United States v. Lesane ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5022
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES STEVEN LESANE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:08-cr-00185-JRS-1)
Submitted: December 30, 2009 Decided: January 19, 2010
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
James F. Sumpter, Richmond, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Elizabeth C. Wu, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Steven Lesane appeals from a judgment of
conviction, and sentence of 140 months’ imprisonment, after
pleading guilty to conspiracy to possess with intent to
distribute and distribution of 50 grams or more of cocaine base,
in violation of 21 U.S.C. § 846 (2006). 1 On appeal, Lesane
asserts district court error in: (1) its determination that a
conspiracy existed; (2) its refusal to grant Lesane’s motion to
suppress evidence from a December 4, 2007, stop in Spotsylvania
County, Virginia; and (3) its refusal to grant Lesane’s motion
to suppress evidence from an April 26, 2007, stop in Cecil
County, Maryland.
As a preliminary matter, we dismiss Lesane’s appeal as
to his claim of district court error relative to the existence
of a conspiracy. This assignment of error is outside the scope
of Lesane’s conditional plea, which reserved to Lesane the sole
right to appeal the district court’s denial of his motion to
suppress. 2 His conclusory mention of the sufficiency of the
1
Lesane’s guilty plea was conditional, allowing him to
appeal the denial of his motion to suppress, which motion was
denied by the district court following an evidentiary hearing.
2
While Lesane’s motion to suppress contains a single
summary statement challenging the sufficiency of the evidence to
support the conspiracy charge, and while Lesane’s counsel
advanced limited argument at the hearing on Lesane’s motion to
suppress supporting his present contention regarding the
(Continued)
2
evidence supporting the conviction and his limited argument on
the issue during the hearing on the motion to suppress is
insufficient to preserve the issue on appeal. Moreover, Lesane
is bound by the statements he made relative to his guilty plea
and he may not now claim that the statements in which he
expressly acknowledged his guilt of the crime of conspiracy were
untrue. See Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Finally, as Lesane acknowledges on appeal, the issue relating to
the existence of a conspiracy was not ruled upon by the district
court. As such, it is not properly before this court for
review. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
As to Lesane’s appeal of the district court’s rulings
relative to the suppression of evidence from the December 4,
2007, stop in Spotsylvania County, Virginia, and the April 26,
2007, stop in Cecil County, Maryland, we construe the evidence
in the light most favorable to the United States, the prevailing
party below. United States v. Seidman, 156 F.3d 542, 547 (4th
Cir. 1998). We review de novo the district court’s legal
conclusions and review for clear error its factual
conspiracy charge, the district court did not enter a ruling on
the issue of the existence of a conspiracy at the suppression
hearing, nor did it address the issue at all in its Memorandum
Opinion denying the motion to suppress.
3
determinations. United States v. Rusher, 966 F.2d 868, 873 (4th
Cir. 1992).
Lesane claims the December 4, 2007, police stop was
pretextual. 3 We find no clear error in the district court’s
factual determination crediting Deputy Taylor’s testimony that
Lesane failed to stop at a stop sign over the testimony of Jaime
Coleman, Lesane’s wife and a passenger in the vehicle, that she
“believed” the car stopped. See Rusher, 966 F.2d at 873. The
failure to obey the stop sign provided Deputy Taylor with the
requisite probable cause to stop the vehicle. See United States
v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993) (adopting
objective test for determining whether officer had probable
cause to stop vehicle). The ensuing search, during which
contraband was discovered, did not offend the Fourth Amendment.
Nor do we find merit to Lesane’s assertion of district
court error in its denial of Lesane’s motion to suppress
evidence relative to the April 26, 2007, search of his toiletry
bag. Lesane claims he had an expectation of privacy in his
toiletry bag, and that the officer’s search of that bag exceeded
the scope allowed by the probable cause from the smell of burnt
marijuana. He asserts further that when the officer failed to
3
Lesane’s argument that he was unaware of the bags of crack
cocaine in the back of the vehicle next to him on the seat is
not relevant to the validity of the stop.
4
find contraband in his search of the interior of the car, the
officer’s probable cause was no longer supported, 4 and his
further search of the closed bag located on the backseat of the
vehicle, without a warrant, violated Lesane’s Fourth Amendment
rights.
The Fourth Amendment permits a warrantless search of a
vehicle and any containers or compartments found within it,
where probable cause exists to search the vehicle. United
States v. Ross, 456 U.S. 798, 823 (1982); see also California v.
Acevedo, 500 U.S. 565, 570 (1991). This court has held that the
odor of marijuana, without more, may provide requisite probable
cause to support the warrantless search of a vehicle and baggage
contained in that vehicle. United States v. Scheetz, 293 F.3d
175, 184 (4th Cir. 2002).
Here, the officer pulled Lesane’s car over for
speeding and erratic driving, and he testified that when he
reached the window he “could smell the odor of marijuana.” He
searched the vehicle and the toiletry bag based on the marijuana
odor. Under prevailing Supreme Court and Fourth Circuit case
law, that testimony supports the district court’s conclusion
that the officer had probable cause to search the inside of the
4
Lesane’s conclusory assertion is offered without legal
support.
5
vehicle, as well as the toiletry bag contained in the vehicle.
See Acevedo, 500 U.S. at 570; Scheetz, 293 F.3d at 184.
Accordingly, we dismiss for lack of jurisdiction
Lesane’s claims relating to the sufficiency of the evidence to
support a conspiracy, affirm the district court’s denial of
Lesane’s motion to suppress, and affirm Lesane’s conviction and
sentence. We further deny Lesane’s pro se motions to file pro
se supplemental briefs. 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.
DISMISSED IN PART;
AFFIRMED IN PART
6