US v. Gaither

Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Walter L. Jones, Greensboro, North Carolina; Edwin C. Walker, Act-

ing Federal Public Defender, G. Alan DuBois, Assistant Federal Pub-

lic Defender, Raleigh, North Carolina, for Appellants. Walter C.

Holton, Jr., United States Attorney, Robert A. J. Lang, Assistant

United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A jury convicted Wallace Gaither and his twin sister Wallene Gai-

ther of conspiracy to distribute cocaine base. Both Wallace and Wal-

lene appeal their convictions and sentences. We affirm.

Wallace Gaither asserts the district court erred in denying his

motion to suppress cocaine base found in his vehicle after he was

arrested on a civil warrant. We review de novo the legal determina-

tions underlying a decision on a motion suppress. See Ornelas v.

United States, 517 U.S. 690, 691 (1996); see also United States v.

Rusher, 966 F.2d 868, 873 (4th Cir. 1992). It is undisputed the officer

who arrested Wallace had a valid arrest order, and he informed Wal-

lace of this order. After arresting Wallace, the officer properly con-

ducted a search of his vehicle, including the passenger compartment,

incident to the lawful arrest. See New York v. Belton, 453 U.S. 454,

460 (1981) (extending search incident to lawful arrest to search of

passenger compartment of vehicle and any containers within passen-

ger compartment); see also United States v. McCraw, 920 F.2d 224,

228 (4th Cir. 1990) ("Incident to an automobile occupant's lawful

arrest, police may search the passenger compartment of the vehicle

and examine the contents of any containers found within the passen-

ger compartment."). Because the dangers inherent in arrests and not

the particular offense provide the justification for a search incident to

a lawful arrest, we find the search of Wallace's vehicle proper. There-

fore, the district court correctly denied the motion to suppress the

cocaine base seized during the search. See United States v. Robinson,

414 U.S. 218, 234 (1973).

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Wallene Gaither argues the district court violated her right to com-

pulsory process by conducting the hearing on her motion for a new

trial when a witness for whom a subpoena was issued but not served

was not present. We find unpersuasive Wallene's speculative allega-

tions that Latasha Blackwell's failure to appear at the hearing required

the court to continue the hearing sua sponte. Wallene did not request

a continuance based on Blackwell's absence, did not object to pro-

ceeding with the hearing in her absence, and did not unambiguously

argue to the court that Blackwell had repudiated her trial testimony.

Furthermore, Wallene failed to establish she exercised due diligence

in securing Blackwell's attendance. In fact, the district court noted

that the addresses Wallene supplied for service of the subpoena on

Blackwell were incorrect. Accordingly, we find no error.

We therefore affirm the convictions and sentences of Wallace and

Wallene Gaither. We deny Wallace Gaither's pro se motions for an

extension of time to supplement the record and for substitution of

counsel. 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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