United States v. Gordon Penn , 676 F. App'x 203 ( 2017 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gordon Lawrence Penn appeals from his convictions and 61-
month sentence imposed following his conditional guilty plea to
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) (2012); and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2012). On appeal, Penn challenges only the
district court’s denial 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.” United States
v. Stover, 808 F.3d 991, 994 (4th Cir. 2015). Because the
Government prevailed on the suppression issue below, we construe
“the evidence presented in the light most favorable to the
[G]overnment.” Id.
The Fourth Amendment protects citizens against unreasonable
searches and seizures. U.S. Const. amend. IV. Warrantless
searches are per se unreasonable, but “there are a few
specifically established and well-delineated exceptions to that
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general rule.” United States v. Davis, 690 F.3d 226, 241-42
(4th Cir. 2012) (internal quotation marks omitted).
One such exception to the warrant requirement is the
voluntary consent given by an individual possessing the
authority to do so. 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.” United States v.
Robertson, 736 F.3d 677, 680 (4th Cir. 2013). 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. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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