Filed: May 06, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4143 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN C. THOMPKINS, JR., a/k/a Benjamin Thompkins, a/k/a Benjie, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00339-REP-1) Submitted: April 16, 2010 Decided: May 6, 2010 Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4143 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN C. THOMPKINS, JR., a/k/a Benjamin Thompkins, a/k/a Benjie, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00339-REP-1) Submitted: April 16, 2010 Decided: May 6, 2010 Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. A..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4143
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN C. THOMPKINS, JR., a/k/a Benjamin Thompkins, a/k/a
Benjie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00339-REP-1)
Submitted: April 16, 2010 Decided: May 6, 2010
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur,
Georgia, for Appellant. Dana J. Boente, United States Attorney,
Angela Mastandrea-Miller, Jessica A. Brumberg, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin C. Thompkins, Jr., was convicted of
possession with intent to distribute fifty grams or more of
cocaine base, 21 U.S.C. § 841(a) (2006) (Count One); possession
of a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c) (2006) (Count Two); possession of a firearm and
ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (2006)
(Count Three); and manufacturing and possessing with intent to
distribute marijuana, 21 U.S.C. § 841 (2006) (Count Four). He
received an aggregate sentence of 300 months in prison.
Thompkins now appeals his convictions. We affirm.
I
Prior to trial, Thompkins moved to suppress evidence
seized from his residence pursuant to a search warrant. The
court determined that the affidavit supporting the search
warrant established probable cause and that, even if it did not,
the good faith exception to the warrant requirement applied.
Thompkins contends on appeal that these rulings were in error.
“In assessing a trial court’s decision on a motion to
suppress, we review the court’s factual findings for clear error
and its legal determinations de novo.” United States v. Day,
591 F.3d 679, 682 (4th Cir. 2010). We view the evidence in the
light most favorable to the Government, the prevailing party
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below. See United States v. Matthews, 591 F.3d 230, 234 (4th
Cir. 2009).
The Fourth Amendment prohibits “unreasonable searches
and seizures.” U.S. const. amend. IV. Further, “no warrants
shall issue, but upon probable cause supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” Id. The
magistrate’s task in deciding whether to issue a search warrant
“is simply to make a practical, common-sense decision,” based on
the totality of the circumstances, whether “there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates,
462 U.S. 213, 238
(1983).
In reviewing the validity of a search warrant, “the
duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for . . . conclud[ing] that
probable cause existed.” Id. (internal quotation marks
omitted). The magistrate’s probable cause determination is
entitled to “great deference.” United States v. Chandia,
514
F.3d 365, 373 (4th Cir. 2008).
Here, the district court properly denied the
suppression motion based on its determination that the affidavit
contained enough information to establish probable cause that
evidence of marijuana cultivation would be found at Thompkins’
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residence. DEA Special Agent Bertsch, who had extensive
experience investigating drug trafficking, applied for the
warrant. In his affidavit, he recited that a confidential
informant, who had provided reliable information in previous
investigations, had reported that “BJ” had made six calls to a
hydroponics store, requesting prices for products typically used
to cultivate marijuana. The calls came from 13011 Five Forks
Road, Benjamin Thompkins’ residence. Thompkins had previously
been served a summons at that address in connection with a
cocaine investigation. BJ had also visited the hydroponics
store and purchased products commonly used to cultivate
marijuana.
The affidavit further stated that Thompkins’ residence
had used an average of 3008 kilowatt hours of power during each
billing cycle between December 2007 and May 2008. During the
same time period, a significantly larger neighboring residence
had used an average of 2092 kilowatt hours per cycle, and a
comparably sized residence had used an average of 1190 kilowatt
hours per cycle. Agent Bertsch stated that, in his experience,
this unusually large consumption of electricity was consistent
with the interior cultivation of marijuana. Additionally,
Thompkins’ girlfriend had inquired about how to reset a digital
timer of the sort that is often used in the cultivation of
marijuana. Finally, employment records showed that Thompkins
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had no reported income since 2003, and Agent Bertsch stated that
drug dealers typically do not report illegal income. Based on
the totality of the circumstances, we conclude that there was a
substantial basis for the magistrate judge’s finding of probable
cause.
Even if the affidavit did not establish probable
cause, rendering the warrant deficient, the good faith exception
to the warrant requirement would apply in this case, as the
district court found. In United States v. Leon, 468 U.S. 897
(1984), the Supreme Court held that evidence obtained from
execution of a defective search warrant is admissible under this
exception if the officer’s reliance on the warrant was
objectively reasonable.
Id. at 922-23. Leon identified four
situations in which an officer’s reliance on a warrant could not
be objectively reasonable, including where the affidavit
supporting the warrant is “so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable.”
Id. at 923. Although Thompkins contends that
his case falls within this exception, characterizing the
affidavit as “bare bones,” we disagree. To the contrary, the
affidavit is replete with facts obtained from numerous sources,
including: a reliable confidential informant; official
telephone, power company, sheriff’s department, and Virginia
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Employment Commission records; and Agent Bertsch’s own extensive
experience investigating similar offenses.
II
The affidavit supporting the warrant referred to
information gleaned from power use records subpoenaed from
Dominion Virginia Power (Dominion). The day before trial was
scheduled to begin, Thompkins requested a continuance so that he
could ascertain whether a subpoena in fact was served on
Dominion as represented in the affidavit. He stated that
Dominion had not produced certain documents requested in a
subpoena duces tecum that had recently been served on Dominion’s
registered agent. Those documents, he contended, would tend to
establish whether the affidavit had been falsified.
During a hearing on the motion, the Assistant United
States Attorney informed the court that the Drug Enforcement
Agency had issued administrative subpoenas to Dominion for the
three residences identified in the affidavit. All records
received pursuant to that request were provided to the defense,
as were copies of the subpoenas. Thompkins’ attorney
acknowledged having received both the records and the copies of
the subpoenas. However, he told the court that someone in
Dominion’s legal department had informed him that a computer
search turned up no record of Dominion’s having received any
6
subpoena or having provided the records in question. Thus,
counsel questioned whether the records had been deliberately
falsified and whether, as a result, the affidavit was valid.
The district court denied the motion for a
continuance, finding there was no valid reason to support the
motion. Counsel renewed the motion at trial the next day, and
the court again denied it. Thompkins now questions the
propriety of the court’s ruling.
We review the denial of a motion for a continuance for
abuse of discretion. United States v. Williams, 445 F.3d 724,
739 (4th Cir. 2006) “[E]ven if such an abuse is found, the
defendant must show that the error specifically prejudiced [his]
case in order to prevail.”
Id. After reviewing the record, we
conclude that Thompkins failed to make the specific showing
required. Most notably, he has not demonstrated that the power
usage records in question were erroneous.
III
Thompkins contends that counsel was ineffective
because he did not move for reconsideration of the denial of the
motion to suppress or move for a new trial based on the power
records issue. He further suggests that counsel was ineffective
for failing to file a motion for a Franks v. Delaware, 438 U.S.
134 (1978), hearing on that issue.
7
“Claims of ineffective assistance of counsel are
normally raised before the district court via 28 [U.S.C.A.]
§ 2255 [West Supp. 2009] and are cognizable on direct appeal
only where it conclusively appears on the record that defense
counsel did not provide effective representation.” United
States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007); see United
States v. King,
119 F.3d 290, 295 (4th Cir. 1997). Because
ineffective assistance does not conclusively appear on the
record, we decline to address this claim.
IV
We therefore affirm. 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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