US v. Gordon Penn


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:15-cr-00016-JLK-1 Copies to all parties and the district court/agency. [1000023936]. [16-4481]

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Appeal: 16-4481 Doc: 31 Filed: 02/15/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4481 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GORDON LAWRENCE PENN, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:15-cr-00016-JLK-1) Submitted: February 9, 2017 Decided: February 15, 2017 Before MOTZ, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, for Appellant. John P. Fishwick, Jr., United States Attorney, R. Andrew Bassford, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4481 Doc: 31 Filed: 02/15/2017 Pg: 2 of 3 PER CURIAM: Gordon Lawrence Penn appeals from his convictions and 61month sentence imposed following his conditional guilty plea to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) furtherance of a (2012); drug court’s possession trafficking U.S.C. § 924(c) (2012). district and denial crime, of in a firearm violation of in 18 On appeal, Penn challenges only the of his motion to suppress evidence seized by law enforcement during the search of a vehicle he was driving when he was stopped for a traffic infraction, as well as statements he later made to law enforcement. Finding no error, we affirm. “When considering a district court’s denial of a motion to suppress, we review the [trial] court’s factual findings for clear error and all legal conclusions de novo.” v. Stover, 808 F.3d 991, 994 (4th Cir. 2015). United States Because the Government prevailed on the suppression issue below, we construe “the evidence [G]overnment.” presented in the light most favorable to the Id. The Fourth Amendment protects citizens against unreasonable searches searches and are seizures. per se U.S. Const. unreasonable, amend. but IV. “there Warrantless are a few specifically established and well-delineated exceptions to that 2 Appeal: 16-4481 Doc: 31 Filed: 02/15/2017 general rule.” Pg: 3 of 3 United States v. Davis, 690 F.3d 226, 241-42 (4th Cir. 2012) (internal quotation marks omitted). One such voluntary exception consent to given authority to do so. the by an warrant requirement individual is the possessing the Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc). “The government has the burden of proving consent[,]” however, and “[w]e review for clear error a district court’s determination that a search [was] consensual . . . [and] apply a subjective test to analyze whether consent was given, looking to the totality of the circumstances.” Robertson, 736 F.3d 677, 680 (4th Cir. 2013). United States v. In this case, the district court found that Penn consented to the search of the vehicle he was driving and, thus, that the ensuing search was constitutional. We have reviewed the record and have considered Penn’s arguments and discern no clear error in the district court’s findings. Accordingly, we affirm the district court’s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 3

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