US v. Bishme Walker

Filing 920090324

Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4191 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BISHME WALKER, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?