United States v. Shaw , 343 F. App'x 936 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4642
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOBARD MARK SHAW, a/k/a Boo,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00086-1)
Submitted: August 28, 2009 Decided: September 10, 2009
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Jobard Mark Shaw was convicted on
two counts of distribution of cocaine base (“crack”) and one
count of possession with intent to distribute five grams or more
of crack, all in violation of 21 U.S.C. § 841(a)(1) (2006). The
district court sentenced Shaw to 120 months in prison. Shaw
appeals.
The district court adopted the magistrate judge’s
recommendation to deny Shaw’s motion to suppress evidence. Shaw
asserts on appeal that the district court erred by denying his
motion to suppress. We first note that, by failing to object to
the magistrate judge’s report and recommendation, Shaw waived
appellate review of this issue. United States v. Midgette, 478
F.3d 616, 621-22 (4th Cir. 2007). In any event, Shaw’s
challenge to the motion to suppress is meritless.
Shaw asserts that the district court erred in denying his
motion to suppress, citing State v. Mullens, 650 S.E.2d 169, 190
(W. Va. 2007), which held that the West Virginia State
Constitution prohibits the police from sending an informant into
the home of another person to surreptitiously use an electronic
surveillance device without a warrant. However, whether or not
a seizure violates state law is irrelevant to the determination
of a motion to suppress in federal court. United States v. Van
Metre, 150 F.3d 339, 347 (4th Cir. 1998). Moreover, federal
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statutory and constitutional law permits officials to place an
electronic surveillance device on a consenting informant for the
purpose of recording communications with a third-party suspect,
even in the absence of a warrant. 18 U.S.C. § 2511(2)(c)
(2006); see also United States v. White, 401 U.S. 745, 749
(1971) (plurality opinion) (holding that no warrant is required
when “secret agent” working for the Government purchases
narcotics from the accused and records the exchange).
Based on the foregoing, we affirm Shaw’s convictions. We
dispense 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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