 148
(4th Cir. 1994).
We find no reason to disturb the jury's
credibility determinations here.
13

United States v. Spearman, 4th Cir. (2007)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

September 26, 2007

November 15, 2007

Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and Joseph F.

Affirmed by unpublished per curiam opinion.

ARGUED: John Bertram Mann, CANFIELD, BAER, HELLER & JOHNSTON,

Unpublished opinions are not binding precedent in this circuit.

841(b)(1)(B)(iii) and 860 (Count Two), as well as two other

Following the denial of his motion

to suppress evidence of crack cocaine discovered during the course

Defendant timely appeals his convictions on

For the reasons that

This opinion uses the term traffic stop because the

traffic stop lacked probable cause or reasonable suspicion to stop

confidential source, he and other officers conducted an undercover

Detective Logan testified that he observed

defendants maroon Cadillac slowly cruise through the block and

conversation through the car window.

confidential source informed Detective Logan that he attempted to

confidential source stated that he did not feel comfortable going

Richmond City Police

Detective Chris Salyer testified that he and Detective Michael

transmission from Detective Logan about drugs being available from

Upon receiving the radio transmission,

Detective Salyers unmarked vehicle and the maroon Cadillac passed

defendants maroon Cadillac, Detective Salyer observed that the

Detective Salyer turned to follow defendant.

through a stop sign, defendant pulled to the shoulder of the curb

Detective Salyer also

Detective Salyer did not activate his blue

Both Detective Salyer and Detective McCray then observed

defendant looking in his rear-view mirror toward the detectives

As Detective Salyer exited the vehicle, he

Salyer approached the drivers side door, defendant still was

showed Detective McCray approaching from the defendants passenger

Detective Salyer asked

Detective Salyer, however, observed

Salyer asked defendant to step out of the vehicle and conducted a

Salyer guided defendant to the rear of the vehicle where defendant

Detective Salyer returned to the vehicle

and, during a protective sweep under the drivers seat, found a

Defendant was arrested for conspiracy to distribute, as well as for

The district court

The court found that, based on the

Detective Salyer had information that the maroon Cadillac was a

given the totality of the circumstances, a reasonable officer had

encounters between police and citizens, which require no objective

Terry v. Ohio, 392 U.S. 1, 30, 88

S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonable suspicion

In deciding whether an officer had the requisite reasonable

The reasonable suspicion standard is

Courts are not remiss in crediting

the practical experience of officers who observe on a daily basis

United States v. Lender, 985 F.2d

The Supreme Court has recognized that

individual factors consistent with innocent travel can, when taken

Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

response to a radio transmission that drugs were available from the

Even if Detective Salyer

Detective Salyer had

mistakenly, that defendant was another individual whose license had