US v. Benjamin Thompkins, Jr.

Filing 920100506

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4143 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN C. THOMPKINS, JR., a/k/a Benjamin Thompkins, a/k/a Benjie, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00339-REP-1) Submitted: April 16, 2010 Decided: May 6, 2010 Before AGEE and Circuit Judge. DAVIS, Circuit Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur, Georgia, for Appellant. Dana J. Boente, United States Attorney, Angela Mastandrea-Miller, Jessica A. Brumberg, Assistant United States Attorneys, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Benjamin possession with C. Thompkins, to Jr., fifty was convicted or more of of intent distribute grams cocaine base, 21 U.S.C. 841(a) (2006) (Count One); possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. 924(c) (2006) (Count Two); possession of a firearm and ammunition by a convicted felon, 18 U.S.C. 922(g)(1) (2006) (Count Three); and manufacturing and possessing with intent to distribute marijuana, 21 U.S.C. 841 (2006) (Count Four). received an aggregate sentence of 300 months in He prison. Thompkins now appeals his convictions. We affirm. I Prior to trial, Thompkins moved to suppress evidence seized from his residence pursuant to a search warrant. court determined that the affidavit supporting the The search warrant established probable cause and that, even if it did not, the good faith exception to the warrant requirement applied. Thompkins contends on appeal that these rulings were in error. "In assessing a trial court's decision on a motion to suppress, we review the court's factual findings for clear error and its legal determinations de novo." 591 F.3d 679, 682 (4th Cir. 2010). United States v. Day, We view the evidence in the light most favorable to the Government, the prevailing party 2 below. See United States v. Matthews, 591 F.3d 230, 234 (4th Cir. 2009). The Fourth Amendment prohibits "unreasonable searches and seizures." shall issue, U.S. const. amend. IV. but and upon probable cause Further, "no warrants supported the by place oath to or be The affirmation, particularly describing searched, and the persons or things to be seized." Id. magistrate's task in deciding whether to issue a search warrant "is simply to make a practical, common-sense decision," based on the totality of the circumstances, whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place." (1983). In reviewing the validity of a search warrant, "the duty of a reviewing court is simply to ensure that the Illinois v. Gates, 462 U.S. 213, 238 magistrate had a substantial basis for . . . conclud[ing] that probable omitted). cause The existed." magistrate's Id. (internal cause quotation marks is probable determination entitled to "great deference." F.3d 365, 373 (4th Cir. 2008). Here, the district United States v. Chandia, 514 court properly denied the suppression motion based on its determination that the affidavit contained enough information to establish probable cause that evidence of marijuana cultivation would be found at Thompkins' 3 residence. experience warrant. informant, DEA Special Agent drug Bertsch, who had extensive for the investigating In who his had trafficking, he recited applied a affidavit, provided that confidential in previous reliable information investigations, had reported that "BJ" had made six calls to a hydroponics store, requesting prices for products typically used to cultivate marijuana. The calls came from 13011 Five Forks Thompkins had previously in connection the to with a Road, Benjamin Thompkins' residence. been served a summons at BJ that had address also cocaine store investigation. and purchased visited used hydroponics cultivate products commonly marijuana. The affidavit further stated that Thompkins' residence had used an average of 3008 kilowatt hours of power during each billing cycle between December 2007 and May 2008. During the same time period, a significantly larger neighboring residence had used an average of 2092 kilowatt hours per cycle, and a comparably sized residence had used an average of 1190 kilowatt hours per cycle. Agent Bertsch stated that, in his experience, this unusually large consumption of electricity was consistent with the interior cultivation of marijuana. Additionally, Thompkins' girlfriend had inquired about how to reset a digital timer of the sort that is often used in the cultivation of marijuana. Finally, employment records showed that Thompkins 4 had no reported income since 2003, and Agent Bertsch stated that drug dealers typically do not report illegal income. Based on the totality of the circumstances, we conclude that there was a substantial basis for the magistrate judge's finding of probable cause. Even if the affidavit did not establish probable cause, rendering the warrant deficient, the good faith exception to the warrant requirement would apply in this case, as the district court found. (1984), the Supreme In United States v. Leon, 468 U.S. 897 Court held that evidence obtained from execution of a defective search warrant is admissible under this exception if the officer's reliance on the warrant was objectively reasonable. Id. at 922-23. Leon identified four situations in which an officer's reliance on a warrant could not be objectively reasonable, including where the affidavit supporting the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." his case falls Id. at 923. within this Although Thompkins contends that exception, characterizing the affidavit as "bare bones," we disagree. To the contrary, the affidavit is replete with facts obtained from numerous sources, including: telephone, a power reliable company, confidential sheriff's informant; and official Virginia department, 5 Employment Commission records; and Agent Bertsch's own extensive experience investigating similar offenses. II The information affidavit gleaned from supporting power use the warrant referred to from records subpoenaed Dominion Virginia Power (Dominion). The day before trial was scheduled to begin, Thompkins requested a continuance so that he could ascertain as had whether a in subpoena the in fact was He served stated on that in a Dominion Dominion represented not affidavit. documents produced certain requested subpoena duces tecum that had recently been served on Dominion's registered agent. Those documents, he contended, would tend to establish whether the affidavit had been falsified. During a hearing on the motion, the Assistant United States Attorney informed the court that the Drug Enforcement Agency had issued administrative subpoenas to Dominion for the three residences identified in the affidavit. All records received pursuant to that request were provided to the defense, as were copies of the subpoenas. Thompkins' attorney acknowledged having received both the records and the copies of the subpoenas. However, he told the court that someone in Dominion's legal department had informed him that a computer search turned up no record of Dominion's having received any 6 subpoena counsel or having provided whether the the records records in had question. been Thus, questioned deliberately falsified and whether, as a result, the affidavit was valid. The district court denied the motion for a continuance, finding there was no valid reason to support the motion. the Counsel renewed the motion at trial the next day, and again denied it. Thompkins now questions the court propriety of the court's ruling. We review the denial of a motion for a continuance for abuse of discretion. United States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006) "[E]ven if such an abuse is found, the defendant must show that the error specifically prejudiced [his] case in order to prevail." conclude required. that Thompkins Id. After reviewing the record, we to make the specific showing failed Most notably, he has not demonstrated that the power usage records in question were erroneous. III Thompkins contends that counsel was ineffective because he did not move for reconsideration of the denial of the motion to suppress or move for a new trial based on the power records issue. He further suggests that counsel was ineffective for failing to file a motion for a Franks v. Delaware, 438 U.S. 134 (1978), hearing on that issue. 7 "Claims normally raised of ineffective the assistance court of via counsel 28 are before district [U.S.C.A.] 2255 [West Supp. 2009] and are cognizable on direct appeal only where it conclusively appears on the record that defense counsel did not provide effective representation." United States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007); see United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). ineffective assistance does not conclusively appear Because on the record, we decline to address this claim. IV We therefore affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8

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