United States v. Sims , 302 F. App'x 195 ( 2008 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4019
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    ELIJAH JUNIOR SIMS,
    Defendant – Appellant.
    Appeal from the United States District Court for the Western
    District   of  North   Carolina,  at  Charlotte.   Robert J.
    Conrad, Jr., Chief District Judge. (3:05-CR-00340)
    Submitted:    November 3, 2008              Decided:   December 9, 2008
    Before WILKINSON and      DUNCAN,   Circuit    Judges,   and   HAMILTON,
    Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Tolly A. Kennon, III, KENNON & ASSOCIATES, Charlotte, North
    Carolina, for Appellant.   Gretchen C.F. Shappert, United States
    Attorney, Amy E. Ray, Assistant United States Attorney,
    Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Elijah Junior Sims was charged with one count of being
    a felon in possession of a firearm, in violation of 
    18 U.S.C. § 922
    (g)(1) (2006), and one count of possession with intent to
    distribute         five       grams     or    more    of    a     mixture        or     substance
    containing cocaine base, in violation of 
    21 U.S.C. § 841
     (2006).
    On February 3, 2006, Sims filed a motion to continue his trial
    based on supplemental discovery received from the Government,
    including       Federal         Rules    of    Evidence          404(b)    evidence.            The
    district court denied Sims’ motion on February 3, 2006.                                        Sims
    next     filed         a     motion     to    suppress       all        evidence       from     his
    April 26, 2005, arrest.                  The district court also denied this
    motion, and Sims appeared for a jury trial on February 15, 2006.
    Following a two-day trial, Sims was convicted of both counts and
    sentenced to the statutory mandatory minimum of ten years on
    each count, to run concurrently.                     Sims timely noted an appeal.
    On       appeal,    Sims       first    complains         that     the     district
    court erred in denying his motion for a continuance.                                   This court
    reviews a district court’s denial of a motion for a continuance
    for abuse of discretion.                     United States v. Williams, 
    445 F.3d 724
    , 738-39 (4th Cir. 2006).                    Even if a defendant demonstrates
    that    the   district          court     abused     its     discretion          in    denying    a
    motion    for      a       continuance,      “the    defendant       must      show     that    the
    error    specifically           prejudiced      [his       or]    her     case    in    order    to
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    prevail.”         United    States       v.     Hedgepeth,            
    418 F.3d 411
    ,     419
    (4th Cir. 2005).
    Sims fails to establish on appeal how the denial of
    his motion for a continuance affected the outcome of his trial.
    Sims asserts that the denial prevented him from investigating
    the   Government’s         Rule        404(b)      evidence,             but        he     fails    to
    demonstrate       specifically          how     investigating             the        Rule      404(b)
    evidence     would       have      altered        the        outcome           of        his   trial,
    particularly in light of the overwhelming evidence of his guilt.
    Accordingly, Sims’ claim is without merit.
    Sims next asserts the district court erred in denying
    his suppression motion.                The Fourth Amendment protects citizens
    against unreasonable searches and seizures.                              U.S. Const. amend.
    IV.      It is well settled under the Fourth Amendment “that a
    search conducted without a warrant issued upon probable cause is
    per   se    unreasonable          subject         to        only     a    few        specifically
    established        and     well-delineated              exceptions.”                     Schneckloth
    v. Bustamonte,       
    412 U.S. 218
    ,   219       (1973)       (internal            quotations
    omitted).        The first such exception includes a search that falls
    within     the    scope     of     a    citizen’s           consent.            United         States
    v. Lattimore, 
    87 F.3d 647
    , 650 (4th Cir. 1996).                                          The warrant
    requirement       also    does    not    apply         to    a     search      incident        to   an
    arrest.     United States v. Robinson, 
    414 U.S. 218
    , 224 (1973);
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    United States v. Currence, 
    446 F.3d 554
    , 556 (4th Cir. 2006)
    (citing Chimel v. California, 
    395 U.S. 752
    , 763 (1969)).
    In        addition,       in     the          context        of     investigatory
    detentions, the Supreme Court has held that, consistent with the
    Fourth Amendment, police officers may conduct an investigatory
    stop   and    a    pat-down      search      of       an   individual          for    weapons   if
    officers have reasonable suspicion that criminal activity may be
    afoot.      Terry v. Ohio, 
    392 U.S. 1
    , 31 (1968); see Illinois v.
    Wardlow, 
    528 U.S. 119
    , 123 (2000).                         Such an investigatory stop
    must   be     based      on    "at    least       a    minimal          level    of    objective
    justification,"          but    the   standard         for    reasonable         suspicion      is
    less demanding than for probable cause.                             Wardlow, 
    528 U.S. at 123
    .
    In        assessing      whether          officers          had    a     reasonable
    suspicion of criminal activity, we must consider the totality of
    the    circumstances           surrounding         the      seizure.            United    States
    v. Sprinkle, 
    106 F.3d 613
    , 618 (4th Cir. 1997) (quoting United
    States   v.       Sokolow,      
    490 U.S. 1
        (1989)       (internal         quotations
    omitted).              “Reasonable          suspicion          is        a      commonsensical
    proposition.           Courts are not remiss in crediting the practical
    experience        of    officers      who    observe         on     a    daily       basis   what
    transpires on the streets.”                  United States v. Lender, 
    985 F.2d 151
    ,   154    (4th      Cir.    1993).         In      assessing         whether      reasonable
    suspicion     existed,         the    facts,       whether        seemingly          innocent   or
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    obviously incriminating, are to “be assessed in light of their
    effect on the respective officer=s perception of the situation at
    hand.”     United States v. McCoy, 
    513 F.3d 405
    , 414 (4th Cir.
    2008).
    The events out of which the charges arose occurred on
    April    26,    2005.      On     that   date,   Charlotte-Mecklenburg          Police
    Officer Marianne Baltimore received information that Alex Gibson
    dealt crack cocaine from an address on Dakota Street and that
    every day his supplier would arrive in an SUV between 3:00 p.m.
    and 6:00 p.m.          Officers Baltimore, Jonathan Tobbe, Gerald Holas,
    and Shawn Crooks proceeded to the Dakota Street address.                         Upon
    arriving       at     approximately      4:30    p.m.,    Baltimore     and      Tobbe
    observed an SUV in front of the address.                   The officers ran the
    license plate on the SUV and discovered that the vehicle was
    registered      to     Sims,    whom     Holas   knew    was    involved   in    drug
    dealing.       Armed with this information, Crooks approached Sims
    and asked him to step out of the vehicle.                      As Sims did so, he
    volunteered in response to Crooks’ inquiry whether there were
    any guns in the car that he had a 9 mm handgun in the glovebox.
    At the moment Crooks asked Sims to get out of the vehicle,
    Crooks   had        reasonable,    articulable    suspicion      that   Sims     might
    have been engaged in criminal activity.                   See Sokolow, 
    490 U.S. at 7
    ; McCoy, 
    513 F.3d at 414
    .
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    The    officers       received        Sims’    consent    to     search    his
    person and vehicle.          Because the searches of Sims and his SUV
    occurred    with    Sims’     consent,           the    Fourth    Amendment       warrant
    requirement was inapplicable.                Lattimore, 
    87 F.3d at 650
    .               When
    the search of Sims’ person and SUV did not yield any narcotics,
    Tobbe obtained Sims’ consent to conduct a more thorough search
    of Sims’ person because Tobbe believed Sims had drugs concealed
    under an Ace bandage wrapped around his midsection.                          After Sims
    revoked    his    consent     to       search     his     person,    Crooks       properly
    arrested   him     for    being    a    felon     in    possession     of    a    firearm.
    Crooks ultimately discovered Sims’ crack cocaine in a search
    incident    to     Sims’     arrest.             United      States     v.       Currence,
    
    446 F.3d 554
    , 557 (4th Cir. 2006).                      Accordingly, the district
    court did not err in denying Sims’ motion to suppress.
    Sims’ final argument is that the district court erred
    in   admitting       evidence           from      events      that      occurred       on
    July 20, 2005,      and    August       1,   2005,      several     months    after   the
    charged offense.         On those dates, officers again discovered Sims
    with crack cocaine concealed under an Ace bandage wrapped around
    his midsection.          Decisions regarding the admission or exclusion
    of evidence are left to the sound discretion of the trial court
    and will not be reversed absent an abuse of that discretion.
    United States v. Russell, 
    971 F.2d 1098
    , 1104 (4th Cir. 1992).
    We have reviewed the record and conclude the district court did
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    not   abuse         its        discretion      in       admitting      the       complained     of
    evidence.
    Finally,          Sims    has     filed        a   motion     to     vacate     his
    convictions.              He    asserts     that        three     years    after    the    events
    giving    rises       to       his     convictions,        Officer        Holas    was    himself
    charged    with       and       pled    guilty      to    conspiracy        to    possess     with
    intent    to    distribute             crack   cocaine.            Sims    does    not    allege,
    however, that Holas’ testimony at Sims’ trial was in any way
    false or misleading.                 Accordingly, we deny Sims’ motion.
    We    affirm       the    judgment        of     the   district     court.       We
    dispense with oral argument as 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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