UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARREN RUCKER, II, a/k/a Pop,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:09-cr-00028-nkm-1)
Submitted: June 18, 2010 Decided: July 6, 2010
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Ronald M. Huber, Assistant United States Attorney,
Barbara Colberg, Third Year Law Student, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Warren Rucker, II, was
convicted of conspiracy to distribute and possess with intent to
distribute fifty grams or more of crack cocaine, in violation of
21 U.S.C. § 846 (2006); aiding and abetting the distribution of
five grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006); three counts of distribution of
five grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B); three counts of distribution of a
detectable amount of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2006); possession with intent to
distribute fifty grams or more of crack cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A) (2006) (collectively, “drug
offenses”); and possession of a firearm in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. § 924(c) (2006)
(“firearms offense”). Rucker was sentenced to 195 months’
imprisonment, which consisted of 135 months on the drug offenses
and sixty months, consecutive, on the firearms offense. This
appeal timely followed.
Prior to trial, Rucker moved to suppress the narcotics
the police discovered during a search of his person, which was
conducted incident to his arrest, and the firearm found in the
taxicab in which he was a passenger. On appeal, Rucker abandons
his arguments relevant to his warrantless arrest and the ensuing
2
search incident to arrest by failing to raise them in his brief.
See Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th Cir.
2004) (citing Fed. R. App. P. 28(a)(9)). Accordingly, we limit
our review to the denial of the motion to suppress the firearm
seized from the taxicab.
This court reviews the factual findings underlying the
district court’s denial of a motion to suppress for clear error
and the court’s legal conclusions de novo. United States v.
Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert. denied, 130 S.
Ct. 1104 (2010). Clear error is found “only if, on the entire
evidence, [we are] left with the definite and firm conviction
that a mistake has been committed.” United States v. Manigan,
592 F.3d 621, 631 (4th Cir. 2010) (alteration in original)
(internal quotation marks omitted). However, “if the district
court’s account of the evidence is plausible in light of the
record viewed in its entirety,” this court will not reverse the
district court’s finding even if “we would have decided the
fact[s] differently.” United States v. Stevenson, 396 F.3d 538,
542 (4th Cir. 2005) (internal quotation marks and alteration
omitted). Because the court denied Rucker’s motion to suppress,
we view the facts in the light most favorable to the Government.
United States v. Matthews, 591 F.3d 230, 234 (4th Cir. 2009),
petition for cert. filed, __ U.S.L.W. __ (U.S. Apr. 23, 2010)
(No. 09-10414).
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The district court articulated two bases for denying
the motion to suppress the firearm: (1) that Rucker could not
challenge the search of the taxicab because, as a mere
passenger, he lacked a reasonable expectation of privacy in the
cab; and (2) that the police lawfully seized the firearm because
it was in their plain view. We agree with the latter reasoning. 1
Under the “plain view” doctrine, an exception to the
warrant requirement for the seizure of property, “incriminating
evidence” may be seized if “(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
Cir. 1997). The evidence adduced at the suppression hearing
establishes that the arresting officers were in the course of
lawfully removing Rucker from the cab when they first saw the
firearm. 2 It is axiomatic to say that a firearm’s “incriminating
character is immediately apparent,” id., particularly when it is
found in proximity to an individual being arrested for
1
We need not consider the propriety of the district court’s
former conclusion because we agree with its alternative analysis
and affirm on that basis.
2
By abandoning his challenge to the warrantless arrest,
Rucker implicitly concedes the legality of the officers’
presence at the cab.
4
distribution of narcotics. See United States v. Perry, 560 F.3d
246, 251-52 (4th Cir.) (noting “the well-known and attested-to
link between drug distribution and firearms”), cert. denied, 130
S. Ct. 177 (2009). The illegality of the firearm was even more
apparent in this case, because the officers knew Rucker was
prohibited from possessing a firearm due to his criminal record.
Accordingly, we find the district court properly concluded the
“plain view” doctrine supported the warrantless seizure of the
firearm.
For the foregoing reasons, we affirm the district
court’s judgment. 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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