United States v. Sims

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4019

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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 Decided: December 9, 2008

Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Federal Rules of Evidence 404(b) evidence. The

district court denied Sims’ motion on February 3, 2006. Sims

next filed a motion to suppress all evidence from his

April 26, 2005, arrest. 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. Sims timely noted an appeal.

On appeal, Sims first complains that the district

court erred in denying his motion for a continuance. 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). Even if a defendant demonstrates

that the district court abused its discretion in denying a

motion for a continuance, “the defendant must show that the

error specifically prejudiced [his or] her case in order to

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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 Rule 404(b) evidence, but he fails to

demonstrate specifically how investigating the Rule 404(b)

evidence would have altered the outcome of his trial,

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. U.S. Const. amend.

IV. It is well settled under the Fourth Amendment “that a

search conducted without a warrant issued upon probable cause is

per se unreasonable subject to only a few specifically

established and well-delineated exceptions.” Schneckloth

v. Bustamonte, 412 U.S. 218, 219 (1973) (internal quotations

omitted). The first such exception includes a search that falls

within the scope of a citizen’s consent. United States

v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The warrant

requirement also does not apply to a search incident to an

arrest. United States v. Robinson, 414 U.S. 218, 224 (1973);

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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

afoot. Terry v. Ohio, 392 U.S. 1, 31 (1968); see Illinois v.

Wardlow, 528 U.S. 119, 123 (2000). Such an investigatory stop

must be based on "at least a minimal level of objective

justification," but the standard for reasonable suspicion is

less demanding than for probable cause. 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, 490 U.S. 1 (1989) (internal quotations

omitted). “Reasonable suspicion is a commonsensical

proposition. Courts are not remiss in crediting the practical

experience of officers who observe on a daily basis what

transpires on the streets.” United States v. Lender, 985 F.2d

151, 154 (4th Cir. 1993). In assessing whether reasonable

suspicion existed, the facts, whether seemingly innocent or

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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. Upon

arriving at approximately 4:30 p.m., Baltimore and Tobbe

observed an SUV in front of the address. The officers ran the

license plate on the SUV and discovered that the vehicle was

registered to Sims, whom Holas knew was involved in drug

dealing. 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 that Sims might

have been engaged in criminal activity. See Sokolow, 490 U.S.

at 7; McCoy, 513 F.3d at 414.

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The officers received Sims’ consent to search his

person and vehicle. Because the searches of Sims and his SUV

occurred with Sims’ consent, the Fourth Amendment warrant

requirement was inapplicable. 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. After Sims

revoked his consent to search his person, Crooks properly

arrested him for being a felon in possession of a firearm.

Crooks ultimately discovered Sims’ crack cocaine in a search

incident to Sims’ arrest. United States v. Currence,

446 F.3d 554, 557 (4th Cir. 2006). Accordingly, the district

court did not err in denying Sims’ motion to suppress.

Sims’ final argument is that the district court erred

in admitting evidence from events that occurred on

July 20, 2005, and August 1, 2005, several months after the

charged offense. 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

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not abuse its discretion in admitting the complained of

evidence.

Finally, Sims has filed a motion to vacate his

convictions. He asserts that three years after the events

giving rises to his convictions, Officer Holas was himself

charged with and pled guilty to conspiracy to possess with

intent to distribute crack cocaine. Sims does not allege,

however, that Holas’ testimony at Sims’ trial was in any way

false or misleading. Accordingly, we deny Sims’ motion.

We affirm 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