US v. Elijah Sims

Filing 920081209

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4019

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ELIJAH JUNIOR SIMS, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:05-CR-00340)

Submitted:

November 3, 2008

Decided:

December 9, 2008

Before WILKINSON and Senior Circuit Judge.

DUNCAN,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Tolly A. Kennon, III, KENNON & ASSOCIATES, Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Elijah Junior Sims was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006), and one count of possession with intent to distribute five grams or more of a mixture or substance

containing cocaine base, in violation of 21 U.S.C. § 841 (2006). On February 3, 2006, Sims filed a motion to continue his trial based on supplemental discovery received from the Government, including Federal Rules of Evidence 404(b) evidence. The Sims his

district court denied Sims' motion on February 3, 2006. next filed a motion to suppress all evidence from

April 26, 2005, arrest.

The district court also denied this

motion, and Sims appeared for a jury trial on February 15, 2006. Following a two-day trial, Sims was convicted of both counts and sentenced to the statutory mandatory minimum of ten years on each count, to run concurrently. On appeal, Sims first Sims timely noted an appeal. complains that the district

court erred in denying his motion for a continuance.

This court

reviews a district court's denial of a motion for a continuance for abuse of discretion. United States v. Williams, 445 F.3d Even if a defendant demonstrates its discretion must in show in denying that order a

724, 738-39 (4th Cir. 2006). that the district a court

abused "the

motion error

for

continuance,

defendant or]

the to

specifically

prejudiced

[his 2

her

case

prevail."

United

States

v.

Hedgepeth,

418

F.3d

411,

419

(4th Cir. 2005). Sims fails to establish on appeal how the denial of his motion for a continuance affected the outcome of his trial. Sims asserts that the denial prevented him from investigating the Government's Rule 404(b) how evidence, investigating the outcome but the of he fails to

demonstrate evidence

specifically have

Rule his

404(b) trial,

would

altered

particularly in light of the overwhelming evidence of his guilt. Accordingly, Sims' claim is without merit. Sims next asserts the district court erred in denying his suppression motion. The Fourth Amendment protects citizens U.S. Const. amend.

against unreasonable searches and seizures. IV.

It is well settled under the Fourth Amendment "that a

search conducted without a warrant issued upon probable cause is per se unreasonable and 412 subject to only a few specifically Schneckloth quotations

established

well-delineated U.S. 218, 219

exceptions." (1973) (internal

v. Bustamonte, omitted). within the

The first such exception includes a search that falls scope of a citizen's consent. United States

v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). requirement arrest. also does not apply to a search

The warrant to an

incident

United States v. Robinson, 414 U.S. 218, 224 (1973);

3

United States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006) (citing Chimel v. California, 395 U.S. 752, 763 (1969)). In addition, in the context of investigatory

detentions, the Supreme Court has held that, consistent with the Fourth Amendment, police officers may conduct an investigatory stop and a pat-down search of an individual for weapons if

officers have reasonable suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 31 (1968); see Illinois v. Such an investigatory stop minimal for level of objective is

Wardlow, 528 U.S. 119, 123 (2000). must be based on but "at the least a

justification,"

standard

reasonable

suspicion

less demanding than for probable cause. 123. In assessing whether officers

Wardlow, 528 U.S. at

had

a

reasonable

suspicion of criminal activity, we must consider the totality of the circumstances surrounding the seizure. United States

v. Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997) (quoting United States v. Sokolow, 490 U.S. 1 (1989) is (internal a quotations

omitted). proposition. experience of

"Reasonable

suspicion

commonsensical

Courts are not remiss in crediting the practical officers who observe on a daily basis what

transpires on the streets." 151, 154 (4th Cir. 1993). the

United States v. Lender, 985 F.2d In assessing whether reasonable or

suspicion

existed,

facts, 4

whether

seemingly

innocent

obviously incriminating, are to "be assessed in light of their effect on the respective officer=s perception of the situation at hand." 2008). The events out of which the charges arose occurred on April 26, 2005. On that date, Charlotte-Mecklenburg Police United States v. McCoy, 513 F.3d 405, 414 (4th Cir.

Officer Marianne Baltimore received information that Alex Gibson dealt crack cocaine from an address on Dakota Street and that every day his supplier would arrive in an SUV between 3:00 p.m. and 6:00 p.m. Officers Baltimore, Jonathan Tobbe, Gerald Holas, Upon Tobbe

and Shawn Crooks proceeded to the Dakota Street address. arriving at approximately 4:30 p.m., Baltimore and

observed an SUV in front of the address.

The officers ran the

license plate on the SUV and discovered that the vehicle was registered dealing. to Sims, whom Holas knew was involved in drug

Armed with this information, Crooks approached Sims As Sims did so, he

and asked him to step out of the vehicle.

volunteered in response to Crooks' inquiry whether there were any guns in the car that he had a 9 mm handgun in the glovebox. At the moment Crooks asked Sims to get out of the vehicle, Crooks had reasonable, articulable suspicion that Sims might

have been engaged in criminal activity. at 7; McCoy, 513 F.3d at 414.

See Sokolow, 490 U.S.

5

The

officers

received

Sims'

consent

to

search

his

person and vehicle. occurred with Sims'

Because the searches of Sims and his SUV consent, the Fourth Amendment warrant When

requirement was inapplicable.

Lattimore, 87 F.3d at 650.

the search of Sims' person and SUV did not yield any narcotics, Tobbe obtained Sims' consent to conduct a more thorough search of Sims' person because Tobbe believed Sims had drugs concealed under an Ace bandage wrapped around his midsection. revoked arrested his him consent for to a search felon his in person, possession After Sims properly firearm.

Crooks of a

being

Crooks ultimately discovered Sims' crack cocaine in a search incident to Sims' arrest. United States v. Currence,

446 F.3d 554, 557 (4th Cir. 2006).

Accordingly, the district

court did not err in denying Sims' motion to suppress. Sims' final argument is that the district court erred in admitting evidence and August from 1, events that occurred after on the

July 20, 2005,

2005,

several

months

charged offense.

On those dates, officers again discovered Sims

with crack cocaine concealed under an Ace bandage wrapped around his midsection. Decisions regarding the admission or exclusion

of evidence are left to the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). We have reviewed the record and conclude the district court did 6

not

abuse

its

discretion

in

admitting

the

complained

of

evidence. Finally, convictions. giving charged intent rises with to He to and Sims has filed a motion years to vacate the was his

asserts his pled

that

three

after Holas to does

events himself with

convictions, guilty crack to

Officer

conspiracy Sims

possess not

distribute

cocaine.

allege,

however, that Holas' testimony at Sims' trial was in any way false or misleading. We affirm Accordingly, we deny Sims' motion. the judgment of the district court. We

dispense with oral argument as the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

7