US v. Gordon Penn

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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general rule.”

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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