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United States v. Williams

United States Court of Appeals, Third Circuit

August 1, 2018


          Argued on May 24, 2017

          On Appeal from the United States District Court for the Western District of Pennsylvania (D. C. Criminal No. 2-14-cr-00030-001) District Judge: Honorable Terrence F. McVerry

          Kimberly R. Brunson, Esq. (ARGUED) Counsel for Appellant .

          Donovan J. Cocas, Esq. (ARGUED) Rebecca R. Haywood, Esq. Michael L. Ivory, Esq. Counsel for Appellee.

          Before: HARDIMAN, ROTH and FISHER, Circuit Judges


          ROTH, Circuit Judge

         During an investigation, federal law enforcement officials learned that Carlton Williams was involved in the distribution of heroin. The investigation involved surveillance of Williams's activity, which eventually led to a stop of his car. During the traffic stop, law enforcement officials conducted a search of Williams's car and its contents. As they expected, the officials discovered drugs during the search. Williams subsequently pleaded guilty to possession of heroin with intent to distribute in violation of federal drug laws. Williams now appeals the denial of his suppression motion and application of the United States Sentencing Guidelines' career offender enhancement. Finding no merit in either claim, we will affirm Williams's conviction and sentence.


         A. Factual Background

         The underlying facts are uncontested. During an investigation that began as early as November 2012, a Drug Enforcement Administration task force officer learned that Williams bought heroin in Detroit, Michigan, which he packaged and sold in Pittsburgh, Pennsylvania. The officer subsequently placed a GPS tracker on Williams's car and monitored his movements for approximately one month. On January 11, 2013, data from the GPS tracker indicated that Williams's car was driven to Detroit. Suspecting that Williams drove his car to Detroit to retrieve heroin, the task force officer organized a plan to have Williams's car stopped upon its return to Pennsylvania. Pennsylvania State Police trooper Michael Volk effectuated the traffic stop.

         Later that same evening, Trooper Volk observed Williams's car speeding and stopped it. The trooper issued a citation for the traffic violation and told Williams that he was free to go. Before Williams left, however, Trooper Volk asked Williams for consent to search his car. Williams agreed and signed a consent to search form labeled "Waiver of Rights and Consent to Search." The parties do not dispute that Williams knowingly, intelligently, and voluntarily consented to the search of his car, its contents, and his person.

         Trooper Volk, with the help of other troopers, commenced a search of Williams's car that lasted for approximately seventy-one minutes. The troopers searched every part of the car, including its passenger compartment, trunk, and undercarriage. Unable to locate any narcotics, Trooper Volk requested the assistance of a narcotics-detection dog. Shortly thereafter, Trooper Volk updated another trooper on the progress of the search and indicated that "[the search] was going to take awhile [because] he hadn't found [the heroin], but the K-9 was on its way coming from a distance."[1]

         Williams eventually became less patient and told Trooper Volk "you searched my car three times, now you hold me up and I have to go."[2] According to Williams, he made this statement in only "a regular tone of voice that he expected Trooper Volk to hear but [the trooper] was at a distance and there was a lot of noise from the turnpike traffic and the wind."[3] Other than Williams's own testimony, there was no evidence that Trooper Volk heard his alleged protest. The District Court, as a result, found Williams's testimony "only credible to a degree."[4]

         The troopers continued their search despite Williams's irritation. As the search continued, Williams requested five items from his car, including his two cellular phones. One of the troopers retrieved Williams's cellular phones and attempted to search them before handing them over to Williams. The trooper was able to read the text messages contained on only one of the devices because the other device was password-protected. The trooper who read Williams's text messages told Trooper Volk that the messages suggested that Williams had "something."[5] When Williams was confronted about the text messages, he warned the officers that they could not search his phone without a warrant.

         The search of the car continued. After fifty-one minutes, the troopers had not discovered any drugs. They began to disassemble Williams's sound system speakers. Williams objected that the troopers were not permitted to search his speakers without a warrant. Trooper Volk told Williams to "relax," to which Williams replied, "I've been out here half an hour, man."[6] Upon Williams's protest, Trooper Volk reassembled the car's speakers but otherwise continued searching the vehicle. Soon after, and seventy-one minutes into the search, Trooper Volk discovered thirty-nine grams of heroin in a sleeve covering the car's parking brake lever. Williams was immediately arrested.

         B. Procedural History

         Williams was charged with possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He filed a number of pretrial motions, including a motion to suppress the evidence seized from his car. Following a two-day hearing and the submission of post-hearing briefing, the District Court denied Williams's suppression motion, because it concluded that Williams had voluntarily consented to the search and had not unequivocally withdrawn his consent during the search.

         Prior to Williams's sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR), which the District Court adopted without change. The sentencing range calculation included U.S.S.G. § 4B1.1's career offender enhancement because the District Court concluded that Williams had two prior convictions for controlled substance offenses: a 2007 conviction for possession with intent to distribute heroin and a 1998 conviction under 18 U.S.C. § 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations Act (RICO). Williams admitted to various predicate acts forming the basis for his § 1962 RICO conviction, all of which were for possession with intent to distribute either crack cocaine or heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(B)(iii), and 846.[7] As a result of the career offender enhancement, Williams faced a Guidelines sentencing range of 210-262 months. On May 11, 2016, Williams entered a conditional guilty plea, preserving his right to appeal the denial of his suppression motion and the application of the Guidelines' career offender designation. Williams was sentenced to, inter alia, a term of 160 months' imprisonment. This appeal followed.

         Williams appeals both the denial of his suppression motion and the District Court's application of the Guidelines' career offender designation. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).[8]


         "We review the District Court's denial of a motion to suppress for clear error as to the underlying factual findings, and we exercise plenary review of its application of the law to those facts."[9] "'A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'"[10] Therefore, "'[i]f the [D]istrict [C]ourt's account of the evidence is plausible in light of the record viewed in its entirety,' we will not reverse it even if, as the trier of fact, we would have weighed the evidence differently."[11]

         A. The District Court Properly Denied Williams's Motion to Suppress

         With respect to his suppression motion, Williams claims that the District Court erred in denying his suppression motion because he properly withdrew his consent to the search or was improperly prevented from doing so.

         It is well settled that the Fourth Amendment protects suspects from unreasonable searches.[12] "[A] search conducted without a warrant issued upon probable cause is [presumptively] unreasonable . . . subject only to a few specifically established and well-delineated exceptions."[13] A search conducted with consent is one such "established exception."[14] The appellant concedes that the search here began as a consensual one. He contends, however, that the search ceased to be so when he withdrew his consent or was prevented from doing so. Before reaching the issue of whether Williams withdrew his consent in this case, we must first determine whether the Fourth Amendment allows the subject of a consensual search to terminate the search by withdrawing his consent. Neither this Court nor the Supreme Court has expressly established that the subject of a consensual search may withdraw consent that he has voluntarily given. The Supreme Court, however, has recognized that a person may "delimit as he chooses the scope of the search to which he consents."[15] In so holding, the Court has instructed that the standard for measuring the limitations placed on a consensual search "is that of objective reasonableness."[16] Thus, in determining the legal bounds of a consensual search, we must determine "what would the typical reasonable person have understood by the exchange between the officer and the suspect."[17] Relying on Florida v. Jimeno's recognition that a consensual search may be restricted by individuals, our sister circuits that have considered whether individuals may withdraw consent to search have unanimously answered in the affirmative.[18]Today, we join them.

         Although the Supreme Court has not itself expressly held that the subject of a consensual search may terminate the search by withdrawing his consent, considerable support for such a proposition is easily found in its Fourth Amendment jurisprudence. The Court recognized in Walter v. United States, [19] and later in Jimeno, [20] that a consensual search satisfies the mandates of the Constitution only if conducted within the boundaries of the consent given. This recognition establishes that it is the subject of a consensual search who decides the terms of the search. Although Walter and Jimeno expressly consider only a party's right to limit the particular things officials may search, nothing in those opinions suggests that consent, which waives Fourth Amendment rights, cannot otherwise be narrowed, qualified, or withdrawn. That a party may terminate a search by withdrawing his consent is a corollary of the recognition that the subject of a consensual search determines the parameters of that search.

         Moreover, recognition of a party's right to take away the consent that he or she has conferred advances society's interest in promoting consensual searches. The Supreme Court has acknowledged that consensual searches are important because they promote the effective enforcement of criminal laws.[21] This is particularly true where there is lack of probable cause to arrest or search because, in such situations, "a search authorized by a valid consent may be the only means of obtaining important and reliable evidence."[22]Moreover, a rule restricting the ability to withdraw consent would likely discourage people from consenting to searches when they otherwise might have done so. In the present case, for example, Williams voluntarily authorized the troopers to conduct a search. He then admonished the troopers that the search of his speakers and electronic devices was not within the bounds of his authorization. As a result, the troopers reassembled the speakers and ceased examining the phone that was not password-protected. However, "where a suspect does not withdraw his valid consent to a search for illegal substances before they are discovered, the consent remains valid and the substances are admissible as evidence."[23]

         Turning to the merits of this case, we must decide whether Williams actually withdrew his consent. As the parties note, "the ultimate touchstone of the Fourth Amendment is 'reasonableness.'"[24] Thus, in determining whether suspects have withdrawn their consent to a search, courts have been guided by how a reasonable person would have understood the exchange between law enforcement officers and suspects.[25] Courts agree that a reasonable person would not understand certain equivocal acts or statements to convey a suspect's desire to withdraw consent that he has voluntarily conferred.[26] Ambiguous acts and statements do not ordinarily lend themselves to a conclusive determination of whether consent has been withdrawn. Once it has been established that a suspect has voluntarily consented to a search, it is his burden to demonstrate that he has withdrawn that consent by pointing to an act or statement that an objective viewer would understand as an expression of his desire to no longer be searched.

         With these principles in mind, we hold that the circumstances here do not demonstrate that Williams withdrew his consent to the troopers' search of his car. Williams knew how to express the absence of consent to search. As the record demonstrates, Williams told the troopers that they did not have consent to search his speakers or his cellular phones. The search of those areas then stopped.

         Williams also argues that he conveyed withdrawal of his consent to search the car when he complained that he had been standing "out [there] half an hour" and after he told officer Volk "you searched my car three times [and] y'all got me on the side of this road in the middle of the winter holding me up and I got to go."[27] The District Court held that Williams's comments only "constituted manifestations of irritation" and not statements indicating that he was withdrawing the consent he had conferred.[28] We agree. Although defendants need not use a special set of words to withdraw consent, they must do more than express unhappiness about the search to which they consented.

         Other courts have reached the same conclusion when presented with similar facts. For example, the Eighth Circuit Court of Appeals in United States v. Gray held that a suspect had not withdrawn consent simply by objecting that the search was "ridiculous" and that he was "ready to go."[29] The court held that such statements amounted only to "expressions of impatience."[30] The court warned that "protests about the length of time the search was taking without any specific request to leave did not under the circumstances" amount to a withdrawal of consent.[31]

         Similarly, Williams's statements here were expressions of frustration. Williams falls short of meeting his burden of proof to establish that his consent was withdrawn.

         Williams alternatively contends that, even if he did not withdraw his consent to the search, the evidence should be suppressed because the "coercive" nature of the search prevented him from revoking consent.

         The Fourth Amendment requires that consent not be coerced.[32] The question of whether Williams's consent was at any point the product of coercion is "a question of fact determined from the totality of the circumstances."[33] In assessing the voluntariness of a suspect's consent, we consider "the age, education, and intelligence of the subject; whether the subject was advised of his or her constitutional rights; the length of the encounter; the repetition or duration of the questioning; and the use of physical punishment."[34]Our analysis "must accord the district court's conclusion that [Williams]'s consent was [voluntary] great deference, unless our examination of the record shows that the district court committed clear error."[35] Thus, the District Court's finding that Williams's consent was voluntary will not be overturned unless it is "(1) completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data."[36]

         Our assessment of the totality of the circumstances precludes us from concluding that the District Court committed clear error. As the District Court noted, Williams's interaction with the troopers was not hostile. The troopers neither made threats nor showed force. No restraints were employed at the time of the search. The District Court's finding that Williams exhibited his ability to intelligently delimit the scope of the search is supported by the record. Accordingly, the District Court did not err in finding that, throughout the entire encounter, Williams's grant of consent was not the product of coercion.

         B. The District Court Properly Applied the Guidelines' Career Offender Enhancement

         Williams next appeals his career offender designation, arguing that his 1998 RICO conviction-predicated on his distribution of heroin and crack cocaine-was not a requisite "controlled substance offense" under the Sentencing Guidelines. We disagree.

         Under the Sentencing Guidelines, a defendant must be sentenced as a "career offender" if: (1) he was at least eighteen years old when he committed the instant offense of conviction; (2) the instant offense is a felony crime of violence or controlled substance offense; and (3) he has at least two prior felony convictions for a crime of violence or controlled substance offense.[37]

         In this case, there is no dispute that the instant offense-possession with intent to distribute heroin in violation of §§ 841(a)(1) and 841(b)(1)(C)-is a controlled substance offense. Nor is there any doubt that Williams was at least eighteen at the time. The parties agree that Williams's 2007 conviction for possession with intent to distribute heroin supplies one of the two required prior felony convictions. The 1998 RICO conviction, we now hold, supplies the second.

         Ordinarily, to determine whether a prior conviction qualifies as a crime of violence or controlled substance offense, we apply a categorical approach.[38] We consider only the elements of the crime of conviction and assess whether they fall within the bounds of a crime of violence or controlled substance offense, as defined under the Guidelines.[39] To avoid the "practical difficulties and potential unfairness" inherent in "determining the precise facts underlying a defendant's [prior] conviction," which may have occurred years or decades ago, we do not excavate or dissect the underlying factual record.[40]

         There is an exception, however. When a crime is defined with alternative elements, we may review a limited set of documents-including the indictment and plea colloquy, among others-but only to determine which version of the statute formed the basis of the prior conviction.[41] Such a statute is termed "divisible" and this approach-a more record-invasive variant of the categorical approach-is called the "modified categorical approach."

         RICO, in particular Section 1962(c), is one such divisible statute. That statutory subsection, the basis for Williams's 1998 RICO conviction, proscribes "conduct[ing] . . . [an] enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." It proscribes two alternative forms of conduct: either racketeering activity or the collection of unlawful debt. That fork in the statute has even more branches. "Racketeering activity," a statutory phrase without independent meaning, has "constituent parts" or alternative "elements" that need to be proven beyond a reasonable doubt to sustain a conviction.[42] Under RICO, those elements are known as "predicate acts" and include certain violations of federal law, including "fraud connected with a case under title 11," or "fraud in the sale of securities," or "the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical."[43] Without consulting the record, we would not know which of these multiple alternatives yielded Williams's prior RICO conviction.

         Fortunately, because Section 1962(c) is divisible, we may consult select portions of the record under the modified categorical approach to make that determination. The superseding indictment and Williams's 1998 plea colloquy are illuminating. They reveal that Williams pleaded guilty to a RICO violation under Section 1962(c) and five underlying RICO predicate acts.[44] All five of those predicate acts of racketeering were violations of 21 U.S.C. § 841(a)(1)-or conspiracy to commit such a violation under 21 U.S.C. § 846.[45] Specifically, he admitted to "manufactur[ing], distribut[ing], or dispens[ing], or possess[ing] with intent to manufacture, distribute, or dispense" heroin or crack cocaine.[46] Without probing the record further or examining Williams's prior conduct, we now know that Williams's prior RICO conviction necessarily implicated only a limited portion of 18 U.S.C. § 1961(1)(D), namely, only the "felonious manufacture," or "recei[pt]," or "buying, selling, or otherwise dealing in a controlled substance."[47] This limited and non-fact-intensive review of the record unmasks the specific version of the RICO statute under which Williams was convicted: ...

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