United States v. Hamerter

91 F. App'x 261
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 2, 2004
Docket03-4086
StatusUnpublished

This text of 91 F. App'x 261 (United States v. Hamerter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hamerter, 91 F. App'x 261 (4th Cir. 2004).

Opinion

OPINION

PER CURIAM.

Hendrick James Hamerter pled guilty to conspiracy to possess with intent to distribute and distribute more than 1000 kilograms of marijuana, 21 U.S.C. § 846 (2000), but reserved the right to appeal the district court’s denial of his motion to suppress marijuana seized from his commercial tractor trailer truck. Hamerter received a sentence of 127 months imprisonment. He appeals his sentence and the district court’s denial of his suppression motion. We affirm.

Hamerter was arrested on September 6, 2001, while driving his commercial tractor trailer from El Paso, Texas, to Tampa, Florida, with 958 pounds (434.5 kilograms) of marijuana in his truck. The marijuana was found by a Texas state trooper during a routine safety inspection. Unknown to Hamerter or the trooper who stopped him, an investigation of the conspiracy was already under way and agents of the Drug Enforcement Administration had Hamerter’s home in Tampa under surveillance. Several co-defendants were subsequently arrested in Maryland and in Texas.

Hamerter moved to suppress the evidence seized from his truck. At the suppression hearing, the government produced evidence that the state trooper stopped Hamerter’s truck to perform a random safety inspection of a commercial vehicle, which is authorized under § 644.103 of the Texas Transportation Code. The district court determined that the marijuana was admissible because the stop of Hamerter’s truck was initially a valid non-pretextual warrantless regulatory search, and that the trooper and his back-up officers had probable cause to arrest Hamerter and conduct a full search of the truck after a drug-sniffing dog alerted on the truck vents and then on duffle bags found in the trailer with a load of tomatoes. Alternatively, the court found that the marijuana was admissible under the inevitable discovery doctrine.

The district court’s denial of a suppression motion is reviewed de novo, but its factual determinations are reviewed for clear error. United States v. Kitchens, *263 114 F.3d 29, 31 (4th Cir.1997). Hamerter maintains on appeal that the trooper’s warrantless search of his truck violated the Fourth Amendment. He does not challenge the district court’s conclusion that Texas’s commercial vehicle inspection scheme is permissible under the regulatory exception to the warrant requirement. See New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Instead, he argues that the stop was illegal because it was pretextual, relying on Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and United States v. Wilson, 205 F.3d 720, 724 (4th Cir.2000) (holding that vehicle stop without articulable, reasonable suspicion violates Fourth Amendment). This argument is unavailing because, based on the record before us, the district court’s finding that the trooper was not using the regulatory stop and search as a pretext to investigate other crimes is not clearly erroneous. Moreover, the record discloses that the regulatory search quickly produced reasonable suspicion to detain Hamerter and then probable cause for an arrest and a full search of the truck. See United States v. Johnson, 285 F.3d 744, 748 (8th Cir.2002) (reasonable suspicion developed during safety inspection may permit longer detention). Although Hamerter argues that the officers should have obtained a search warrant before searching the trailer once contraband was suspected, a warrant is not required for a search of a vehicle once the police have probable cause to believe it contains contraband or evidence of a crime. United States v. Ross, 456 U.S. 798, 804-09, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Finally, Hamerter was not illegally arrested when the trooper handcuffed him after seeing the first duffel bag. United States v. Crittendon, 883 F.2d 326, 329 (4th Cir.1989) (handcuffing of suspect to maintain status quo and protect officer did not convert Terry * stop into arrest). Consequently, we conclude that the district court did not err in denying the motion to suppress the marijuana seized from Hamerter’s truck.

At sentencing, the issues relevant to this appeal were whether Hamerter had a minor or minimal role in the conspiracy, U.S. Sentencing Guidelines Manual § 3B1.2 (2002), and whether he qualified for a reduction under the safety valve provision in USSG § 2Dl.l(b)(6). With respect to these issues, the government submitted transcripts of intercepted phone conversations between Hamerter and his co-defendant, Roland Anderson.

The district court determined that Hamerter was not a minor or minimal participant, in part because of the quantity of marijuana he was transporting, and in part because the evidence revealed that, rather than being a mere courier, Hamerter had participated in the planning and timing of the delivery of the marijuana. The district court’s determination of a defendant’s role in the offense is a factual question reviewed for clear error. United States v. Reavis, 48 F.3d 763, 768 (4th Cir.1995). A defendant has a minor role if he is “less culpable than most other participants,” but his role is not minimal, i.e., among the least culpable. USSG § 3B1.2, comment, (n.5). The test for whether a defendant had a minor role is whether his conduct was “material or essential to committing the offense.” United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir.1999).

Hamerter contends that he was entitled to at least a two-level reduction for having a minor role in the conspiracy because a DEA agent testified at the suppression hearing that Hamerter was a transporter and had made just one prior trip carrying *264 marijuana for Anderson. Hamerter argues that his minor role is evidenced by the fact that he was recruited as a truck driver into an ongoing conspiracy that continued for a while after he was arrested. However, the transcripts of Hamerter’s conversations with Anderson reveal that they discussed the difficulties Hamerter experienced in dealing with their sources in El Paso, and that they conferred about who they should deal with in the future. Anderson also discussed with Hamerter how he could move the marijuana from Tampa to Maryland.

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91 F. App'x 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hamerter-ca4-2004.