United States of America v. Marshaun Jordan Merrett, also known as Sheez United States of America v. Johnnathan Monroe Frencher, also known as Ten

St. Louis - Criminal defense lawyer represented defendant with being members of a drug trafficking organization charge.

The Federal Bureau of Investigation (FBI) made five controlled drug buys from

Frencher while investigating the drug trafficking organization that Merrett and

Frencher had joined. To complete the controlled buys, the FBI directed a confidential

source (CS). The CS had previously obtained a cellphone number to contact Frencher

for drug purchases. For three of the controlled buys, the CS contacted Frencher using

that cellphone number.

When the FBI's investigation into the drug trafficking organization failed to

expose the full extent of its operations, the FBI applied for a wiretap on a phone that

Frencher allegedly used. In early December 2018, a federal district court authorized

use of the wiretap.

Within a couple of weeks, the FBI intercepted text messages between Frencher

and his brother, Freddie. Freddie messaged Frencher that Freddie had information

about a potential burglary. Almost instantly, Frencher called Freddie to discuss the

proposed crime. The conversation between the brothers and an unidentified man

included specifics about the intended victim, the layout and entry points of his house,

his schedule and when he would be home, whether he owned weapons to protect

himself, and the loot that could be obtained. They also discussed their readiness to

attempt the crime that same night, but Frencher lamented that he could not

immediately go because he did not have a car.

The FBI and the Des Moines Police Department promptly began surveilling

Frencher's apartment in an unmarked vehicle. About two hours after the call, lawenforcement officers observed an SUV arrive at the apartment. Frencher and Freddie

approached the SUV and entered the passenger side. When the SUV pulled away, the

officers tailed it. Although both the SUV and the unmarked law-enforcement vehicle

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had their windows rolled up, an officer commented that he could smell marijuana

coming from the SUV.

Eventually, different officers in a marked patrol car began following the SUV.

The officers in the patrol car had been briefed on the communications between

Frencher and Freddie and the potential marijuana smell. When the patrol car pulled

behind the SUV, one of those officers also commented that she smelled marijuana. The

officers in the patrol car then initiated a traffic stop. The marijuana smell did not

dissipate. After running the driver's license and registration, the officers arrested the

SUV's three occupants. The officers then searched the SUV. Under Frencher's and

Freddie's seats, they found two loaded handguns with a total of 26 rounds of

ammunition.

Additionally, when a backup officer arrived at the scene, he also smelled a

strong marijuana odor. The vehicle search uncovered no marijuana.

During the criminal proceedings against Frencher, he moved to suppress the

evidence obtained during the traffic stop, arguing that the wiretap was improper, the

officers did not have reasonable suspicion to effect a traffic stop, and the officers did

not have probable cause to search the SUV. The district court denied Frencher's

motion to suppress.

Frencher pleaded guilty to being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and to distributing cocaine, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court calculated Frencher's offense

level as 25 and his criminal history category as V. The Guidelines range was 100 to

125 months' imprisonment, though the statutory maximum was 120 months'

imprisonment. The district court sentenced Frencher to 110 months' imprisonment.

Frencher appeals the district court's denial of his motion to suppress and the

reasonableness of his sentence.

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B. Denial of the Motion to Suppress

"We review the denial of [a] motion to suppress under a mixed standard of

review. We review the district court's findings of fact under the clearly erroneous

standard, and the ultimate conclusion of whether the Fourth Amendment was violated

is subject to de novo review.” United States v. Holly, 983 F.3d 361, 363 (8th Cir.

2020) (emphasis omitted) (cleaned up). Frencher launches a three-pronged attack

against the validity of the search, arguing that (1) the approval of the wiretap

application was erroneous, (2) the officers did not have reasonable suspicion to initiate

the traffic stop, and (3) the officers did not have probable cause to search the SUV.

1. Wiretap Authorization

To obtain a wiretap, the government must establish the following four

requirements:

(a) there is probable cause for belief that an individual is committing, has

committed, or is about to commit a particular offense enumerated in [18

U.S.C. § 2516];

(b) there is probable cause for belief that particular communications

concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be too

dangerous;

(d) . . . there is probable cause for belief that the facilities from which, or

the place where, the wire, oral, or electronic communications are to be

intercepted are being used, or are about to be used, in connection with the

commission of such offense, or are leased to, listed in the name of, or

commonly used by such person.

18 U.S.C. § 2518(3). Frencher argues that the requirements in subsections (c) and (d)

were not met.

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a. Necessity

Subsection (c) requires a finding of necessity for the wiretap. We review the

district court's fact finding for clear error. United States v. Campbell, 986 F.3d 782,

793 (8th Cir. 2021). Under clear-error review, we affirm unless (1) substantial

evidence does not support the district court's necessity determination, (2) the

determination "evolve[d] from an erroneous view of the applicable law,” or (3) we,

after reviewing the whole record, have a definite and firm conviction that the district

court made a mistake. United States v. O'Connell, 841 F.2d 1408, 1414 (8th Cir.

1988).

To meet the necessity requirement, law enforcement must "establish that

conventional investigatory techniques have not been successful in exposing the full

extent of the conspiracy and the identity of each coconspirator.” Campbell, 986 F.3d

at 793 (quoting United States v. Turner, 781 F.3d 374, 382 (8th Cir. 2015)). "But the

necessity requirement does not require the government to exhaust every available

investigative technique,” United States v. Terrell, 912 F.3d 1125, 1129 (8th Cir.

2019), or "to use a wiretap only as a last resort.” United States v. Perez-Trevino, 891

F.3d 359, 370 (8th Cir. 2018) (quoting United States v. Macklin, 902 F.2d 1320, 1327

(8th Cir. 1990)).

The wiretap application in this case included a lengthy affidavit. The affidavit

detailed multiple investigative techniques that law enforcement had used and

explained why those techniques were unsuccessful in exposing the full extent of the

drug trafficking organization. It also listed unused techniques and said why those

techniques would have been ineffective or dangerous. For example, the affidavit

discussed the limited utility of using a CS and conducting controlled drug buys, the

fearful reticence of interviewees related to the organization, the perils of going to a

grand jury before having more complete information, the risks and limited success of

using physical surveillance and undercover agents, and the frequent futility of trash

searches. And it also explained that law enforcement had been unable to discover the

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drug trafficking organization's sources, storage locations, and some of the highranking members within the organization's structure. The detailed affidavit provided

ample information to meet the necessity requirement. See United States v. Milliner,

765 F.3d 836, 840 (8th Cir. 2014) (per curiam) ("Despite all these techniques, the

government still did not know where [the defendant] obtained the cocaine, how he

laundered the proceeds from the sales, and where he stored the drugs or the

proceeds.”); United States v. West, 589 F.3d 936, 939 (8th Cir. 2009) (finding that the

necessity requirement was met where "the government had obtained a significant

amount of information about the extensive drug operation in which [the defendant]

was a primary player” but "had not uncovered the sources of the cocaine in which he

dealt”). There was no clear error.

b. Probable Cause That the Cellphone Was Connected to Crime

Frencher urges that the government failed to establish subsection (d) because

its wiretap application "failed to establish probable cause that the phone number to be

intercepted . . . was listed in the name of Frencher or commonly used by him.”

Frencher's Br. at 14. This argument, however, is unsupported by the record and

ignores that subsection (d) may be met in either of two ways.

Subsection (d) requires "probable cause for belief that the facilities” are either

(1) "used, or are about to be used, in connection with the commission of [certain

criminal offenses]” or (2) "leased to, listed in the name of, or commonly used by [the

suspect].” 18 U.S.C. § 2518(3)(d); see, e.g., United States v. Donovan, 429 U.S. 413,

435 (1977) (paraphrasing subsection (d) as requiring "probable cause to believe that

. . . the target facilities are being used in connection with the specified criminal

activity”); United States v. Giacalone, 853 F.2d 470, 480 (6th Cir. 1988) (stating that

subsection (d) requires "probable cause to believe . . . that the telephones to be

monitored were either being used in connection with the criminal activity or were

commonly used by the suspects”). This probable-cause requirement is coextensive

with the Fourth Amendment's probable-cause requirement. United States v. Gaines,

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639 F.3d 423, 430 (8th Cir. 2011). Thus, the government had to show, when

considering the totality of the circumstances, that there was a fair probability that the

cellphone was used or was about to be used for criminal activities or that Frencher, a

person engaged in proscribed conduct, commonly used the cellphone. United States

v. Hager, 710 F.3d 830, 836 (8th Cir. 2013).

The government met its burden. The CS performed three controlled buys by

communicating with the cellphone number that was wiretapped. Further, the CS

identified the number as Frencher's, and Frencher was the person who facilitated the

controlled buys through the number. Therefore, probable cause existed to meet

subsection (d).

2. The Traffic Stop

Next, Frencher challenges the traffic stop. Law-enforcement officers may effect

a traffic stop if they have reasonable suspicion of criminal activity. United States v.

Mosley, 878 F.3d 246, 251 (8th Cir. 2017). "Reasonable suspicion exists when an

officer is aware of particularized, objective facts which, taken together with rational

inferences from those facts, reasonably warrant suspicion that a crime is being

committed,” "based on the totality of the circumstances.” Id. (quoting United States

v. Givens, 763 F.3d 987, 989 (8th Cir. 2014)). This must be more than an "inchoate

hunch,” but officers need only be able to "articulate some minimal, objective

justification for an investigatory stop.” Id. (quoting United States v. Tamayo-Baez, 820

F.3d 308, 312 (8th Cir. 2016)).

There was reasonable suspicion for the officers to stop the SUV that carried

Frencher. Just before Frencher and Freddie entered the SUV, they conversed with an

unidentified man concerning the details of a proposed, imminent burglary. During the

conversation, Frencher said that the only thing stopping him was that he did not have

a car to get to the proposed house. Less than two hours later, an SUV arrived to pick

up Frencher and Freddie. These facts and the reasonable inference that the brothers

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now had the transportation they needed provided law enforcement reasonable

suspicion that the occupants in the SUV were on their way to commit a burglary.

Frencher also challenges the duration of the stop. He states that "the stop

exceeded the constraints” established in Rodriguez v. United States, 575 U.S. 348

(2015), when it "escalated into detention, handcuffing of all occupants of the [SUV],

interviews of all in the [SUV], and the ultimate warrantless search of the [SUV].”

Frencher's Br. at 28. "An investigative stop must cease once reasonable suspicion or

probable cause dissipates.” Mosley, 878 F.3d at 253 (cleaned up). If the stop

"exceed[s] the time needed to handle the matter for which the stop was made,” the

duration of the stop violates the Fourth Amendment. Id. (quoting Rodriguez, 575 U.S.

at 350).

The constitutionality of the duration "is determined by the seizure's 'mission.'”

Id. (quoting Rodriguez, 575 U.S. at 354). Here, law enforcement's mission was

twofold. Initially, the officers were investigating whether Frencher and the other

occupants of the SUV were on their way to commit a burglary. After the stop began,

this mission expanded to determine whether the occupants were illegally possessing

and using marijuana that multiple officers at the scene of the stop smelled, which

provided probable cause. See United States v. Smith, 789 F.3d 923, 928 (8th Cir. 2015)

(stating that "[t]he Supreme Court has recognized that the odor of an illegal drug can

be highly probative in establishing probable cause for a search” and finding that the

smell of marijuana provided probable cause (quoting United States v. Caves, 890 F.2d

87, 90 (8th Cir. 1989))). All of the officers' actions were aimed at these two

objectives. On these facts, the duration of the stop was not unreasonably extended.

3. The SUV Search

Further, Frencher claims that the officers did not have probable cause to search

the SUV. The government argues that Frencher lacks standing to challenge the search.

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The district court did not address the issue. Assuming without deciding that Frencher

had standing, he cannot show that the search was unconstitutional. The Fourth

Amendment requires law-enforcement officers to obtain a warrant before initiating a

search, but "[d]uring a lawful investigatory [traffic] stop, officers may search a vehicle

[without a warrant] when they develop probable cause to believe it contains

contraband or evidence of criminal activity.” United States v. Williams, 955 F.3d 734,

737 (8th Cir. 2020). During this traffic stop, officers smelled marijuana emanating

from the SUV. And "[w]e have repeatedly held that the odor of marijuana provides

probable cause for a warrantless search of a vehicle under the automobile exception.”

Id. Thus, the officers' search of the SUV did not violate Frencher's Fourth

Amendment rights.

C. Sentence's Substantive Reasonableness

Frencher does not allege that the district court committed procedural error, but

he does challenge the substantive reasonableness of his sentence. We review the

substantive reasonableness of a sentence for an abuse of discretion. United States v.

Davis, 859 F.3d 572, 574 (8th Cir. 2017). The district court abuses its discretion if it

"fails to consider a relevant factor which should have received significant weight;

gives significant weight to an improper or irrelevant factor; or considers the

appropriate factors but commits a clear error of judgment.” Id. (quoting United States

v. Edwards, 820 F.3d 362, 366 (8th Cir. 2016)). "A within-Guidelines sentence,” like

Frencher's 110 months' imprisonment, "is presumed reasonable.” United States v.

Williams, 913 F.3d 1115, 1116 (8th Cir. 2019) (per curiam). Frencher argues that the

district court improperly weighed the sentencing factors in 18 U.S.C. § 3553(a).

Here, the district court considered and weighed the § 3553(a) factors: It "recited

the factors, heard extensive argument of counsel, and explained its chosen sentence.”

United States v. Jones, 669 F. App'x 811, 812 (8th Cir. 2016) (unpublished per

curiam) (citing Rita v. United States, 551 U.S. 338, 359 (2007)). Further, the district

court explicitly acknowledged almost all of the mitigating factors that Frencher raises

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on appeal, including Frencher's difficult childhood, his children, and his future

education and employment goals. Frencher simply disagrees with how the district

court weighed those factors. But based on a review of the record, we cannot say that

the district court committed a clear error of judgment in weighing the § 3553(a)

factors. It instead used its "wide latitude to weigh the § 3553(a) factors . . . and

assign[ed] some factors greater weight than others.” United States v. Stephen, 984 F.3d

625, 633 (8th Cir. 2021) (quoting United States v. Bridges, 569 F.3d 374, 379 (8th Cir.

2009)). Frencher's sentence is substantively reasonable.

II. Merrett

A. Background

Unrelated to Frencher's stop, in December 2018, Des Moines Police Department

officers conducted a lawful traffic stop of the car that Merrett was driving. During the

stop, officers smelled marijuana, so they searched Merrett's car. The search produced

a baggie of marijuana and a loaded handgun with 31 rounds of ammunition. A few

days after the search, Merrett and some companions armed with guns went to a liquor

store at 1:30 a.m. There, they encountered another armed group. A shootout between

the two groups ensued, and security video showed Merrett with a handgun at the

ready.

Merrett pleaded guilty to being a felon in possession of ammunition, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), as a result of the ammunition found during

the traffic stop. At sentencing, the district court calculated Merrett's offense level as

23 and his criminal history category as V. The Guidelines range was 84 to 105

months' imprisonment. The district court sentenced Merrett to 105 months'

imprisonment. Merrett appeals the reasonableness of his sentence.

B. Sentence's Substantive Reasonableness

Merrett does not claim that the district court committed any procedural error

while sentencing him, only that his sentence was substantively unreasonable. We

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review Merrett's substantive-reasonableness challenge for an abuse of discretion, as

we did Frencher's. See Davis, 859 F.3d at 574. Merrett argues that the district court

improperly weighed the § 3553(a) factors in sentencing him to 105 months'

imprisonment, a within-Guidelines sentence. Merrett contends the district court made

four errors in arriving at its sentence: (1) imposing a 105-month sentence that was

"greater than necessary,” under § 3553(a), because of the suspect precedent in Walker,

(2) giving too little consideration to his upbringing and addiction to drugs, (3) valuing

punishment more greatly than drug treatment, and (4) failing to consider the disparity

in sentence length between his and his codefendants' sentences.

The district court did not err in weighing these considerations. To begin, the

district court's sentence was not greater than necessary. The district court properly

applied Walker, the existing precedent. Even so, the district court explained that 105

months' imprisonment was "the same sentence that [it] would impose without the

Walker adjustment because of . . . the nature and circumstances of the offense and

. . . the subsequent possession of a firearm . . . mere days after th[e] offense of

conviction.” Sentencing Tr. at 37, United States v. Merrett, No. 4:19-cr-00061-RGESHL-3 (S.D. Iowa 2020), ECF No. 727; cf. United States v. Halter, 988 F.3d 1042,

1047 (8th Cir. 2021) (finding a sentence substantively reasonable over the defendant's

argument that Walker created unwarranted sentencing disparities); United States v.

McGrew, 846 F.3d 277, 280 (8th Cir. 2017) (explaining that alleged procedural errors

are harmless "if it is clear from the record that the district court would have given the

defendant the same sentence regardless of which guidelines range applied” (citation

omitted)).

Next, the district court acknowledged "the disadvantaged nature of [Merrett's]

upbringing and the challenges that he faced, his early onset of use of controlled

substances, and lack of youthful guidance and supervision.” Sentencing Tr. at 34. But

these mitigating facts were counter balanced by Merrett's refusal to take advantage of

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opportunities that were available to him to avoid criminal conduct. This was an

appropriate consideration.

Further, contrary to Merrett's assertions, the district court did not overlook

treatment and rehabilitation. For example, as a special condition of supervised release,

Merrett will "be required to participate in a program of testing or treatment for

substance abuse” and "restricted from the use of alcohol or any other intoxicants in

furtherance of [his] substance abuse treatment.” Id. at 39. The district court did not

abuse its discretion by not giving even greater consideration to Merrett's addictions,

especially considering the multiple aggravating factors present. Cf. United States v.

Plaza, 471 F.3d 876, 879 (8th Cir. 2006) ("Drug addiction or abuse is not a proper

reason to impose a downward variance, absent exceptional circumstances.” (quoting

United States v. Lee, 454 F.3d 836, 839 (8th Cir. 2006))).

Finally, the district court considered the need to avoid unwarranted sentencing

disparities. Merrett's argument here focuses on the differences between his sentence

and those of some of his codefendants, but we have explained that "the statutory

direction to avoid unwarranted sentence disparities, see 18 U.S.C. § 3553(a)(6), refers

to national disparities, not differences among co-conspirators.” United States v. Baez,

983 F.3d 1029, 1044 (8th Cir. 2020) (quoting United States v. Fry, 792 F.3d 884, 892

(8th Cir. 2015)). In our circuit, "relief based on a comparison [to] co-conspirators” is

an "unusual circumstance” where there must be both (1) "an 'extreme disparity'

. . . between similarly situated conspirators” and (2) "a consolidated appeal involving

both conspirators that permit[s] a remand for resentencing of both parties.” Fry, 792

F.3d at 892–93.

First, Merrett compares his sentence to Frencher's sentence and three other

codefendants who are not part of this appeal. "But when one defendant asserts on

appeal that similarly situated co-conspirators [who did not appeal] were sentenced

differently in different proceedings, and all sentences are within the range of

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reasonableness, 'there is no principled basis for an appellate court to say which

defendant received the "appropriate” sentence.'” United States v. Nshanian, 821 F.3d

1013, 1019 (8th Cir. 2016) (quoting Fry, 792 F.3d at 892–93). So we limit our review

to a comparison with Frencher, the only defendant consolidated with Merrett.

Second, Merrett's Guidelines calculations was similar to Frencher's. Both had

a criminal history category of V. Merrett's offense level was 23, and Frencher's

offense level was 25. Likewise, the district court considered both to have engaged in

egregious conduct. Thus, Merrett and Frencher were similarly situated. But their

sentences were not "extremely dispar[ate].” Fry, 792 F.3d at 892. There is only a

difference of five months between Merrett's and Frencher's sentences. And, Merrett

received five fewer months than Frencher's 110 months' imprisonment.

We conclude that the district court did not clearly err in weighing the § 3553(a)

factors

We affirm the district court’s denial of Frencher’s motion to suppress, the

substantive reasonableness of both Merrett’s and Frencher’s sentences, and the

application of § 2K2.1(b)(6)(B).