USA v. Fareed Ray

Filing

NOT PRECEDENTIAL OPINION Coram: GREENAWAY JR., SHWARTZ and RENDELL, Circuit Judges. Total Pages: 10. Judge: GREENAWAY JR. Authoring.

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Date Filed: 08/21/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1880
_____________
UNITED STATES OF AMERICA
v.
FAREED RAY,
Appellant
_____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 1-12-cr-00058-002)
Chief District Judge: Honorable Christopher C. Conner
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 10, 2017
______________
Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.
(Opinion Filed: August 21, 2017)
______________
OPINION*
______________
GREENAWAY, JR., Circuit Judge.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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Fareed Ray argues on appeal that we should reverse the District Court’s denial of
his motion to suppress evidence obtained after his arrest. He contends that law
enforcement officers did not have probable cause to arrest him for attempted delivery of a
controlled substance. Contrary to Ray’s argument, the facts indicate that the officers had
probable cause to arrest Ray and therefore lawfully obtained evidence from the search
incident to his arrest. We will affirm.
I.

Facts and Procedural Background
On February 2, 2012, Trooper Justin Gardner arrested Michael Bobb after a traffic

stop in Perry County, Pennsylvania. During the traffic stop, Trooper Gardner found that
Bobb was wanted for a parole violation and subsequently detained Bobb while he
ascertained whether the warrant for the violation was legitimate. Thereafter, Trooper
Gardner called Bobb’s mother, the vehicle’s owner, and received her permission to
legally search the vehicle. Upon searching the vehicle, he found two loaded revolvers in
the back passenger seat and a makeshift foil pipe and a glass smoking pipe next to the
driver’s seat. Trooper Gardner then placed Bobb under arrest, Mirandized him, and took
him to the Perry County Courthouse for arraignment. Bobb stated his willingness to
cooperate with law enforcement, so Trooper Gardner contacted Trooper Jon Mearkle
from the state police’s vice and narcotics unit to interview Bobb. Thereafter, Trooper
Mearkle and Trooper Scott Fidler met Trooper Gardner at the Perry County Courthouse
to interview Bobb.

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During his interview with the troopers, Bobb admitted that he was en route to
Harrisburg, Pennsylvania, in order to trade the two guns for drugs with an individual
named “Diego.” Bobb stated that this guns-for-drugs relationship had been ongoing for a
couple of months. Bobb was willing to work with law enforcement to identify “Diego”
and to arrange a guns-for-drugs transaction with him. As part of his cooperation, Bobb
gave Trooper Mearkle a cell phone number linked to “Diego” and called that number in
the troopers’ presence. The troopers did not record the phone call and could hear only
Bobb’s half of the conversation. During the conversation, Bobb arranged to purchase
two bundles of heroin and two eight balls of cocaine in exchange for a firearm. This
conversation was consistent with what Bobb had told the troopers about his relationship
with “Diego.” After this initial call, the troopers contacted other law enforcement
officials to determine “Diego’s” identity and learned that “Diego” was Ray’s alias.
Following their inquiry, Trooper Fidler received a photograph of Ray on his cell phone
from a law enforcement database. When the troopers showed Bobb the photograph, he
identified Ray as “Diego.”
Following the identification, Trooper Mearkle contacted the Drug Enforcement
Agency (“DEA”) and was given authorization to record future calls with “Diego”
because of the possibility that he could be the target of a federal investigation. Trooper
Mearkle placed a recording device on Bobb’s phone but mistakenly plugged the device
into the microphone jack instead of the audio jack.

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Bobb called “Diego” at 5:17 p.m. from Trooper Mearkle’s vehicle and said that he
would meet “Diego” at a Burger King in Harrisburg at Cameron Street and Maclay
Street. However, because of Trooper Mearkle’s error, the recording device captured only
Bobb’s side of the conversation. During the call, Trooper Mearkle heard Bobb change
the arrangement from two bundles of heroin, two eight balls of cocaine, and a firearm to
three bundles of heroin, three eight balls of cocaine, and a different firearm. Trooper
Mearkle also heard Bobb tell “Diego” that he wanted to trade a firearm similar to one that
he had given him in the past.
With the information gathered from Bobb, Trooper Mearkle established a
surveillance team at the Burger King and planned to arrest Ray after the transaction. At
5:30 p.m., Bobb called “Diego” again at the same phone number and told him that he was
at the Burger King and that he was going inside for food. “Diego” called Bobb back
about three minutes later and told Bobb to meet him outside of the Burger King. These
conversations were not recorded.
During these conversations, Trooper Fidler was surveilling the Burger King.
Trooper Fidler observed a grey/silver Honda pull into the Burger King, and he identified
Ray as the rear passenger.1 Trooper Fidler saw the vehicle stop in the Burger King
parking lot and then leave. Several officers followed the vehicle but lost surveillance of
it for a minute or two.

1

The Honda was alternatively referred to as grey and as silver at the suppression

hearing.
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At 5:49 p.m., “Diego” called Bobb again from the same number and changed the
location of the meet-up, telling Bobb that the current location was “too hot.” App. 110.
This conversation was also unrecorded. After “Diego” told Bobb to remain on the phone,
Trooper Mearkle exited the vehicle and called Trooper Fidler to inform him of the
location change. When Trooper Mearkle re-entered the vehicle, Bobb told the trooper
that “Diego” wanted to speak with him. Trooper Mearkle took the phone from Bobb and
ended the call without speaking.
Trooper Fidler arrived at an area near the new location and observed the same
grey/silver Honda three blocks away from where “Diego” said he would be. This
location overlooked the new location and provided a good vantage point for
countersurveillance. Trooper Fidler identified the Honda as the same one that had left the
Burger King parking lot and again identified Ray in the backseat of the car. Following
this identification, Trooper Fidler arrested and Mirandized Ray for attempt to deliver a
controlled substance. Trooper Fidler searched Ray incident to the arrest and found a
small amount of marijuana and cash. He also recovered Ray’s cell phone from the
floorboard where he was sitting. Trooper Mearkle called the number linked to “Diego”
and the call rang Ray’s cell phone. Trooper Fidler received the driver’s consent to search
the vehicle and found a half ounce of cocaine in the center console. Consequently, the
troopers arrested the two other occupants of the Honda. The arrestees were subsequently
transported to processing where Ray was strip searched and found to have crack cocaine
on his person.
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On February 29, 2012, a grand jury indicted Ray and four others, and a
superseding indictment was filed on February 20, 2013. Ray pleaded not guilty on all
counts. On January 13, 2014, Ray filed the motion to suppress at issue in this appeal,
which the District Court denied. After trial, the jury found Ray guilty on all counts of the
superseding indictment.2 Ray was sentenced to 248 months in prison. This timely appeal
followed.
II.

Analysis3
On appeal, Ray argues that the District Court erred in finding that the troopers had

probable cause to arrest Ray for attempted delivery of a controlled substance because it
was based on Bobb’s unreliable claims. He contends that the troopers made no attempts
to corroborate Bobb’s information, and thus their reliance on the information was
unreasonable. Ray also asserts that his arrival at the Burger King and his presence near
the second meeting location were not sufficient to establish probable cause to arrest.
These arguments are without merit.
“Where a motion to suppress has been denied, we review the order for clear error
as to the underlying facts, but exercise plenary review as to its legality in the light of the
court’s properly found facts.” United States v. Davis, 726 F.3d 434, 439 (3d Cir. 2013)

2

Count 3 of the indictment was dismissed on a Government motion at sentencing.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3

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(internal quotation marks omitted). “We construe the record in the light most favorable
to the government.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002).
“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “Probable cause is
determined by the totality of the circumstances.” United States v. Stubbs, 281 F.3d 109,
122 (3d Cir. 2002) (internal quotation marks omitted). An informant’s veracity,
reliability, and basis of knowledge are “relevant considerations” in the totality of the
circumstances analysis. Illinois v. Gates, 462 U.S. 213, 233 (1983). “Whether probable
cause exists depends upon the reasonable conclusion to be drawn from the facts known to
the arresting officer at the time of the arrest.” Devenpeck, 543 U.S. at 152. Indeed,
“[p]robable cause exists whenever reasonably trustworthy information or circumstances
within an arresting officer’s knowledge are sufficient to warrant a person of reasonable
caution to conclude that an offense has been or is being committed by the person being
arrested.” United States v. Laville, 480 F.3d 187, 194 (3d Cir. 2007). Under the
collective knowledge doctrine, information known to any one officer is imputed to the
other officers in a joint operation. See United States v. Belle, 593 F.2d 487, 497 n.15 (3d
Cir. 1979).
The District Court found several reasons that established probable cause to arrest
Ray for attempted delivery of a controlled substance: the information from Bobb that
“Diego” was trafficking controlled substances; the confirmation of “Diego’s” identity
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through law enforcement networks and databases; Bobb’s physical identification of
“Diego” as Ray; the multiple conversations that Bobb had with “Diego” about the
transaction and past transactions; and the surveillance of the Burger King. United States
v. Ray, No. 1-12-cr-00058-002, 2014 WL 1405043, at *4 (M.D. Pa. Apr. 10, 2014).
Additionally, the District Court refuted Ray’s attack on Bobb’s reliability by concluding
that Ray’s actions, as surveilled, “were entirely consistent” with the information and
conversations that Bobb provided to law enforcement. Id.
We agree with the District Court’s conclusions. Bobb’s conversations with Ray,
in conjunction with the activity observed during the troopers’ surveillance, would
“warrant a person of reasonable caution to conclude that an offense . . . [was] being
committed” by Ray. Laville, 480 F.3d at 194. Bobb set up the guns-for-drugs transaction
with “Diego” in Trooper Mearkle’s presence and referred to similar past transactions.
Subsequently, Bobb identified “Diego” as Ray from a photograph Trooper Fidler
obtained from a law enforcement database. Trooper Fidler verified Ray’s arrival in a
grey/silver Honda at the Burger King chosen for the drug deal.
After the vehicle left the Burger King, “Diego” called Bobb to change the location
of their meet-up and told him the current location was “too hot.” App. 110. Based on
their experience, the troopers understood “too hot” to mean that Ray had either noticed
their surveillance or that he had conducted countersurveillance in the area. Trooper
Fidler arrived at an area near the new location and observed the same Honda in an area
that overlooked the new location. From Trooper Fidler’s experience, the new location
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provided a good vantage point for Ray and the other passengers in the Honda to conduct
countersurveillance. Thus, the troopers could reasonably assume that Ray entered the
Burger King to engage in the intended drug deal, consistent with Bobb’s conversation,
and left the Burger King to do so outside of the presence of law enforcement.
Despite the facts giving rise to probable cause, Ray contends that United States v.
Myers, 308 F.3d 251 (3d Cir. 2002)—where we found the police responding to a
domestic dispute lacked probable cause to arrest the defendant for simple assault,
domestic abuse, or possession of an unlicensed firearm—controls our decision. In that
case, we concluded that the arresting officer’s testimony did not elicit a belief that the
domestic dispute to which he responded involved a crime of simple assault or domestic
abuse. See Myers, 308 F.3d at 256, 261–62. Furthermore, we found that the officer did
not testify to any reasonable belief that he was arresting the defendant in his own home—
a lack of knowledge “fatal to the reasonableness of the warrantless arrest for a [Violation
of the Uniform Firearms Act] charge.” Id. at 263.
In contrast, the facts before us show that the troopers testified to a belief that Ray
was attempting to deliver a controlled substance. Trooper Mearkle heard Bobb arrange a
drugs-for-guns transaction with “Diego”; he also heard Bobb discuss a similar past
transaction. The troopers identified “Diego” as Ray through law enforcement networks,
and Bobb provided a physical identification. Furthermore, the troopers identified Ray as
he entered the Burger King parking lot chosen for the drug deal and testified that his
movements corresponded with his change of location. Thus, in contrast to the arresting
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officer in Myers, the troopers had reason to believe that Ray was engaged in an attempted
drug deal. As such, the totality of the information that law enforcement had from Bobb,
and what they confirmed with their surveillance, established probable cause to arrest
Ray.4
III.

Conclusion
For the foregoing reasons, we will affirm the District Court.5

4

Ray also argues that the troopers unreasonably believed that Ray was attempting
to deliver a controlled substance because they did not hear him agree to a drug deal or
check whether he possessed drugs. However, for the reasons stated above, we conclude
that the troopers had probable cause to arrest Ray.
5
Because we conclude the troopers had probable cause to arrest Ray, we need not
address his claim that the Government waived its argument that the cocaine evidence
obtained after the arrest was found as a result of the driver’s consent to a vehicle search.
The probable cause to arrest Ray also supported the search of the vehicle. Pennsylvania
v. Labron, 518 U.S. 938, 940 (1996) (“If a car is readily mobile and probable cause exists
to believe it contains contraband, the Fourth Amendment thus permits police to search the
vehicle without more.”); see also United States v. Burton, 288 F.3d 91, 100 (3d Cir.
2002) (quoting Labron, 518 U.S. at 940).
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