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United States v. Brit McCullum, 4th Cir. (2012)
United States v. Brit McCullum, 4th Cir. (2012)
United States v. Brit McCullum, 4th Cir. (2012)
No. 09-5037
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:07-cr-00128-FDW-1)
Submitted:
Decided:
PER CURIAM:
Brit Alonzia McCullum was convicted and sentenced for
possession of a firearm by a felon, possession with intent to
distribute marijuana, and possession of a firearm in furtherance
of a drug trafficking crime.
I.
On January 31, 2007, Officer Van Almen, a member of
the
Charlotte-Mecklenburg
Police
Department
(CMPD),
was
on
Dodge
Ram
pickup
truck
that
had
He began
been
reported
After
Instead,
Eldorado
toward
the
parking
2
lot
exit.
Recalling
report about a stolen Cadillac, Van Almen blocked the exit with
his police cruiser, preventing McCullum from leaving the parking
lot.
When McCullum realized he could not leave the parking
lot
through
the
exit,
he
aggressively
drove
the
Cadillac
in
parking
spaces
and
pulled
the
vehicle
into
the
last
arrest
for
resisting
police
officer.
search
of
parked
was
privately
owned,
and
the
security
guard
banned
Jones,
and
got
permission
to
have
the
Cadillac
towed.
The
searching
the
trunk
compartment,
Van
Almen
from McCullum did not unlock it, and McCullum claimed that he
did not know how to open it.
open
the
glove
box,
that
the
presence
of
the
beam
sight
attachment.
Van
Almen
ultimately
had
the
felon,
in
violation
of
18
U.S.C.
922(g)(1);
(2)
U.S.C.
841(a)(1);
and
(3)
4
possession
of
firearm
in
furtherance
of
drug
trafficking
crime,
in
violation
of
18
The
district
alternative grounds.
had probable cause.
court
denied
the
motion
on
two
McCullums person, the fact that he fled, and the fact that
McCullum was in a high-crime area, along with the background
evidence about the investigation of the stolen pickup truck,
amounted to probable cause to open the trunk of the Cadillac.
Adding the fully loaded, 31-round magazine found in the trunk
compartment to the above list of facts and evidence, according
to the court, gave Van Almen probable cause to then forcibly
open the glove box.
that
the
items
recovered
from
the
Cadillac
would
have
been
the
McCullum
as
presentence
a
career
offender
(PSR)
based
on
classification
three
prior
of
drug
consecutive
120-month
sentences.
On
appeal,
McCullum
We
II.
We turn first to McCullums challenge to the denial of
his suppression motion.
United States
the
evidence
in
the
light
most
[W]e must
favorable
to
the
States
v.
Lewis,
606
F.3d
193,
197
(4th
Cir.
2010)
We may affirm
the
exclusionary
rule
provides
that
Under
the
rule,
inevitable
however,
discovery
evidence
that
exception
is
to
illegally
6
the
exclusionary
seized
is
nonetheless
as
the
basis
for
the
admission
the
search
must
have
standardized
criteria,
such
policy,
performed
in
Matthews,
and
591
F.3d
230,
evidence
under
the
as
good
235
of
conducted
uniform
faith.
(4th
Cir.
according
to
police
department
United
States
v.
(alteration
in
2009)
that
CMPD
has
policy
conducting
an
inventory
search on every vehicle that it has towed and that the inventory
searches include a search of all compartments that might contain
an item of value.
according
to
the
is
to
document
items
of
value
to
search
contraband).
elsewhere
in
the
vehicle
for
additional
included every part of the vehicle and its contents that may
[have] conceal[ed] the object of the search.
Ross, 456 U.S. 798, 825 (1982).
United States v.
a gun, the glove box of the Cadillac was obviously within the
scope of the warrantless probable cause search.
the glove box was locked would not prevent us from upholding the
lawfulness of its search.
can
search
for
it
even
if
it
is
in
locked
United
States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986); see also
Ross, 456 U.S. at 823 (The scope of a warrantless search based
on probable cause is no narrower . . . than the scope of a
8
III.
McCullum
the
district
also
court
challenges
improperly
his
sentence,
characterized
arguing
him
as
that
career
qualifies
as
prior
felony
conviction
under
the
at
least
eighteen
years
old
at
the
time
the
defendant
4B1.1(a).
For
the
purposes
of
4B1.1(a),
U.S.S.G.
controlled
Id.
4B1.2(b).
The PSR categorized three prior North Carolina drug
offenses
as
predicate
offenses
for
the
career
offender
1998
suspended
offense;
6-8
month
sentence
for
the
1999
Based on
However, even if it
impose
sentence
below
maximum
level,
which
is
offenses
by
the
district
courtthe
1999
delivery
offenses
because,
cannot
based
on
his
serve
as
predicate
He contends that
criminal
history,
offenses
he
for
could
him
not
have
Therefore, he
under
4B1.2(b),
and
the
district
court
erred
by
the
time
of
sentencing
this
individualized
Carolina
conviction
in
approach,
was
for
this
case,
holding
that
crime
we
a
had
prior
punishable
by
After
under
North
Carolinas
structured
sentencing
scheme,
an
letter
pursuant
to
submitted
Rule
28(j)
11
to
of
this
the
court
Federal
after
Rules
oral
of
Appellate
sentences
Procedure,
should
the
be
government
vacated
and
conceded
the
that
case
McCullums
remanded
McCullums
for
We
sentences
and
remand
the
case
for
resentencing.
IV.
For
convictions,
the
vacate
foregoing
his
reasons,
sentences,
and
we
affirm
remand
the
McCullums
case
for
resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
12