US v. Bishme Walker

Filing 920090324

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4191

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BISHME WALKER, Defendant ­ Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:07-cr-00146-WDQ-1)

Submitted:

February 19, 2009

Decided:

March 24, 2009

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gary A. Ticknor, Elkridge, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Philip S. Jackson, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Bishme Walker appeals from his conviction and 262-

month sentence after a jury found him guilty of conspiracy to possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 (2006). the Walker contends that his seizure by police, as well as incident and to his arrest, all were not that supported was by

search

probable proximate

cause, to his

that

evidence be

obtained also

arrest

should

suppressed.

Walker

asserts that, assuming his arrest was illegal, his subsequent statements to police should also be suppressed, regardless of the fact that he was provided with notice of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Finally, Walker

claims the district court abused its discretion in permitting a police officer to testify as an expert regarding the value of the heroin, as the officer was not sufficiently qualified to present opinion testimony on this issue. After thoroughly

reviewing the record, we conclude the district court did not commit reversible error in denying Walker's motion to suppress or in permitting the officer to testify as an expert. This court reviews the district court's factual

findings underlying a motion to suppress for clear error, and the district court's legal determinations de novo. United

States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007) (citing 2

Ornelas v. United States, 517 U.S. 690, 699 (1996)). suppression motion has been denied, this court

When a the

reviews

evidence in the light most favorable to the Government. States v. Uzenski, 434 F.3d 690, 704 (4th Cir. 2006). Walker's primary contention appears to be

United

that

the

officers lacked probable cause to arrest him and that, as a result, any search of his vehicle that was incident to that arrest was also invalid. Both Walker and the Government present

this issue as relating solely to a determination of probable cause; however, they have failed to address the application of the Terry * doctrine to the particular facts of this case. the officers blocked Walker's vehicle, ordered him While his

and

passenger, Lamont Johnson, to exit, and had both men "taken to the back of the vehicle," the manner in which the investigative stop was carried out by police did not serve to convert it into an arrest. As this court noted in United States v. Taylor, 857

F.2d 210, 214 (4th Cir. 1988), once an investigative stop of an automobile is made, "ordering suspects from the vehicle is a valid precautionary measure designed to afford a degree of

protection to the investigating officer." the car was blocked brief in but and the suspects

Additionally, while restrained of by the is

officers,
*

"[a]

complete

restriction

liberty

See Terry v. Ohio, 392 U.S. 1, 30 (1968).

3

valid under Terry" and does not result in a custodial arrest. Id. (quoting United States v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987)). Accordingly, we find that the removal of Walker

from his vehicle is properly analyzed under Terry. In assessing the validity of the Terry stop, this

court must consider the totality of the circumstances.

United

States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004) (citations omitted). conduct may Factors which may appear to suggest only innocent nonetheless together. must "give amount Id. due to The weight reasonable assessment to common suspicion of sense when

considered suspicion

reasonable judgments

reached by officers in light of their experience and training," as the court credits the "practical experience of officers who observe on a daily basis what transpires on the street." Id.

In challenging the district court's determination that the search and seizure were lawful, Walker contends that the police "did nothing to verify the truth of the assertions of the [informant]" who had told the officers that Walker would be

receiving a large amount of heroin on that day.

However, the

reliability of an informant can be established by demonstrating that "the informant has previously given tips that have proved to be correct, or that the information given has been

corroborated."

United States v. Chavez, 902 F.2d 259, 264 (4th In

Cir. 1990) (internal quotation marks and citation omitted). 4

this case, both of these factors are present. Detective Keith Gladstone, the informant had

According to proven very

reliable in the past in providing information in multiple cases involving narcotics distribution. Additionally, the informant

gave the information to Gladstone face-to-face, as he personally identified Walker as the individual that would be receiving the narcotics, thereby providing Gladstone with an opportunity to further judge the informant's credibility. F.3d at 323. See Perkins, 363

Finally, the informant gave specific information

regarding the vehicle that Walker would be driving, including the license plate number, which was later verified by police. See United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993). Notably, informant's the police and did not rely of solely Walker; on the

information

identification

rather,

they observed a number of interactions that were consistent with narcotics distribution. Gladstone relied on his extensive

training and experience to determine that Walker's interactions with Johnson and other individuals, which may have appeared to be innocuous, were consistent with the methods commonly employed by those trafficking in narcotics. See Illinois v. Gates, 462

U.S. 213, 232 (1983); see also Ornelas v. United States, 517 U.S. 690, 699 (1996). "The mere fact that particular conduct

may be susceptible of an innocent explanation does not establish a lack of reasonable suspicion," as police are not required to 5

wait

until

criminal

activity

actually

occurs

before

investigating a suspicious set of circumstances. F.3d at 327.

Perkins, 363

Accordingly, based on the informant's tip and the

surveillance of Walker and his vehicle, we conclude that the officers had a sufficient basis under Terry for carrying out the investigatory stop and removing Walker from the vehicle. Following Walker's removal from the vehicle, Gladstone looked inside the car and saw two bags on the front floor that appeared to contain heroin. should be suppressed as Walker contends that this evidence product of an illegal search;

the

however, there are no grounds on which such evidence could be deemed inadmissible, as Walker was removed from the vehicle

pursuant to a valid Terry stop and the drugs were observed by Gladstone in plain view. There is no indication that Gladstone

engaged in a search of the interior of the vehicle, as he merely looked inside of the car with a flashlight and, after seeing the narcotics on the floorboard, placed Walker and Johnson under arrest. See United States v. Jackson, 131 F.3d 1105, 1108 (4th

Cir. 1997) ("Viewing an article that is already in plain view does not involve an invasion of privacy and, consequently, does not constitute a search implicating the Fourth Amendment."). To the extent that Walker challenges the legality of his arrest, probable cause for an arrest exists when the facts and circumstances within an officer's knowledge, and of which 6

the

officer to

had

reasonably a

trustworthy man in

information, believing an that

are the

"sufficient [individual]

warrant

prudent or

had

committed

was

committing

offense."

Beck v. Ohio, 379 U.S. 89, 91 (1964); see also United States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984). The totality of the See

circumstances may include tips from reliable informants. Alabama v. White, 496 U.S. 325, 330-31 (1990).

In light of the

large amounts of heroin that were visible inside of Walker's car and the fact that the informant's tip was supported by activity consistent with narcotics distribution, the police clearly had probable cause to place Walker under arrest. Furthermore, any

subsequent search and seizure of narcotics from the interior of the vehicle was proper as a search incident to arrest. See

United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995) (citing New York v. Belton, 453 U.S. 454 (1981)). Therefore, we find

that the district court did not err in denying the motion to suppress. In a related claim, Walker contends the district court erred in refusing to suppress statements that he made to police following his arrest, asserting that the statements were

obtained as a direct result of his illegal arrest and that the Miranda warnings did not serve to cure the violation. as explained by above, probable the arrest was To 7 valid and However, adequately that Walker

supported

cause.

the

extent

challenges the sufficiency of the Miranda warnings, Gladstone testified that both Walker and Johnson were read their rights prior to any questioning. Walker presented no evidence at the

suppression hearing to contradict Gladstone's account, which the district court found to be credible. See United States v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Walker's claim to be without merit.

Accordingly, we find

Finally, Walker contends the district court abused its discretion in permitting Gladstone to testify as an expert

witness at trial in regard to the value of the heroin recovered from the vehicle, as Gladstone had not previously testified as an expert on this issue and was unfamiliar with the specific geographic location involved in this case. This court reviews

the district court's decision to admit expert testimony under Fed. R. Evid. 702 for abuse of discretion. United States v.

Wilson, 484 F.3d 267, 273 (4th Cir. 2007) (citing Kumho Tire Co. v. court Carmichael, must be 526 U.S. 137, 152 (1999)). in The district in a

granted

"considerable

leeway

deciding

particular case how to go about determining whether particular expert testimony is reliable." Wilson, 484 F.3d at 273. If an

expert seeks to be qualified on the basis of experience, the district court must require that he "explain how his experience leads to the conclusion for the reached, opinion, 8 why and his how experience his is a is

sufficient

basis

experience

reliably applied to the facts." marks and citation omitted).

Id. at 274 (internal quotation

Even assuming without deciding that the district court abused its discretion in permitting Gladstone to provide expert opinion as to the value of the narcotics, Walker is not entitled to relief. The consequences of the improper admission of expert See 2005) expert

testimony are reviewed under the harmless error standard. United States v. Forrest, "An 429 error F.3d in 73, 81 (4th Cir.

(citation

omitted).

admitting

improper

testimony is harmless if viewing the record as a whole, it is clear beyond a a reasonable of doubt that the the jury would have Id.

returned

verdict

guilty

absent

testimony."

(internal quotation marks and citation omitted). On the record in this case, it is clear that the jury would have found Walker guilty even absent Gladstone's testimony regarding the wholesale value of the drugs. Gladstone testified

that the heroin found in the vehicle was "definitely" intended for distribution, based not only on the value of the drugs found in the car, but the "very high quantities" that were recovered. As stipulated to by the parties, the police recovered nearly 500 grams of heroin from the vehicle, an amount that is inconsistent with personal use. 730 (4th Cir. See United States v. Fisher, 912 F.2d 728, Furthermore, Gladstone testified that

1990).

Walker admitted that the 500 grams were "fronted" or given to 9

him

on

a

"consignment

basis,"

as

he

was

"having

financial

difficulties and this was going to help him get back on his feet." Therefore, even in the absence of Gladstone's testimony

regarding the value of the heroin, we find it to be clear beyond a reasonable doubt that the jury would have returned a verdict of guilty on the charge of conspiracy to possess with intent to distribute heroin. Accordingly, we affirm the district court's judgment. We dispense with oral argument because the facts and legal

conclusions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

10