United States v. Damon Penn

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4079

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

DAMON PENN,

Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:08-cr-00554-CCB-1)

Submitted: March 24, 2011 Decided: August 18, 2011

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ebise Bayisa, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Paul Michael Cunningham, Assistant
United States Attorney, Rachel Miller Yasser, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Damon Penn appeals the 180-month sentence imposed

following his guilty plea 1 to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).

On appeal, Penn argues that the district court erred by denying

his motion to suppress a firearm that officers seized from his

car after he was pulled over for a broken tail light and

arrested for driving with a suspended license. Finding no

reversible error, we affirm.

We review the factual findings underlying a district

court’s ruling on a motion to suppress for clear error and the

court’s legal conclusions de novo. United States v. Kelly, 592

F.3d 586, 589 (4th Cir.), cert. denied, 130 S. Ct. 3374 (2010).

When evaluating the denial of a suppression motion, we construe

the evidence in the light most favorable to the government, the

prevailing party below. Id.

In enforcing the Fourth Amendment’s “guarantees of

sanctity of the home and inviolability of the person,” the

exclusionary rule operates to require the suppression of

evidence that is the fruit of unlawful police conduct. Wong

Sun v. United States, 371 U.S. 471, 484 (1963). However,

1
Penn reserved his right to appeal the district court’s
denial of his motion to suppress.

2
evidence obtained during a search conducted unlawfully but “in

reasonable reliance on binding precedent is not subject to the

exclusionary rule." Davis v. United States, 131 S. Ct. 2419,

2429 (2011).

In New York v. Belton, 453 U.S. 454, 459-60 (1981),

the United States Supreme Court held that a police officer does

not violate the Fourth Amendment when he searches the passenger

compartment of an automobile subsequent to a lawful custodial

arrest. In 2009, however, the Supreme Court in Arizona v. Gant,

129 S. Ct. 1710 (2009), clarified Belton by holding that police

may conduct an automobile search incident to a lawful arrest

only when the arrestee is unsecured and within reaching distance

of the passenger compartment or when it is “reasonable to

believe evidence relevant to the crime of arrest might be found

in the vehicle.” 129 S. Ct. at 1719.

Here, the gun was seized pursuant to an unlawful

warrantless search of Penn's car under Gant; the search was

conducted after Penn was already detained and outside reaching

distance of the passenger compartment, and it was not reasonable

to believe the evidence of his license suspension would be found

in the car. Nonetheless, we hold that the district court did

not err in admitting the evidence. Police searched Penn's car

on July 1, 2008, over ten months before Gant was decided and

pursuant to this court's interpretation of Belton, which

3
authorized an automobile search incident to a recent occupant’s

arrest. See United States v. Milton, 52 F.3d 78, 80 (4th Cir.

1995). Thus, we hold that the exclusionary rule did not apply

to the evidence seized during the arrest.

Accordingly, we affirm the district court’s judgment. 2

Because Penn is represented by counsel who has filed an

extensive brief on the merits, we deny his motion to file a pro

se supplemental brief. See Fed. R. App. P. 28(a), (c). 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

2
In affirming the denial of a motion to suppress, "we are
not limited to evaluation of the grounds offered by the district
court to support its decision, but may affirm on any grounds
apparent from the record." United States v. Smith, 395 F.3d
516, 519 (4th Cir. 2005).