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United States v. Smiley, 02-4464 (2003)

Court: Court of Appeals for the Fourth Circuit Number: 02-4464 Visitors: 10
Filed: May 20, 2003
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 02-4464 DONALD EUGENE SMILEY, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (CR-01-213) Submitted: May 8, 2003 Decided: May 20, 2003 Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Brian Gay, THE B & G LAW GROUP,
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                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 02-4464
DONALD EUGENE SMILEY,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
               Rebecca Beach Smith, District Judge.
                           (CR-01-213)

                      Submitted: May 8, 2003

                      Decided: May 20, 2003

   Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Brian Gay, THE B & G LAW GROUP, P.C., Virginia Beach, Vir-
ginia, for Appellant. Paul J. McNulty, United States Attorney, James
Ashford Metcalfe, Assistant United States Attorney, Norfolk, Vir-
ginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. SMILEY
                              OPINION

PER CURIAM:

   Donald E. Smiley pled guilty to possession of a firearm and ammu-
nition by a convicted felon, 18 U.S.C. § 922(g)(1) (2000). He filed a
motion to suppress the gun found in a locked box in the closet of his
locked office in his home. The district court denied the motion, and
Smiley entered a conditional guilty plea, reserving the right to chal-
lenge the denial of the motion. On appeal, Smiley asserts two errors
in the denial of his motion to suppress evidence acquired pursuant to
a consent search and contends that the district court erred in accepting
his guilty plea in the face of insufficient evidence that he possessed
the firearm. Finding no error, we affirm.

   Smiley asserts that the district court erred in its factual determina-
tion that the officers offered credible testimony and the testimony by
Smiley, his wife, and a friend was less credible. The district court’s
factual findings regarding the credibility of witnesses are reviewed for
clear error and accorded great deference on appeal. See United States
v. Murray, 
65 F.3d 1161
, 1169 (4th Cir. 1995). We have reviewed the
transcript of the suppression hearing and find that the district court’s
credibility findings were not clearly erroneous.

   Next, Smiley asserts that his wife’s verbal consent to search his
locked office and closet and his written permission to search the
locked office and closet did not extend to the locked box that con-
tained the firearm. We review the factual findings underlying a
motion to suppress for clear error, while the legal determinations are
reviewed de novo. See United States v. Rusher, 
966 F.2d 868
, 873
(4th Cir. 1992). The scope of a consent to search is determined by
considering the interchange between the law enforcement officer and
the suspect and by applying a test of "objective reasonableness" to
ascertain the usual meaning of what was said. Also of importance in
defining the scope of a search is its object, as a general consent autho-
rizes the search of any area that may contain the object of the search.
See Florida v. Jimeno, 
500 U.S. 248
, 250-51 (1991). In giving con-
sent, a suspect may limit the scope of that consent, but if officers
receive a general consent to search a particular place, they are not
required to repeatedly return for consent as to specific containers
                        UNITED STATES v. SMILEY                         3
found in that place. Id. at 252; see also Walter v. United States, 
447 U.S. 649
, 656 (1980) (stating that, in a search properly authorized by
consent or warrant, "the scope of the search is limited by the terms
of its authorization").

   The district court found that Smiley gave written consent to a
search of his locked office and the closet therein. The district court
also found that Mrs. Smiley consented on two occasions to a search
of the locked office and the closet. Smiley additionally described to
the officers the location of the gun in the closet prior to the search and
in conjunction with signing the written waiver. The Smileys did not
limit the permissible scope of that search. Accordingly, we conclude
that Smiley’s consent extended to the locked box where officers
found the gun.

   Finally, Smiley asserts that the court erred in accepting his guilty
plea because he had neither actual nor constructive possession of the
gun recovered from the closet. Smiley pled guilty to the indictment,
and he does not challenge the validity of his guilty plea. Smiley’s
guilty plea precludes a challenge to the sufficiency of the evidence.
See United States v. Willis, 
992 F.2d 489
, 490-91 (4th Cir. 1993).
Consequently, we decline to consider the merits of this claim.

   Accordingly, we conclude that the district court’s denial of the
motion to suppress was not clear error. We therefore affirm the crimi-
nal judgment. We deny Smiley’s motion to consolidate this appeal
with No. 03-6344 and to relieve his attorney. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                                             AFFIRMED

Source:  CourtListener

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