UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4602
DANIEL TUCKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-98-155)
Submitted: January 23, 2002
Decided: February 7, 2002
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John G. Hackney, Jr., Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TUCKER
OPINION
PER CURIAM:
Daniel Tucker was charged with aiding and abetting possession
with intent to distribute a quantity of heroin in violation of 18
U.S.C.A. § 2 (West 2000), and 21 U.S.C.A. § 841(a)(1) (West 1999).
Prior to trial, Tucker moved to suppress the evidence seized at his res-
idence, alleging no probable cause supported the search warrant. The
district court denied this motion, and the trial proceeded. During the
Government’s closing arguments, the Assistant United States Attor-
ney stated,
Use your common sense. Why does he [refuse consent to
search his home]? He does this because he knows the drugs
are there and he hopes either the police won’t search or they
will leave long enough and get a search warrant and thereby
allow him time to flush all the evidence down the toilet.
(J.A. 201). A jury convicted Tucker of aiding and abetting possession
with intent to distribute heroin, a Class C felony. 21 U.S.C.A.
§ 841(a)(1). The district court sentenced him to 151 months incarcera-
tion followed by a three-year term of supervised release.
Tucker noted a timely appeal and raises the following challenges
to his conviction: (1) whether the Government’s reference to Tucker’s
assertion of his Fourth Amendment rights during its closing argument
constitutes plain error; (2) whether the district court wrongly denied
Tucker’s motion to suppress evidence seized as a result of a purport-
edly flawed search warrant; (3) whether the district court improperly
calculated Tucker’s sentence based upon drug quantity, as well as
alleged criminal conduct, not charged in the indictment.
Tucker claims that it was a violation of his due process rights for
the Government to argue that the assertion of a constitutional guaran-
tee supports an inference of guilt. Because Tucker did not raise an
objection to the Government’s comments at trial, his claim is
reviewed for plain error. United States v. Olano, 507 U.S. 725, 731-
32 (1993).
UNITED STATES v. TUCKER 3
Generally, federal courts must protect a criminal defendant from
having his silence used against him as evidence of guilt. Doyle v.
Ohio, 426 U.S. 610 (1976); Griffin v. California, 380 U.S. 609
(1965). However, we have long recognized a distinction between the
protections available under the Fourth and Fifth Amendments. United
States v. McNatt, 931 F.2d 251, 256 (4th Cir. 1991). In McNatt, we
held that it is permissible for the Government to refer to the defen-
dant’s refusal to grant consent to a search where the defendant puts
the credibility of the officer conducting the search at issue, stating:
Under the [F]ifth [A]mendment, a suspect has the right to
remain silent at all times and may not be required to say
anything at the time of his arrest, during confinement or at
trial. However, under the [F]ourth [A]mendment, a person
may not prevent a search of his person or property. By with-
holding permission to search, he merely puts the govern-
ment to the procedural test of proving probable cause to
obtain a search warrant.
McNatt, 931 F.2d at 257.
In the instant case, Tucker focused his defense squarely upon his
wife’s relationship to the drugs seized. Specifically, during its cross-
examination of key Government witnesses, defense counsel attempted
to plant seeds of doubt with the jury as to whom the drugs belonged.
As in McNatt, the Government made statements in its closing argu-
ment that refuted Tucker’s theory of the case and proffered an alter-
nate explanation for Tucker’s refusal to have his home searched.
Therefore, the Government’s comments did not violate Tucker’s due
process rights.
Next, Tucker contends that the evidence obtained pursuant to the
search warrant should have been excluded because the affidavit pro-
vided to the county magistrate lacked sufficient information to make
the probable cause determination. When the admissibility of evidence
in federal court is at issue the validity of a search warrant obtained
by state officers is tested by the requirements of the Fourth Amend-
ment, and not by state law standards. United States v. Clyburn, 24
F.3d 613 (4th Cir. 1994). In making a probable cause determination,
a magistrate must use a totality-of-the-circumstances analysis that
4 UNITED STATES v. TUCKER
considers the informant’s reliability and the basis of the informant’s
knowledge. Illinois v. Gates, 462 U.S. 213, 233 (1983).
Here, Detective Wolfe stated in a written affidavit that a cooperat-
ing individual (Ms. Tucker), a known drug user who had just been
stopped after a drug transaction, claimed that heroin could be found
at the Tucker residence. Our review of the affidavit and the record
shows there was a "fair probability" that illegal narcotics would be
found in the Tucker residence, supporting the magistrate’s finding of
probable cause. Gates, 462 U.S. at 238. Moreover, we find that Tuck-
er’s reliance on United States v. Wilhelm, 80 F.3d 116, 120 (4th Cir.
1996), is misplaced. The instant affidavit provided more valuable
information than the one submitted in that case. Accordingly, the dis-
trict court did not err in its denial of Tucker’s motion to suppress.
Lastly, Tucker challenges the district court’s use of a drug quantity
not charged in the indictment to calculate his sentence. Because he
did not raise these objections during sentencing, Tucker may only
obtain review before this Court if he can demonstrate plain error.
United States v. Strickland, 245 F.3d 368, 376 (4th Cir.) (citing
United States v. Olano, 507 U.S. 725, 731-32 (1993)), cert. denied,
122 S. Ct. 213 (2001). By Tucker’s own admission, his sentence of
151 months does not exceed the statutory maximum for an identifi-
able, but unspecified, quantity of drugs. United States v. Promise, 255
F.3d 150, 156 (4th Cir. 2001) (en banc), petition for cert. filed, (Sept.
20, 2001) (No. 01-6398); United States v. Angle, 254 F.3d 514, 518
(4th Cir.) (en banc), cert. denied, ___ U.S. ___ 122 S. Ct. 309 (2001).
Therefore, his sentence is permissible. See United States v. Kinter,
235 F.3d 192, 201 (4th Cir.), cert. denied, ___ U.S. ___, 121 S. Ct.
1393 (2001).
We affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED