IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51057
USDC No. SA-98-CR-117-2-HG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER WILSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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July 31, 2000
Before JOLLY, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:1
Walter Wilson entered a conditional guilty plea to the offense
of carrying a firearm during a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1).
Almost six months after Wilson waived appearance at
arraignment, he moved to suppress the results of the search and
seizure underlying his firearm conviction. The district court
dismissed this motion as untimely. Wilson now argues that the
district court erred in dismissing his suppression motion on this
basis.
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Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Pursuant to both a local rule and the terms of the written
waiver of arraignment, Wilson was required to file his motion
within 10 days after the waiver had been entered. See W.D. Tex.
CR-12. His purported reason for failing to do so is that the
Government withheld from him the allegedly “exculpatory” report of
a federal police corporal, Normal Palmer, until just before he
filed his motion to suppress. Under FED. R. CRIM. P. 12(f), such a
dismissal is reviewed for abuse of discretion, with “due
consideration [to be given] to the movant’s reason for missing the
relevant deadline and any prejudice the refusal might occasion.”
See United States v. Denman, 100 F.3d 399, 402 (5th Cir. 1996).
Wilson has suggested that Palmer’s report revealed for the
first time that there was no “plain view” sighting of a marijuana
pipe in Wilson’s car, which earlier had appeared to form the basis
of the search of the car and subsequent seizure of a handgun and
methamphetamine. Wilson’s arguments are unavailing. Palmer’s
report did not provide any significant factual addition to the
information that was in counsel’s possession at the time of the
waiver of arraignment, coupled with Wilson’s own knowledge of the
circumstances of the search (he was present at the time).
Contrary to Wilson’s suggestion, a handwritten note by one of the
Sheriff’s Deputies who saw the “alleged” marijuana pipe in the
ashtray of Wilson’s car was not insufficient to contribute to the
“collective knowledge” on which Corporal Palmer relied in searching
Wilson’s car. See United States v. Buchanan, 70 F.3d 818, 826 (5th
Cir. 1996) (warrantless search based on “plain view” exception does
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not require “certainty” but only “‘probable cause’ to believe that
the item is either evidence of a crime or contraband”).
Wilson has not shown that district abused its discretion in
denying his motion to suppress as untimely, and he has not shown
that he was prejudiced thereby. See Denman, 100 F.3d at 402.
Wilson’s conviction and sentence are AFFIRMED.
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