United States v. Davis , 232 F. App'x 318 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KELVIN TREMAYNE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00206)
Submitted: June 6, 2007 Decided: July 9, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney, Thomas
Cullen, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Tremayne Davis appeals his conviction and sentence
after pleading guilty to possession with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2000), and possession of a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2000).
On appeal, Davis contends that the district court erred in denying
his motion to suppress evidence found pursuant to a search of a
motel room that he had allegedly rented. Davis asserts that the
affidavit submitted in support of the search warrant failed to
establish probable cause because (1) there was no basis to
determine the reliability of the anonymous tip provided by a
“concerned citizen,” (2) the anonymous tip was not sufficiently
corroborated, (3) police surveillance uncovered no criminal actions
on Davis’ part and largely involved individuals other than himself,
(4) there was an insufficient nexus between the observed conduct
and the subject motel room, and (5) the inclusion of Davis’ arrest
record was factually misleading.
Legal conclusions underlying the denial of a motion to
suppress are reviewed de novo, while factual findings are reviewed
for clear error. United States v. Moreland, 437 F.3d 424, 429 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). The evidence is
construed “in the light most favorable to the . . . prevailing
party below.” United States v. Seidman, 156 F.3d 542, 547 (4th
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Cir. 1998). When making a probable cause determination, courts use
a “totality of the circumstances” analysis, allowing the judge to
review the facts as a whole and make a common sense determination
as to whether there is a “fair probability that contraband or
evidence of a crime will be found in a particular place.” United
States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)). On review by an
appellate court, a magistrate judge’s finding of probable cause is
entitled to “great deference.” Williams, 974 F.2d at 481.
After thoroughly reviewing the record and the parties’
submissions, we conclude that the district court did not err in
denying Davis’ motion to suppress. Surveillance of Davis, and of
the motel room from which the evidence was seized, provided more
than ample reason to support the search of that room. Moreover,
the anonymous tip that alerted police to the possibility of drug
dealing at the motel room was sufficiently corroborated by adequate
police work. The inclusion of Davis’ arrest record in the warrant
application was not improper in light of the other evidence,
notwithstanding the fact that two of Davis’ prior arrests led to
reduced charges or dismissals. In short, Davis’ claims are
meritless. Accordingly, we affirm Davis’ conviction and sentence.
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.
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AFFIRMED
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