United States v. Marcus Gibbs

547 F. App'x 174
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 21, 2013
Docket15-4603
StatusUnpublished
Cited by25 cases

This text of 547 F. App'x 174 (United States v. Marcus Gibbs) 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. Marcus Gibbs, 547 F. App'x 174 (4th Cir. 2013).

Opinions

PER CURIAM:

On May 11, 2011, a federal grand jury sitting in the District of South Carolina returned a ten-count superseding indictment against thirteen people, including appellant, Marcus Gibbs (Gibbs). Gibbs was charged with: conspiracy to possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count One); conspiracy to commit money laundering, 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(h), and 1957 (Count Three); possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count Four); possession with intent to distribute five kilograms or more of cocaine, id. §§ 841(a)(1) and 841(b)(1)(A) (Count Five); being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count Six); and possession of a firearm during and in relation to a drug trafficking crime, id. § 924(c)(1)(A)(i) (Count Seven).

Following a jury trial, Gibbs was found guilty of Count One and Counts Three through Six, but found not guilty of Count Seven. He was sentenced to a total of 860 months’ imprisonment. On appeal, Gibbs challenges: (1) the district court’s denial of his motions to suppress; (2) the admission of certain evidence at trial; and (3) the sentence imposed by the district court. We affirm.

I

Legal determinations underlying a district court’s suppression rulings are reviewed by this court de novo, and factual findings relating to such rulings are reviewed for clear error. United States v. Allen, 631 F.3d 164, 171 (4th Cir.2011). Because the district court denied Gibbs’ motions to suppress below, we construe the evidence in the light most favorable to the government. United States v. Branch, 537 F.3d 328, 337 (4th Cir.2008).

The district court held a suppression hearing for Gibbs on October 11, 2011. The credible evidence introduced at that hearing demonstrated as follows.

Beginning in 2010, the Drug Enforcement Administration (DEA) began an investigation into a multi-kilogram cocaine trafficking organization that operated out of Charleston, South Carolina and involved the alleged transporting of cocaine from Mexico and Atlanta to Charleston. DEA agents initiated a number of court-authorized wiretaps of several individuals involved in the organization and intercepted numerous phone calls indicating the transportation of cocaine from Mexico and Atlanta to Charleston and the transportation of cash proceeds from Charleston to Atlanta and Mexico.

On July 12, 2010, DEA agents intercepted a series of cell phone calls from targets in the cocaine trafficking organization indicating a plan to deliver $5,000. In the course of these intercepted cell phone calls, an unidentified male, later identified as Gibbs, agreed to bring the $5,000 to the home of one of the major players in the organization, Pedro Ochoa (Ochoa). Based on these intercepted cell phone calls, a DEA agent prepared an affidavit (the Affi[178]*178davit) and requested a search warrant from a United States Magistrate Judge authorizing the DEA agents to utilize Global Positioning System (GPS) monitoring on the cell phone used by Gibbs.

The GPS data on Gibbs’ cell phone revealed that, on July 21, 2010, Gibbs traveled by car from Charleston to Conyers, Georgia, a town located outside of Atlanta. The GPS data also revealed that, approximately one hour after arriving in Conyers, Gibbs began to head in a direction toward Charleston. In light of the known role of Atlanta as a key location for the cocaine trafficking organization, Gibbs’ recent delivery of $5,000 to Ochoa, and Gibbs’ one-day trip to the Atlanta area and apparent rapid return toward Charleston, the DEA agents suspected Gibbs was transporting drugs. To keep its investigation of the organization a secret, the DEA agents contacted the City of Charleston police department and requested that a stop of Gibbs’ vehicle be effected if the opportunity arose when Gibbs arrived back in Charleston.

At approximately 9:50 p.m. on July 21, 2010, Officer Thomas Bailey (Officer Bailey) of the Charleston Police Department observed Gibbs’ vehicle make a “wide turn” off of Highway 17 onto Main Road. The turn was “wide enough” to “grab[ ]” Officer Bailey’s attention. At this point, Officer Bailey began to follow Gibbs’ vehicle in his patrol car. Officer Bailey saw Gibbs’ vehicle “slowly drift toward the double yellow lines.” Before Gibbs’ vehicle crossed the yellow lines, he “quickly recorrected towards the center of the lane.” These circumstances led Officer Bailey to believe that Gibbs may be driving while impaired. Consequently, a traffic stop was initiated.

Officer Bailey approached Gibbs’ vehicle and asked Gibbs for his license and registration. While Gibbs was looking for these items, Officer Bailey detected the smell of burnt marijuana. Gibbs was asked if he had been smoking marijuana and he responded in the affirmative. After initially refusing to give consent, Gibbs consented to a search of the vehicle. During an initial search of the vehicle, approximately one gram of marijuana was recovered. At that point, Gibbs was placed under arrest. During a subsequent search of the vehicle pursuant to a search warrant, four cell phones, including the one Gibbs used to help arrange the delivery of the $5,000 to Ochoa, were recovered. A search of this cell phone revealed cell phone calls and text messages between Gibbs and Ochoa and Gibbs and another major player in the organization, Augustine Pineda (Nene). Further investigation of Gibbs revealed that he was a major cocaine distributor in Charleston.

A

Gibbs argues that the DEA agents lacked probable cause to seek the issuance of a search warrant authorizing the GPS monitoring of his cell phone.

Subject to certain exceptions that are not applicable in this case, police officers must obtain a warrant to conduct a search or seizure. U.S. Const. amend. IV; United States v. Kelly, 592 F.3d 586, 589 (4th Cir.2010). An affidavit supporting a warrant that authorizes a search or seizure “must provide the magistrate with a substantial basis for determining the existence of probable cause” in light of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

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Bluebook (online)
547 F. App'x 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marcus-gibbs-ca4-2013.