United States v. Story ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4447
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OTIS LEON STORY, a/k/a Shawn Jones,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:07-cr-00738-PMD-1)
Submitted: April 13, 2009 Decided: May 1, 2009
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter J. Wiggins, Edward E. Kopko, WIGGINS & KOPKO, LLP,
Ithaca, New York, for Appellant. W. Walter Wilkins, United
States Attorney, Alston C. Badger, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis Leon Story pled guilty to one count of knowingly,
intentionally and unlawfully possessing with intent to
distribute 500 grams or more of cocaine, in violation of 21
U.S.C.A. § 841(a)(1), (b)(1)(B) (West 2000 & Supp 2008), and one
count of using and carrying a firearm during and in relation to
a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2006). In his plea agreement, Story reserved
the right to appeal the district court’s order denying his
motion to suppress evidence, to hold a Leon/Franks * hearing and
to dismiss the indictment. We affirm.
Hotel employees found a quantity of cocaine in a hotel
room in which Story had been staying. The manager alerted the
police, who replaced the package of cocaine with an identical
“sham” package and left behind a black gym back also found in
the room. Story was later observed entering the hotel room and
then leaving the room moments later with the gym bag. He was
arrested and the subsequent search of the gym bag revealed the
sham package of cocaine.
The district court’s legal conclusions underlying the
denial of a motion to suppress are reviewed de novo, while the
*
United States v. Leon, 468 U.S. 897, 922-23 (1984);
Franks v. Delaware, 438 U.S. 154, 171-72 (1978).
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predicate factual conclusions are reviewed for clear error when
assessed in the light most favorable to the party prevailing
below. United States v. Hamlin, 319 F.3d 666, 671 (4th Cir.
2003). The Fourth Amendment proscribes unreasonable searches by
the government. The protection afforded by the Amendment is
“wholly inapplicable ‘to a search or seizure, even an
unreasonable one, effected by a private individual not acting as
an agent of the Government or with the participation or
knowledge of any governmental official.’” United States v.
Jacobsen, 466 U.S. 109, 113-14 (1984) (quoting Walter v. United
States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)).
Story claimed the hotel employees were acting as
agents of the government, or with the participation and
knowledge of the government, when they seized the package in the
hotel room. For purposes of the exclusionary rule, a private
actor must “be regarded as having acted as an ‘instrument’ or
agent of the state,” in order for a private search to be
considered action by the government. Coolidge v. New Hampshire,
403 U.S. 443, 487 (1971). “One highly pertinent consideration
is whether the government knew of and acquiesced in the
intrusive conduct and whether the private party’s purpose for
conducting the search was to assist law enforcement efforts or
to further her own ends.” United States v. Ellyson, 326 F.3d
522, 527 (4th Cir. 2003) (internal quotation marks omitted).
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We find no error in the district court’s conclusion
that the hotel employees were not agents of law enforcement.
Law enforcement authorities did not know of or acquiesce in the
intrusive conduct. After-the-fact knowledge and acquiescence by
law enforcement cannot transform the relationship between the
employees and the police into an agency relationship. There
must be some evidence of the government participation in the
private search or affirmative encouragement. See United
States v. Jarrett, 338 F.3d 339, 346-47 (4th Cir. 2003).
We further find the district court did not err in not
finding the initial search by a police officer exceeded the
scope of the search conducted by the hotel employees. Insofar
as Story argues that Officer Campbell’s seizure of the cocaine
was error because it was permanent, the claim is without merit.
“[T]he plain-view doctrine authorizes warrantless seizures of
incriminating evidence when (1) the officer is lawfully in a
place from which the object may be plainly viewed; (2) the
officer has a lawful right of access to the object itself; and
(3) the object’s incriminating character is immediately
apparent.” United States v. Jackson, 131 F.3d 1105, 1109 (4th
Cir. 1997). Here, Officer Campbell was lawfully in a place
where he could plainly view the cocaine, he had lawful right of
access to the package, and the incriminating character of the
package was apparent.
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We also agree with the district court that there was
no reason to quash the search warrant. Officer Campbell’s
search and seizure of the cocaine was proper and the search
warrant’s supporting affidavit did not contain false or
misleading information.
We further find law enforcement had probable cause to
arrest Story. Probable cause “to justify an arrest means facts
and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The
evidence needed to establish probable cause is more than a mere
suspicion, rumor, or strong reason to suspect but less than
evidence sufficient to convict. Wong Sun v. United States, 371
U.S. 471, 479 (1963); United States v. Williams, 74 F.3d 537,
541 (4th Cir. 1996). Clearly, there was sufficient evidence to
support the belief that Story was in possession of cocaine.
Story also argues there was insufficient evidence to
support the indictment. The claim is without merit. “[C]ourts
lack authority to review the sufficiency of evidence supporting
an indictment, even when a mistake was mistakenly made.” United
States v. Wills, 346 F.3d 476, 488 (4th Cir. 2003). “An
indictment returned by a legally constituted and unbiased grand
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jury, . . . if valid on its face, is enough to call for trial of
the charges on the merits.” Costello v. United States, 350 U.S.
349, 363 (1956). An indictment is valid if it states each of
the essential elements of the offense. United States v.
Lockhart, 382 F.3d 447, 449 (4th Cir. 2004).
Finally, while we grant Story’s motion to file a pro
se brief, we have reviewed the issues raised in the brief, some
of which are duplicative of the issues raised by counsel, and
find them to be without merit. There is sufficient evidence to
support the conviction. In addition, claims of ineffective
assistance of counsel are not cognizable on direct appeal unless
the record conclusively demonstrates ineffective assistance.
See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Accordingly, we affirm the convictions and sentence
and we grant the motion to file a supplemental brief. 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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