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


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  •                             UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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
    - 2 -
    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.
    - 3 -
    AFFIRMED
    - 4 -
    

Document Info

Docket Number: 05-5175

Citation Numbers: 232 F. App'x 318

Judges: Niemeyer, Traxler, Hamilton

Filed Date: 7/9/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024