United States v. Young ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4213
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LANCE D. YOUNG,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:05-cr-00063-FPS)
Submitted: February 20, 2008 Decided: May 15, 2008
Before MICHAEL and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Elgine H. McArdle, MCARDLE LAW OFFICE, Wheeling, West Virginia, for
Appellant. Sharon L. Potter, United States Attorney, Randolph J.
Bernard, Robert H. McWilliams, Jr., Assistant United States
Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lance D. Young appeals his jury convictions for
conspiracy to possess with intent to distribute heroin in violation
of 21 U.S.C. §§ 846, 841(b)(1)(B) and 851 (2000); possession with
the intent to distribute heroin in violation of 21 U.S.C. §§
841(a)(1)(B), 841(b)(1)(C) and 851 (2000); aiding and abetting the
possession with intent to distribute heroin in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851 (2000); and possession of
a firearm in relation to a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1)(A)(I) (2000). He was sentenced to 420
months’ imprisonment. On appeal, he asserts the district court
improperly accepted the recommendation of a magistrate judge and
denied his motion to suppress. Finding no error, we affirm.
On August 24, 2005, Marlana J. Grose voluntarily informed
law enforcement officers that she was involved with Young, her
boyfriend, in drug activities at an apartment she leased in
Chester, West Virginia. Grose told officers that Young conducted
a drug trafficking operation at the premises in which he weighed,
cut, and packaged bulk heroin into street level quantities. She
also stated Young kept guns in the apartment. Grose alleged she
left the premises in late July 2005 because she was concerned for
her safety.
Grose, the sole lessee, signed an open-ended consent to
search the premises and provided a copy of the lease agreement and
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her original key to the premises. That same day, police officers
went to the premises to execute the consent search. Young was not
at the apartment, and a search of the premises uncovered cash,
heroin, firearms, cell phones, and an empty firearm case. On
August 26, 2005, after knocking and announcing, law enforcement
officers entered the premises and handcuffed Young and a companion
named Sonny Baxter. The search of Young yielded a cell phone,
baggies and money. Baxter also had a cell phone in his right pants
pocket. Officers accessed the text messages stored on the phones
and wrote down the contents. On September 2, 2005, police officers
returned to the premises and found a baggie containing heroin.
Young filed two motions to suppress the physical evidence
on the ground that it was illegally seized. Following a hearing,
a magistrate judge recommended that the motions to suppress be
denied, and the district court adopted the report and denied the
motions to suppress. Young now claims the district court erred in
denying his motions to suppress. This court reviews factual
findings underlying a district court’s suppression determination
for clear error and the district court’s legal conclusions de novo.
United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)). When the
district court has denied a suppression motion, 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).
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The police entered the premises under Grose’s consent.
The Government can justify a warrantless search by showing
permission to search by “a third party who possessed common
authority over or other sufficient relationship to the premises or
effects sought to be inspected.” United States v. Matlock, 415
U.S. 164, 171 (1974). Authority to consent arises from mutual use
of the property by those with joint access or control, so that a
cohabitant would recognize the risk that another might allow a
common area to be searched. Trulock v. Freeh, 275 F.3d 391, 403
(4th Cir. 2001).
As the sole lessee of the residence, Grose had authority
over the premises. She occupied the space until a short time
before the search and had access to all areas of the premises.
Young argues Grose had abandoned the premises by moving out a few
weeks prior to the search. Although she had moved most of her
belongings from the residence, she left a few personal items.
Grose did not inform the landlord that she was terminating the
lease, and the landlord had not terminated the lease or taken any
action to evict Grose from the premises. She had visited the
residence a week prior to the search and had discussed the rent
payment with Young the day before the search. Because Grose had
not abandoned the residence, she retained the authority to give
consent to allow police officers to search it.
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Young also claims Grose’s observations were stale because
she had moved out weeks before the search. As this court has made
clear, “[t]he vitality of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit.” United States
v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984). “Rather, we must
look to all the facts and circumstances of the case, including the
nature of the unlawful activity alleged, the length of the
activity, and the nature of the property to be seized.” Id. Grose
detailed a continuing drug operation using the residence as a
heroin stash house for many months. In addition, she had visited
the apartment a week prior to the August 24 search. Looking at the
facts and circumstances of the case, the information provided by
Grose was not stale.
When Officer McDonald entered the premises, he observed
pills on the table. McDonald dropped a capsule while examining it,
and when he picked up a roll of paper towels to stop the rolling
capsule, a clear plastic baggie fell out of the roll. The package
contained heroin. Young contends that the heroin was improperly
seized because it was not in plain view. “[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
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is immediately apparent.” United States v. Jackson, 131 F.3d 1105,
1109 (4th Cir. 1997). As the officers were searching the house
under a proper letter of consent looking for evidence of drugs, the
incriminating character of the pills on the table was immediately
apparent. A byproduct of that search revealed the baggie with
heroin. The seizure of the bag of heroin on the table was proper.
Young finally claims that the information contained in
the text messages on the cell phones was improperly seized. Young
argues that since the police had to manipulate the cell phones to
reveal the text messages they had no authority to examine the
phones’ contents without a warrant. Privacy rights in the phone
are tempered by an arresting officer’s need to preserve evidence.
This need is an important law enforcement component of the
rationale for permitting a search of a suspect incident to a valid
arrest. See United States v. Robinson, 414 U.S. 218, 226 (1973).
Albeit in an unpublished opinion, this court has ruled
that officers possess the authority to retrieve telephone numbers
seized from a pager seized incident to an arrest. See United
States v. Hunter, No. 96-4259, 1998 WL 887289 (4th Cir. Oct. 29,
1998) (unpublished). In a similar case, the Fifth Circuit has
ruled that officers may retrieve call records and text messages
from a cell phone under a search incident to arrest. See United
States v. Finley, 477 F.3d 250, 259-60 (5th Cir.) cert. denied,
127 S. Ct. 2065 (2007). Here, officers had no way of knowing
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whether the text messages would automatically delete themselves or
be preserved. Accordingly, based upon the reasoning of our prior
holding, the Fifth Circuit’s like conclusion, and the manifest need
of the officers to preserve evidence, we conclude that the officers
permissibly accessed and copied the text messages on the phone
during the search incident to arrest.
Accordingly, we affirm Young’s convictions. 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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