UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4787
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELRODA SHAVAYA THOMPSON,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00434-CCE-1)
Submitted: June 12, 2014 Decided: October 1, 2014
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Greensboro, North Carolina, Andrew C. Cochran, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elroda S. Thompson was convicted under 18 U.S.C. §§
922(g)(1) and 924(a)(2) for possession of a firearm by a
convicted felon. Thompson appeals the denial of his motion to
dismiss under Brady v. Maryland, 373 U.S. 83 (1963), contending
that the prosecution violated his due process rights by failing
to preserve potentially exculpatory evidence. Thompson also
appeals his enhanced sentence under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e). He contends that his sentence
should be vacated because the record does not establish that he
committed three separate ACCA predicate offenses. For the
reasons that follow, we affirm.
I.
A.
On June 17, 2012, the Winston-Salem Police Department
(WSPD) responded to a call reporting an assault with a deadly
weapon. WSPD interviewed Douglas Edwards who stated that he had
been threatened by a man with a gun. Edwards stated the
suspect, who was driving a silver Malibu, stopped in front of
Edward's home, pointed a gun out the driver's window, and
threatened Edwards. Edwards provided WSPD with the license
plate number of the suspect's vehicle.
2
Corporal R.D. Fenimore of the WSPD located a silver Malibu
matching the description released on the police radio, matched
the license plate to the number provided by Edwards, and pulled
over the vehicle. Fenimore's dash camera, known as a Mobile
Digital Video Recorder (MDVR), began recording automatically
when he turned on his blue lights.
Fenimore instructed the driver, Thompson, to exit the
vehicle. Thompson exited, left the driver's door open, and
approached Fenimore with balled fists. Thompson did not comply
with instructions to stop approaching until Fenimore had his
Taser drawn. Fenimore handcuffed Thompson, then approached
Thompson's vehicle to ensure no one else was inside. Fenimore
observed through the open door a handgun sticking out from under
the driver seat.
Fenimore secured the handgun and arrested Thompson for
assault by pointing a gun, a misdemeanor under N.C.G.S. § 14-34.
He then turned off his MDVR and drove Thompson to the county
jail. At the jail, Fenimore transferred custody of Thompson to
Corporal Kerns, who processed Thompson. During processing,
Kerns discovered that Thompson was a felon and charged Thompson
with possession of a firearm by a felon under 18 U.S.C. §§
922(g)(1) and 924(a)(2).
WSPD procedure requires MDVR footage to be labeled by
category. Footage labeled "Felony" or "DUI" is automatically
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copied to a DVD. All other footage is retained for only 60
days, or 120 days if flagged. Fenimore did not label Thompson's
footage as "Felony" because he believed the arrest was for a
misdemeanor. Kerns did not update the footage label during
Thompson's processing, and it was therefore preserved for only
60 days.
B.
Thompson was indicted under 18 U.S.C. §§ 922(g)(1) and
924(a)(2) for one count of possession of a firearm by a
convicted felon. Thompson filed a motion to dismiss under
Brady, which the district court denied. Thompson pleaded
guilty, reserving his right to appeal the denial of his motion
to dismiss. The district court enhanced Thompson's sentence
under the ACCA, citing his three previous convictions for second
degree burglary in North Carolina state court. Thompson was
sentenced to 180 months’ imprisonment with a subsequent term of
five years’ supervised release. Thompson timely appealed.
II.
In reviewing the district court's denial of a motion to
dismiss, we review its legal conclusions de novo, see United
States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002), and its
factual findings for clear error. See United States v.
Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005). In reviewing the
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district court's statutory interpretation of sentencing under
the ACCA, we review the district court's conclusions de novo.
United States v. Hobbs, 136 F.3d 384, 387 (4th Cir. 1998).
III.
Thompson contends that WSPD's failure to provide Fenimore's
MDVR footage constituted a Brady violation. Brady provides the
proper analytical framework when exculpatory evidence is
withheld from a defendant. See Brady, 373 U.S. at 87. However,
when evidence has been destroyed, as is the case here, the issue
is more properly analyzed under Arizona v. Youngblood, 488 U.S.
51 (1988). 1 In Youngblood, the Supreme Court held that "unless a
1
Though we analyze Thompson’s claim under Youngblood, we
note that a Brady challenge on these facts also would have
failed. A successful Brady challenge requires that a defendant
demonstrate that the evidence in question was exculpatory.
United States v. Wilson, 624 F.3d 640, 661 (4th Cir. 2010).
Thompson argues that the MDVR footage would have been
exculpatory because the footage would have shown that Officer
Fenimore opened Thompson's car door before finding the handgun.
Thus, Thompson argues, Fenimore conducted an illegal search,
which would have led to the suppression of the handgun that was
the basis of Thompson's plea. However, Thompson's argument
misunderstands the standard for searches in this context.
Courts have recognized an exception to the Fourth Amendment’s
typical requirement of a warrant backed by probable cause for
searches of automobiles. The exception “permits a warrantless
search of a vehicle when there is probable cause to believe the
vehicle contains contraband or other evidence of criminal
activity.” United States v. Baker, 719 F.3d 313, 317 (4th Cir.
2013). Probable cause alone is therefore sufficient for a
lawful automobile search. See id. Probable cause is "a
flexible standard that simply requires 'a reasonable ground for
(Continued)
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criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not
constitute a denial of due process of law." Id. at 58.
The Court further held that where the destruction of
evidence "c[ould] at worst be described as negligent," there was
no showing of bad faith. Id. Additionally, this court has
found that the negligent destruction of evidence, absent more,
does not constitute bad faith. See Elmore v. Ozmint, 661 F.3d
783, 831 (4th Cir. 2011) (finding the negligent erasure of the
tape of a bank robbery was not bad faith).
belief of guilt.'" United States v. Ortiz, 669 F.3d 439, 444
(4th Cir. 2012) (quoting Brinegar v. United States, 338 U.S.
160, 175 (1949)). The Fourth Circuit has recognized that a
police report can provide an officer with probable cause for the
warrantless search of an automobile. See United States v.
Arriaza, 641 F. Supp. 2d 526, 527 (E.D. Va. 2009) aff'd, 401 F.
App'x 810 (4th Cir. 2010). In Arriaza, the police based their
warrantless search of the defendant's car on a police report
indicating that the defendant had a gun in the car he owned.
The Arriaza court held that the police report gave the officers
probable cause, which validated their search under the
automobile exception. In this case, Officer Fenimore received a
police report indicating that the driver of a car with
Thompson's license plate had threatened a victim with a gun.
The police report gave Fenimore reasonable grounds to believe
that Thompson was the perpetrator of that crime and that the
handgun used in that crime would be in Thompson's vehicle.
Thus, like the officers in Arriaza, Fenimore had probable cause
to search Thompson's vehicle, and his search was thus proper
under the automobile exception. Therefore, the MDVR footage was
not exculpatory, and Thompson's Brady claim would have failed.
6
As negligence is insufficient for bad faith, it would
follow that mere, non-negligent inadvertence would also not
constitute bad faith. Indeed, panels of this circuit have
extended the reasoning of Elmore to its logical conclusion,
finding that inadvertent destruction of evidence also does not
demonstrate bad faith. See United States v. Henderson, 41 F.
App'x 651, 652 (4th Cir. 2002)(unpublished opinion) (finding the
inadvertent destruction of a video tape did not constitute bad
faith).
The record included no indication that WSPD intentionally
destroyed Fenimore's footage. Rather, based on the record,
WSPD's failure to re-label Fenimore's footage when Thompson's
charge was upgraded to a felony--so that the footage would be
preserved beyond sixty days--could at worst be described as
negligent. Given that the footage was originally labeled
correctly and WSPD simply followed its protocol for a label that
later became incorrect, the destruction of this evidence is more
fairly characterized as inadvertent. In either case, the record
does not suggest that the actions of the police that led to the
erasure of the tape were undertaken in bad faith. Therefore,
Thompson's challenge under Youngblood fails.
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IV.
Thompson also challenges his enhanced sentence under the
ACCA. He contends that the district court erred by finding that
he had three previous convictions for a violent felony
"committed on occasions different from one another." 18 U.S.C.
§ 924(e).
Thompson's Presentence Investigation Report (PSR) provided
that his first burglary was conducted with two accomplices at
the residence of Frank Tranor on March 16, 2000 from 2:45 a.m.
to 3:30 a.m. Thompson's second burglary was conducted on the
same night with the same two accomplices, but two miles away at
the residence of Eric Peterson from 3:00 a.m. to 4:30 a.m.
Thompson's third burglary was conducted at the residence of
Robert Hunter on March 19, 2000.
Thompson argues that his first two predicate offenses were
in fact one offense under the ACCA. He takes this position
because two of the burglaries occurred on the same date, and he
argues that he may have pleaded guilty based on accomplice
liability. Thompson contends that the record does not show he
was physically present at both burglaries, and that his
convictions should be considered a single offense under United
States v. Tucker, 603 F.3d 260, 265-66 (4th Cir. 2010).
In Tucker, the defendant was convicted with an accomplice
of two counts of burglary involving separate storage units at
8
the same facility. Id. We vacated the district court's ACCA
sentence because there was insufficient evidence in the record
to determine whether the defendant himself entered separate
storage units. Id. at 266.
Thompson's reliance on Tucker is unavailing. First, in
Tucker, the record did not specify that the defendant entered
the storage units separate from his accomplice. Id. at 265.
Unlike Tucker, the record here specifically indicates that
Thompson himself entered both residences. Also, Thompson and
each of his accomplices have separate sentencing documents that
each states they individually entered multiple residences.
Second, in Tucker we held that "without evidence that the
first crime ended before the second crime began, we cannot
determine whether Tucker committed the two burglaries
sequentially on separate occasions or simultaneously with the
aid of his accomplice." Id. at 266. Unlike Tucker, the record
in this case shows a sequence in time between Thompson's two
burglaries. Thompson's first burglary occurred from 2:45 a.m.
to 3:30 a.m., and the second burglary occurred two miles away
from 3:00 a.m. to 4:30 a.m. Thus, Thompson's argument that
there is a temporal overlap between his burglaries fails because
even with an overlap in time, the record shows the burglaries
were sequential.
9
Third, the evidence establishes that Thompson's first two
burglaries meet the criteria for separate ACCA predicate
offenses according to this court's test established in United
States v. Letterlough, 63 F.3d at 332, 335-37 (4th Cir. 1995).
Under the ACCA, we consider five factors: 1) whether the
offenses arose in different geographic locations; 2) whether the
nature of each offense was substantively different; 3) whether
each offense involved different victims; 4) whether each offense
involved different criminal objectives; and 5) after the
defendant committed the first-in-time offense, did the defendant
have the opportunity to make a conscious and knowing decision to
engage in the next-in-time offense. United States v. Carr, 592
F.3d 636, 644 (4th Cir. 2010). We can consider these factors
together or independently. Id.
Thompson's first two burglaries occurred at two residences
separated by two miles, with separate victims, which establishes
the first and third factors. Thompson's first two burglaries
were sequential in time, and therefore Thompson had the
opportunity to make a conscious decision to engage in a next-in-
time offense, which establishes the fifth factor. Therefore,
considering these three factors are established, we conclude
Thompson's first two burglaries are separate ACCA predicate
10
offenses. See Hobbs, 136 F.3d at 390 (finding separate ACCA
predicate offenses when the same factors were established). 2
V.
For the foregoing reasons, the district court's denial of
Thompson's motion to dismiss and his sentencing under the ACCA
is
AFFIRMED.
2
Thompson also submitted a pro se supplemental appellant
brief, arguing that his first two predicate offenses were not
separate because he received a consolidated sentence for those
offenses. However, this argument fails because separate
sentencing is relevant only to career offender enhancement under
the United States Sentencing Guidelines, § 4B1.1(a), and not
sentencing under the ACCA.
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