United States v. Walker , 319 F. App'x 307 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BISHME WALKER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:07-cr-00146-WDQ-1)
Submitted: February 19, 2009 Decided: March 24, 2009
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary A. Ticknor, Elkridge, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Philip S. Jackson, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bishme Walker appeals from his conviction and 262-
month sentence after a jury found him guilty of conspiracy to
possess with intent to distribute 100 grams or more of heroin,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846
(2006). Walker contends that his seizure by police, as well as
the search incident to his arrest, were not supported by
probable cause, and that all evidence that was obtained
proximate to his arrest should be suppressed. Walker also
asserts that, assuming his arrest was illegal, his subsequent
statements to police should also be suppressed, regardless of
the fact that he was provided with notice of his rights pursuant
to Miranda v. Arizona, 384 U.S. 436 (1966). Finally, Walker
claims the district court abused its discretion in permitting a
police officer to testify as an expert regarding the value of
the heroin, as the officer was not sufficiently qualified to
present opinion testimony on this issue. After thoroughly
reviewing the record, we conclude the district court did not
commit reversible error in denying Walker’s motion to suppress
or in permitting the officer to testify as an expert.
This court reviews the district court’s factual
findings underlying a motion to suppress for clear error, and
the district court’s legal determinations de novo. United
States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007) (citing
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Ornelas v. United States, 517 U.S. 690, 699 (1996)). When a
suppression motion has been denied, this court reviews the
evidence in the light most favorable to the Government. United
States v. Uzenski, 434 F.3d 690, 704 (4th Cir. 2006).
Walker’s primary contention appears to be that the
officers lacked probable cause to arrest him and that, as a
result, any search of his vehicle that was incident to that
arrest was also invalid. Both Walker and the Government present
this issue as relating solely to a determination of probable
cause; however, they have failed to address the application of
the Terry * doctrine to the particular facts of this case. While
the officers blocked Walker’s vehicle, ordered him and his
passenger, Lamont Johnson, to exit, and had both men “taken to
the back of the vehicle,” the manner in which the investigative
stop was carried out by police did not serve to convert it into
an arrest. As this court noted in United States v. Taylor, 857
F.2d 210, 214 (4th Cir. 1988), once an investigative stop of an
automobile is made, “ordering suspects from the vehicle is a
valid precautionary measure designed to afford a degree of
protection to the investigating officer.” Additionally, while
the car was blocked in and the suspects restrained by the
officers, “[a] brief but complete restriction of liberty is
*
See Terry v. Ohio, 392 U.S. 1, 30 (1968).
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valid under Terry” and does not result in a custodial arrest.
Id. (quoting United States v. Moore, 817 F.2d 1105, 1108 (4th
Cir. 1987)). Accordingly, we find that the removal of Walker
from his vehicle is properly analyzed under Terry.
In assessing the validity of the Terry stop, this
court must consider the totality of the circumstances. United
States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004) (citations
omitted). Factors which may appear to suggest only innocent
conduct may nonetheless amount to reasonable suspicion when
considered together. Id. The assessment of reasonable
suspicion must “give due weight to common sense judgments
reached by officers in light of their experience and training,”
as the court credits the “practical experience of officers who
observe on a daily basis what transpires on the street.” Id.
In challenging the district court’s determination that
the search and seizure were lawful, Walker contends that the
police “did nothing to verify the truth of the assertions of the
[informant]” who had told the officers that Walker would be
receiving a large amount of heroin on that day. However, the
reliability of an informant can be established by demonstrating
that “the informant has previously given tips that have proved
to be correct, or that the information given has been
corroborated.” United States v. Chavez, 902 F.2d 259, 264 (4th
Cir. 1990) (internal quotation marks and citation omitted). In
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this case, both of these factors are present. According to
Detective Keith Gladstone, the informant had proven very
reliable in the past in providing information in multiple cases
involving narcotics distribution. Additionally, the informant
gave the information to Gladstone face-to-face, as he personally
identified Walker as the individual that would be receiving the
narcotics, thereby providing Gladstone with an opportunity to
further judge the informant’s credibility. See Perkins, 363
F.3d at 323. Finally, the informant gave specific information
regarding the vehicle that Walker would be driving, including
the license plate number, which was later verified by police.
See United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993).
Notably, the police did not rely solely on the
informant’s information and identification of Walker; rather,
they observed a number of interactions that were consistent with
narcotics distribution. Gladstone relied on his extensive
training and experience to determine that Walker’s interactions
with Johnson and other individuals, which may have appeared to
be innocuous, were consistent with the methods commonly employed
by those trafficking in narcotics. See Illinois v. Gates, 462
U.S. 213, 232 (1983); see also Ornelas v. United States, 517
U.S. 690, 699 (1996). “The mere fact that particular conduct
may be susceptible of an innocent explanation does not establish
a lack of reasonable suspicion,” as police are not required to
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wait until criminal activity actually occurs before
investigating a suspicious set of circumstances. Perkins, 363
F.3d at 327. Accordingly, based on the informant’s tip and the
surveillance of Walker and his vehicle, we conclude that the
officers had a sufficient basis under Terry for carrying out the
investigatory stop and removing Walker from the vehicle.
Following Walker’s removal from the vehicle, Gladstone
looked inside the car and saw two bags on the front floor that
appeared to contain heroin. Walker contends that this evidence
should be suppressed as the product of an illegal search;
however, there are no grounds on which such evidence could be
deemed inadmissible, as Walker was removed from the vehicle
pursuant to a valid Terry stop and the drugs were observed by
Gladstone in plain view. There is no indication that Gladstone
engaged in a search of the interior of the vehicle, as he merely
looked inside of the car with a flashlight and, after seeing the
narcotics on the floorboard, placed Walker and Johnson under
arrest. See United States v. Jackson, 131 F.3d 1105, 1108 (4th
Cir. 1997) (“Viewing an article that is already in plain view
does not involve an invasion of privacy and, consequently, does
not constitute a search implicating the Fourth Amendment.”).
To the extent that Walker challenges the legality of
his arrest, probable cause for an arrest exists when the facts
and circumstances within an officer’s knowledge, and of which
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the officer had reasonably trustworthy information, are
“sufficient to warrant a prudent man in believing that the
[individual] had committed or was committing an offense.”
Beck v. Ohio, 379 U.S. 89, 91 (1964); see also United States v.
Manbeck, 744 F.2d 360, 376 (4th Cir. 1984). The totality of the
circumstances may include tips from reliable informants. See
Alabama v. White, 496 U.S. 325, 330-31 (1990). In light of the
large amounts of heroin that were visible inside of Walker’s car
and the fact that the informant’s tip was supported by activity
consistent with narcotics distribution, the police clearly had
probable cause to place Walker under arrest. Furthermore, any
subsequent search and seizure of narcotics from the interior of
the vehicle was proper as a search incident to arrest. See
United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995) (citing
New York v. Belton, 453 U.S. 454 (1981)). Therefore, we find
that the district court did not err in denying the motion to
suppress.
In a related claim, Walker contends the district court
erred in refusing to suppress statements that he made to police
following his arrest, asserting that the statements were
obtained as a direct result of his illegal arrest and that the
Miranda warnings did not serve to cure the violation. However,
as explained above, the arrest was valid and adequately
supported by probable cause. To the extent that Walker
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challenges the sufficiency of the Miranda warnings, Gladstone
testified that both Walker and Johnson were read their rights
prior to any questioning. Walker presented no evidence at the
suppression hearing to contradict Gladstone’s account, which the
district court found to be credible. See United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Accordingly, we find
Walker’s claim to be without merit.
Finally, Walker contends the district court abused its
discretion in permitting Gladstone to testify as an expert
witness at trial in regard to the value of the heroin recovered
from the vehicle, as Gladstone had not previously testified as
an expert on this issue and was unfamiliar with the specific
geographic location involved in this case. This court reviews
the district court’s decision to admit expert testimony under
Fed. R. Evid. 702 for abuse of discretion. United States v.
Wilson, 484 F.3d 267, 273 (4th Cir. 2007) (citing Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999)). The district
court must be granted “considerable leeway in deciding in a
particular case how to go about determining whether particular
expert testimony is reliable.” Wilson, 484 F.3d at 273. If an
expert seeks to be qualified on the basis of experience, the
district court must require that he “explain how his experience
leads to the conclusion reached, why his experience is a
sufficient basis for the opinion, and how his experience is
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reliably applied to the facts.” Id. at 274 (internal quotation
marks and citation omitted).
Even assuming without deciding that the district court
abused its discretion in permitting Gladstone to provide expert
opinion as to the value of the narcotics, Walker is not entitled
to relief. The consequences of the improper admission of expert
testimony are reviewed under the harmless error standard. See
United States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005)
(citation omitted). “An error in admitting improper expert
testimony is harmless if viewing the record as a whole, it is
clear beyond a reasonable doubt that the jury would have
returned a verdict of guilty absent the testimony.” Id.
(internal quotation marks and citation omitted).
On the record in this case, it is clear that the jury
would have found Walker guilty even absent Gladstone’s testimony
regarding the wholesale value of the drugs. Gladstone testified
that the heroin found in the vehicle was “definitely” intended
for distribution, based not only on the value of the drugs found
in the car, but the “very high quantities” that were recovered.
As stipulated to by the parties, the police recovered nearly 500
grams of heroin from the vehicle, an amount that is inconsistent
with personal use. See United States v. Fisher, 912 F.2d 728,
730 (4th Cir. 1990). Furthermore, Gladstone testified that
Walker admitted that the 500 grams were “fronted” or given to
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him on a “consignment basis,” as he was “having financial
difficulties and this was going to help him get back on his
feet.” Therefore, even in the absence of Gladstone’s testimony
regarding the value of the heroin, we find it to be clear beyond
a reasonable doubt that the jury would have returned a verdict
of guilty on the charge of conspiracy to possess with intent to
distribute heroin.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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