United States v. McElveen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4285
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAMONT ALVIN MCELVEEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-473)
Submitted: March 9, 2005 Decided: April 15, 2005
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua S. Kendrick, DEBRA CHAPMAN, P.A., Columbia, South Carolina,
for Appellant. Jonathan S. Gasser, Acting United States Attorney,
Alfred W. Bethea, Jr., Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lamont Alvin McElveen appeals his conviction for
possession with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (2000).
Finding no error, we affirm.
McElveen argues that the district court erred in denying
his motion to suppress. This court reviews the factual findings
underlying a motion to suppress for clear error, and the district
court’s legal determinations de novo. See Ornelas v. United
States, 517 U.S. 690, 699 (1996). When a suppression motion has
been denied, this court reviews the evidence in the light most
favorable to the government. See United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998).
With these standards in mind, and having reviewed the
record and the parties’ briefs, we conclude that the police
officers had probable cause to search the passenger compartment of
McElveen’s car based on the strong odor of marijuana, cigar rolling
papers, and the numerous air fresheners. United States v. Carter,
300 F.3d 415, 422 (4th Cir. 2002). Since the police officers had
not found the source of the marijuana odor after searching the
passenger compartment, they still had probable cause to search the
next most likely source of the odor, the trunk. See, e.g., United
States v. Foreman, 369 F.3d 776, 780-86 (4th Cir. 2004). Thus the
police officers had probable cause to conduct a warrantless search
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of the trunk, where they found the cocaine, and the district court
properly dismissed McElveen’s motion to suppress.
McElveen also argues that the district court abused its
discretion when it allowed a Drug Enforcement Administration agent
to testify from personal experience, derived from his law
enforcement activities, about the local drug trade. See Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999). Distribution and
prices of drugs are not facts commonly known to a jury, and expert
testimony offered to help the jury understand the quantity and use
of the drugs is relevant to the charged offense. United States v.
Barnette, 211 F.3d 803, 815-16 (4th Cir. 2000). This court has
allowed government agents and police officers to testify as drug
experts in numerous cases based solely on their experiences. See
e.g., United States v. Brewer, 1 F.3d 1430, 1435-36 (4th Cir.
1993); United States v. Hopkins, 310 F.3d 145, 150-51 (4th Cir.
2002). Thus, we find no abuse of discretion.
The district court also properly denied McElveen’s motion
to suppress statements made to police because McElveen had waived
his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The
district court fairly concluded that McElveen’s statement, “I don’t
want to talk about it,” meant he did not want to talk about where
he had gotten the drugs, not that he invoked his right to remain
silent. A refusal to answer some questions is not an invocation of
the right to remain silent. United States v. Moore, 484 F.2d 1284- 3 -
(4th Cir. 1973). McElveen never said he wanted to remain silent or
that he wanted a lawyer. McElveen told officers the substance in
his trunk was cocaine before he declined to tell them where he had
gotten it. On this record, we conclude the district court properly
denied McElveen’s motion to suppress.
Accordingly, we affirm McElveen’s conviction 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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