106 F.3d 392 (4th Cir. 1997), 95-5933, U.S. v. Clay

• Docket Nº: 95-5933.
• Citation: 106 F.3d 392
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. ROy Lee CLAY, Defendant-Appellant.
• Case Date: February 07, 1997
• Court: United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 392

106 F.3d 392 (4th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

ROy Lee CLAY, Defendant-Appellant.

No. 95-5933.

United States Court of Appeals, Fourth Circuit

February 7, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Submitted Jan. 14, 1997.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, District Judge. (CR-92-399-WMN)

Barbara Gold, Baltimore, Maryland; Philip Howard Gold, Ellicott City, MD, for Appellant.

Lynne A. Battaglia, United States Attorney, Richard C. Kay, Assistant United States Attorney, Baltimore, MD, for Appellee.

Before HAMILTON and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

Roy Lee Clay ("Clay") pled guilty to one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1994). On appeal, Clay contends that the district court erred in denying his motion to suppress and that the indictment violated the Double Jeopardy Clause. We affirm. ^[*]

Clay challenges the district court's denial of his motion to suppress evidence on two grounds. We review the district court's legal conclusions in denying the motion to suppress de novo and the court's factual findings for clear error. United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied, 517 U.S. 1239, 64 U.S.L.W. 3807 (U.S. June 3, 1996) (No. 95-8891).

Clay first contends that the district court's factual finding that Kennedy Oratokhai ("Oratokhai") received a shipment of heroin on May 29, 1991, was clearly erroneous. FBI Agent Johnston testified that Oratokhai was under surveillance using PEN registers, clone beepers, and informants. Police had identified two pages from Oratokhai's heroin supplier on May 29--one from Philadelphia and one from Washington, D.C.--suggesting that the supplier had arrived near Oratokhai's residence. It is reasonable to believe, therefore, that the supplier contacted Oratokhai to deliver a shipment of heroin to him. We therefore find that the record contains sufficient evidence to support the district court's finding.

Clay also asserts that officers did not have probable cause to stop and arrest him. Given the totality of the circumstances, see Illinois v. Gates, 462 U.S. 213, 230-31 (1983), however, a...