                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2003

USA v. Schofield
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1175




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                                                  NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 03-1175



          UNITED STATES OF AMERICA

                           v.

               ROZONE SCHOFIELD,

                                      Appellant




      Appeal from the United States District Court
       for the Western District of Pennsylvania
       (D.C. Criminal Action No. 02-cr-00008)
       District Judge: Honorable Alan N. Bloch


              Argued September 16, 2003


Before: ALITO, AM BRO and CHERTOFF, Circuit Judges


         (Opinion filed: November 20, 2003)

                        Frank Arcuri, Esquire (Argued)
                        DiSalle & Arcuri
                        90 West Chestnut Street
                        Suite 715 Millcraft Center
                        Washington, PA 15301

                                Attorney for Appellant
                                          Mary Beth Buchanan
                                            United States Attorney
                                          Bonnie R. Schlueter (Argued)
                                            Assistant United States Attorney
                                          Office of the United States Attorney
                                          633 United States Post Office & Courthouse
                                          Pittsburgh, PA 15219

                                                  Attorneys for Appellee


                                         OPINION


AM BRO, Circuit Judge


       Rozone Schofield appeals his jury conviction for conspiring to possess, with intent

to distribute, 50 grams or more of cocaine base in violation of 21 U.S.C. § 846. He

claims that the District Court erred by not suppressing evidence obtained in violation of

the Fourth Amendment and by failing to instruct the jury (i) on whether venue exists for

this conspiracy and (ii) precisely as to the controlled substance involved. W e affirm.

                           I. Factual and Procedural History

       While typically a not precedential opinion contains a truncated telling of facts, the

highly factual nature of Schofield’s Fourth Amendment claim requires greater detail. On

the morning of October 31, 2001 a Maryland State Trooper, Douglas Bittinger, stopped a

motor vehicle when he observed it traveling at 86 miles per hour in Washington County,

Maryland. Bittinger asked Schofield, the driver of the vehicle, for his license and the

car’s registration. The registration identified the backseat passenger, Donnie Dreher, as

                                             2
the owner of the halted vehicle. Bittinger ran a routine check on Schofield’s driver’s

license and discovered that the license was suspended. In Maryland, driving with a

suspended license is punishable by incarceration. Bittinger thereupon radioed for backup

to assist him in arresting Schofield.

       After securing Schofield in his patrol vehicle, Bittinger obtained permission from

Dreher, the owner of the vehicle, to search its interior. In the course of his search,

Bittinger observed what appeared to be cigar tobacco. He suspected that the loose

tobacco indicated marijuana use, as “people who smoke marijuana will take cigars,

unwrap the cigars, take the tobacco out of it, and place the marijuana back inside.”

Bittinger then asked, and received, Dreher’s consent to search the trunk as well.

       In the trunk Bittinger observed a large laundry detergent box. The box’s pull tab

remained intact, but the box had been taped at the top. Bittinger lifted the box and

noticed that it felt completely full and was heavier than he expected, given that laundry

detergent boxes ordinarily have air space at the top. Bittinger was aware that detergent is

often used to mask the odor of drugs. Upon inquiry, Dreher informed Bittinger that the

box belonged to Schofield. Bittinger then notified Dreher that he would be taking

Schofield to the state police barracks for processing. Dreher followed in his vehicle.

       While in transit to the barracks, Bittinger asked Schofield who owned the

detergent box, and he admitted ownership. In response to further questioning, Schofield

stated that he had used some of the detergent to wash his clothes and had taped it to



                                              3
prevent spillage. He declined, however, Bittinger’s request to open the box.

       When he arrived at the barracks, Bittinger attempted to bring in a K-9 unit to

conduct a drug sniff of Dreher’s car. Meanwhile, Dreher asked first the Duty Officer and

then Bittinger whether he could leave the barracks to eat. In response, Bittinger asked

whether the box of detergent was still in the car and, if so, whether he would turn it over

to the police. Bittinger testified that Dreher voluntarily opened the trunk and gave

Bittinger the box. While returning to the barracks with the box, Bittinger again noted that

the box seemed inordinately heavy. He weighed the box at the barracks, and the scales

indicated a weight of 17 ½ pounds. The weight stated on the label of the box was 14 ¾

pounds.

       Thereafter, Bittinger succeeded in speaking with a K-9 officer. His trained dog

sniffed the room in which the detergent box had been placed and alerted Bittinger to the

potential presence of controlled substances within the detergent box. Schofield then

claimed that the box belonged to all occupants of the car.

       After the K-9 alert, Bittinger obtained a warrant to search the box. Contained

within the box were 275.5 grams of cocaine base (“crack cocaine”) and 159.6 grams of

cocaine hydrochloride (“powder cocaine”).

       At 4:25 p.m., Sergeant Mark Holtzman advised Schofield of his Miranda rights.

Schofield then told Holtzman that the box contained cocaine and that he was supposed to

receive part of the cocaine upon arrival in Pittsburgh. He also implicated the front-seat



                                             4
passenger of the car as well as Dreher. Schofield provided a written statement detailing

his involvement in obtaining the cocaine and transporting it from Washington, D.C. to

Pittsburgh.1

       Schofield was indicted by a grand jury in the Western District of Pennsylvania for

violating 21 U.S.C. § 846, in this case conspiring to possess, with the intent to distribute,

50 grams or more of cocaine base. Prior to trial, Schofield’s counsel filed a motion to

suppress physical evidence and statements. The District Court, after a pretrial conference

and hearing, granted the motion only with respect to the statements made by Schofield

prior to receiving his Miranda warnings. A jury found Schofield guilty. The District




   1
     Schofield’s unedited statement, which was admitted at the suppression hearing and at
trial, reads as follows:
         Today I was driving back from D.C. when I was stopped by the state police.
         The police searched the car and found a box of laundry detergent in the
         trunk the police asked whose box it was and I told them it was ours for our
         laundry, we then went to state police barricks where he asked me what was
         up with the tape on the box I told him Carlos dropped the box on the ground
         and I retaped it. I was then read my rights by the police and they asked me
         whose dope was in the box. I then told them what the truth was, the truth is
         that Carlos, Larry, & I came Beaver Falls to D.C. over the weekend Carlos
         had about 19 to $25K in his possession we went out over the weekend we
         went to this girl Jan’s house where Carlos bought in a detergent box with
         dope in it we wrapped it up in saran wrap, one of the pkgs was in a potato
         chip bag. We then put petroleum jelly over it then rewrapped it in saran
         wrap. I then sealed the box with tape. The next day Carlos put the box in the
         car then we left out to head home.

       Carlos lives in Detroit or Pontiac Michigan, he makes trips every week from
       there to PA to sell dope. I have bought anywhere from 4 ½ to 9 ozs of (soft)
       cocaine from Carlos in the past.

                                              5
Court sentenced him to 135 months of incarceration, followed by five years of supervised

release. He appeals.

       We exercise plenary review of the District Court’s findings as to the lawfulness of

the search; the underlying factual findings are reviewed for clear error. Ornelas v. United

States, 517 U.S. 690, 699-700 (1996). When reviewing whether the District Court’s jury

instructions stated the proper legal standards, we exercise plenary review. Government of

Virgin Islands v. Isaac, 50 F.3d 1175, 1180 (3d Cir. 1995). The District Court had

jurisdiction over the federal criminal prosecution under 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

                                      II. Discussion

A. Fourth Amendment Claim

       Schofield argues that the detergent box was unlawfully seized and detained, and

thus the District Court erred by not suppressing it. We disagree, as the box was searched

based upon Trooper Bittinger’s reasonable, articulable suspicion of criminal activity.

       As a threshold matter, the Government asserts that Schofield has waived this claim

because his motion to suppress was insufficiently detailed. Schofield’s motion stated

merely that “[t]he police examination of the box without a warrant was unconstitutional in

violation of the Fourth Amendment to the United States Constitution.” M oreover, he did

not develop this issue in his memorandum of law filed in the District Court or at the

suppression hearing. Without doubt greater exposition of this argument in the District



                                             6
Court is preferable. Yet Schofield’s motion was sufficient “to serve notice as to the

underlying basis for the objection.” United States v. Russell, 134 F.3d 171, 179 (3d Cir.

1998). Thus we move to the merits.

       In deciding the merits, we note at the outset that Schofield has no standing to

contest any detention of the automobile’s owner or its other passenger. 2 In this context,

Schofield’s argument that “the continued questioning and seizure of the owner [and]

remaining passenger . . . following [his] arrest lacked probable cause as well as

reasonable, articular [sic] suspicion” is unavailing. Appellant’s Brief at 19.

       Whether Schofield has standing to challenge an unlawful search of the vehicle

itself is a closer question. In United States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000), we

explained that “whether the driver of a car has the reasonable expectation of privacy

necessary to show Fourth Amendment standing is a fact-bound question dependent on the

strength of his interest in the car and the nature of his control over it; ownership is not

necessary.” The facts unique to that case--Baker was alone in a borrowed car and had

been driving it, with the owner’s permission, for four to six weeks--resulted in the

expectation of privacy. Yet the normal course is that when the owner of a vehicle is

traveling with a non-owner driver, the latter has no reasonable expectation of privacy in



   2
    The alleged “detention” of Dreher and the third passenger was, in any case, almost
certainly consensual. Dreher volunteered to follow Bittinger to the barracks in order to
determine what would happen to Schofield. Moreover, to the extent that Dreher consented
to the search of his vehicle, he consented to be detained for the duration of that search.
See, e.g., United States v. Sukiz-Grado, 22 F.3d 1006, 1009 (10th Cir. 1994).

                                               7
the vehicle because a reasonable person would expect that the owner can handle or

remove any item within the vehicle. See United States v. Jefferson, 925 F.2d 1242, 1248-

49 (10th Cir.), cert. denied, 502 U.S. 884 (1991); United States v. Lochan, 674 F.2d 960,

965-66 (1st Cir. 1982).

       But we need not decide this standing aspect today. For even if we assume that

Schofield had a reasonable expectation of privacy in Dreher’s vehicle for Fourth

Amendment standing purposes, nothing in the record indicates that its search was

anything but consensual. Schofield was lawfully stopped for a traffic violation, and he

was lawfully arrested for driving without a license. Bittinger did not act unlawfully by

asking Dreher for permission to search the vehicle, nor was he under any constitutional

obligation to inform Dreher that he need not consent. Ohio v. Robinette, 519 U.S. 33, 39-

40 (1996).3




   3
    The discussion does not address whether Dreher could properly have consented to
Bittinger’s search and seizure of the detergent box. First, it is unclear whether Dreher had
a property interest in the box. While Schofield initially declared possession and declined
to consent to a search, Bittinger testified that Schofield later claimed that the box
belonged to all three occupants of the car. The Government argues that even if Dreher
had no possessory interest in the box, he was nonetheless entitled to authorize its seizure
and subsequent search because Schofield, by stowing the box in Dreher’s car, had
forfeited his privacy right in it. In other words, the Government suggests that Dreher’s
right to remove Schofield’s belongings from his car precluded Schofield from asserting a
privacy interest in those objects as against the police. But cf. United States v. Jefferson,
925 F.2d 1242 (10th Cir. 1991) (“Because [the owner] was present in the car, he was
constantly in a position to assert his possessory interest [in the car] to the extent that he
desired to do so. . . .”) Because we find that Bittinger acted permissibly on other grounds,
we need not resolve this issue.

                                              8
       Schofield prevails on his Fourth Amendment claim only if he can establish that

Bittinger’s seizing, and subsequent searching, of the detergent box was unlawful. The

principal issues are whether Bittinger violated Schofield’s Fourth Amendment rights (1)

when he lifted the box during his search of Dreher’s vehicle, and (2) when he later took

the box from Dreher’s car to the police barracks.

       As to the former incident, Dreher’s consent to a search of the vehicle is

dispositive. Bittinger noted loose cigar tobacco, potentially indicative of marijuana use,

in the passenger compartment of the vehicle. He then obtained Dreher’s consent to

search the trunk. Bittinger almost certainly did not seize the detergent box merely by

lifting it. See United States v. Hall, 978 F.2d 616, 619 (10th Cir. 1992) (“Agent[’s] lifting

of Defendant’s suitcase did not constitute a seizure because this interference with

Defendant’s possessory interests in her suitcase was minimal”). While it is arguable that

moving the box was a search, see Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (“[T]he

‘distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a

few inches’ is much more than trivial for purposes of the Fourth Amendment. It matters

not that the search uncovered nothing of any great personal value to respondent. . . . A

search is a search. . . .”), this act was within the scope of Dreher’s consent. Bittinger

received Dreher’s unrestricted permission to search the trunk. A reasonable person would

understand Dreher’s consent to allow Bittinger’s touching and moving objects within the

trunk. Cf. Florida v. Jimeno, 500 U.S. 248, 251 (1991).



                                              9
       That the search was minimally intrusive means much. Had Bittinger opened the

box during the course of his search, he might have exceeded what a reasonable person

would have understood as the limits of Dreher’s consent. We do not decide today

whether Dreher was capable of consenting to an invasive search of Schofield’s

belongings. Bittinger did not open any containers within the trunk. Rather, he merely

lifted one object in the trunk in the course of inspecting its contents.

       Schofield’s limited privacy interest in the detergent box is also significant. Courts

have recognized that the owners of such items as briefcases and luggage have high

expectations of privacy in them because they contain potentially personal items. See

Bond v. United States, 529 U.S. 334, 337-38 (2000) (“[T]ravelers are particularly

concerned about their carry-on luggage; they generally use it to transport personal items

that, for whatever reason, they prefer to keep close at hand.”) By contrast, an innocent

person’s expectation of privacy in a box of detergent is almost always low. Whatever his

privacy interest in the box’s contents, Schofield’s privacy interest in the weight of the

detergent was minimal at best. Cf. United States v. Jacobsen, 466 U.S. 109, 123 (1984)

(“A chemical test that merely discloses whether or not a particular substance is cocaine

does not compromise any legitimate interest in privacy. . . . [G]overnmental conduct that

can reveal whether a substance is cocaine, and no other arguably ‘private’ fact,

compromises no legitimate privacy interest.”)

       We therefore conclude that Bittinger’s initial handling of the detergent box was



                                              10
constitutionally permissible, and we turn to the seizure of the detergent box at the police

barracks. Detaining the box to arrange for a drug sniff was justified by Bittinger’s

reasonable, articulable suspicion that it contained drugs.4

       The Supreme Court has held that a police officer may act upon reasonable,

articulable suspicion of criminal activity--short of probable cause--if the governmental

action is minimally intrusive of the individual’s Fourth Amendment interests and the

opposing law enforcement interests are great. United States v. Place, 462 U.S. 696, 703-

05 (1983). Bittinger’s conduct in subjecting the detergent box to a K-9 unit dog sniff was

minimally intrusive. The Government’s interest in preventing the trafficking of drugs is

substantial. Id. at 703 (“[W]here the authorities possess specific and articulable facts

warranting a reasonable belief that a traveler’s luggage contains narcotics, the

governmental interest in seizing the luggage briefly to pursue further investigation is

substantial.”) The constitutionality of the seizure thus turns on whether Bittinger acted

upon reasonable, articulable suspicion.

       The District Court identified four facts indicating that he did: (1) “the unusual

manner in which the box was taped,” (2) “the trooper’s knowledge that detergent is often

used to mask the scent of drugs,” (3) “the fact that the box felt heavier than the total




   4
    Because we find that Bittinger acted upon reasonable, articulable suspicion when he
seized the box, we do not decide whether Dreher was capable of consenting, as the bailee
of Bittinger’s belongings, to the removal of the detergent box.

                                              11
weight identified on the outside of the package,” 5 and (4) “the trooper witnessed other

evidence of drug use in the front seat of the car at issue.” As the District Court noted,

“conduct which would be wholly innocent to the untrained observer . . . might acquire

significance when viewed by an agent who is familiar with the practices of drug

smugglers and the methods used to avoid detection.” United States v. Wallraff, 705 F.2d

980, 988 (8th Cir. 1983) (quoting United States v. Mendenhall, 446 U.S. 544, 563

(1980)). In evaluating the validity of a seizure like the one before us, we consider the

totality of the circumstances. United States v. Sokolow, 490 U.S. 1 (1989). Here it

appears from the record that Bittinger, in light of his observations, training, and

substantial experience, had ample grounds for suspicion. The District Court correctly

concluded that Bittinger acted upon reasonable, articulable suspicion--and thus squarely

within the bounds of the Fourth Amendment--when he detained the detergent box for the

purposes of arranging a K-9 drug sniff.

B. Venue

       Schofield urges us to reverse the District Court’s judgment because the Court

failed to instruct the jury on the issue of venue. He contends that he has met the three

criteria noted by this Court in United States v. Perez, 280 F.3d 318, 327 (3d Cir. 2002),




   5
    Schofield suggests that Bittinger could not permissibly consider the perceived
discrepancy in weight because the initial lifting of the box was an unlawful search.
Because, as noted, we conclude that Dreher consented to Bittinger’s movement of the
trunk’s contents, that argument fails.

                                             12
for establishing reversible error:

              [W]here the indictment alleges venue without a facially obvious
              defect, the failure to instruct the jury to determine whether that
              venue is proper is reversible error only when (1) the defendant
              objects to venue prior to or at the close of the prosecution’s
              case-in-chief, (2) there is a genuine issue of material fact with
              regard to proper venue, and (3) the defendant timely requests a
              jury instruction.

Schofield asserts that the Government placed venue in issue because it did not prove, by a

preponderance of the evidence, that the conspiracy charged was formed--or that an overt

act in furtherance of the conspiracy occurred--in the W estern District of Pennsylvania

(where the case was tried). There is no evidence, he suggests, that he was a member of

any conspiracy when he left Beaver Falls, Pennsylvania for Washington, D.C. Given that

the stop, arrest, and seizure all occurred in Maryland, Schofield concludes that the District

Court erred in refusing to charge the jury on the issue of venue, thus precluding it from

deciding that issue.

       As we noted in Perez, 280 F.3d at 335 n.12, “Having made a timely objection, the

defendant normally needs to present testimony that places venue in issue at any time prior

to the close of evidence.” Schofield failed to present any such evidence at trial. Perez,

however, goes on to provide: “Alternatively, the court may find that the Government’s

testimony places venue in issue notwithstanding the defense presentation.” Id.

       At the close of the Government’s case, Schofield moved for acquittal on the

ground of improper venue in the Western District of Pennsylvania. The District Court



                                             13
denied the motion with considerable support. The Government offered testimony, based

on Schofield’s confession, to the effect that Schofield left Beaver Falls in the company of

his co-conspirators and with the intent together to purchase cocaine in Washington, D.C.

Schofield confessed that he and his companions were en route to Pittsburgh when their

car was stopped and that Schofield was to receive part of the cocaine on arrival in

Pittsburgh. He also confessed to purchasing cocaine from his co-conspirator in Pittsburgh

on a weekly basis. This evidence was certainly adequate to establish venue.

C. The Specificity of the Indictment

       Finally, Schofield argues that the District Court erred by using the general term

“controlled substance,” rather than the precise substance charged in the indictment, in the

jury instructions.6 In other words, Schofield contends that the Government must

demonstrate that he was engaged in a conspiracy specifically to distribute crack cocaine.

That misses the mark. The Government must prove only that the defendant conspired to



   6
     The variance between the indictment and the jury instructions is not reversible error.
“To show prejudice, a defendant must generally show that the indictment either did not
sufficiently inform him of the charges against him so that he could prepare his defense
and not be misled or surprised at trial or that the variance created a danger that the
defendant could be prosecuted a second time for the same offense.” United States v.
Balter, 91 F.3d 427, 441 (3d Cir. 1996). Cf. United States v. Sheppard, 219 F.3d 766, 770
(8th Cir. 2000) (“[A] defendant may be convicted of a drug conspiracy violation without
proof that he knew the precise drug he conspired to possess and distribute. . . . The district
court’s instructions required the jury to find that the drug in question was
methamphetamine, and that Sheppard knew it was a controlled substance. . . . There was
no material variance because the instructions only took away a ‘non-defense’--that
Sheppard knew it was a controlled substance, but not the controlled substance,
methamphetamine.”).

                                             14
distribute a controlled substance.

       The indictment charged a conspiracy to possess with intent to distribute “in excess

of 50 grams or more of cocaine base in the form commonly known as crack.” Given this

indictment, Schofield’s theory of defense was that he did not know the box contained

crack cocaine, but rather thought that it contained powder cocaine. Schofield’s efforts at

trial were misplaced. “[T]he structure and plain text of § 841 affords no support for a

requirement that the Government must prove more than the defendant’s knowledge that

he was trafficking in a controlled substance.” United States v. Barbosa, 271 F.3d 438, 458

(3d Cir. 2001), cert. denied, 537 U.S. 1049 (2002).

       Schofield argues that this analysis applies only to the mens rea (or intent) portion

of the substantive offense. A conspiracy conviction, he contends, requires something

more. We disagree. Section 846 specifically states that “any offense defined in this

subchapter shall be subject to the same penalties as those prescribed for the offense, the

commission of which was the object of the attempt of conspiracy.” Every Court of

Appeals that has addressed this issue has extended the reasoning underlying Barbosa to

conspiracy cases. See United States v. Villarce, 323 F.3d 435, 439 n.1 (6th Cir. 2003);

United States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir.), cert. denied, 537 U.S. 869

(2002); United States v. Carrera, 259 F.3d 818, 830 (7th Cir. 2001); United States v.

Sheppard, 219 F.3d 766, 768 n.22, 770 (8th Cir. 2000).

       To be sure, there can be no conspiracy where there is no meeting of the minds.



                                             15
However, a co-conspirator need not be aware of the precise details of the scheme as long

as the Government can establish a common purpose. See United States v. Russell, 134

F.3d 171, 183 (3d Cir. 1998). The District Court thus did not err by charging the jury to

determine whether Schofield conspired to distribute a controlled substance. The jury

found that Schofield and his co-conspirators sought to advance the common unlawful

object of distributing controlled substances in violation of § 841, and Schofield was

properly convicted on that charge.

                                     III. Conclusion

       Because the District Court properly admitted the physical evidence at issue, and

because the jury instructions were legally sufficient, we affirm Schofield’s conviction.




                                            16
TO THE CLERK:

    Please file the foregoing Not Precedential Opinion.




                                      By the Court,


                                      /s / Thomas L. Ambro

                                      Circuit Judge
