United States v. McKinney ( 2004 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-4749
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    ANTHONY LAMONT MCKINNEY,
    Defendant - Appellant.
    Appeal from the United States District        Court for the Middle
    District of North Carolina, at Durham.         James A. Beaty, Jr.,
    District Judge. (CR-03-41)
    Submitted:   April 28, 2004                   Decided:   May 28, 2004
    Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Michael W. Patrick, LAW OFFICES OF MICHAEL W. PATRICK, Chapel Hill,
    North Carolina, for Appellant. Anna Mills Wagoner, United States
    Attorney, Angela H. Miller, Assistant United States Attorney,
    Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Anthony Lamont McKinney appeals from the judgment of the
    district court convicting him of possession of a firearm as a
    convicted felon.   McKinney claims that the court erred in denying
    his motion to suppress.     Finding no error, we affirm.
    McKinney first claims that the court erred in concluding
    that his encounter with Officer C. T. Sluder of the UNC-Greensboro
    Police Department was consensual in nature.      Because this claim
    involves mixed questions of fact and law, this court reviews the
    district court’s factual findings for clear error and the legal
    conclusions drawn from the facts de novo.     See Ornelas v. United
    States, 
    517 U.S. 690
    , 699 (1996); United States v. Gerant, 
    995 F.2d 505
    , 508 (4th Cir. 1993).
    Our review of the record supports the district court’s
    conclusion. Sluder’s interaction with the occupants of the vehicle
    was described as cooperative.      It was brief, and there were no
    actions taken by Sluder that suggest McKinney’s will was overborne.
    Accordingly, we deny relief on this claim.     See United States v.
    Lattimore, 
    87 F.3d 647
    , 650 (4th Cir. 1996) (en banc); see also
    Maryland v. Wilson, 
    519 U.S. 408
    , 415 (1997).
    McKinney also asserts that even if the encounter was
    consensual, Sluder lacked probable cause to arrest McKinney for
    possession of a concealed weapon because such possession is not per
    se illegal in North Carolina.     As this issue was not presented to
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    the district court, we review for plain error.              See Fed. R. Crim P.
    52(b); United States v. Olano, 
    507 U.S. 725
    , 732-37 (1993).                  North
    Carolina law provides for the issuance of a concealed weapon
    permit.   See    
    N.C. Gen. Stat. §§ 14-415.10
          -   415.23   (2001).
    However, North Carolina also requires one with a concealed weapon
    to advise a law enforcement officer “when approached” that the
    individual is carrying a concealed weapon and has the appropriate
    permit on his person.     See § 14-415.11(a).           McKinney did not advise
    Sluder that he was carrying a weapon until asked and did not inform
    Sluder that he had a permit for such a weapon.               As a consequence,
    Sluder had reason to believe that McKinney was in violation of
    North Carolina law.      It was not plain error for the district court
    to conclude otherwise.
    We    affirm   the    judgment     of   the    district   court.     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
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Document Info

Docket Number: 03-4749

Judges: Niemeyer, Shedd, Duncan

Filed Date: 5/28/2004

Precedential Status: Non-Precedential

Modified Date: 3/2/2024