United States v. James , 356 F. App'x 636 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-5176
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    BERTIL DESMOND JAMES,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
    Judge. (9:07-cr-01229-SB-1)
    Submitted:    October 27, 2009              Decided:   December 4, 2009
    Before MOTZ and      AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    James W. Smiley, IV, LAW OFFICES OF JAMES W. SMILEY, IV,
    Charleston, South Carolina, for Appellant.    W. Walter Wilkins,
    United States Attorney, Alston C. Badger, Assistant United
    States Attorney, Charleston, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Bertil Desmond James entered a conditional guilty plea
    to possession with intent to distribute five kilograms or more
    of    cocaine,       in   violation      of     
    21 U.S.C. § 841
    (a)(1)       (2006),
    reserving his right to challenge the district court’s denial of
    his motion to suppress eleven kilograms of cocaine seized from
    the vehicle he was driving and any inculpatory statements made
    to law enforcement officers during the vehicle search.                                  James
    was sentenced to 120 months’ imprisonment.                         Finding no error, we
    affirm.
    On appeal, James’s counsel contends that the district
    court erred in denying the motion to suppress.                             We review the
    factual findings underlying the denial of a motion to suppress
    for    clear    error     and     the   court’s          legal    conclusions    de     novo.
    United States v. Branch, 
    537 F.3d 328
    , 337 (4th Cir. 2008),
    cert. denied, 
    129 S. Ct. 943
     (2009).                          The evidence is construed
    in    the   light      most     favorable      to       the   prevailing     party    below.
    United States v. Uzenski, 
    434 F.3d 690
    , 704 (4th Cir. 2006).
    James      was    stopped       by        Officer    Joshua      Small     for
    traveling      114     miles     per    hour       on    Interstate    95.       Appellate
    counsel does not challenge the inception or the duration of the
    traffic stop.          Rather, counsel contends that the district court
    erroneously concluded that James consented to the search of the
    vehicle he was driving and the luggage therein.
    2
    The Fourth Amendment does not prohibit all searches
    and seizures, merely those found to be unreasonable.                                 Florida v.
    Jimeno, 
    500 U.S. 248
    , 250 (1991).                   Although a warrantless search
    generally       “is    per    se     unreasonable[,]           .     .    .     one     of   the
    specifically established exceptions to the requirements of both
    a   warrant     and    probable      cause     is    a     search       that    is    conducted
    pursuant to consent.”              Schneckloth v. Bustamonte, 
    412 U.S. 218
    ,
    219    (1973)    (internal     quotation           marks    and     citations         omitted).
    When     consent      to   search     a    particular         area       is    “general      and
    unqualified,”         it   extends    to     closed      containers           located    within
    that area.       United States v. Jones, 
    356 F.3d 529
    , 534 (4th Cir.
    2004); see also Jimeno, 
    500 U.S. at 251-52
     (determining that if
    it is reasonably understood that consent extends to a container
    within    a     vehicle,     explicit        authorization          is     not       required).
    However, “general, blanket consent to search . . . by itself
    would    not    permit     officers       to   break       into     a    locked       container
    located within the area being searched.”                      Jones, 
    356 F.3d at 534
    (emphasis in original).
    Here, James informed Officer Michael Brewton that law
    enforcement could search the vehicle he was driving.                                 While this
    information was not specifically conveyed to the other officers
    on the scene prior to the initiation of the search, this does
    not render the consent invalid.                      Moreover, Brewton testified
    that he would have instructed the officers to stop the search if
    3
    James had not consented.                Although the luggage found in the
    vehicle      was    locked,   officers       did    not     force    it    open.     James
    informed Brewton that his wife, a passenger, had the keys, and
    in the meantime Mrs. James had willingly unlocked a bag and
    turned the keys over to Small, without objection from James.
    His “failure to object (or withdraw his consent) . . . is a
    strong indicator that the search was within the proper bounds of
    the consent search.”          Jones, 
    356 F.3d at 534
    .
    To   the   extent      counsel      argues    that    the    Government’s
    witnesses were incredible because their testimony contradicted
    James’s      testimony,    it    is    not   the     province       of    this   court   to
    second-guess the credibility determinations of the factfinder.
    See United States v. Wilson, 
    484 F.3d 267
    , 283 (4th Cir. 2007).
    Therefore,          we    conclude       the        district        court’s        factual
    determinations were not clearly erroneous and that the court
    properly denied the motion to suppress. *
    Accordingly, 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
    *
    Because we have concluded that James consented to the
    search, we decline to address counsel’s alternative arguments.
    4
    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    AFFIRMED
    5