United States v. Hicks ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4239
GWENDOLYN DAPHINE HICKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-407)
Argued: March 6, 1997
Decided: September 4, 1997
Before HAMILTON and WILLIAMS, Circuit Judges, and KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Christopher Dean Latsios, Fairfax, Virginia, for Appel-
lant. Mark Sterling Determan, Special Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, Rebeca Hildalgo Bellows, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
I.
On the morning of July 2, 1995, Virginia State Trooper Frank
Dover observed a 1981 Mercury traveling 72 miles per hour in a 55
mile per hour speed zone. James Arthur Ford was the driver of the
vehicle and appellant Gwendolyn Daphine Hicks was the vehicle's
only passenger. Upon stopping the vehicle pursuant to a routine traf-
fic stop, Trooper Dover discovered that neither Mr. Ford nor Ms.
Hicks possessed a valid driver's license. Because neither Mr. Ford nor
Ms. Hicks could lawfully drive the vehicle from the scene, Trooper
Dover determined that the vehicle had to be towed and stored for
safekeeping. In accordance with Virginia State Police procedures
governing vehicle impoundment and inventory searches, Trooper
Dover proceeded to inventory the vehicle on the roadside prior to it
being towed.
While inventorying the contents of the trunk, Trooper Dover found
two overnight bags, one of which contained a box of 9 millimeter
ammunition and a loaded 9 millimeter semi-automatic handgun. After
discovering the handgun, Trooper Dover conducted a pat-down
search of Ms. Hicks and searched her purse to ensure his personal
safety. Upon opening the purse, Trooper Dover saw a semi-clear
white bag inside the purse. Through the semi-clear bag Trooper
Dover saw a film canister, purple bags, and some large white-colored
rocks. Based on his training and experience, Trooper Dover believed
the rocks were crack cocaine. Trooper Dover then placed Ms. Hicks
under arrest for possession with intent to distribute crack cocaine. The
suspected crack cocaine was subsequently taken to the Drug Enforce-
ment Administration's Mid-Atlantic Regional Laboratory for analy-
sis. The chemical analysis revealed that Ms. Hicks' bag contained a
total of 21.771 grams of cocaine.
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II.
Ms. Hicks first challenges the district court's decision to deny her
motion to suppress the crack cocaine seized from her purse. She
claims the trooper did not have reasonable suspicion to conduct a pro-
tective search and, even if he did, the drugs were not in plain view
when the purse was opened. We review the district court's determina-
tion of reasonable suspicion de novo, but we will not overturn the dis-
trict court's factual findings unless clearly erroneous. United States v.
Perrin, 45 F.3d 869 (4th Cir.), cert. denied , 515 U.S. 1126 (1995).
Applying this standard, we agree with the district court that this evi-
dence should not have been suppressed because the search was con-
ducted pursuant to a valid protective search. The officer had a right
to conduct a protective search of Ms. Hicks as a passenger in the car.
See Maryland v. Wilson, 117 S. Ct. 882 (1997) (concern for officer
safety permits officer making traffic stop to order passenger out of
car). Upon finding a loaded semi-automatic handgun in the trunk of
the car, Trooper Dover immediately conducted a pat-down search of
Ms. Hicks' person and opened her purse. He conducted this search
based on the reasonable suspicion that Ms. Hicks might have been
armed with a weapon.
In United States v. Poms, we adopted the principle that officers
may conduct a limited search for weapons of a known companion of
an arrestee who is within the vicinity of the arrest. 484 F.2d 919 (4th
Cir. 1973). In Poms, we stated, "[w]e agree that all companions of the
arrestee within the immediate vicinity, capable of accomplishing a
harmful assault on the officer, are constitutionally subjected to the
cursory pat-down reasonably necessary to give assurance that they are
unarmed." Id. at 922 (citation and internal quotation omitted). In
Poms, we upheld the protective search of the shoulder bag carried by
a known companion of the arrestee, who was emerging from an eleva-
tor near the arrest scene. In the present case, upon discovering the
loaded handgun, Trooper Dover had reason to be concerned about his
personal safety. He was justified in conducting a limited search of
Ms. Hicks' purse in order to assure himself that she was not carrying
a weapon. Although the objective of the search was to determine
whether Ms. Hicks possessed any weapons, the seizure of the crack
was also proper. The search of the purse was a valid protective search.
Upon opening the purse the crack cocaine was in plain view. When
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an officer engaged in a valid protective search finds contraband in
plain view, the evidence may be properly seized and used as evi-
dence. See id. Accordingly, the district court did not err in denying
Ms. Hicks' motion to suppress.
III.
Ms. Hicks next challenges the district court's refusal to allow her
to inquire on voir dire whether anyone on the jury venire lived in a
neighborhood presently experiencing a problem relating to drugs.
Generally, district courts have broad discretion in conducting the voir
dire examination. United States v. Griley , 814 F.2d 967, 974 (4th Cir.
1987). The court is not required to ask every question presented.
United States v. Gugliemi, 819 F.2d 451, 456 (4th Cir. 1987) (in por-
nography case, court refused to ask questions relating to jurors' per-
sonal reactions to specific sexual activity), cert. denied, 484 U.S.
1019 (1988). Moreover, "[t]he burden is on the defendant to show that
the trial court's conduct of voir dire prejudiced him, and led to an
unfair trial." Griley, 814 F.2d at 974. We reviewed the district court's
decision to refuse inquiry into certain matters on voir dire under an
abuse of discretion standard. United States v. Lancaster, 96 F.3d 734(4th Cir. 1996) (en banc), cert. denied, 117 S. Ct. 967 (1997).
Ms. Hicks proposed the following voir dire request: "Does anyone
reside in an area or neighborhood which is presently experiencing a
problem relating to the usage or sale of narcotics?" The district court
denied the request, explaining that the question proposed was encom-
passed by the court's previous questioning. The district court had
asked the following question of jurors:
Ladies and Gentlemen, have any of you or your immediate
family members or close personal friends ever been the vic-
tim of a crime that was related to the use of narcotics or
related to or involved a person who has been using drugs to
your knowledge?
In addition to this question, the district court asked a more general
question regarding a possible prejudice regarding drugs:
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This case involves crack cocaine, and the issue of drugs
in American society is a very sensitive issue about which a
lot has been written and a lot has been read. And there have
been TV specials, and all that, on it.
Do any of you feel from any personal experiences, that is
whether you have a family member with a drug problem,
whether you have worked in an advocacy group or any of
that kind of life experience, that you have formed an opinion
about drugs in American society that would make it, in any
respect make it difficult for you to be completely impartial
in judging the issues before us in this case today.
Because the questions asked by the district court essentially
encompassed the question Ms. Hicks sought to have the district court
ask, we find that the district court did not abuse its discretion in refus-
ing to ask the question proposed by Ms. Hicks.
IV.
The third issue Ms. Hicks raises on appeal is whether the district
court abused its discretion when it refused to allow voir dire on the
presumption of innocence. In United States v. Robinson, 804 F.2d 280(4th Cir. 1986), we specifically addressed the refusal to give a voir
dire instruction on the presumption of innocence:
The claim of error because the trial judge refused to specifi-
cally ask the full venire if they understood and would abide
by the court's instructions on reasonable doubt, presumption
of innocence, and burden of proof has its origin in United
States v. Hill, 738 F.2d 152 (6th Cir. 1984). Every other cir-
cuit which has considered this exception, including our cir-
cuit in United States v. Carter, 772 F.2d 66 (4th Cir. 1985),
has refused to follow Hill. The trial jury in the present case
was twice instructed on these points of law, and this was
quite sufficient.
Id. at 281.
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Before opening statements, the district court instructed the jury that
"the defendant begins with the presumption of innocence . . . and so
a defendant comes into a courtroom with really a totally clean slate."
After closing arguments, the district court again instructed the jury on
these concepts. Thus, under Robinson, the district court committed no
error.
V.
Finally, Ms. Hicks contends that there is insufficient evidence in
the record demonstrating that the crack she possessed was for distri-
bution. The jury's verdict "must be sustained if there is substantial
evidence, taking the view most favorable to the government, to sup-
port it." Glasser v. United States, 315 U.S. 60, 62 (1942) (citations
omitted). Thus, we may reverse a jury verdict only if the record dem-
onstrates a lack of evidence from which a jury could find guilt beyond
a reasonable doubt. See United States v. Lowe , 65 F.3d 1137, 1142
(4th Cir. 1995), cert. denied, 117 S. Ct. 49 (1996).
In this case, there was ample evidence from which the jury could
find beyond a reasonable doubt that Ms. Hicks knowingly possessed
the crack with intent to distribute it. The "[i]ntent to distribute may
be inferred from the possession of . . . a quantity of drugs larger than
needed for personal use." United States v. Fisher, 912 F.2d 728, 730
(4th Cir. 1990), cert. denied, 500 U.S. 919 (1991). Amounts as small
as 5.72 grams of crack have been found to be consistent with distribu-
tion. See United States v. LaMarr, 75 F.3d 964, 973 (4th Cir.), cert.
denied, 117 S. Ct. 358 (1996). We have also recognized that "crack
is normally distributed in doses of 1/10 of a gram and that a person
ingesting a dose daily would be considered a ``strong' user." Id. Ms.
Hicks had 21.771 grams of crack-- enough for more than 200 days
at doses sufficient for a strong user. Thus, we find that the jury had
ample evidence to conclude Ms. Hicks possessed crack with intent to
distribute it.
Conclusion
For the aforementioned reasons, we affirm the judgment of the dis-
trict court.
AFFIRMED
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