United States v. Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4038
GREGORY SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-95-196-WMN)
Submitted: October 27, 1998
Decided: November 16, 1998
Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Harold I. Glaser, GLASER & DEROS, Baltimore, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Harvey Ellis
Eisenberg, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Gregory Smith of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) (1994). The district
court sentenced him to forty-one months' imprisonment. Smith now
contends on appeal that the district court erred when it denied his
request for a hearing under Franks v. Delaware ,1 when it found that
he did acknowledge an ownership interest in the firearm seized from
his car after he was advised of his constitutional rights under Miranda
v. Arizona, 384 U.S. 436 (1966), and when it held that the weapon
seized from his vehicle was an operable firearm. Consequently, Smith
contends that there was insufficient evidence to sustain his conviction
under § 922(g)(1). Finding no reversible error, we affirm.
After police received an anonymous tip that drug trafficking was
occurring at the Public Works Falls Road site, they initiated surveil-
lance at that location. During this time, Smith was an employee of the
Department of Public Works in Baltimore City and worked at the
Falls Road location. On December 20, 1994, Baltimore City Circuit
Court Associate Judge John Prevas issued a search warrant for Smith
and his vehicle. Judge Prevas determined that probable cause existed
for the search based on the twenty-one page affidavit submitted by
Detective Thomas Fore and Sergeant John Kowalczuk ("affiants"),
detailing their investigation of Smith and other employees of Balti-
more City's Department of Public Works for possible violations of
controlled substance laws. Firearms were specifically included as
items subject to seizure. Later that same day, police executed the
search warrant, recovering a .380 semiautomatic pistol and additional
ammunition for the weapon from Smith's vehicle.
Police arrested Smith and charged him with being a felon in pos-
session of a firearm in violation of § 922(g)(1). Following initiation
of the proceedings, Smith filed a suppression motion arguing that the
police lacked probable cause to perform a search of his car, and thus,
the weapon recovered from his vehicle and his post-arrest statement
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1 438 U.S. 154, 155-56 (1978).
2
that he purchased and owned the seized weapon, should not be admit-
ted into evidence. At the conclusion of a suppression hearing, the dis-
trict court found that Judge Prevas had probable cause to issue the
warrant and denied Smith's motion.
Smith then filed a supplemental motion to suppress the seized fire-
arm, raising issues as to the veracity of the statements in the affidavit
supporting the application for a search warrant. The district court
again denied Smith's motion to suppress the evidence and concluded
that Smith had not presented sufficient evidence to require a hearing
under Franks. Judgment was subsequently entered against Smith and
he timely filed a notice of appeal.
Smith first asserts that the district court erred in denying his request
for a Franks hearing, and consequently, his supplemental motion to
suppress. Smith claims that the warrant was invalid because it con-
tained false information that was knowingly and intentionally given
by the affiants and that he provided enough support to warrant a hear-
ing under Franks. Specifically, he points to the fact that co-worker
Ronald Johnson's affidavit conflicts with the affiants' statement that
Smith's vehicle was observed at the Public Works' Falls Road site on
September 28, 1994, at about 3:00 p.m. Smith also points to the fact
that no drugs were found during the search of his vehicle or on his
person.
Under Franks, the Supreme Court held that the Fourth Amendment
entitles a defendant to a pre-trial hearing to challenge the validity of
a search warrant affidavit if the defendant "makes a substantial pre-
liminary showing that a false statement knowingly and intentionally,
or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is necessary
to the finding of probable cause." Franks, 438 U.S. at 155-56. The
district court's finding that the statements were not deliberately false
or in a reckless disregard for the truth is reviewed under the clearly
erroneous standard. See United States v. Jones , 913 F.2d 174, 176
(4th Cir. 1990).
As the district court properly found, Smith presented no evidence
establishing that the challenged statement constituted a deliberate
falsehood or that the officers had a reckless disregard for the truth.
3
The record does not reflect that the detectives intentionally lied when
stating that Smith's vehicle was observed at the Falls Road location
on September 28, 1994. Further, the affidavit detailed a series of
secret transactions involving Smith selling what appeared to be drugs
from his vehicle. Although Smith provided the court with affidavits
of several individuals asserting that he would routinely sell various
items from his vehicle other than drugs, such as shoes, boots, and
handbags, this information alone does not detract from the district
court's finding that the detectives could have reasonably and honestly
mistaken these transactions for drug transactions. We therefore find
that Smith did not establish the requisite showing to warrant a Franks
hearing, and thus, the district court properly denied his supplemental
motion to suppress.
Smith next asserts that the district court erred when it denied his
initial motion to suppress and allowed into evidence his post-arrest
statement that he purchased and owned the seized weapon. At the
suppression hearing, Smith denied that he admitted to police follow-
ing his arrest that he bought the gun that was seized from his vehicle.
Smith further claimed that if he did make such a statement it was not
admissible because he was not given any Miranda warnings. After
conducting a thorough evidentiary hearing, the court believed the offi-
cers' testimony rather than Smith's. This finding that the police gave
Smith Miranda warnings will be accepted unless clearly erroneous.
See United States v. Gray, 108 F.3d 545, 549 (4th Cir. 1997). Because
the district court's finding is based on a credibility determination and
is otherwise supported by the testimony presented at the hearing, we
affirm the district court's denial of Smith's motion to suppress this
incriminating statement.
Finally, Smith asserts that the evidence was insufficient to sustain
a conviction under § 922(g). Smith claims that the evidence presented
did not conform to the statutory definition of a firearm because the
firearm seized was not operable. First, we note that Smith stipulated
at trial that the firearm described in his indictment "fit[ ] the definition
of a firearm as specified in" 18 U.S.C. § 921(a)(3). Furthermore, there
is no requirement that a firearm be operable in order to satisfy the def-
inition of firearm under § 921(a)(3).2 See United States v. Willis, 992
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2 "The term ``firearm' means (A) any weapon (including a starter gun)
which will or is designed to or may readily be converted to expel a pro-
jectile by the action of an explosive." 18 U.S.C.§ 921(a)(3) (1994).
4
F.2d 489, 491 n.2 (4th Cir. 1993); United States v. Brown, 117 F.3d
353, 355-56 (7th Cir. 1997) (listing cases holding that removal or dis-
abling of firing pin does not disqualify weapon as"firearm"). Thus,
considering Smith's stipulation and viewing the evidence in a light
most favorable to the Government, we find it sufficient to support
Smith's conviction. See United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982).
Accordingly, we affirm Smith's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the material before the court and argument would not aid in
the decisional process.
AFFIRMED
5