UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4658
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREMAYNE DEVON SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00348-TDS-1)
Submitted: January 25, 2012 Decided: February 3, 2012
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Milton Bays Shoaf, ADDISON & SHOAF, Salisbury, North Carolina,
for Appellant. Sandra Jane Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tremayne Devon Scott appeals his criminal conviction
and sentence. A federal grand jury indicted Scott for
possession with intent to distribute 120.3 grams of a mixture
containing a detectible amount of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (2006). Pursuant to 21 U.S.C. § 851
(2006), Scott’s sentence was subject to a statutory enhancement
based on his prior conviction for selling cocaine in violation
of N.C. Gen. Stat. § 90-95(a)(1) (1998). Scott moved to
suppress the crack cocaine, and the district court denied the
motion following a suppression hearing. Scott entered a
conditional guilty plea, pursuant to a written plea agreement,
to the offense charged in the indictment, reserving the right to
appeal the district court’s denial of his motion to suppress.
The district court sentenced Scott to 240 months’ imprisonment,
the statutory mandatory minimum sentence.
Scott’s counsel has filed a brief in which he argues
that Scott should be resentenced under the Fair Sentencing Act
of 2010 (FSA). The Government filed a motion, joined by Scott,
to remand this case to the district court to allow Scott to be
resentenced in accordance with the FSA. The remainder of
counsel’s brief is filed pursuant to Anders v. California, 386
U.S. 738 (1967), and questions whether the district court erred
in denying Scott’s motion to suppress. Scott has filed a pro se
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supplemental brief. 1 We affirm the conviction, grant the motion
to remand, vacate the sentence, and remand for resentencing.
Both Scott and his counsel question whether the
district court erred in denying Scott’s motion to suppress. The
district court found that the officers’ search of Scott’s car
and seizure of the bag containing contraband were lawful because
1) Scott’s detention by the officers for brief questioning was
supported by reasonable suspicion, 2) Scott gave valid consent
to enter the vehicle, and 3) once lawfully within the car, the
officer encountered contraband in plain view within the blue
bag, warranting seizure of the bag. In reviewing a district
court’s ruling on a motion to suppress, this court reviews the
district court’s legal conclusions de novo and its factual
findings for clear error. United States v. Foster, 634 F.3d
243, 246 (4th Cir. 2011). When a suppression motion has been
denied, this court views the evidence “in the light most
1
Among the issues Scott raises is that counsel rendered
ineffective assistance. Because our review of the record
reveals no conclusive evidence of counsel’s ineffectiveness, we
conclude that Scott does not state a cognizable claim of
ineffective assistance of counsel on direct appeal. See United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (providing
standard). We also reject Scott’s claim that the district
court’s application of a statutory sentencing enhancement
violated this court’s holding in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc), because Scott was sentenced
to greater than one year of imprisonment for his predicate
offense.
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favorable to the Government.” Id. Moreover, we will defer to
the credibility determinations made by the district court at the
suppression hearing. United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008).
A police officer does not implicate the Fourth
Amendment by merely approaching an individual and questioning
him. United States v. Burton, 228 F.3d 524, 527 (4th Cir.
2000). Additionally, “the police can stop and briefly detain a
person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that
criminal activity may be afoot, even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(internal quotation marks omitted).
A district court’s finding of consent is a factual
finding that should not be disturbed unless clearly erroneous.
United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en
banc). In determining whether officers were given consent to a
Fourth Amendment intrusion, this court must determine, under the
totality of the circumstances, whether consent was knowing and
voluntary. See United States v. Mendenhall, 446 U.S. 544, 557
(1980). The court may appropriately “consider the
characteristics of the accused (such as age, maturity,
education, intelligence, and experience) as well as the
conditions under which the consent to search was given (such as
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the officer’s conduct; the number of officers present; and the
duration, location, and time of the encounter).” Lattimore, 87
F.3d at 650. Mere “acquiescence to a claim of lawful authority”
is insufficient to constitute consent. Bumper v. North
Carolina, 391 U.S. 543, 549 (1968).
An officer may seize incriminating evidence without a
warrant 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) (citing
Horton v. California, 496 U.S. 128, 136-37 (1990)); United
States v. Williams, 41 F.3d 192, 196-97 (4th Cir. 1994)
(discussing plain-view search of closed container). “[A]lthough
the plain view doctrine may support the warrantless seizure of a
container believed to contain contraband, any subsequent search
of its concealed contents must either be accompanied by a search
warrant or justified by one of the exceptions to the warrant
requirement.” Williams, 41 F.3d at 197. However, “courts will
allow a search of a container following its plain view seizure
only ‘where the contents of a seized container are a foregone
conclusion,’” such as “‘when a container is not closed, . . .
[such that] the container supports no reasonable expectation of
privacy and the contents can be said to be in plain view.’” Id.
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(quoting United States v. Corral, 970 F.2d 719, 725 (10th Cir.
1992)).
With these standards in mind, our review of the record
leads us to conclude that the officers lawfully elevated their
interaction with Scott to an investigative detention and that
Scott knowingly and voluntarily consented to entry of his
vehicle for the limited purpose of obtaining cigarettes. We
also conclude that, while acting within the scope of that
consent, one officer observed contraband within an open bag in
plain view and lawfully seized both the bag and its contents.
See Williams, 41 F.3d at 196-97. Thus, the district court
properly denied the motion to suppress.
Finally, based on our consideration of the materials
submitted with the joint motion to remand, as well as Scott’s
opening brief, we grant the motion to remand, vacate Scott’s
sentence, and remand this case to the district court for
resentencing. By this disposition, however, we indicate no view
as to whether the FSA is retroactively applicable to a
defendant, like Scott, whose offenses were committed prior to
August 3, 2010, the effective date of the FSA, but who was
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sentenced after that date, leaving that determination in the
first instance to the district court. 2
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Scott’s conviction and deny Scott’s request
to replace counsel. We also grant the parties’ joint motion to
remand, vacate the sentence, and remand for resentencing. This
court requires that counsel inform Scott, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Scott requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Scott. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
2
We note that, at Scott’s sentencing hearing conducted on
June 13, 2011, counsel for the defendant unsuccessfully argued
for retroactive application of the FSA. Nevertheless, in light
of the Attorney General’s revised view on the retroactivity of
the FSA, as well as the development of case law on this point in
other jurisdictions, we think it appropriate, without indicating
any view as to the outcome, to accord the district court an
opportunity to consider the matter anew.
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materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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