Dude, That Fentanyl Brick Isn’t Mine!

by | February 25, 2021

United States v. Myers, 2021 WL 243521 (4th Cir. 2021)

An investigator monitoring arrivals on bus line known for drug trafficking saw Sheldon Myers descend from a bus with 20 to 30 other passengers. Myers stuck out because he had no bag, backpack or luggage, but was carrying only a “dark” unidentifiable “object” in his hand. The investigator saw Myers make a call on a cell phone. A few minutes later, a silver Infiniti drove up and Myers got into the passenger seat.

The investigator alerted other officers who began to follow the Infiniti as it drove a circuitous route, as if looking for surveillance. The officers stopped the car for speeding and a window tint violation. Based on the smell of marijuana, the officers searched the car and found a “blue Honey Maid graham cracker box on the floorboard behind the front passenger seat.”

The box contained a brick of fentanyl in a vacuum-sealed plastic bag. The officers also found three cell phones, one in the driver seat and two in the glove box, and a loaded handgun in the trunk. The Infiniti driver claimed ownership of those four items. Both the driver and Myers denied ownership of the fentanyl.

The officers arrested Myers and the driver for possession of the illegal drugs. Myers filed an unsuccessful motion to suppress evidence on the ground that the officers lacked probable cause he’d committed a crime. The district court denied the motion and sentenced Myers to 75 months in prison. He appealed, arguing that because the driver admitted to owning the gun and three of the cell phones and because “drugs and guns all too often go hand in hand” (quoting United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002)), the officers could have acted only on a “hunch” in arresting him.

In Maryland v. Pringle (540 U.S. 366 (2003)), the Supreme Court held that, when an officer finds illegal drugs in a car that the officer has legally stopped and searched and all occupants deny ownership of the drugs, it is “entirely reasonable” for the officer to infer all the vehicle occupants are in a “common enterprise” and there is probable cause to arrest all the occupants.

Applying Pringle, the appellate court confirmed the legality of Myers’ arrest. Myers had alighted late at night from a bus known to carry drug traffickers. Unlike other passengers, he had no luggage. He was picked up by a car that took a route suggesting the occupants were watching for surveillance. The officers smelled marijuana and found multiple cell phones and a loaded gun. All those factors, the court concluded, would reasonably lead an officer to believe Myers and the driver were in a “common enterprise” to possess the fentanyl.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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