Lead Opinion
Alvin Drummond was convicted of possession of a firearm and ammunition by a convicted felon, in violation of
I.
In May 2017, Deputy K. McGrath received a tip from a known informant that Nicholas Finley was selling methamphetamine from Room 131 of the Red Roof Inn in Greenville, South Carolina. Deputy McGrath was aware of Finley's reputation as a person involved with narcotics and firearms, and she knew that he was a convicted felon. On May 11, 2017, at approximately 4:30 p.m., she and another deputy drove to the Red Roof Inn to investigate the tip and see if there was any suspicious activity occurring there. Room 131 was located on the back side of the motel. The only car in the parking lot was in front of Room 131, and it had a fake paper tag. As Deputy McGrath was checking the VIN of the vehicle to see if it was stolen, Finley came to the door of Room 131, with a big gray pit bull at his side. Deputy McGrath recognized Finley and asked permission to enter the room. Finley agreed and put the dog in the bathroom.
There were seven people inside Room 131, including Drummond, all of whom voluntarily produced identification. Deputy McGrath asked Finley if anyone else was present in the room, and Finley assured her that there was not. After checking the identifications provided by the occupants of the room, Deputy McGrath asked for Finley's permission to check the bathroom. He again consented. Aware that the dog was inside the bathroom, Deputy McGrath slowly opened the door. There she found a woman, who could not be identified at the time by the name given. There was an orange hypodermic needle cap near the woman's feet. Deputy McGrath asked the occupants of the room if anyone had a medical condition that would explain the presence of the needle cap. No one admitted to any such condition.
While her partner stayed with the occupants in the room, Deputy McGrath sought a warrant to search Room 131, based on the following affidavit:
The Affiant obtained knowledge that the occupant of this room, Nicholas Finley was selling Methamphetamine from room 131 at this motel. When I performed an extra patrol of this motel, I observed a suspicious vehicle parked in front of the motel room with a fake paper tag. As I walked up to the vehicle, Nicholas Finley began exiting the motel room. I observed multiple people inside the hotel room along with a large pit bull. As Nicholas put the dog in the bathroom, I asked if I could enter the hotel room and Nicholas stated I could. Due to the large amount of people in the room I asked to see identification and asked if anyone else was in the room. I was advised there was no one else. After checking everyone's identifications, I asked Nicholas if I could check the bathroom to ensure no one else was in the room. I found a female that could not be identified at this time by her name given and I observed an orange hypodermic needle cap on the floor next to her feet. No one in the room was a diabetic and could provide a reason for having this drug paraphernalia. I believe through the execution of this search warrant, more narcotics and paraphernalia will be located.
J.A. 71. The magistrate issued the search warrant, which resulted in the discovery of firearms, ammunition, multiple baggies with methamphetamine residue, and various items of drug paraphernalia, including hypodermic needles.
In a backpack located near Drummond's feet, the officers found a Smith & Wesson .38 caliber revolver, fully loaded with .38 caliber rounds, a Crown Royal bag containing additional .38 caliber ammunition, and job-related paperwork in Drummond's name. Drummond's fingerprints were subsequently found on the gun.
Drummond was charged with being a felon in possession of a firearm, in violation of
Over Drummond's objections, the district court imposed an enhancement under the ACCA, based upon Drummond's three prior felony convictions in South Carolina for criminal domestic violence. Drummond received a sentence of 247 months' imprisonment. He appeals the district court's denial of his motion to suppress and the imposition of the ACCA sentence enhancement.
II.
We begin with Drummond's appeal of his § 922(g)(1) conviction, which was based solely on his claim that the district court erred in denying his motion to suppress. More specifically, Drummond contends that the affidavit prepared by Deputy McGrath was insufficient to establish probable cause for the magistrate to issue the search warrant. We disagree.
The Fourth Amendment protects individuals from "unreasonable searches and seizures," and provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Generally,
evidence seized in violation of the Fourth Amendment is not admissible at trial.
See
United States v. Andrews
,
"When considering a district court's denial of a suppression motion, we review factual findings for clear error and legal conclusions
de novo
."
United States v. Richardson,
Drummond argues that Deputy McGrath's affidavit did not suffice to establish probable cause to search the motel room because the affidavit contained no information about the informant or the informant's credibility, and because nothing in the affidavit beyond Finley's presence in the motel room corroborated the informant's tip. Drummond argues that the false paper tag on the car that was parked outside the motel room could not be relied upon to justify a search of the motel room. And Drummond argues that the hypodermic needle cap was nothing more than a piece of trash. However, "[t]he totality-of-the-circumstances test 'precludes this sort of divide-and-conquer analysis.' "
Dist. of Columbia v. Wesby
, --- U.S. ----,
Here, Deputy McGrath did not identify her informant or explain the basis for the informant's tip that drug dealing was occurring in Room 131 of the Red Roof Inn. She testified that this was because of the danger that the subject posed and the unwillingness of the tipster to be known. Contrary to Drummond's view, however, the affidavit for the warrant was not based solely on the informant's tip. The tip, coupled with Deputy McGrath's knowledge of Finley's drug-dealing reputation, led her to conduct the extra patrol of the motel in order to investigate the tip. This investigation, in turn, led to facts and circumstances that demonstrated probable cause to obtain the warrant.
First, the tip provided to Deputy McGrath was partially corroborated immediately upon the officers' arrival at the motel room. Finley walked out of the specific room identified by the informant as the place where drugs were being dealt. The only car in the lot was parked directly in front of the room and had a fake paper tag. There were a large number of people in the small motel room in the afternoon hours. When Deputy McGrath asked for permission to enter the room, Finley consented, but put his pit bull in the bathroom. Finley then lied to the deputies about whether there was a person in the bathroom. After Finley consented to Deputy McGrath's request to check the bathroom, a woman was found sitting on the floor of the bathroom who could not be identified by the name given, and who had drug paraphernalia at her feet.
We hold that these circumstances, viewed in their totality, were sufficient to justify the magistrate's determination that there was a fair probability that evidence of methamphetamine distribution and additional drug paraphernalia would be found in the motel room. Accordingly, we affirm the district court's denial of Drummond's motion to suppress the evidence against him, and we affirm his conviction.
III.
Drummond next challenges the district court's enhancement of his sentence under the ACCA, which was based upon three predicate convictions for criminal domestic violence in South Carolina. One was for Drummond's third offense for criminal domestic violence ("CDV").
See
A.
Ordinarily, a defendant convicted of violating
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The issue here is whether Drummond's felony CDV convictions qualify as violent felonies under § 924(e)(2)(B)(i), which is
commonly referred to as the "force clause" of the ACCA. South Carolina CDV is defined by statute.
See
When assessing whether a prior conviction qualifies as an ACCA predicate offense, courts first consider whether the "categorical" approach or the "modified categorical" approach applies to the statute.
See
United States v. Hemingway,
Under the categorical approach, we "examine only the elements of the state offense and the fact of conviction, not the defendant's conduct."
Doctor,
Prior to Drummond's sentencing in this case, this court had held, in several unpublished decisions, that South Carolina CDV categorically qualifies as a "violent felony" under the ACCA.
See, e.g.,
United States v. Lewis
, 719 F. Appx. 210, 219-221 (4th Cir. 2018) (holding that CDVHAN is categorically a violent felony for purposes of the ACCA);
United States v. Chisolm
, 579 F. Appx. 187, 188 (4th Cir. 2014) (holding that CDV is categorically a crime of violence under USSG § 4B1.2(a) );
see also
United States v. Holland
, 737 F. Appx. 151, 152 (4th Cir. 2018) (holding that the district court did not plainly err in determining that CDV qualifies as a "crime of violence" under USSG § 4B1.2(a) );
Sanchez-Salazar v. Sessions
, 717 F. Appx. 356, 357 (4th Cir. 2018) (concluding that petitioner's CDV conviction constituted a crime of violence under
Drummond argues that these cases were wrongly decided because, notwithstanding the language of the CDV statute, South Carolina does not require, as an element of CDV, the use, attempted use, or threatened use of physical force capable of causing physical harm or injury. Although Drummond is correct that we are not bound by our prior unpublished decisions, we find their reasoning to be persuasive, and we decline his invitation to read into the CDV statute language that is simply not there.
B.
We begin by defining the minimum or "most innocent" conduct that must be proven to obtain a statutory CDV conviction in South Carolina.
Middleton
,
First, the CDV statute's requirement that there be an "offer" to cause physical harm or injury parallels the ACCA's requirement
that there be a "threat" to inflict such harm or injury. An "offer" to commit physical harm is, at a minimum, a threat to do so.
See Threat
, Black's Law Dictionary (10th ed. 2014) (defining a "threat" as "a declaration, express or implied, of an intent to inflict loss or pain on another");
Offer,
Merriam Webster's Collegiate Dictionary (10th ed. 1998) (defining an "offer" as including a "threat");
see also
United States v. Mitchell
,
Second, the CDV statute requires that the threat be one "
to cause physical harm or injury
" to the intended victim "with apparent present ability under circumstances reasonably creating fear of imminent peril."
C.
The crux of Drummond's argument is that, notwithstanding the plain language of the CDV statute, a CDV conviction cannot categorically be deemed a violent felony because we have held that South Carolina's common law offense of assault and battery of a high and aggravated nature ("ABHAN") is not categorically a violent felony.
See
Hemingway,
In South Carolina, common-law assault has historically "been defined as an 'attempted battery' or an unlawful attempt or offer to commit a
violent injury
upon another person, coupled with the present ability to complete the attempt or offer by a battery."
State v. Sutton
,
For this reason, we previously held that South Carolina's common-law ABHAN, and its lesser included offense of assault of a high and aggravated nature ("AHAN"), are not violent felonies under the ACCA's force clause. Both offenses are defined by the term "assault" and, therefore, can be committed in the absence of physical injury, actual or threatened.
See
Montes-Flores
,
For the same reason, we recently held that the South Carolina statutory offense of assaulting, beating, or wounding a law enforcement officer while resisting arrest ("ABWO") is also not a violent felony under the ACCA.
See
Jones,
Not so with CDV. Unlike ABHAN, AHAN, and ABWO, the CDV statute does not define the crime in terms of an "assault" on another. Nor does the phrase that Drummond hangs his hat on - "violent injury" - appear in the statutory definition. On the contrary, the CDV statute explicitly requires that there be, at a minimum, a threat "to cause physical harm or injury" to the defendant's household member, along with "the present ability under circumstances reasonably creating fear of imminent peril" in the victim.
Under general rules of statutory interpretation, South Carolina gives the "words in a statute their plain and ordinary meaning."
State v. Middleton,
Nor has Drummond pointed us to any South Carolina case that indicates that this is a "realistic probability, not a theoretical possibility."
Doctor,
In
LaCoste
, the defendant was indicted on charges of resisting arrest, disorderly conduct and CDV.
See
LaCoste,
On appeal, the court, inter alia, affirmed the trial court's denial of LaCoste's motion for directed verdict on the CDV charge because, "[d]espite the lack of testimony regarding injuries to Mrs. LaCoste," the testimony of the eyewitness was "sufficient to support submission of the case to the jury on the theory that LaCoste caused physical harm to a household member or attempted to cause the same with the 'apparent present ability under circumstances reasonably creating fear of imminent peril.' " Id. at 469-70.
The appeals court also rejected the defendant's argument that the trial court erred by charging the jury on simple assault as a lesser-included offense of CDV.
As to the person-of-another element of assault, the court held that "attempting to cause harm to a household member is in fact an attempt to cause harm to the person of another."
Thus, contrary to Drummond's proffered interpretation,
LaCoste
does not stand for the proposition that the only difference between CDV and simple assault is the identity of the victim,
i.e.,
a household member. That was not the issue before the court, nor does the opinion lead us to this conclusion. There was no issue in
LaCoste
regarding the marital status of the defendant and his victim. But because Mrs. LaCoste testified on her husband's behalf, denied that he struck her, and there was no evidence of physical injuries, the jury could have concluded that LaCoste's conduct rose to the level of a "violent injury" for purposes of an assault, but not to the level of "physical harm or injury" necessary to convict him of CDV.
See
Golston,
The physical harm-or-injury element thus distinguishes CDV from common-law assault, making CDV the greater offense encompassing the lesser offense of assault. The same element also brings CDV within the bounds of a violent felony under the ACCA. Accordingly, regardless of the fact that common-law assault can be committed without causing injury, CDV is a different offense, and it requires at least a threat of physical harm or injury under circumstances reasonably creating fear of imminent peril. That satisfies the Supreme Court's definition of physical force under the ACCA, which means that South Carolina's CDV statute categorically qualifies as a violent felony under the ACCA.
D.
Although Drummond makes the same common-law-assault argument to all three of his CDV convictions, common-law assault was abolished as a criminal offense in 2010, when the South Carolina General Assembly passed an act making numerous changes to the criminal law, including the
creation of a new statutory scheme of criminal assault offenses.
See
Omnibus Crime Reduction and Sentencing Reform Act of 2010, Act No. 273,
Neither Drummond nor the government address the terms of the 2010 act or the abolishment of common-law assault. Nonetheless, the analysis set out above resolves the question as to the later offenses as well. Regardless of the conduct that might be sufficient to support a conviction for statutory assault, the CDV statute requires the defendant to at least threaten to cause physical harm or injury "with apparent present ability under circumstances reasonably creating fear of imminent peril."
E.
The dissent disagrees with our reading of the CDV statute. Noting that the purpose of the CDV statute is to "protect against harm and violence from members of an individual's household,"
Arthurs v. Aiken Cty.
,
The CDV statute, which was passed at a time when common-law assault was a prosecutable crime in South Carolina, does not borrow the language of common-law assault, but instead uses a very different phrase requiring a defendant to cause or threaten to "cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril." S.C. Code. Ann § 16-25-20(A). Because "the General Assembly is [presumed to be] aware of the common law,"
Grier v. AMISUB of S.C., Inc.
,
While Drummond and the dissent can point to South Carolina cases where a defendant was convicted of assault based on conduct that did not cause physical harm or injury, they cannot identify a single case where the defendant was convicted of CDV without causing harm or injury. The CDV statute plainly and explicitly requires a threat of physical harm or injury, and we decline the invitation to read that language as meaning that no physical harm or injury is actually required.
F.
Accordingly, we hold that the CDV statute's minimum requirement of a threat to cause physical harm or injury to a person's own household member satisfies the ACCA's requirement that a predicate offense have as an element the threatened use of physical force capable of causing physical pain or injury to another person. Drummond's felony convictions for third-offense CDV and CDVHAN are categorically violent felonies for purposes of the ACCA, and we therefore affirm his sentence.
IV.
For the foregoing reasons, we affirm Drummond's conviction and sentence.
AFFIRMED
On appeal, the government argues that Drummond failed to establish standing to challenge the search because he was a social guest in the room. The government also asserts, as a new ground to affirm, that Drummond abandoned ownership of the backpack during the search. Because probable cause existed to issue the search warrant, we need not address these arguments.
See
Byrd v. United States
, --- U.S. ----,
The "modified categorical" approach is applicable when a defendant has been "convicted of violating a divisible statute, and then, only to determine which statutory phrase was the basis for the conviction."
United States v. Hemingway,
The term "crime of violence" under the Guidelines and "violent felony" under the ACCA "have been defined in a manner that is substantively identical."
United States v. King
,
Although the appeals court reversed LaCoste's convictions because the trial court erred in excluding hearsay statements by an unknown male witness, it addressed the CDV and assault arguments and remanded the case for a new trial consistent with these rulings.
State v. LaCoste,
Concurrence in Part
I join parts I and II of this opinion, but because I fundamentally disagree with how the majority reads
State v. LaCoste
,
I.
As the majority discusses, we have issued unpublished opinions concluding that CDV is categorically a crime of violence. Since those cases are not binding, I consider in the first instance whether CDV is a crime of violence.
I agree with the parties and with my colleagues in the majority that CDV should be analyzed using the categorical approach, as opposed to the modified categorical approach. Under that approach, we are to review the elements of the crime and discern "the minimum conduct necessary for a violation under state law."
United States v. Gardner
,
Most CDV cases adjudicated by South Carolina state courts involve violent physical assaults that easily fall under the ACCA's force clause.
See, e.g.,
State v. Chase
,
But there is a spectrum of conduct between the recordings the Hawes court refused to find as evidence of CDV and the brutal assault in Chase that easily satisfies the "physical force" contemplated by ACCA's force clause. It is in this murky middle ground that the "most innocent conduct" of an "offer ... to cause physical harm" exists. However, no South Carolina state court case discusses this conduct in the context of the CDV statute. For guidance, then, I turn to South Carolina's interpretation of similar language in the common-law crime of assault.
Under South Carolina law, assault is "an unlawful attempt or offer to commit a violent injury upon another person, coupled with the present ability to complete the attempt or offer by a battery."
State v. Murphy
,
As there are no South Carolina cases analyzing what an "offer" of "physical
harm" means in the context of a CDV conviction,
LaCoste
's analysis should guide our own. And although
LaCoste
does not speak with perfect clarity on the issue at hand, the most natural reading of the court's analysis is that under the CDV statute, an "offer ... to cause physical harm" includes an offer to touch a person in a rude or angry manner. We have already determined that "rude or angry" touching does not count as "physical force" within the meaning of ACCA's force clause.
See
Hemingway
,
Accordingly, I would hold that South Carolina CDV is not a crime of violence and remand for resentencing without the ACCA enhancement. In concluding the contrary, the majority makes two analytical errors. First, the majority's analysis assumes that South Carolina's definition of common-law assault has no bearing on the definition of "physical harm" in the CDV statute. But for the reasons just discussed, that assumption does not square with
LaCoste
. Moreover, the majority infers based on the facts of
LaCoste
, in which the jury heard evidence that LaCoste "repeatedly struck a woman who identified herself as his wife,"
The majority's reading of a higher threshold of force into CDV offenses assumes a higher bar for obtaining a CDV conviction than an assault conviction, a result seemingly at odds with the "essential purpose of the [CDV] statute ... to protect against harm and violence from members of an individual's household."
See
Arthurs v. Aiken Cty.
,
The PSR indicates only three past convictions that would be "violent felonies" for ACCA purposes. Therefore, if CDV is not a crime of violence then Drummond would not have the requisite three predicate convictions to qualify for armed career criminal status. In the recent case of
United States v. Hodge
,