United States v. Lewis , 58 F. App'x 16 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4180
GEORGE LEE LEWIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CR-00-20-BO)
Submitted: November 7, 2002
Decided: January 31, 2003
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Paul K. Sun, Jr., ELLIS & WINTERS, L.L.P., Raleigh, North Caro-
lina, for Appellant. Frank D. Whitney, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LEWIS
OPINION
PER CURIAM:
A federal grand jury indicted George Lee Lewis on one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (2000). Lewis filed an unsuccessful motion to suppress two
firearms seized from his Jeep and his incriminating statements to
police. He then entered a conditional guilty plea, reserving the right
to appeal the denial of his suppression motion. Characterizing Lewis
as an armed career criminal, the district court sentenced Lewis to 120
months in prison. Lewis timely appealed, challenging the denial of the
suppression motion and his sentence. Finding no merit to his claims,
we affirm.
Around 9:30 p.m. on November 17, 1999, William Ashburn
noticed a car on his farm in Pasquotank County, North Carolina, saw
a flash, and heard a rifle shot.* He got in his car and followed the
vehicle, reporting the incident to a police dispatcher from his cell
phone. As the vehicle attempted to turn around in a driveway in Cam-
den County, North Carolina, Camden County Sheriff’s Deputy Ter-
rence Sutton arrived on the scene. Ashburn exited his own car and
pointed at the vehicle, a Jeep driven by George Lee Lewis, as the
vehicle that he had reported. As he approached the Jeep, Lewis got
out and walked toward him, and grabbed the deputy’s arm, saying
that he wanted to talk to him. The deputy shined his flashlight in the
Jeep to look for weapons and saw a rifle on the back seat. Sutton then
handcuffed Lewis and placed him in the patrol car while he spoke
with Ashburn.
Sutton returned to the patrol car and advised Lewis that Ashburn
wanted to press charges. Lewis asked how he could help himself and
the deputy replied, "If you didn’t do anything wrong, cooperate with
us, that’s all you have to do." Lewis told the officer that he had been
"wrong," and had entered Ashburn’s property, spotted a deer, and
*Fire lighting (illegally hunting deer after dark using artificial light),
N.C Gen. Stat. Ann. § 113-294(e) (2001), and trespassing, N.C. Gen.
Stat. Ann. § 114-159.13 (2001), are both misdemeanors under North Car-
olina law.
UNITED STATES v. LEWIS 3
fired his gun. Meanwhile, Pasquotank County Sheriff’s Deputy David
Meiggs arrived on the scene. After consulting with Meiggs, who
knew Ashburn and had responded to similar complaints on his farm
before, Sutton told Lewis he was under arrest for trespass. Meiggs
approached the Jeep and saw the rifle on the backseat. He then
searched the car and found a .22 caliber Ruger pistol under the driv-
er’s seat.
The district court held that the warrantless seizure of the rifle was
justified under the plain view doctrine. Under this doctrine, the war-
rantless seizure of incriminating evidence is authorized where "(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). Lewis
does not dispute that there was reasonable suspicion to stop his vehi-
cle. Thus, the deputies were lawfully in a place from where the rifle
could be plainly viewed. Furthermore, they had a lawful right of
access to the rifle. See Texas v. Brown, 460 U.S. 730, 741 n.6 (1983)
(officer who sees incriminating object inside vehicle may seize the
object). Finally, we find that the incriminating character of the rifle
was immediately apparent, in light of the fact that Ashburn had identi-
fied the car in which the rifle was discovered as the one he had seen
leaving his property after he had witnessed the illegal firing of the gun
on his property.
The district court also concluded that the warrantless seizure of the
pistol was authorized as incident to a lawful arrest. Lewis argues that
there was no probable cause for his arrest and hence, the seizure of
the pistol could not be justified as incident to a lawful arrest.
"Probable cause exists ‘where the facts and circumstances within
. . . [the officers’] knowledge and of which they had reasonably trust-
worthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that’ an offense has been or is being
committed." Brinegar v. United States, 338 U.S. 160, 175-76 (1949)
(internal citation omitted). In this case, Ashburn witnessed two misde-
meanors committed on his property. He followed the vehicle off his
property and continued to track it until police arrived. He identified
Lewis’ Jeep as the vehicle he had been following. The rifle in plain
4 UNITED STATES v. LEWIS
view in the back seat of the Jeep provided further corroboration that
Lewis was the individual who had been on Ashburn’s property. Under
these circumstances, we find that the district court properly concluded
that probable cause existed to arrest Lewis.
Lewis argues that the search was not incident to his arrest because
he was not in the Jeep at the time of his arrest and the seizure and
arrest were not contemporaneous. We find that the delay between
Lewis’ arrest and the search of his Jeep was sufficiently brief to sup-
port the district court’s conclusion that the search was incident to
Lewis’ lawful arrest. United States v. Johnson, 114 F.3d 435, 440-41
(4th Cir. 1997).
Next, Lewis contends that the district court should have granted his
motion to suppress the incriminating statements he made to Sutton
because he was interrogated in violation of his rights under Miranda
v. Arizona, 384 U.S. 436, 478 (1966), to remain silent until he met
with counsel. Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Volun-
teered statements of any kind, however, are not considered a product
of interrogation and therefore are not barred by the Fifth Amendment.
Innis, 446 U.S. at 300.
We find that Lewis’ statements were voluntary. Immediately after
leaving his vehicle, Lewis tried to explain to Deputy Sutton what hap-
pened. The officer initially would not listen because he was more
interested in securing the area. After handcuffing Lewis and placing
him in the back of the patrol car, Sutton further delayed speaking with
Lewis in order to first talk to Ashburn. When he returned to the patrol
car and told Lewis that Ashburn wanted to press charges, Lewis asked
what he could do to help himself. Sutton advised Lewis that if he had
not done anything improper, he could cooperate with police. Without
being questioned, Lewis then made incriminating statements, admit-
ting that he had indeed done something "wrong." Under these circum-
stances, we find that Lewis’ statements were voluntary and that the
district court did not err by denying Lewis’ motion to suppress.
Finally, Lewis contends that the district court erred in sentencing
him as an armed career criminal pursuant to 18 U.S.C. § 924(e)
(2000). Specifically, he argues that, under Apprendi v. New Jersey,
530 U.S. 466 (2000), he should not have been sentenced as an armed
UNITED STATES v. LEWIS 5
career criminal because the fact of his prior convictions was not
alleged in his indictment. However, as Lewis concedes, Apprendi did
not overrule the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), that prior felony convictions
that trigger enhanced sentences are sentencing enhancements rather
than elements of the offense. United States v. Sterling, 283 F.3d 216,
219-20 (4th Cir.), cert. denied, 122 S. Ct. 2606 (2002). Thus, Lewis’
prior felony convictions could be used to enhance his sentence even
though they were not charged in the indictment.
For these reasons, we affirm Lewis’ conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED