United States v. Shakur

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4454
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MALIK X. SHAKUR, a/k/a Malik X. Shakur, a/k/a Willie Lamb,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00485-CMC-2)
Submitted: August 30, 2010 Decided: September 9, 2010
Before KING, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Yurachek, THE LAW OFFICES OF MARK ALLEN YURACHEK, LLC,
Atlanta, Georgia, for Appellant. W. Walter Wilkins, United
States Attorney, Nancy C. Wicker, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Malik X. Shakur was convicted of one count of
conspiracy to possess with intent to distribute crack cocaine,
cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), (b)(1)(D); 846 (2006) and one count of possession
with intent to distribute crack cocaine, cocaine and marijuana,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D); 2
(2006). On appeal, Shakur claims the district court erred
denying his motion to suppress evidence and denying his motion
to excuse a juror. He also claims the court erred by finding he
was subjected to an enhanced statutory sentence based on the
Government’s notice filed under 21 U.S.C. § 851 (2006). Finding
no error, 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). A vehicle stop 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, Whren v. United States, 517 U.S. 806, 809-10 (1996),
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or has a reasonable suspicion of unlawful conduct, Terry v.
Ohio, 392 U.S. 1, 20-22 (1968).
Under Terry, an officer may, consistent with the
Fourth Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal
activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123
(2000). To conduct a Terry stop, there must be at least a
minimal level of objective justification for making the stop.
Id. Reasonable suspicion requires more than a hunch but less
than probable cause and may be based on the collective knowledge
of officers involved in an investigation. Id.; see also United
States v. Hensley, 469 U.S. 221, 232 (1985). In evaluating
police conduct in a Terry stop, courts must consider the
totality of the circumstances, see United States v. Sokolow, 490
U.S. 1, 8 (1989), including all information available to an
officer and any reasonable inferences to be drawn at the time of
the decision to stop a suspect. United States v. Crittendon,
883 F.2d 326, 328 (4th Cir. 1989).
We conclude the district court properly found that the
police had sufficient reasonable suspicion to stop the vehicle
in which Shakur was a passenger. We do not agree with Shakur’s
assessment that the testimony provided by several members of law
enforcement was collectedly unreliable. The tip provided by the
informant was sufficiently corroborated by law enforcement. See
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United States v. White, 549 F.3d 946, 952 (4th Cir. 2008). We
also conclude there was nothing inconsistent with the testimony
from two police officers who both claimed to see the marijuana
in plain view, one through the van’s open side window and the
other after opening the rear doors to the van out of concern for
his safety. See United States v. Stanfield, 109 F.3d 976, 981-
98 (4th Cir. 1997). Clearly, the marijuana was properly seized
after being observed in plain view. See United States v.
Williams, 592 F.3d 511, 521 (4th Cir. 2010) (stating plain view
doctrine); Boone v. Spurgess, 385 F.3d 923, 927-28 (6th Cir.
2004) (applying plain view doctrine to warrantless seizure of
evidence seen through a parked car’s window). We also conclude
that Shakur’s brief detention and the search of his pockets did
not violate his Fourth Amendment rights. See United States v.
Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995). In any event, after
the marijuana was found by the other police officers, the
cocaine on Shakur’s person would have been inevitably discovered
as a search incident to an arrest. United States v. Allen, 159
F.3d 832, 838, 841 (4th Cir. 1998). In addition, we conclude
the search of the van was appropriate after Shakur was arrested.
See Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009) (noting that a
search of a vehicle incident to a lawful arrest is appropriate
when it is reasonable to believe evidence relevant to the crime
of arrest might be found in the vehicle.). Accordingly, we
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conclude the district court did not err denying Shakur’s motion
to suppress evidence.
We conclude the district court did not abuse its
discretion denying Shakur’s motion to excuse a juror for cause.
See Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir. 1989).
After questioning by the court, there was no indication of
actual bias or of an extreme situation warranting removal. See
United States v. Turner, 389 F.3d 111, 117 (4th Cir. 2004).
We also conclude there was no error in the statutorily
enhanced sentence under 21 U.S.C. § 841(b)(1)(C). Clearly, each
of the convictions listed by the Government in the 21 U.S.C.
§ 851 (2006) notice was a qualifying conviction.
Accordingly, we affirm the convictions and sentence.
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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