United States v. Taylor ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5002
LATRESE SHIRELLE TAYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Samuel G. Wilson, Chief District Judge.
(CR-97-42)
Submitted: December 22, 1998
Decided: January 26, 1999
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles Y. Sipe, WEST & ARCHAMBAULT, P.L.L.C., Charlottes-
ville, Virginia, for Appellant. Robert B. Crouch, Jr., United States
Attorney, Ray B. Fitzgerald, Jr., Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Latrese S. Taylor appeals from her convictions and sentence for
conspiring to possess with the intent to distribute cocaine base, in vio-
lation of 21 U.S.C. § 846 (1994), and possessing with the intent to
distribute cocaine base, in violation of 21 U.S.C.§ 841(a)(1) (1994).
Finding no error, we affirm.
While conducting drug interdictions at the Greyhound bus station
in Charlottesville, Virginia, law enforcement officers Harry Shafer
and Tony Barksdale observed Taylor as she disembarked a bus origi-
nating from New York, New York. Taylor was accompanied by
Macee Passee.
After following Taylor through the bus terminal and up a flight of
stairs leading to the restrooms, Officer Shafer approached Taylor in
the hallway as she was exiting the women's restroom. After advising
Taylor that he was a law enforcement officer, Detective Shafer asked
for and received permission from Taylor to search her carry-on bag
and her person.
As Shafer was conducting a pat-down search of Taylor's person,
he felt a bulge around the sock line of Taylor's right leg. At that point
in time, Taylor stated, "Don't get personal. If you want to search me,
you will have to get a female officer." Officer Shafer stopped the
search and radioed for a female police officer to come assist him.
Officer Barksdale, who was standing nearby, advised Taylor that if
she had drugs she might as well give them up and asked if she minded
lifting her pants leg. She revealed the item from her pants leg, which
ultimately proved to be approximately 38.3 grams of cocaine base.
Taylor was arrested.
Prior to her trial, Taylor moved to suppress the cocaine base alleg-
ing that her arrest was the result of a warrantless search and seizure
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in violation of the Fourth Amendment. During argument on Taylor's
motion, the Government conceded that there was no probable cause
to detain and search Taylor but claimed that she consented to the
search. The district court denied Taylor's motion to suppress the evi-
dence after finding that Taylor voluntarily consented to the search.
Taylor subsequently pleaded guilty to the charges and testified at Pas-
see's trial on the Government's behalf. In her plea agreement, Taylor
reserved for appeal her right to challenge the validity of the search.
Prior to her sentencing, Taylor filed a Motion to Compel Specific
Performance requesting the district court to order the Government to
perform the agreement entered into with her and, if deemed neces-
sary, to conduct an evidentiary hearing. Taylor contended that after
she pleaded guilty, the Government approached her and requested her
assistance in the form of meeting with investigators and providing tes-
timony at Passee's trial. She further alleged that prior to her testimony
at Passee's trial, "[she] was assured that[she] could receive a benefit
for her assistance at her sentencing provided her assistance and testi-
mony was truthful and beneficial" to the Government. She alleged
that after she testified at Passee's trial, the Government promised that
it would recommend a departure from the guideline range in return
for her testimony at Passee's trial. The district court denied Taylor's
motion, and she was sentenced to eighty-seven months imprisonment.
On appeal, Taylor claims that the district court erroneously found
that the search of her person was consensual and, therefore, valid. The
Fourth Amendment prohibits unreasonable searches, and searches
conducted without a warrant are per se unreasonable unless a valid
exception to the warrant requirement is applicable. See United States
v. Elie, 111 F.3d 1135, 1144 (4th Cir. 1997). Voluntary consent to a
search is such an exception. See id. In determining whether a defen-
dant's consent to a search was voluntarily given, the totality of the
circumstances surrounding the consent must be examined. See id. In
evaluating the totality of the circumstances, a court must consider the
characteristics of the accused (such as age, maturity, education, intel-
ligence, and experience) as well as the conditions under which the
consent to the search was given (such as the officer's conduct; the
number of officers present; and the duration, location, and time of the
encounter). See id. Whether a defendant has voluntarily consented to
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a search is a factual determination, and we must affirm the determina-
tion of the district court unless its finding is clearly erroneous. See id.The district court found that Taylor voluntarily gave her consent to
the search. The district court reasoned that "Taylor was controlling
the conditions of the search." The district court further found that her
actions following Officer Barksdale's admonition that if she had
drugs she might as well turn them in did not indicate that her consent
had been withdrawn. We find that the district court's findings were
not clearly erroneous and were supported by the evidence in the
record.
Officer Shafer approached Taylor separately while Officer Barks-
dale was standing approximately ten feet away. Although the officers
were in civilian clothes, Officer Shafer immediately revealed their
identity as police officers and specified their purpose for approaching
Taylor. He asked for and received permission to search her carry-on
bag and her person. When Officer Shafer reached and squeezed
around her ankles, he felt a bulge at her left ankle approximately six
inches long and about an inch and a half in diameter. Based on his
training and experience, he concluded that the bulge was cocaine
base. That Taylor requested a female officer to continue the search
and subsequently extended her left foot out, pulled her pants legs up,
and revealed the drugs after Officer Barksdale encouraged her to give
up the drugs, shows that Taylor was in control of the conditions of
her search. The encounter lasted approximately three minutes, and
Taylor never indicated that she wanted Officer Shafer to stop, that she
wished to leave, or that she did not want to speak with the officers.
Nothing in the record indicates that Taylor withdrew her consent.
Taylor argues that her consent was not voluntary because the officers
failed to inform her of her right to refuse consent. We disagree. It is
well established that the Government need not demonstrate that the
defendant knew of her right to refuse consent to prove that the con-
sent was voluntary. United States v. Lattimore , 87 F.3d 647, 650 (4th
Cir. 1996) (en banc).
Taylor next claims that the district court erred in denying her an
evidentiary hearing on her Motion to Compel Specific Performance.
Specifically, Taylor contends that although the Government promised
to make a recommendation for a departure, it did not do so, and she
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is entitled to an evidentiary hearing to determine whether such a
promise was made and, if so, whether the Government must be com-
pelled to perform as promised. Taylor alleges that prior to her testi-
mony at Passee's trial, she was told that she could receive a lower
sentence provided that her testimony was beneficial to the Govern-
ment. Taylor further alleges that the day after she provided testimony
at Passee's trial, the Government informed her that her testimony was
both truthful and beneficial to the Government and promised her that
it would make a recommendation to the sentencing court to depart
from her guideline range.
We find that the district court did not abuse its discretion in deny-
ing an evidentiary hearing because Taylor did not carry her burden of
making a substantial threshold showing that she was entitled to a sub-
stantial assistance motion. See Wade v. United States, 504 U.S. 181,
186 (1992); see also United States v. Conner, 930 F.2d 1073, 1076
(4th Cir. 1991) (the party alleging a breach had the burden of proving,
by a preponderance of the evidence, that the government breached the
agreement). The district court had no evidence that the Government
had promised to move for a downward departure. The plea agreement
between Taylor and the Government contained no language about a
recommendation for a downward departure in return for substantial
assistance. The plea agreement, however, contained a clause stating
that Taylor "understand[s] that the United States will object to any
departure from the sentencing guidelines." (J.A. at 125.) The agree-
ment further stated that Taylor "ha[s] not been coerced, threatened, or
promised anything other than the terms of this plea agreement . . . in
exchange for [her] plea of guilty." (J.A. at 125.) Thus, the Govern-
ment's failure to move or recommend a sentence reduction for Taylor
"was not a breach of the plea agreement because it contained no such
agreement." United States v. Schuman, 127 F.3d 815, 818 (9th Cir.
1997) (holding that the government did not breach a plea agreement
where the agreement "specifically provide[d] that it embodie[d] the
entire agreement between the parties, written and oral, and that any
modification must be in writing").
At Taylor's plea hearing, the district court satisfied all the require-
ments of Fed. R. Crim. P. 11, and found that Taylor's plea was volun-
tarily and intelligently entered. The court determined what the terms
of the agreement were and that Taylor understood those terms. Fur-
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thermore, she acknowledged at the plea hearing that there were no
other agreements or understandings aside from those contained in the
plea agreement. She further testified at Passee's trial, allegedly after
the Government assured her that she could receive a benefit at her
sentencing if her testimony was truthful and beneficial to the Govern-
ment, that no one had promised her anything or threatened her or tried
to persuade her in any way about testifying. Moreover, on cross-
examination she testified that it was not her understanding that she
could potentially receive a lower sentence in return for her testimony.
She expressly testified that she did not have an"understanding" with
the Government that she would get a reduced sentence for her testi-
mony or a motion for a downward departure based on her substantial
assistance. Therefore, Taylor's claim that she was entitled to an evi-
dentiary hearing to determine whether the Government promised to
make a substantial assistance motion fails.
Accordingly, we affirm Taylor's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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