United States v. Rose

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4762

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES EDWARD ROSE, a/k/a Kwali Smith, a/k/a Buck,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:07-cr-00503-LO-1)

Submitted: March 16, 2009 Decided: March 31, 2009

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Dana J. Boente, Acting United States Attorney,
Stephanie Bibighaus Hammerstrom, Michael E. Rich, Assistant
United States Attorneys, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

James Edward Rose (“Rose”) appeals convictions

resulting from the armed robberies or attempted robberies of

several convenience stores in Northern Virginia. He challenges

the district court’s denial of his motion to suppress evidence

seized in two searches of residences with which Rose was

associated: his uncle’s apartment (“Residence 1”), and his

girlfriend’s apartment (“Residence 2”). Rose had moved to

suppress shoes and clothes, a backpack with ammunition and

learner’s permit bearing his name, a cap, and a CD from which a

latent finger print was taken seized from Residence 1, and

clothes as well as certificates and documents bearing Rose’s

nickname seized from Residence 2. Finding that probable cause

supported issuance of each warrant, and the incriminating nature

of the seized items was readily apparent to detectives

performing the search, the district court denied Rose’s motion

to suppress.

Rose was convicted by a jury of three counts of

robbery, in violation of 18 U.S.C. § 1951 (2006); attempted

robbery, in violation of 18 U.S.C. § 1951; four counts of use of

a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A), (B) (2006); possession of a firearm by a felon,

in violation of 18 U.S.C. § 922(g)(1) (2006); attempted witness

tampering, in violation of 18 U.S.C.A. § 1512(b)(1) (West 2000 &

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Supp. 2008); and attempting to impede an official proceeding, in

violation of 18 U.S.C. § 1512(c)(2) (2006). He was sentenced to

a total term of 1,120 months’ imprisonment. On appeal, Rose

reasserts two of the arguments he made in his original pretrial

motion to suppress: (1) the state magistrate did not have

probable cause to issue search warrants for Residences 1 and 2;

and (2) officers did not have authority to seize the robbery-

related items not specifically delineated in the search warrants

for Residences 1 and 2. For the reasons that follow, we affirm.

In reviewing the district court’s ruling on a motion

to suppress, this court reviews the district court’s factual

findings for clear error and its legal determinations de novo.

United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). The

facts are reviewed in the light most favorable to the prevailing

party below. United States v. Jamison, 509 F.3d 623, 628 (4th

Cir. 2007).

The relevant inquiry when reviewing the propriety of

the issuance of a search warrant is whether, under the totality

of the circumstances, the issuing judge had a substantial basis

for concluding that there was probable cause to issue the

warrant. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The

facts presented to the issuing judge need only convince a person

of reasonable caution that contraband or evidence of a crime

will be found at the place to be searched. Texas v. Brown, 460

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U.S. 730, 742 (1983). We afford great deference to the district

court’s findings of probable cause. Gates, 462 U.S. at 236.

Rose contends that the affidavit submitted in support

of the search warrant for Residence 1 “was almost completely

based on information provided by one informant,” with no

independent corroboration by detectives. Therefore, according

to Rose, the magistrate did not have probable cause to issue the

warrant. However, a review of the record reveals that Rose

misstates the case.

Detectives surveilling Residence 1 noticed significant

“short term traffic” at the residence, of the kind typically

associated with the purchase and distribution of drugs. They

arrested an individual (“Informant”) seen exiting Residence 1

soon after his arrival there. Informant told detectives he had

purchased crack cocaine from within the residence, and that

others in the house were using crack cocaine there. Informant

identified David Rose from a photograph, and stated he was at

the residence. A check of the Fairfax County Police Department

records revealed that David Rose, Rose’s uncle, had provided

Residence 1 as his current address; a criminal record check

confirmed David Rose had several prior convictions for drug

distribution.

These facts corroborated Informant’s information.

Further, that the Informant’s face-to-face statements to police

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were against his penal interest lends support to their veracity.

See United States v. DeQuasie, 373 F.3d 509, 523 (4th Cir. 2004)

(noting that “an informant who meets face-to-face with an

officer provides the officer with an opportunity to assess his

credibility and demeanor and also exposes himself to

accountability for making a false statement”); United States v.

Rowell, 903 F.2d 899, 903 (2d Cir. 1990) (finding an informant’s

statement reliable as it was made against penal interest). As

the sum of this evidence was more than sufficient to “convince a

person of reasonable caution that contraband,” namely controlled

substances, would be found at Residence 1, we find probable

cause existed for the issuance of a search warrant for the

residence.

Rose next argues that because the scope of the search

warrant was limited to “cocaine, paraphernalia, and . . .

documents related to the distribution of cocaine,” detectives

lacked authority to seize any of the robbery-related items.

However, this argument must fail under the plain-view doctrine.

“[T]he plain-view doctrine authorizes warrantless seizures of

incriminating evidence when (1) the officer is lawfully in a

place from which the object may be plainly viewed; (2) the

officer has a lawful right of access to the object itself; and

(3) the object’s incriminating character is immediately

apparent.” United States v. Jackson, 131 F.3d 1105, 1109 (4th

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Cir. 1997). Here, there is no question that the officers were

lawfully present in David Rose’s apartment and could lawfully

open any bags, closets, drawers, or containers found in the

apartment in which drugs might be found. See United States v.

Ross, 456 U.S. 798, 821 (1982).

However, Rose argues that because the authority to

search Residence 1 was “purportedly based on information

relating to drug trafficking[,] . . . there is no way any

incriminating character of the [robbery-related] items could

have been observed.” However, this contention is belied by our

precedent. The incriminating nature of a seized object is based

not on the information provided in the warrant, but on whether

“the agents collectively ha[ve] probable cause to believe the

[object] was evidence of a crime at the time of the seizure.”

United States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996). As

several of the detectives performing the search immediately

identified the articles of clothing found at the scene as those

depicted in the videos and still photographs of several of the

robberies, it is clear that the incriminating nature of the

robbery-related items was immediately apparent. As for the

learner’s permit and the CD bearing a latent finger print, we

have specifically upheld the seizure of items “linking [a

suspect] to the premises where [evidence was] found.” United

States v. Wardrick, 350 F.3d 446, 453 (4th Cir. 2003).

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Accordingly, we find the district court did not err in denying

Rose’s motion to suppress the items seized from Residence 1.

It is similarly clear from the record that the

district court did not err in finding that probable cause

supported issuance of the search warrant for Residence 2. A

criminal informant (“CI”) told detectives Rose had been staying

with his girlfriend the day before execution of the search

warrants. Fairfax County Police records corroborated this

information, revealing that a woman living at Residence 2 had

once filed an assault warrant against Rose, and that Rose had

previously provided Residence 2 as his address.

The CI further provided detectives with Rose’s cell

phone number; this number was registered to “Kwili K. Smith,”

which the CI stated was an alias Rose acquired in prison.

Detectives independently traced the phone number and determined

that it had received and originated calls on February 24, 2007,

from a tower located approximately 400 yards from Residence 2,

and the phone’s actual position was traced to that same tower.

In addition, the CI had personally observed Rose within the last

two weeks in possession of a handgun similar to that used in

several of the robberies. We find that the CI’s information,

corroborated by the detectives’ independent investigations and

the evidence seized during the search of Residence 1, is more

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than sufficient to support the district court’s finding that the

issuance of the warrant was supported by probable cause.

Turning to the items recovered from Residence 2, we

again find that the plain-view doctrine authorized their

seizure. As in the first search, several of the detectives

performing the search immediately identified the articles of

clothing found at Residence 2 as depicted in videos and still

photographs of some of the robberies. Thus, the incriminating

nature of the clothing was immediately apparent. Further, the

detectives had the authority to seize documents bearing Rose’s

nickname as evidence linking Rose to the premises. See

Wardrick, 350 F.3d at 453.

Accordingly, we find no error in the district court’s

ruling denying the motion to suppress, and we affirm the

judgment of the district court. 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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