US v. Benjamin Thompkins, Jr., No. 09-4143 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4143 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN C. THOMPKINS, JR., a/k/a Benjamin Thompkins, a/k/a Benjie, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00339-REP-1) Submitted: April 16, 2010 Before AGEE and Circuit Judge. DAVIS, Decided: Circuit Judges, and May 6, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur, Georgia, for Appellant. Dana J. Boente, United States Attorney, Angela Mastandrea-Miller, Jessica A. Brumberg, Assistant United States Attorneys, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Benjamin possession with C. intent Thompkins, to Jr., distribute was fifty convicted grams or more of of cocaine base, 21 U.S.C. § 841(a) (2006) (Count One); possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (2006) (Count Two); possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (2006) (Count Three); and manufacturing and possessing with intent to distribute marijuana, 21 U.S.C. § 841 (2006) (Count Four). received an aggregate sentence of Thompkins now appeals his convictions. 300 months in He prison. We affirm. I Prior to trial, Thompkins moved to suppress evidence seized from his residence pursuant to a search warrant. court determined that the affidavit supporting the The search warrant established probable cause and that, even if it did not, the good faith exception to the warrant requirement applied. Thompkins contends on appeal that these rulings were in error. In assessing a trial court s decision on a motion to suppress, we review the court s factual findings for clear error and its legal determinations de novo. 591 F.3d 679, 682 (4th Cir. 2010). United States v. Day, We view the evidence in the light most favorable to the Government, the prevailing party 2 below. See United States v. Matthews, 591 F.3d 230, 234 (4th Cir. 2009). The Fourth Amendment prohibits unreasonable searches and seizures. shall issue, affirmation, U.S. const. amend. IV. but upon probable and particularly Further, no warrants cause supported describing the by oath or to be place searched, and the persons or things to be seized. The Id. magistrate s task in deciding whether to issue a search warrant is simply to make a practical, common-sense decision, based on the totality of the circumstances, whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). In reviewing the validity of a search warrant, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable omitted). cause The (internal existed. Id. magistrate s probable entitled to great deference. cause quotation marks determination is United States v. Chandia, 514 F.3d 365, 373 (4th Cir. 2008). Here, the district court properly denied the suppression motion based on its determination that the affidavit contained enough information to establish probable cause that evidence of marijuana cultivation would be found at Thompkins 3 residence. DEA experience Special Agent investigating warrant. In informant, his who drug affidavit, had provided Bertsch, who trafficking, he recited reliable had extensive applied that a for the confidential information in previous investigations, had reported that BJ had made six calls to a hydroponics store, requesting prices for products typically used to cultivate marijuana. The calls came from 13011 Five Forks Road, Benjamin Thompkins residence. been served cocaine store a summons investigation. and purchased at BJ that had products Thompkins had previously address also in connection visited commonly used the to with a hydroponics cultivate marijuana. The affidavit further stated that Thompkins residence had used an average of 3008 kilowatt hours of power during each billing cycle between December 2007 and May 2008. During the same time period, a significantly larger neighboring residence had used an average of 2092 kilowatt hours per cycle, and a comparably sized residence had used an average of 1190 kilowatt hours per cycle. Agent Bertsch stated that, in his experience, this unusually large consumption of electricity was consistent with the interior cultivation of marijuana. Additionally, Thompkins girlfriend had inquired about how to reset a digital timer of the sort that is often used in the cultivation of marijuana. Finally, employment records showed that Thompkins 4 had no reported income since 2003, and Agent Bertsch stated that drug dealers typically do not report illegal income. Based on the totality of the circumstances, we conclude that there was a substantial basis for the magistrate judge s finding of probable cause. Even if the affidavit did not establish probable cause, rendering the warrant deficient, the good faith exception to the warrant requirement would apply in this case, as the district court found. (1984), the Supreme In United States v. Leon, 468 U.S. 897 Court held that evidence obtained from execution of a defective search warrant is admissible under this exception if the officer s objectively reasonable. reliance on Id. at 922-23. the warrant was Leon identified four situations in which an officer s reliance on a warrant could not be objectively reasonable, including where the affidavit supporting the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. his case falls Id. at 923. within Although Thompkins contends that this exception, affidavit as bare bones, we disagree. characterizing the To the contrary, the affidavit is replete with facts obtained from numerous sources, including: telephone, a power reliable company, confidential sheriff s 5 informant; department, and official Virginia Employment Commission records; and Agent Bertsch s own extensive experience investigating similar offenses. II The information affidavit gleaned supporting from power the use Dominion Virginia Power (Dominion). warrant records referred subpoenaed to from The day before trial was scheduled to begin, Thompkins requested a continuance so that he could ascertain Dominion as Dominion had whether represented not a subpoena in the produced in fact affidavit. certain documents was He served stated requested on that in a subpoena duces tecum that had recently been served on Dominion s registered agent. Those documents, he contended, would tend to establish whether the affidavit had been falsified. During a hearing on the motion, the Assistant United States Attorney informed the court that the Drug Enforcement Agency had issued administrative subpoenas to Dominion for the three residences identified in the affidavit. All records received pursuant to that request were provided to the defense, as were copies of the subpoenas. Thompkins attorney acknowledged having received both the records and the copies of the subpoenas. However, he told the court that someone in Dominion s legal department had informed him that a computer search turned up no record of Dominion s having received any 6 subpoena counsel or having questioned provided whether the the records records in had question. been Thus, deliberately falsified and whether, as a result, the affidavit was valid. The district court denied the motion for a continuance, finding there was no valid reason to support the motion. the Counsel renewed the motion at trial the next day, and court again denied it. Thompkins now questions the propriety of the court s ruling. We review the denial of a motion for a continuance for abuse of discretion. United States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006) [E]ven if such an abuse is found, the defendant must show that the error specifically prejudiced [his] case in order to prevail. conclude that required. Thompkins Id. After reviewing the record, we failed to make the specific showing Most notably, he has not demonstrated that the power usage records in question were erroneous. III Thompkins contends that counsel was ineffective because he did not move for reconsideration of the denial of the motion to suppress or move for a new trial based on the power records issue. He further suggests that counsel was ineffective for failing to file a motion for a Franks v. Delaware, 438 U.S. 134 (1978), hearing on that issue. 7 Claims normally raised of ineffective before the assistance district court of via counsel 28 are [U.S.C.A.] § 2255 [West Supp. 2009] and are cognizable on direct appeal only where it conclusively appears on the record that defense counsel did not provide effective representation. United States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007); see United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Because ineffective on assistance does not conclusively appear the record, we decline to address this claim. IV We therefore affirm. 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 8
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