UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4860
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL LEWIS FENNELL, a/k/a Supreme,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief District
Judge. (7:13-cr-00059-GEC-1)
Submitted: June 30, 2015 Decided: July 23, 2015
Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John S. Davis, Daniel P. Watkins, WILLIAMS MULLEN, Richmond,
Virginia, for Appellant. Anthony P. Giorno, Acting United States
Attorney, Jean B. Hudson, Assistant United States Attorney,
Franklin Sacha, Appellate Intern, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Lewis Fennell appeals his conviction for conspiracy to
distribute and possess with intent to distribute 5 kilograms or
more of cocaine and 280 grams or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012). Fennell argues
that the district court erred by denying his motion to suppress
the fruits of a search warrant obtained in state court that he
claimed was unsupported by probable cause. We affirm.
The district court found that the warrant affidavit was
sufficient to establish probable cause only when considered in
connection with the unrecorded testimony of the applying officer
and that, even if the warrant had been invalid, the good faith
exception to the exclusionary rule set forth in United States v.
Leon, 468 U.S. 897 (1984), applied. Fennell argues that Fed. R.
Crim. P. 41(b) prohibited the district court from considering the
officer’s unrecorded testimony. Because Fennell did not assert
this argument in his pretrial motion to suppress, it could be
deemed waived under Fed. R. Crim. P. 12(b)(3). See United States
v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997) (holding that
defendant’s pretrial challenge to validity of search warrant did
not preserve on appeal challenge to execution of that warrant);
see also, e.g., United States v. Burnett, 773 F.3d 122, 130-31 (3d
Cir. 2014) (holding that new legal theory raised for first time on
appeal was waived), cert. denied, 135 S. Ct. 1722 (2015). To the
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extent it may be considered at all, we review this argument for
plain error. See United States v. Guzman, 739 F.3d 241, 246 n.8
(5th Cir. 2014) (recognizing that theory raised for first time on
appeal was waived but proceeding to conduct plain-error analysis).
To establish plain error, Fennell “must demonstrate that an error
occurred, that the error was plain, and that the error affected
his substantial rights.” United States v. Heyer, 740 F.3d 284,
290 (4th Cir. 2014); see Henderson v. United States, 133 S. Ct.
1121, 1126-17 (2013) (discussing standard).
“[T]he triggering condition for application of Rule 41 is not
a finding that the investigation was federal in nature but a
determination that the proceeding was a federal proceeding.”
United States v. Claridy, 601 F.3d 276, 281 (4th Cir. 2010). In
Claridy, we held that Rule 41 did not apply where a state officer
who was federally deputized as part of a joint task force
investigating violations of both state and federal law obtained a
warrant from a state judge authorizing state officers to search
for evidence of violations of state narcotics laws. Id. at 278,
283. We also noted that, “[e]ven if the warrant was directed more
generally to any authorized officer, the fact that it commanded a
search for evidence of a state-law violation would indicate that
the warrant proceeding was a state proceeding, not one under
Federal Rule 41(b).” Id. at 283.
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Here, a state officer who was federally deputized as part of
a joint task force investigating violations of both state and
federal law obtained a warrant from a state judge that generally
directed any authorized officer to search for evidence of a state-
law violation. This case precisely matches the scenario that we
said in Claridy “would indicate that the warrant proceeding was a
state proceeding, not one under Federal Rule 41(b).” Id.
Accordingly, we conclude that the district court did not err by
declining to apply Rule 41. *
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 this court and
argument would not aid the decisional process.
AFFIRMED
* Fennell does not contest the district court’s holding that,
absent the application of Rule 41, the officer’s testimony provided
probable cause to support the warrant. Thus, we need not reach
Fennell’s challenge to the district court’s alternate holding
that, even if the warrant was invalid, the good faith exception to
the exclusionary rule applied.
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