US v. James Lesane

Filing 920100119

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5022 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES STEVEN LESANE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:08-cr-00185-JRS-1) Submitted: December 30, 2009 Decided: January 19, 2010 Before WILKINSON and Senior Circuit Judge. MICHAEL, Circuit Judges, and HAMILTON, Dismissed in part; affirmed in part by unpublished per curiam opinion. James F. Sumpter, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, Elizabeth C. Wu, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James conviction, pleading and Steven Lesane of appeals from a judgment of sentence to 140 months' to imprisonment, with after to guilty conspiracy possess intent distribute and distribution of 50 grams or more of cocaine base, in violation of 21 U.S.C. 846 (2006). 1 asserts district court error in: On appeal, Lesane (1) its determination that a conspiracy existed; (2) its refusal to grant Lesane's motion to suppress evidence from a December 4, 2007, stop in Spotsylvania County, Virginia; and (3) its refusal to grant Lesane's motion to suppress evidence from an April 26, 2007, stop in Cecil County, Maryland. As a preliminary matter, we dismiss Lesane's appeal as to his claim of district court error relative to the existence of a conspiracy. This assignment of error is outside the scope of Lesane's conditional plea, which reserved to Lesane the sole right to appeal the district court's denial of his motion to suppress. 2 His conclusory mention of the sufficiency of the Lesane's guilty plea was conditional, allowing him to appeal the denial of his motion to suppress, which motion was denied by the district court following an evidentiary hearing. While Lesane's motion to suppress contains a single summary statement challenging the sufficiency of the evidence to support the conspiracy charge, and while Lesane's counsel advanced limited argument at the hearing on Lesane's motion to suppress supporting his present contention regarding the (Continued) 2 2 1 evidence supporting the conviction and his limited argument on the issue during the hearing on the motion to suppress is insufficient to preserve the issue on appeal. Moreover, Lesane is bound by the statements he made relative to his guilty plea and he may not now claim that the statements in which he expressly acknowledged his guilt of the crime of conspiracy were untrue. See Blackledge v. Allison, 431 U.S. 63, 74 (1977). Finally, as Lesane acknowledges on appeal, the issue relating to the existence of a conspiracy was not ruled upon by the district court. review. As such, it is not properly before this court for Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). As to Lesane's appeal of the district court's rulings relative to the suppression of evidence from the December 4, 2007, stop in Spotsylvania County, Virginia, and the April 26, 2007, stop in Cecil County, Maryland, we construe the evidence in the light most favorable to the United States, the prevailing party below. Cir. 1998). United States v. Seidman, 156 F.3d 542, 547 (4th We and review review de novo for the clear district error court's its legal conclusions factual conspiracy charge, the district court did not enter a ruling on the issue of the existence of a conspiracy at the suppression hearing, nor did it address the issue at all in its Memorandum Opinion denying the motion to suppress. 3 determinations. Cir. 1992). United States v. Rusher, 966 F.2d 868, 873 (4th Lesane claims the December 4, 2007, police stop was pretextual. 3 We find no clear error in the district court's factual determination crediting Deputy Taylor's testimony that Lesane failed to stop at a stop sign over the testimony of Jaime Coleman, Lesane's wife and a passenger in the vehicle, that she "believed" the car stopped. See Rusher, 966 F.2d at 873. The failure to obey the stop sign provided Deputy Taylor with the requisite probable cause to stop the vehicle. v. Hassan El, test stop 5 for F.3d 726, 730 (4th Cir. See United States 1993) had (adopting probable which objective cause to determining The whether ensuing officer search, vehicle). during contraband was discovered, did not offend the Fourth Amendment. Nor do we find merit to Lesane's assertion of district court error in its denial of Lesane's motion to suppress evidence relative to the April 26, 2007, search of his toiletry bag. Lesane claims he had an expectation of privacy in his toiletry bag, and that the officer's search of that bag exceeded the scope allowed by the probable cause from the smell of burnt marijuana. 3 He asserts further that when the officer failed to Lesane's argument that he was unaware of the bags of crack cocaine in the back of the vehicle next to him on the seat is not relevant to the validity of the stop. 4 find contraband in his search of the interior of the car, the officer's probable cause was no longer supported, 4 and his further search of the closed bag located on the backseat of the vehicle, without a warrant, violated Lesane's Fourth Amendment rights. The Fourth Amendment permits a warrantless search of a vehicle where and any containers cause exists or to compartments search the found within it, probable vehicle. United States v. Ross, 456 U.S. 798, 823 (1982); see also California v. Acevedo, 500 U.S. 565, 570 (1991). This court has held that the odor of marijuana, without more, may provide requisite probable cause to support the warrantless search of a vehicle and baggage contained in that vehicle. 175, 184 (4th Cir. 2002). Here, speeding and the officer driving, pulled and he Lesane's testified car that over when for he He United States v. Scheetz, 293 F.3d erratic reached the window he "could smell the odor of marijuana." searched the vehicle and the toiletry bag based on the marijuana odor. law, Under prevailing Supreme Court and Fourth Circuit case that testimony supports the district court's conclusion that the officer had probable cause to search the inside of the Lesane's conclusory assertion is offered without legal support. 4 5 vehicle, as well as the toiletry bag contained in the vehicle. See Acevedo, 500 U.S. at 570; Scheetz, 293 F.3d at 184. Accordingly, we dismiss for lack of jurisdiction Lesane's claims relating to the sufficiency of the evidence to support a conspiracy, affirm the district court's denial of Lesane's motion to suppress, and affirm Lesane's conviction and sentence. We further deny Lesane's pro se motions to file pro We dispense with oral argument because se supplemental briefs. the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 6

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