United States v. Sims

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4019
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELIJAH JUNIOR SIMS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:05-CR-00340)
Submitted: November 3, 2008 Decided: December 9, 2008
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Tolly A. Kennon, III, KENNON & ASSOCIATES, Charlotte, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elijah Junior Sims was charged with one count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and one count of possession with intent to
distribute five grams or more of a mixture or substance
containing cocaine base, in violation of 21 U.S.C. § 841 (2006).
On February 3, 2006, Sims filed a motion to continue his trial
based on supplemental discovery received from the Government,
including Federal Rules of Evidence 404(b) evidence. The
district court denied Sims’ motion on February 3, 2006. Sims
next filed a motion to suppress all evidence from his
April 26, 2005, arrest. The district court also denied this
motion, and Sims appeared for a jury trial on February 15, 2006.
Following a two-day trial, Sims was convicted of both counts and
sentenced to the statutory mandatory minimum of ten years on
each count, to run concurrently. Sims timely noted an appeal.
On appeal, Sims first complains that the district
court erred in denying his motion for a continuance. This court
reviews a district court’s denial of a motion for a continuance
for abuse of discretion. United States v. Williams, 445 F.3d
724, 738-39 (4th Cir. 2006). Even if a defendant demonstrates
that the district court abused its discretion in denying a
motion for a continuance, “the defendant must show that the
error specifically prejudiced [his or] her case in order to
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prevail.” United States v. Hedgepeth, 418 F.3d 411, 419
(4th Cir. 2005).
Sims fails to establish on appeal how the denial of
his motion for a continuance affected the outcome of his trial.
Sims asserts that the denial prevented him from investigating
the Government’s Rule 404(b) evidence, but he fails to
demonstrate specifically how investigating the Rule 404(b)
evidence would have altered the outcome of his trial,
particularly in light of the overwhelming evidence of his guilt.
Accordingly, Sims’ claim is without merit.
Sims next asserts the district court erred in denying
his suppression motion. The Fourth Amendment protects citizens
against unreasonable searches and seizures. U.S. Const. amend.
IV. It is well settled under the Fourth Amendment “that a
search conducted without a warrant issued upon probable cause is
per se unreasonable subject to only a few specifically
established and well-delineated exceptions.” Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973) (internal quotations
omitted). The first such exception includes a search that falls
within the scope of a citizen’s consent. United States
v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The warrant
requirement also does not apply to a search incident to an
arrest. United States v. Robinson, 414 U.S. 218, 224 (1973);
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United States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006)
(citing Chimel v. California, 395 U.S. 752, 763 (1969)).
In addition, in the context of investigatory
detentions, the Supreme Court has held that, consistent with the
Fourth Amendment, police officers may conduct an investigatory
stop and a pat-down search of an individual for weapons if
officers have reasonable suspicion that criminal activity may be
afoot. Terry v. Ohio, 392 U.S. 1, 31 (1968); see Illinois v.
Wardlow, 528 U.S. 119, 123 (2000). Such an investigatory stop
must be based on "at least a minimal level of objective
justification," but the standard for reasonable suspicion is
less demanding than for probable cause. Wardlow, 528 U.S. at
123.
In assessing whether officers had a reasonable
suspicion of criminal activity, we must consider the totality of
the circumstances surrounding the seizure. United States
v. Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997) (quoting United
States v. Sokolow, 490 U.S. 1 (1989) (internal quotations
omitted). “Reasonable suspicion is a commonsensical
proposition. Courts are not remiss in crediting the practical
experience of officers who observe on a daily basis what
transpires on the streets.” United States v. Lender, 985 F.2d
151, 154 (4th Cir. 1993). In assessing whether reasonable
suspicion existed, the facts, whether seemingly innocent or
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obviously incriminating, are to “be assessed in light of their
effect on the respective officer=s perception of the situation at
hand.” United States v. McCoy, 513 F.3d 405, 414 (4th Cir.
2008).
The events out of which the charges arose occurred on
April 26, 2005. On that date, Charlotte-Mecklenburg Police
Officer Marianne Baltimore received information that Alex Gibson
dealt crack cocaine from an address on Dakota Street and that
every day his supplier would arrive in an SUV between 3:00 p.m.
and 6:00 p.m. Officers Baltimore, Jonathan Tobbe, Gerald Holas,
and Shawn Crooks proceeded to the Dakota Street address. Upon
arriving at approximately 4:30 p.m., Baltimore and Tobbe
observed an SUV in front of the address. The officers ran the
license plate on the SUV and discovered that the vehicle was
registered to Sims, whom Holas knew was involved in drug
dealing. Armed with this information, Crooks approached Sims
and asked him to step out of the vehicle. As Sims did so, he
volunteered in response to Crooks’ inquiry whether there were
any guns in the car that he had a 9 mm handgun in the glovebox.
At the moment Crooks asked Sims to get out of the vehicle,
Crooks had reasonable, articulable suspicion that Sims might
have been engaged in criminal activity. See Sokolow, 490 U.S.
at 7; McCoy, 513 F.3d at 414.
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The officers received Sims’ consent to search his
person and vehicle. Because the searches of Sims and his SUV
occurred with Sims’ consent, the Fourth Amendment warrant
requirement was inapplicable. Lattimore, 87 F.3d at 650. When
the search of Sims’ person and SUV did not yield any narcotics,
Tobbe obtained Sims’ consent to conduct a more thorough search
of Sims’ person because Tobbe believed Sims had drugs concealed
under an Ace bandage wrapped around his midsection. After Sims
revoked his consent to search his person, Crooks properly
arrested him for being a felon in possession of a firearm.
Crooks ultimately discovered Sims’ crack cocaine in a search
incident to Sims’ arrest. United States v. Currence,
446 F.3d 554, 557 (4th Cir. 2006). Accordingly, the district
court did not err in denying Sims’ motion to suppress.
Sims’ final argument is that the district court erred
in admitting evidence from events that occurred on
July 20, 2005, and August 1, 2005, several months after the
charged offense. On those dates, officers again discovered Sims
with crack cocaine concealed under an Ace bandage wrapped around
his midsection. Decisions regarding the admission or exclusion
of evidence are left to the sound discretion of the trial court
and will not be reversed absent an abuse of that discretion.
United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992).
We have reviewed the record and conclude the district court did
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not abuse its discretion in admitting the complained of
evidence.
Finally, Sims has filed a motion to vacate his
convictions. He asserts that three years after the events
giving rises to his convictions, Officer Holas was himself
charged with and pled guilty to conspiracy to possess with
intent to distribute crack cocaine. Sims does not allege,
however, that Holas’ testimony at Sims’ trial was in any way
false or misleading. Accordingly, we deny Sims’ motion.
We affirm the judgment of the district court. We
dispense with oral argument as 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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