U.S. v. Holmes

Decision Date21 July 2004
Docket NumberNo. 02-4871.,02-4871.
Citation376 F.3d 270
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Benjamin Nelson HOLMES, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the District of South Carolina, C. Weston Houck, J ARGUED: Joshua Snow Kendrick, DEBRA CHAPMAN, P.A., Columbia, South Carolina, for Appellant.

Thomas Ernest Booth, Criminal Division, Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

ON BRIEF: Debra Y. Chapman, Columbia, South Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attorney, Columbia, South Carolina, Alfred W. Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.

OPINION

LUTTIG, Circuit Judge:

Appellant, Benjamin Holmes, was convicted by a jury on two felony counts of being a felon in possession of a weapon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The evidence at trial demonstrated that Holmes, who had prior felony convictions, unlawfully possessed a firearm on two separate dates in 2000. Holmes' primary claim on appeal is that the district court erred in concluding that, under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the January 2000 protective search of his vehicle for weapons was reasonable under the Fourth Amendment and, as a consequence, in denying his motion to suppress the pistol and corresponding ammunition that the search uncovered. We affirm.

I.
A.

In the late 1990s, South Carolina Law Enforcement Division ("SLED") agents were investigating a series of armed robberies of drug dealers in the state. Informants had provided SLED agents with the aliases for at least three of the suspected robbers: "Six," "Troop," and "Turbo," and warrants were issued for their arrest. SLED had correctly identified Leroy Blanding as "Turbo" and Terry Pressly as "Troop," but incorrectly believed that Calvin Pearson was "Six." In reality, Pearson went by the name of "Slim"; "Six" was actually the appellant, Holmes. Consistent with this mistaken identification, the warrant for Pearson's arrest listed crimes that Holmes, the real "Six," was believed to have committed. Based on their past activities, "Six," "Troop," and "Turbo" were "definitely considered to be armed and dangerous." J.A. 91.

Because of the risk that the men could present to officers who were unaware of their backgrounds, in late 1999 or early 2000 SLED agents put together a packet on the men for distribution to local police departments to inform local officers that these men were armed and possibly dangerous and to aid in their identification. The packet focused on the three men for whom SLED believed they knew real identities ("Six," "Troop," and "Turbo"), but also advised that there were others in their gang whom the informants could not identify. The packet included outstanding warrants, criminal histories, street names, and pictures, of all three men, and cautioned that when approached, the men might be armed and dangerous. Holmes was not named in the packet.

In addition to distributing the packet, SLED agents also discussed the robberies, in person, with local departments, including the Myrtle Beach police department. During these discussions, SLED agents not only verbally related the information already in the packet, but also related the additional facts that the men were known to travel in a green Lincoln Navigator and, when in Myrtle Beach, were known to associate with Timothy Gadsen — a local drug dealer who "liked to carry guns [and was] known to be bad." J.A. 56.

B.

The first of Holmes' two felon-in-possession convictions stemmed from the events of January 21, 2000. On that date, a confidential informant told Myrtle Beach police that "Six," "Troop," and "Gadsen" had arrived at a local apartment complex in a dark-green Navigator. Officer Starr of the Myrtle Beach police had received reliable information from this informant in the past, and SLED Agent Knowles also credited the informant's tip because of the connection between Gadsen and the gang.

Local and state officers in the area conferred and decided to set up surveillance of the apartment, which soon corroborated the Navigator's presence. The officers wanted to try to execute the arrest warrants for Pearson and Pressly (i.e., "Six" and "Troop," respectively) but, believing that an arrest at the apartment complex would be too dangerous, decided to stop them in the Navigator once the men chose to leave. Hours later (around 10:00 p.m.), officers finally observed two men (later discovered to be Holmes and Nathan Singleton) take off in the Navigator. But because it was "pretty dark" outside, the officers could not make out individual faces. J.A. 87. The darkness also prevented the officers from seeing that a third person, Gadsen, had also left in the Navigator. Officers followed the car to the Jet Age Cafe, a local nightclub, where the two men briefly went inside. Again, the officers did not see Gadsen exit the Navigator.

Holmes and Singleton eventually left the cafe, leaving (unbeknownst to the officers) Gadsen behind, and drove away in the Navigator. Five or six police cruisers followed and, shortly thereafter, stopped the SUV. When confronting the SUV and its occupants, the officers used "felony stop" tactics, which are designed to protect the officers and the public in situations where officers believe that a vehicle's passengers may be armed and dangerous. Following these tactics, Corporal Hull first ordered the vehicle's occupants to throw the car keys out the window and to exit the vehicle through the driver's side doors. After Holmes and Singleton stepped out, Hull then directed them to back away, one after the other, from the vehicle with their hands above their heads. Eventually, the two men were handcuffed behind their backs, frisked, and secured in caged, locked patrol cars, at least twenty feet away from the Navigator.

As soon as the suspects were secured, officers approached the Navigator to determine whether there were any weapons or other persons hidden inside. Officer Starr conducted a protective search of the Navigator's passenger compartment, during which he found a "rare" 9mm Daewoo pistol in the center console and corresponding ammunition in the glove compartment, both of which he seized. The search was completed no more than two minutes after the suspects were placed in the cruiser.

After discovering this evidence, the officers obtained the suspects' identification, which they then checked through the National Crime Information Center ("NCIC"). It is unclear how long the identification process took in this case, but testimony at the suppression hearing established that such searches normally take 5-15 minutes to complete. Eventually, the officers concluded that neither Pearson nor Pressly was among the suspects in custody, whom the officers confirmed were actually Holmes and Singleton.

The NCIC check failed to turn up any outstanding arrest warrants for either man, but did indicate that Holmes was a prior felon. While Singleton was released, the officers arrested Holmes for unlawfully possessing the Daewoo.

The second of Holmes' convictions was based on the events of July 10, 2001, after an officer noticed Holmes sitting in his Navigator in front of a convenience store, and attempted to arrest him. After a short chase, Holmes abandoned the Navigator and fled on foot. The Navigator was impounded and, days later during an inventory search of the vehicle, police found a stolen Keltec 9mm pistol under the driver's seat.

C.

Prior to trial, Holmes moved to suppress the evidence seized during the January 2000 encounter as the product of an illegal search. The district court held a hearing on the motion in which it heard extensive testimony from several of the officers involved in that encounter, but ultimately denied the motion. The case then went to trial, where the jury convicted Holmes on both counts. As a career offender with at least three convictions for violent felonies or serious drug offenses, Holmes was sentenced to 260 months in prison.

II.

In reviewing Holmes' challenge to the district court's denial of his motion to suppress, we "review[ ] questions of law de novo and findings of [historical] fact and reasonable inferences drawn from those findings for clear error." United States v. Hill, 322 F.3d 301, 304 (4th Cir.2003) (citation omitted). Absent clear error, and to the extent consistent with the district court's findings and credibility determinations, we construe the evidence adduced at the suppression hearing in the light most favorable to the government. See United States v. Perkins, 363 F.3d 317, 320 (4th Cir.2004). As explained below, the district court did not err in denying the motion to suppress.1

A.

The primary basis for the district court's ruling was its finding that the officers who were present during the January 2000 protective search of Holmes' SUV possessed a reasonable belief that Holmes and his passenger may have been dangerous and could have "gained immediate control of the weapons" inside the Navigator, within the intendment of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). See id. at 1049, 103 S.Ct. 3469. The court supported that conclusion with specific findings regarding the facts that "one of the officers who stopped [Holmes] and his vehicle and subsequently" searched it "would believe existed at the time and place in question." J.A. 112.

Those findings, and where specific findings are lacking, the relevant testimony from the suppression hearing, show the following. Based on the tip from the confidential informant, the officers reasonably believed that "Six" was in the Navigator...

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