United States v. Larry Fridie , 442 F. App'x 839 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4797
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY ANTRON FRIDIE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:09-cr-00564-HFF-1)
Submitted: August 3, 2011 Decided: August 12, 2011
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew Mackenzie, BARRETT MACKENZIE, LLC, Greenville, South
Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Larry Antron Fridie was convicted of
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1) (2006), 924(a)(2), and 924(e) (2006); possession of
a firearm in the furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (2006); and possession with
the intent to distribute a quantity of crack cocaine and a
quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C) and (b)(1)(D) (2006). The district court sentenced
Fridie to 360 months’ imprisonment followed by five years’
supervised release. Fridie then filed a timely notice of
appeal.
Fridie’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious grounds for appeal, but raising three
questions for this court’s review. First, Fridie questions
whether the district court erred when it denied his motion to
suppress evidence. Second, Fridie questions whether the
district court abused its discretion by allowing a law
enforcement officer to testify as an expert. And, finally,
Fridie questions whether the district court erroneously enhanced
his sentence pursuant to the Career Offender provision of the
U.S. Sentencing Guidelines Manual § 4B1.1 (2009). Fridie also
filed a pro se Anders brief and a supplemental brief, in which
2
he questions whether the district court afforded him due process
and whether his trial counsel was ineffective. Because we find
no meritorious grounds for appeal, we affirm.
First, Fridie questions the district court’s denial of
his motion to suppress. We review factual findings underlying
the district court’s denial of a motion to suppress for clear
error and legal conclusions de novo. United States v. Blake,
571 F.3d 331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104(2010). A factual finding is clearly erroneous if we “on the
entire evidence [are] left with the definite and firm conviction
that a mistake has been committed.” United States v. Harvey,
532 F.3d 326, 337 (4th Cir. 2008) (internal quotation marks
omitted). We construe the evidence in the light most favorable
to the Government. United States v. Griffin, 589 F.3d 148, 150
(4th Cir. 2009).
The district court properly denied Fridie’s motion to
suppress. We conclude the arresting officer in this case had
probable cause for a traffic stop because the truck in which
Fridie was a passenger was travelling at seventy-one miles per
hour in a forty-five mile per hour zone. See Whren v. United
States, 517 U.S. 806, 809-10 (1996). (traffic stop of a vehicle
constitutes a seizure within the meaning of the Fourth Amendment
and is permissible if the officer has probable cause to believe
a traffic violation has occurred).
3
Next, the odor of marijuana emanating from the truck
gave the officer probable cause to search it for drugs. United
States v. Lewis, 606 F.3d 193, 198 (4th Cir. 2010) (citing
United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004)).
Further, the officer’s observation of Fridie reaching beneath
the truck’s passenger seat after the truck was stopped, coupled
with Fridie’s evasive and alarmed behavior, gave rise to both a
reasonable suspicion of criminal activity and a possibility that
Fridie posed a danger to the officer’s safety that justified
Fridie’s detention and pat down search. See United States v.
Smith, 396 F.3d 579, 584 (4th Cir. 2005) (evasive behavior and
alarmed reaction further support reasonable suspicion of
criminal activity); Adams v. Williams, 407 U.S. 143, 146 (1972)
(if presented with a reasonable belief that the person may be
armed and presently dangerous, an officer may conduct a
protective frisk); United States v. Black, 525 F.3d 359, 364
(4th Cir. 2008) (same). And, finally, Fridie did not have a
reasonable expectation of privacy in a conversation in which he
engaged while seated in the officer’s patrol car. See United
States v. McKinnon, 985 F.2d 525 (11th Cir. 1993) (declining to
recognize a reasonable expectation of privacy in conversations
that take place inside a police officer’s patrol car). Thus,
the district court properly denied Fridie’s motion to suppress.
4
Fridie also questions the district court’s decision to
allow a law enforcement officer to testify as an expert witness
in the habits of drug dealers and drug users. We review the
district court’s decision to admit expert testimony under Fed.
R. Evid. 702 for abuse of discretion. United States v. Wilson,
484 F.3d 267, 273 (4th Cir. 2007) (citing Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 152 (1999)). The district court
must be granted “considerable leeway in deciding in a particular
case how to go about determining whether particular expert
testimony is reliable.” Wilson, 484 F.3d at 273. We have
consistently permitted law enforcement officers to testify as
experts on the drug trade based solely on their experience and
training. Id. at 275-76; United States v. Hopkins, 310 F.3d
145, 150-51 (4th Cir. 2002); United States v. Brewer, 1 F.3d
1430, 1436 (4th Cir. 1993).
We have reviewed the transcript of the law enforcement
officer’s testimony and have determined that the officer amply
explained how his experience led him to the conclusions reached,
why his experience was a sufficient basis for his opinion, and
how his experience was reliably applied to the facts. See
Wilson, 484 F.3d at 274. Accordingly, the district court
properly allowed his testimony.
Next, Fridie challenges his designation as a career
offender. Fridie challenges the use of his assault with intent
5
to kill conviction as a predicate offense, but his
unsubstantiated claim that the South Carolina Court of General
Sessions did not have jurisdiction over the charge at the time
of his conviction may not be raised in this appeal. See Custis
v. United States, 511 U.S. 485, 493-97 (1994) (holding that
defendant may not challenge validity of prior state court
conviction in federal sentencing proceeding, unless challenge is
based on violation of right to counsel). Thus, we conclude
Fridie’s claim is without merit.
In his pro se brief, Fridie questions whether he was
deprived of due process of law when the Government failed to
notify him that an expert witness was going to testify at trial.
Because Fridie raises this issue for the first time on appeal,
it is subject to plain error review. United States v. Olano,
507 U.S. 725, 732 (1993).
Assuming without deciding that the Government violated
Rule 16(a)(1)(G), reversal of a conviction for a discovery
violation is inappropriate unless the defendant establishes
prejudice. United States v. Chastain, 198 F.3d 1338, 1348 (11th
Cir. 1999) (“[A]ctual prejudice must be shown.”); United States
v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997) (holding
that defendant “must demonstrate prejudice to substantial rights
to justify reversal for violations of discovery rules”). Fridie
cannot show prejudice to his substantial rights on this record
6
because counsel had adequate opportunity to examine the law
enforcement officer as to his qualifications and the basis of
his opinions; the district court properly instructed the jury
regarding expert testimony; and Fridie’s counsel fully cross-
examined the expert witness.
Fridie also alleges his right to due process was
violated when the arresting officer destroyed the marijuana he
seized from the truck prior to Fridie’s trial. We review de
novo constitutional due process claims. United States v.
Legree, 305 F.3d 724, 729 (4th Cir. 2000). The duty to preserve
evidence arises when the evidence “possess[es] an exculpatory
value that was apparent before the evidence was destroyed, and
[is] of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.”
California v. Trombetta, 467 U.S. 479, 488-89 (1984). However,
the failure to preserve even potentially exculpatory evidence
does not automatically constitute a due process violation. It
is only when the “defendant can show bad faith on the part of
the police[] [that] failure to preserve potentially useful
evidence” amounts to the denial of due process. Arizona v.
Youngblood, 488 U.S. 51, 58 (1988). Bad faith “requires that
the officer have intentionally withheld the evidence for the
purpose of depriving the plaintiff of the use of that evidence
during his criminal trial.” Jean v. Collins, 221 F.3d 656, 663
7
(4th Cir. 2000). We have reviewed the record and conclude that
there is no indication that the marijuana evidence was of an
exculpatory nature or that the officer acted in bad faith in
disposing of the evidence.
Finally, Fridie alleges ineffective assistance of
counsel. As a general rule, claims of ineffective assistance of
counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp.
2011) motion rather than on direct appeal, unless the appellate
record conclusively demonstrates ineffective assistance. United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). The record
currently before us does not conclusively establish that
Fridie’s trial counsel was ineffective. Accordingly, his claim
is not cognizable on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Fridie in writing of the right to
petition the Supreme Court of the United States for further
review. If Fridie requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Fridie.
8
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
9