United States v. Mimms , 13 F. App'x 199 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4793
REGINALD MIMMS, a/k/a Gerald
King,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-99-48, CR-00-22)
Submitted: June 26, 2001
Decided: July 16, 2001
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael Morchower, MORCHOWER, LUXTON & WHALEY,
Richmond, Virginia, for Appellant. Ruth E. Plagenhoef, United States
Attorney, Joseph W.H. Mott, Assistant United States Attorney, Roa-
noke, Virginia, for Appellee.
2 UNITED STATES v. MIMMS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Reginald Mimms appeals his jury convictions for possession of
cocaine with intent to distribute, possession of a firearm in further-
ance of a drug trafficking crime, and possession of marijuana. He
asserts on appeal that his motion to suppress evidence obtained in a
search of the car he was driving was improperly denied, that the evi-
dence was insufficient to support his convictions, and that the prose-
cutor improperly commented on his refusal to testify in his closing
argument. Because we conclude that none of these arguments has
merit, we affirm Mimms’ jury convictions.
During a traffic stop for speeding, Mimms provided a driver’s
license in the name of Gerald King and a car registration in the name
of Asia Burgos of New York. Mimms informed the officer that he
was traveling to Nashville to visit a girlfriend and that Burgos was a
friend who loaned him the car for the trip. The police officer who
stopped the vehicle ("Metro") suspected there were drugs in the car
because it belonged to a third party in New York City, because
Mimms could not remember the name of the woman he was going to
visit, and because New York City was a drug source location. Metro
stated Mimms consented to a search of the vehicle and his person;
Mimms testified he did not consent to any search.
Metro recovered $925 in cash from Mimms’ person, and he and
other police officers discovered what they believed was a hidden
compartment in the vehicle. A drug sniffing dog later alerted to the
area in which the compartment was located, and after they opened the
compartment with some difficulty, the officers found three kilograms
of cocaine and a loaded Glock .40 pistol inside.
Whether a defendant knowingly and voluntarily consented to a
search is a factual determination that we reverse on appeal only if
UNITED STATES v. MIMMS 3
clearly erroneous. United States v. Elie, 111 F.3d 1135, 1144 (4th Cir.
1997). The Government must establish knowing and voluntary con-
sent by a preponderance of the evidence, which is assessed under a
"totality of the circumstances test." United States v. Lattimore, 87
F.3d 647, 650 (4th Cir. 1996) (en banc). In reviewing the totality of
the circumstances surrounding the search, we conclude that the dis-
trict court’s determination that Mimms consented to the searches in
question is not clearly erroneous.
We must affirm Mimms’ jury convictions if there is substantial evi-
dence, when viewed in the light most favorable to the government, to
support the jury’s verdicts. Glasser v. United States, 315 U.S. 60, 80
(1942). Construing the evidence presented at trial in this light, we
conclude it is sufficient to sustain the jury’s verdicts.
Finally, as to the prosecutor’s comments during his closing argu-
ment concerning Mimms’ use of an alias, we conclude the district
court did not err in denying Mimms’ motion for a mistrial on this
basis. When read in context, we conclude the prosecutor’s comments
were not improper, and even if they were, they did not affect Mimms’
substantial rights. See United States v. Harrison, 716 F.2d 1050, 1052
(4th Cir. 1983). We therefore affirm Mimms’ convictions and sen-
tence. We dispense with oral argument because the facts and legal
contentions of the parties are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED