United States v. McKinney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4749
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY LAMONT MCKINNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-41)
Submitted: April 28, 2004 Decided: May 28, 2004
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael W. Patrick, LAW OFFICES OF MICHAEL W. PATRICK, Chapel Hill,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Lamont McKinney appeals from the judgment of the
district court convicting him of possession of a firearm as a
convicted felon. McKinney claims that the court erred in denying
his motion to suppress. Finding no error, we affirm.
McKinney first claims that the court erred in concluding
that his encounter with Officer C. T. Sluder of the UNC-Greensboro
Police Department was consensual in nature. Because this claim
involves mixed questions of fact and law, this court reviews the
district court’s factual findings for clear error and the legal
conclusions drawn from the facts de novo. See Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Gerant, 995 F.2d
505, 508 (4th Cir. 1993).
Our review of the record supports the district court’s
conclusion. Sluder’s interaction with the occupants of the vehicle
was described as cooperative. It was brief, and there were no
actions taken by Sluder that suggest McKinney’s will was overborne.
Accordingly, we deny relief on this claim. See United States v.
Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc); see also
Maryland v. Wilson, 519 U.S. 408, 415 (1997).
McKinney also asserts that even if the encounter was
consensual, Sluder lacked probable cause to arrest McKinney for
possession of a concealed weapon because such possession is not per
se illegal in North Carolina. As this issue was not presented to
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the district court, we review for plain error. See Fed. R. Crim P.
52(b); United States v. Olano, 507 U.S. 725, 732-37 (1993). North
Carolina law provides for the issuance of a concealed weapon
permit. See N.C. Gen. Stat. §§ 14-415.10 - 415.23 (2001).
However, North Carolina also requires one with a concealed weapon
to advise a law enforcement officer “when approached” that the
individual is carrying a concealed weapon and has the appropriate
permit on his person. See § 14-415.11(a). McKinney did not advise
Sluder that he was carrying a weapon until asked and did not inform
Sluder that he had a permit for such a weapon. As a consequence,
Sluder had reason to believe that McKinney was in violation of
North Carolina law. It was not plain error for the district court
to conclude otherwise.
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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