United States v. Rose

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4762
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDWARD ROSE, a/k/a Kwali Smith, a/k/a Buck,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:07-cr-00503-LO-1)
Submitted: March 16, 2009 Decided: March 31, 2009
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Dana J. Boente, Acting United States Attorney,
Stephanie Bibighaus Hammerstrom, Michael E. Rich, Assistant
United States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Edward Rose (“Rose”) appeals convictions
resulting from the armed robberies or attempted robberies of
several convenience stores in Northern Virginia. He challenges
the district court’s denial of his motion to suppress evidence
seized in two searches of residences with which Rose was
associated: his uncle’s apartment (“Residence 1”), and his
girlfriend’s apartment (“Residence 2”). Rose had moved to
suppress shoes and clothes, a backpack with ammunition and
learner’s permit bearing his name, a cap, and a CD from which a
latent finger print was taken seized from Residence 1, and
clothes as well as certificates and documents bearing Rose’s
nickname seized from Residence 2. Finding that probable cause
supported issuance of each warrant, and the incriminating nature
of the seized items was readily apparent to detectives
performing the search, the district court denied Rose’s motion
to suppress.
Rose was convicted by a jury of three counts of
robbery, in violation of 18 U.S.C. § 1951 (2006); attempted
robbery, in violation of 18 U.S.C. § 1951; four counts of use of
a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A), (B) (2006); possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1) (2006); attempted witness
tampering, in violation of 18 U.S.C.A. § 1512(b)(1) (West 2000 &
2
Supp. 2008); and attempting to impede an official proceeding, in
violation of 18 U.S.C. § 1512(c)(2) (2006). He was sentenced to
a total term of 1,120 months’ imprisonment. On appeal, Rose
reasserts two of the arguments he made in his original pretrial
motion to suppress: (1) the state magistrate did not have
probable cause to issue search warrants for Residences 1 and 2;
and (2) officers did not have authority to seize the robbery-
related items not specifically delineated in the search warrants
for Residences 1 and 2. For the reasons that follow, we affirm.
In reviewing the district court’s ruling on a motion
to suppress, this court reviews the district court’s factual
findings for clear error and its legal determinations de novo.
United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). The
facts are reviewed in the light most favorable to the prevailing
party below. United States v. Jamison, 509 F.3d 623, 628 (4th
Cir. 2007).
The relevant inquiry when reviewing the propriety of
the issuance of a search warrant is whether, under the totality
of the circumstances, the issuing judge had a substantial basis
for concluding that there was probable cause to issue the
warrant. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The
facts presented to the issuing judge need only convince a person
of reasonable caution that contraband or evidence of a crime
will be found at the place to be searched. Texas v. Brown, 460
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U.S. 730, 742 (1983). We afford great deference to the district
court’s findings of probable cause. Gates, 462 U.S. at 236.
Rose contends that the affidavit submitted in support
of the search warrant for Residence 1 “was almost completely
based on information provided by one informant,” with no
independent corroboration by detectives. Therefore, according
to Rose, the magistrate did not have probable cause to issue the
warrant. However, a review of the record reveals that Rose
misstates the case.
Detectives surveilling Residence 1 noticed significant
“short term traffic” at the residence, of the kind typically
associated with the purchase and distribution of drugs. They
arrested an individual (“Informant”) seen exiting Residence 1
soon after his arrival there. Informant told detectives he had
purchased crack cocaine from within the residence, and that
others in the house were using crack cocaine there. Informant
identified David Rose from a photograph, and stated he was at
the residence. A check of the Fairfax County Police Department
records revealed that David Rose, Rose’s uncle, had provided
Residence 1 as his current address; a criminal record check
confirmed David Rose had several prior convictions for drug
distribution.
These facts corroborated Informant’s information.
Further, that the Informant’s face-to-face statements to police
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were against his penal interest lends support to their veracity.
See United States v. DeQuasie, 373 F.3d 509, 523 (4th Cir. 2004)
(noting that “an informant who meets face-to-face with an
officer provides the officer with an opportunity to assess his
credibility and demeanor and also exposes himself to
accountability for making a false statement”); United States v.
Rowell, 903 F.2d 899, 903 (2d Cir. 1990) (finding an informant’s
statement reliable as it was made against penal interest). As
the sum of this evidence was more than sufficient to “convince a
person of reasonable caution that contraband,” namely controlled
substances, would be found at Residence 1, we find probable
cause existed for the issuance of a search warrant for the
residence.
Rose next argues that because the scope of the search
warrant was limited to “cocaine, paraphernalia, and . . .
documents related to the distribution of cocaine,” detectives
lacked authority to seize any of the robbery-related items.
However, this argument must fail under the plain-view doctrine.
“[T]he plain-view doctrine authorizes warrantless seizures of
incriminating evidence when (1) the officer is lawfully in a
place from which the object may be plainly viewed; (2) the
officer has a lawful right of access to the object itself; and
(3) the object’s incriminating character is immediately
apparent.” United States v. Jackson, 131 F.3d 1105, 1109 (4th
5
Cir. 1997). Here, there is no question that the officers were
lawfully present in David Rose’s apartment and could lawfully
open any bags, closets, drawers, or containers found in the
apartment in which drugs might be found. See United States v.
Ross, 456 U.S. 798, 821 (1982).
However, Rose argues that because the authority to
search Residence 1 was “purportedly based on information
relating to drug trafficking[,] . . . there is no way any
incriminating character of the [robbery-related] items could
have been observed.” However, this contention is belied by our
precedent. The incriminating nature of a seized object is based
not on the information provided in the warrant, but on whether
“the agents collectively ha[ve] probable cause to believe the
[object] was evidence of a crime at the time of the seizure.”
United States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996). As
several of the detectives performing the search immediately
identified the articles of clothing found at the scene as those
depicted in the videos and still photographs of several of the
robberies, it is clear that the incriminating nature of the
robbery-related items was immediately apparent. As for the
learner’s permit and the CD bearing a latent finger print, we
have specifically upheld the seizure of items “linking [a
suspect] to the premises where [evidence was] found.” United
States v. Wardrick, 350 F.3d 446, 453 (4th Cir. 2003).
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Accordingly, we find the district court did not err in denying
Rose’s motion to suppress the items seized from Residence 1.
It is similarly clear from the record that the
district court did not err in finding that probable cause
supported issuance of the search warrant for Residence 2. A
criminal informant (“CI”) told detectives Rose had been staying
with his girlfriend the day before execution of the search
warrants. Fairfax County Police records corroborated this
information, revealing that a woman living at Residence 2 had
once filed an assault warrant against Rose, and that Rose had
previously provided Residence 2 as his address.
The CI further provided detectives with Rose’s cell
phone number; this number was registered to “Kwili K. Smith,”
which the CI stated was an alias Rose acquired in prison.
Detectives independently traced the phone number and determined
that it had received and originated calls on February 24, 2007,
from a tower located approximately 400 yards from Residence 2,
and the phone’s actual position was traced to that same tower.
In addition, the CI had personally observed Rose within the last
two weeks in possession of a handgun similar to that used in
several of the robberies. We find that the CI’s information,
corroborated by the detectives’ independent investigations and
the evidence seized during the search of Residence 1, is more
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than sufficient to support the district court’s finding that the
issuance of the warrant was supported by probable cause.
Turning to the items recovered from Residence 2, we
again find that the plain-view doctrine authorized their
seizure. As in the first search, several of the detectives
performing the search immediately identified the articles of
clothing found at Residence 2 as depicted in videos and still
photographs of some of the robberies. Thus, the incriminating
nature of the clothing was immediately apparent. Further, the
detectives had the authority to seize documents bearing Rose’s
nickname as evidence linking Rose to the premises. See
Wardrick, 350 F.3d at 453.
Accordingly, we find no error in the district court’s
ruling denying the motion to suppress, and 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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