US v. Elijah Sims, No. 07-4019 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4019 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ELIJAH JUNIOR SIMS, Defendant Appellant.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 Before WILKINSON and Senior Circuit Judge. DUNCAN, Decided: Circuit December 9, 2008 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 evidence. The district court denied Sims motion on February 3, 2006. Sims next Federal filed a Rules motion of to April 26, 2005, arrest. Evidence suppress 404(b) all evidence from his 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. On appeal, Sims Sims timely noted an appeal. first complains that the court erred in denying his motion for a continuance. district 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). that the motion error district for a court continuance, specifically Even if a defendant demonstrates abused the prejudiced its defendant [his 2 discretion or] must her in denying show that the order to case in a 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 demonstrate evidence Rule 404(b) evidence, how investigating specifically would have altered the but he fails to the Rule 404(b) of his trial, outcome 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. IV. U.S. Const. amend. It is well settled under the Fourth Amendment that a search conducted without a warrant issued upon probable cause is per se unreasonable established and v. Bustamonte, omitted). within subject to only well-delineated 412 U.S. 218, a few exceptions. 219 (1973) Schneckloth (internal quotations The first such exception includes a search that falls the scope of a citizen s consent. United v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). requirement arrest. specifically also does not apply to a search States The warrant incident to an United States v. Robinson, 414 U.S. 218, 224 (1973); 3 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 Terry v. Ohio, 392 U.S. 1, 31 (1968); see Illinois v. afoot. Wardlow, 528 U.S. 119, 123 (2000). must be based justification," on "at least a but the standard Such an investigatory stop minimal for level of reasonable less demanding than for probable cause. objective suspicion is 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, omitted). U.S. Reasonable proposition. experience 490 154 suspicion (1989) suspicion (internal is a quotations commonsensical Courts are not remiss in crediting the practical of officers who transpires on the streets. 151, 1 (4th Cir. existed, observe a daily basis what United States v. Lender, 985 F.2d 1993). the on In facts, assessing whether 4 whether seemingly reasonable innocent or 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. arriving at approximately 4:30 p.m., Baltimore observed an SUV in front of the address. and Upon Tobbe The officers ran the license plate on the SUV and discovered that the vehicle was registered dealing. to Sims, whom Holas knew was involved in drug 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 have been engaged in criminal activity. at 7; McCoy, 513 F.3d at 414. 5 that Sims might See Sokolow, 490 U.S. The officers person and vehicle. occurred with received Sims consent to search his Because the searches of Sims and his SUV Sims consent, requirement was inapplicable. the Fourth Amendment warrant 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. revoked arrested his consent him for to being search a felon After Sims his person, Crooks properly in possession of firearm. a Crooks ultimately discovered Sims crack cocaine in a search incident to Sims arrest. United 446 F.3d 554, 557 (4th Cir. 2006). States v. Currence, Accordingly, the district court did not err in denying Sims motion to suppress. Sims final argument is that the district court erred in admitting July 20, 2005, evidence and charged offense. August from 1, events 2005, that several occurred months after on the 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 6 not abuse its discretion in admitting the complained of evidence. Finally, convictions. He giving rises to charged with and intent to Sims has asserts his that guilty crack a three convictions, pled distribute filed to motion years Officer Sims vacate after Holas conspiracy cocaine. to to does the was events himself possess not his with allege, however, that Holas testimony at Sims trial was in any way false or misleading. We affirm Accordingly, we deny Sims motion. 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 7
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