US v. Benjamin Thompkins, Jr.

Filing 920100506

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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