US v. Benjamin Thompkins, Jr.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
April 16, 2010
May 6, 2010
Before AGEE and Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
Thompkins now appeals his convictions.
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
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
searched, and the persons or things to be seized."
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
entitled to "great deference." F.3d 365, 373 (4th Cir. 2008). Here, the district
United States v. Chandia, 514
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,
extensive for the
investigating In who his had
trafficking, he recited
confidential in previous
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
investigation. and purchased
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
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
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
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
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
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
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
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
§ 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
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