United States v. Powell , 184 F. App'x 143 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-13-2006
USA v. Powell
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2037
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2037
UNITED STATES OF AMERICA
v.
RICHARD WAYNE POWELL,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 03-00586)
Honorable Bruce W. Kauffman, District Judge
Submitted under Third Circuit LAR 34.1(a)
June 1, 2006
BEFORE: AMBRO, FUENTES, and GREENBERG, Circuit Judges,
(Filed: June 13, 2006)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the court on defendant-appellant Richard Wayne
Powell’s appeal following his conviction based on his guilty plea to possession with
intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B) and to possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1). After a grand jury indicted Powell
for these two offenses, he initially entered a plea of not guilty. Then he moved to
suppress physical evidence the police recovered from his automobile without a warrant,
as well as a statement he made at the time the police seized the evidence. He predicated
his motion on the contention that he had not consented to the search and that, in any
event, any consent that he may have given was coerced. The district court, following an
evidentiary hearing, denied his motion.
Subsequently, Powell changed his plea to guilty on both counts but, pursuant to
United States v. Zudick, 523 F.2d 848 (3d Cir. 1975), preserved his right to appeal the
denial of his suppression motion. Thereafter the district court sentenced Powell to two
consecutive 60-month terms of imprisonment, as well as to concurrent terms of four and
five years of supervised release. Powell then appealed.
Powell summarizes his contentions on this appeal as follows:
The District Court Erred by Denying Appellant’s Motion to Suppress
Evidence Obtained Through a Warrantless Search of Appellant’s
Automobile, Inasmuch as (1) the Arresting Officer’s Testimony Regarding
the Giving of Consent to Search Was Patently Incredible, and (2) Any
Consent That May Have Been Given Was Coerced.
Appellant’s br. at i. He then refines his argument as follows:
The District Court Clearly Erred by Implicitly Accepting the Arresting
Officer’s Incredible Testimony Regarding Facts Crucial to the
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Determination of Whether Mr. Powell Gave Consent for the Search.
The District Court Erred by Holding That Mr. Powell’s Consent to Search
(if Given) Was Not Coerced Even Though Two Officers were Positioned on
Either Side of Mr. Powell’s Car, a Police Dog and a Third Officer were at
the Scene and It Was Undisputed that Mr. Powell Repeatedly Resisted Cpl.
Burdette’s Many Requests for Consent to Search.
Id. at i-ii.
After our review of this matter we find no basis to reverse the order denying his
motion to suppress. As the government correctly points out, we review the district court’s
factual findings for clear error but review its application of the law to the facts on a
plenary basis. See United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2004). Clearly, the
evidence supported the factual predicate for the court’s disposition of the case, and the
court did not err legally in reaching its conclusion. Indeed, we are struck by the fact that
Powell emphasizes that Officer Burdette’s testimony was to the effect that after his initial
discussion with Powell, Burdette told Powell that he was free to go even though Burdette
wanted to search Powell’s automobile. While Powell denies that Burdette said that he
was free to go, we have no basis to hold that the officer was not truthful or to reject the
district court’s conclusions.
The judgment of conviction and sentence entered March 31, 2005, will be
affirmed.
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