United States v. Kinnison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4820
GERALD STEPHEN KINNISON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-133)
Submitted: June 9, 1998
Decided: September 14, 1998
Before NIEMEYER and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John C. Ivins, Jr., Chandra D. Lantz, HIRSCHLER, FLEISCHER,
WEINBERG, COX & ALLEN, Richmond, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, N. George Metcalf, Assistant
United States Attorney, W. Barry Montgomery, Third Year Law Stu-
dent, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
At issue in this case is whether agents of the United States Secret
Service had probable cause to search Gerald Kinnison's car after they
arrested him for credit card fraud. We find that the agents had proba-
ble cause to search Kinnison's car and thus affirm his conviction.
On March 28, 1997, secret service agents arrested Kinnison while
he was visiting his probation officer at the United States Court House
Annex in Richmond, Virginia. Agents then transported Kinnison to a
nearby field office for questioning. Due to an ongoing investigation
the agents had reason to believe that Kinnison had been obtaining
credit cards in the names of other individuals, and that he used one
such credit card to pay for repairs and to buy one set of custom
wheels for his 1995 Honda Accord. Following Kinnison's arrest,
Secret Service special agent Greg Regan searched the area surround-
ing the courthouse in an effort to find Kinnison's car. Regan found
the Honda, and special agent Gerard Gaughran seized the car and
parked it in a parking garage under the building in which the Secret
Service field office is located.
Agent Gaughran then applied for search warrants to search Kinni-
son's residence, his 1995 Honda Accord, a personal computer that
Kinnison had recently sold, and two U-Haul storage lockers allegedly
leased by Kinnison. Gaughran's affidavit and application accompany-
ing the search warrant for Kinnison's car recited Gaughran's exten-
sive experience investigating credit card fraud crimes, the facts
relating to his investigation of Kinnison's alleged fraudulent activi-
ties, and that he suspected that a search of Kinnison's car would
reveal evidence of Kinnison's fraudulent activities. The affidavit spe-
cifically noted that an investigation had uncovered evidence that
credit cards issued in other people's names had been sent to Kinni-
son's address, and that Kinnison had used the credit cards to pay for
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service repairs and to buy a set of custom wheels for his 1995 Honda
Accord. The magistrate judge issued Gaughran a warrant to search
Kinnison's car, and a subsequent search of the car uncovered a gun
inside a locked gun case in the trunk.
Kinnison was then indicted on charges of mail fraud, credit card
fraud and unlawful possession of a handgun. He filed a motion to sup-
press the gun found in the trunk of his car as the fruit of an illegal
search and seizure.* The district court found that the search warrant
for the car was supported by probable cause and denied the motion.
Kinnison then pled guilty to aiding and abetting credit card fraud in
violation of 18 U.S.C. §§ 2, 1029(a)(2) (1994), and possession of a
firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),
924(e)(1) (1994). His plea agreement preserved the right to appeal the
district court's order denying his suppression motion. This appeal fol-
lowed.
A district court's determination of probable cause under the Fourth
Amendment is an issue of law that this court reviews de novo. United
States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996). In reviewing
whether probable cause existed for the issuance of a warrant, "[g]reat
deference is to be given a magistrate's assessment of the facts" and
the "inquiry is directed to whether the magistrate had a substantial
basis for his conclusion that probable cause existed." See United
States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992). This court has
adopted a standard for assessing probable cause which "allows a mag-
istrate to review the facts and circumstances as a whole and make a
common sense determination of whether ``there is a fair probability
that contraband or evidence of a crime will be found in a particular
place.'" See Williams, 974 F.2d at 481 (citing Illinois v. Gates, 462
U.S. 213, 238 (1983)).
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*Kinnison also moved to suppress evidence uncovered in searches of
his residence, the U-Haul lockers, and his personal computer. The district
court denied his suppression motion with respect to his residence and his
computer, and granted his motion with respect to the U-Haul lockers. On
appeal Kinnison only contests the validity of the search of his car, and
thus we express no opinion on the legality of these other searches.
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The affidavit submitted in support of the search warrant for Kinni-
son's car contained specific allegations that Kinnison obtained credit
cards through fraudulent means and then used these credit cards to
repair and buy new wheels for his car. The affidavit and the applica-
tion itself stated that it was the agent's belief that a search of the car
would uncover evidence related to Kinnison's fraudulent credit-card
activities. Considering that Kinnison was alleged to have used the
credit cards to pay for repairs on and to buy new wheels for the very
car the agents sought to search, we find entirely reasonable the magis-
trate judge's determination that there was a fair probability that a
search of the car would uncover evidence of Kinnison's alleged fraud-
ulent activities.
Accordingly, we agree with the district court that the search of Kin-
nison's car was supported by probable cause and thus affirm his con-
viction. 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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