United States v. Clark , 48 F. App'x 57 ( 2002 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                             No. 01-4839
    MICHAEL A. CLARK,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    Robert E. Payne, District Judge.
    (CR-00-244)
    Submitted: July 31, 2002
    Decided: October 9, 2002
    Before MICHAEL, TRAXLER, and KING, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    Charles Arthur Gavin, BLACKBURN, CONTE, SCHILLING &
    CLICK, P.C., Richmond, Virginia, for Appellant. Paul J. McNulty,
    United States Attorney, Stephen W. Miller, Assistant United States
    Attorney, Richmond, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    2                      UNITED STATES v. CLARK
    OPINION
    PER CURIAM:
    Michael Clark was convicted by a jury of possession with intent to
    distribute crack cocaine, see 
    21 U.S.C. § 841
    ; possession of crack
    cocaine and powder cocaine, see 
    21 U.S.C. § 844
    ; possession of an
    unregistered sawed-off shotgun, see 
    26 U.S.C. § 5861
    (d); and posses-
    sion of a firearm despite a previous felony conviction, see 
    18 U.S.C. § 922
    (g)(1). The district court sentenced Clark to a total term of 262
    months imprisonment. Clark appeals, claiming that the district court
    erred in denying two motions to suppress evidence and that, in any
    event, the evidence was insufficient to support his conviction on the
    firearms counts. We affirm.
    In May 2000, Richmond police officer Jason Yarema submitted an
    application for a search warrant for Clark’s residence at 2504 Wise
    Street. The supporting affidavit stated that a reliable confidential
    informant (CI) had provided information that, within the past 72
    hours, he had seen an individual known as "Face" (later identified as
    Clark) at 907 Mosby Street with a quantity of crack cocaine and mari-
    juana. According to the CI, the crack was packaged in small quanti-
    ties for street distribution and was for sale. The CI said that "Face"
    was supplying crack cocaine to "Pap," who lived at 907 Mosby Street,
    and that he had seen "Face" at that address "on a regular basis" with
    crack cocaine, marijuana, and firearms. The CI also said that he had
    been at "Face’s" residence and had seen "Face" in possession of crack
    cocaine packaged for sale, as well as a handgun and a shotgun. The
    CI said that "Face" previously owned a green Ford Taurus but now
    drove a blue Ford Taurus.
    Based on detailed directions given to them by the CI, Yarema and
    another officer began surveillance of Clark’s residence at 2504 Wise
    Street. The officers observed a blue Ford Taurus parked in front; they
    also observed Clark get in the car and drive to 907 Mosby Street.
    Clark stayed in the apartment approximately five minutes and then
    drove away.
    Later that day, two other Richmond police officers stopped Clark
    for a traffic violation, independently of the ongoing investigation of
    UNITED STATES v. CLARK                         3
    Clark’s suspected drug activities. Clark was arrested for driving with
    a suspended license, and a search incident to his arrest revealed a
    small quantity of marijuana and $1200 in cash. This information was
    later relayed to Yarema and included in the affidavit in support of the
    search warrant.
    Officer Yarema obtained search warrants for Clark’s residence and
    the blue Ford Taurus he was driving when stopped the day before.
    Clark was arrested shortly after leaving his residence; a search inci-
    dent to his arrest revealed 5.879 grams of crack cocaine, .647 grams
    of powder cocaine, and a total of $1566 in cash. After Clark was
    given his Miranda warnings, he told the officers that he had a shotgun
    with ammunition in his bedroom, an unloaded pistol on top of his
    refrigerator, and a hand grenade in his living room. He also told the
    officers that he had been selling cocaine to pay his bills, including his
    mortgage. A search of Clark’s residence pursuant to the warrant
    revealed the guns and hand grenade in the locations described by
    Clark, as well as miscellaneous paraphernalia of drug distribution.
    Clark moved to suppress the evidence taken from his residence on
    the grounds that the search warrant was invalid because the informa-
    tion provided by the confidential informant was stale and did not
    demonstrate a nexus between the residence and the items to be seized.
    Clark also claimed that he was coerced into making incriminating
    statements by the officers’ threats to call child protective services if
    he did not cooperate. Clark filed a second motion to suppress the evi-
    dence, arguing that the traffic stop made the day before the search
    warrant was issued—and upon which the search warrant was partially
    based—was illegal. The district court denied both motions.
    This court reviews the district court’s factual findings on a denial
    of a motion to suppress for clear error and its legal conclusions de
    novo. See United States v. Rusher, 
    966 F.2d 868
    , 873 (4th Cir. 1992).
    We construe the evidence in the light most favorable to the party who
    prevailed below. See United States v. Seidman, 
    156 F.3d 542
    , 547
    (4th Cir. 1998).
    "Great deference is to be given a magistrate’s assessment of the
    facts when making a determination of probable cause. Our inquiry is
    directed to whether the magistrate had a substantial basis for his con-
    4                       UNITED STATES v. CLARK
    clusion that probable cause existed." United States v. Williams, 
    974 F.2d 480
    , 481 (4th Cir. 1992) (per curiam) (citations omitted). As it
    pertains to search warrants, probable cause exists when there is "a fair
    probability that contraband or evidence of a crime will be found in a
    particular place." Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983). Whether
    probable cause exists must be determined by looking to the totality of
    the circumstances surrounding the search. See id.; see also United
    States v. Clyburn, 
    24 F.3d 613
    , 617 (4th Cir. 1994) (explaining that
    "a totality-of-the-circumstances analysis . . . considers the informant’s
    reliability and the basis of the informant’s knowledge").
    Based on our review of the record, we find that there is substantial
    evidence in the record supporting the issuance of the warrant here.
    The confidential informant’s information was partially corroborated
    by the surveillance of Clark’s residence; further, his information
    regarding Clark’s previous ownership of a green Ford Taurus was
    verified through DMV records. See United States v. Lalor, 
    996 F.2d 1578
    , 1581 (4th Cir. 1993) ("Corroboration of apparently innocent
    details of an informant’s report tends to indicate that other aspects of
    the report are also correct.").
    Clark argues that the information provided by the informant was
    stale in that the affidavit failed to identify any dates when the CI had
    been at 2504 Wise Street. See United States v. McCall, 
    740 F.2d 1331
    , 1335 (4th Cir. 1984) (explaining that "time is a crucial element
    of probable cause"). However, as the district court noted, the CI stated
    that he had seen Clark at the Mosby Street residence within the past
    72 hours with crack cocaine packaged for distribution. And, on the
    day before the issuance of the warrant, the police observed Clark
    leave his residence and drive to the Mosby Street address where the
    transaction occurred.
    Next, Clark argues that the affidavit failed to provide a nexus
    between his residence and the items to be seized. However, the affida-
    vit stated that the CI had been inside Clark’s residence and had seen
    firearms and crack cocaine packaged for distribution. As the district
    court noted, it was reasonable to infer that Clark kept drugs and fire-
    arms at his residence given the most recent observations of him with
    drugs both on his person after his first arrest and at the Mosby Street
    address.
    UNITED STATES v. CLARK                          5
    Clark also claims that the traffic stop was illegal and any informa-
    tion obtained as a result of the stop should have been suppressed. A
    traffic stop of a vehicle is permissible if the officer has probable cause
    to believe a traffic violation has occurred or a reasonable suspicion of
    unlawful conduct. See Whren v. United States, 
    517 U.S. 806
    , 809-10
    (1996); Rusher, 
    966 F.2d at 875
    . Accordingly, when an officer
    observes even a minor traffic offense, a stop of the vehicle is permis-
    sible. See United States v. Hassan El, 
    5 F.3d 726
    , 730 (4th Cir. 1993).
    This is so even if the officer suspects the vehicle’s occupants of some
    other criminal activity, and the stop remains valid even if the officer
    would have ignored the traffic violation but for his other suspicions.
    See 
    id.
     It is undisputed that Clark’s vehicle did not display a valid
    City of Richmond decal on the windshield, as required by law. The
    district court concluded as a factual matter that the officers verified
    that the car was registered in Richmond before they stopped the car,
    see J.A. 236-37, and the district court therefore determined that the
    stop was valid. Because the district court’s factual findings are not
    clearly erroneous, Clark’s challenge to the traffic stop fails.
    Finally, Clark maintains that the district court erred in denying his
    motion to suppress incriminating statements he made at the time of
    his arrest. Clark alleges that he was coerced into making the state-
    ments because the officers threatened to have child protective services
    take his children (who were passengers in the vehicle) if he failed to
    cooperate. However, the district court, after hearing testimony from
    Clark and the officers, specifically discredited Clark’s testimony, and
    Clark cannot show that this factual finding was clearly erroneous.
    Clark also avers that the evidence was insufficient to support the
    two firearms convictions because, at the time of his arrest, he was not
    in actual possession of the weapons. However, neither § 5861(d) nor
    § 922(g)(1) require proof of actual or exclusive possession; construc-
    tive or joint possession is sufficient. See United States v. Gallimore,
    
    247 F.3d 134
    , 136-37 (4th Cir. 2001); United States v. Jackson, 
    124 F.3d 607
    , 610 (4th Cir. 1997). The Government may prove construc-
    tive possession by presenting evidence that the defendant exercised
    dominion and control over the item or had the power to exercise
    dominion and control. See Jackson, 
    124 F.3d at 610
    . The Govern-
    ment’s evidence that Clark knew the location of the weapons prior to
    6                     UNITED STATES v. CLARK
    the search is sufficient to establish constructive possession of the
    weapons.
    Accordingly, we affirm Clark’s conviction. 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.
    AFFIRMED