UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4404

DON VINCENT SIMMONS,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Patrick Michael Duffy, District Judge.

(CR-98-601)

Argued: June 6, 2002

Decided: August 16, 2002

Before MOTZ and TRAXLER, Circuit Judges, and

Claude M. HILTON, Chief United States District Judge

for the Eastern District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: John Robert Haley, Assistant Federal Public Defender,

Charleston, South Carolina, for Appellant. Sean Kittrell, Assistant

United States Attorney, Charleston, South Carolina, for Appellee. ON

BRIEF: J. Strom Thurmond, Jr., United States Attorney, Charleston,

South Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Don Vincent Simmons was convicted by a jury of possession of a

firearm by a convicted felon, possession with intent to distribute an

unspecified amount of cocaine base, use of a firearm in relation to a

drug trafficking crime, and aiding and abetting the making of a false

statement in connection with the purchase of a firearm. Simmons’ primary contention on appeal is that the district court erroneously denied

his motion to suppress the firearm and other evidence seized pursuant

to a search warrant that Simmons argues was invalid. We affirm. 

I.

The police department in Charleston, South Carolina, was informed

that an apartment building at 67 Nunan Street was being used to sell

drugs. The police used an undercover confidential informant to make

a drug purchase inside the apartment building on April 2, 1997. During the undercover buy, the confidential informant saw firearms

inside the building and heard people there indicate they were prepared

to use violence against officers. 

After the buy, police continued surveillance on the building and

observed activity that was consistent with drug trafficking. On April

22, a second undercover buy was made. 

On April 24, police obtained a search warrant for 67B Nunan

Street. It was based on the following affidavit:

[D]uring the past seventy-two hours, a Confidential Informant (CI) for Charleston Police Department has been inside

the residence at 67B Nunan Street which is in the city and

County of Charleston S.C. and purchased a quantity of a

white rock like substance weighing approximately .2 grams

2 UNITED STATES v. SIMMONS
and having a street value of $20.00. The white rock like substance was field tested positive as crack cocaine by Investigator Sanders. The purchase of the crack cocaine was made

inside the residence from an unidentified black male subject.

The Confidential Informant was searched prior to and after

the transaction for illegal contraband with negative results

by Officer Landess. The Confidential Informant was

observed entering and leaving the residence by Investigators

Sanders and Durham who had a clear and unobstructed

view. Based on the above facts, there is probable cause to

believe that there is crack cocaine stored inside the residence at 67 Nunan Street. 

The search warrant, dated April 24, 1997, was issued by a state

magistrate judge and was valid for ten days from the date of issuance.

Before executing the search warrant, officers continued to observe

activity at the apartment building that appeared to be consistent with

drug trafficking. The officers also decided that there was a high risk

of danger because of the possibility that firearms would be present,

and waited to serve the warrant until the SWAT team could assist

them. The search warrant was executed on May 2, eight days after it

was issued. Just before executing the search warrant, the officers

again watched the apartment building and believed that the amount of

people coming and going was consistent with a crack house operation. 

The search warrant described the premises to be searched as follows:

The residence known as 67-B Nunan Street is located in the

city and county of Charleston S.C. The residence known as

67 Nunan Street is a two story wooden dwelling white in

color with blue trim around the doors and windows. . . .

Apartment B will be located on the second floor of the residence. . . . 

Actually, Apartment B was on the bottom floor. There were 4 units

— apartments A and B on the bottom and apartments C and D on the

top. Apartments C and D have a common landing. Only apartment B

was rented at the time of the raid. Apartments C and D upstairs had

UNITED STATES v. SIMMONS 3
no legal occupants at the time. SWAT teams entered both of the

upstairs units during the raid despite the fact that apartment B, the

only apartment specified in the warrant, was downstairs. 

On the ground, Officer Charap was watching the upstairs windows

of apartment D and saw an arm with a gold bracelet holding a gun

and moving as if to target officers below. Charap fired a round toward

the person with the gun. Almost immediately, SWAT team members

saw defendant Don Simmons running out of apartment D and arrested

him as he was going down the stairs. Officers later found a 9 mm pistol in a bathroom sink in apartment D. In the other upstairs apartment

— apartment C — officers recovered drug paraphernalia and a small

amount of crack cocaine. 

Evidence at trial showed that Simmons was selling crack out of the

67 Nunan Street apartment building. One of Simmons’ customers was

hiding in a bathroom in apartment D during the SWAT raid, saw Simmons enter the bathroom, and heard the sound of something metal hitting the sink. She had also seen Simmons with a gun earlier. 

Prior to trial, Simmons moved to suppress the evidence seized by

police officers during the raid. Simmons argued primarily that the

probable cause supporting the warrant had become stale at the time

of the search because the warrant was not executed until eight days

after it was issued and twelve days after the drug purchase alleged in

the supporting affidavit. The district court rejected the argument on

the merits but also concluded that, in any event, Simmons had no

standing to challenge the search. 

Simmons was convicted of being a felon in possession of a firearm,

see 18 U.S.C.A. § 922(g)(1) (West 2000); possession with intent to

distribute an unspecified amount of crack, see 21 U.S.C.A.

§ 841(a)(1); use of a firearm in relation to a drug trafficking crime,

see 18 U.S.C.A. § 924(c) (West 2000); and aiding and abetting the

making of a false statement in connection with the purchase of a firearm, see 18 U.S.C.A. §§ 922(a)(6), 924(a)(2) (West 2000); 18

U.S.C.A. § 2 (West 2000). 

II.

Simmons contends that the district court erroneously failed to suppress the evidence seized in the search of the 67 Nunan Street apart4 UNITED STATES v. SIMMONS
ment building. He makes essentially the same argument he made in

district court — that the warrant was invalid because the probable

cause on which it was based had become stale at the time of the

search. We agree with the district court that Simmons lacked standing

to challenge the search. 

The Fourth Amendment "generally prohibits the warrantless entry

of a person’s home, whether to make an arrest or to search for specific

objects." Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); see Katz v.

United States, 389 U.S. 347, 357 (1967) (explaining that searches

conducted without a warrant and in the absence of an exception to the

warrant requirement "are per se unreasonable"). The Fourth Amendment "protects persons against unreasonable searches of ‘their persons [and] houses’ and thus indicates that the Fourth Amendment is

a personal right that must be invoked by an individual." Minnesota v.

Carter, 525 U.S. 83, 88 (1998). The Supreme Court has instructed

that the "capacity to claim the protection of the Fourth Amendment

depends . . . upon whether the person who claims the protection of

the Amendment has a legitimate expectation of privacy in the invaded

place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). Therefore,

"searches and seizures conducted in the absence of . . . a [valid] warrant are impermissible only if the officer encroaches upon a legitimate

expectation of privacy." Doe v. Broderick, 225 F.3d 440, 450 (4th Cir.

2000); see California v. Greenwood, 486 U.S. 35, 39 (1988). Accordingly, a defendant desiring to suppress evidence on the basis of an

unreasonable search bears the burden of "show[ing] that he has a

legitimate expectation of privacy in the area searched." United States

v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997). There is a legitimate

expectation of privacy "when the individual seeking Fourth Amendment protection maintains a ‘subjective expectation of privacy’ in the

area searched that ‘society [is] willing to recognize . . . as reasonable.’" Doe, 225 F.3d at 450 (quoting California v. Ciraolo, 476 U.S.

207, 211 (1986)). 

In appropriate circumstances, an overnight guest may maintain a

legitimate privacy interest in another person’s residence: 

To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the

everyday expectations of privacy that we all share. . . . 

UNITED STATES v. SIMMONS 5
From the overnight guest’s perspective, he seeks shelter

in another’s home precisely because it provides him with

privacy, a place where he and his possessions will not be

disturbed by anyone but his host and those his host allows

inside. We are at our most vulnerable when we are asleep

because we cannot monitor our own safety or the security

of our belongings. It is for this reason that, although we may

spend all day in public places, when we cannot sleep in our

own home we seek out another private place to sleep,

whether it be a hotel room, or the home of a friend. 

Minnesota v. Olson, 495 U.S. 91, 98-99 (1990). 

According to Simmons, he was staying in the upstairs apartment

with the permission of his former girlfriend Leslie Bolton, who was

renting the apartment at his direction. In essence, Simmons claims

that he may challenge the search because he was living in the apartment with the permission of the lessor. See id.; see also Carter, 525

U.S. at 90 ("[A]n overnight guest in a home may claim the protection

of the Fourth Amendment, but one who is merely present with the

consent of the householder may not."). The district court, however,

concluded that to the extent that Simmons was living in the apartment

searched by police, he was living there illegally. We review the factual determinations of the district court for clear error. See Kitchens,

114 F.3d at 31. 

The apartment identified in the search warrant, 67B Nunan Street,

was part of the four-unit apartment building located at 67 Nunan

Street. Apartments A and B were located on the bottom floor, and

apartments C and D were located on the upper floor. According to the

lease agreement, a person named Shenita Whitfield leased the downstairs apartment B. Leslie Bolton testified that, at the urging of Simmons, she had entered into the lease agreement under the name

Shenita Whitfield. Leslie Bolton indicated that Simmons instructed

her to rent the same apartment that her mother, Emily Bolton, had

previously rented at 67 Nunan Street, and Bolton recalled that it was

an upstairs apartment. Simmons gave the money to Bolton to pay the

rent. 

Simmons contends that the apartment number listed on the lease

agreement, 67B Nunan Street, was a typo and that the landlord had

6 UNITED STATES v. SIMMONS
intended to rent 67D Nunan Street — one of the upstairs units that the

police entered. To support his argument that Bolton actually rented

apartment D, Simmons points to the fact that the government

acknowledged that apartment D was the only apartment that appeared

to be occupied at the time of the raid and that Bolton remembered

renting an upstairs apartment. 

The district court rejected the theory that the lease contained a

typo. The conclusion of the district court that apartment B, not apartment D, had indeed been rented by Bolton was consistent with

records maintained by South Carolina Electric & Gas Company

(SCE&G) showing that only apartment B on the bottom floor was

supplied with electrical power. SCE&G listed Emily Bolton, Leslie’s

mother, as its customer. Also, during the suppression hearing, counsel

for Simmons acknowledged that Simmons "may [have] be[en] ripping

off SCE&G for electricity." J.A. 206. Ultimately, the district court

agreed with the government’s contention that apartment B was originally rented by Emily Bolton and later by her daughter Leslie under

the name Shenita Whitfield. The court agreed that "at some point, Mr.

Simmons move[d] upstairs . . . to sell [crack] . . . in a more secure

location." J.A. 208. The court observed that "obviously the [upstairs]

apartments were not being rented. Whenever they ceased being

rented, [Simmons] just expanded into it for illegal activity." J.A. 212.

The district court concluded that Simmons’ girlfriend had not rented

either of the upstairs apartments and, therefore, that Simmons was

occupying those premises illegally. Because this factual determination

was not clearly erroneous, we affirm the district court’s ruling that

Simmons did not have a sufficiently legitimate expectation of privacy

in the premises to contest the search of the two upstairs apartments

or exclude what was recovered in the search. 

III.

Simmons also argues that the district court improperly admitted

evidence regarding prior convictions for distribution of crack cocaine,

prior drug purchases from Simmons in 1991, and previous occasions

on which Simmons directed Leslie Bolton to purchase guns on his

behalf. Simmons contends that the evidence failed to meet the

requirements for admissibility under Rule 404(b) of the Federal Rules

of Evidence. Under Rule 404(b), evidence of other bad acts may be

UNITED STATES v. SIMMONS 7
admitted to prove "a material issue other than character." Huddleston

v. United States, 485 U.S. 681, 686 (1988). Such evidence is admissible to demonstrate "motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident." Fed. R. Evid.

404(b). However, such evidence must also be necessary and reliable

to be admissible. See United States v. Mark, 943 F.2d 444, 447 (4th

Cir. 1991). 

In our view, the district court properly admitted this evidence. This

circuit "subscribe[s] to the view of [Rule 404(b)] as an inclusionary

rule which admits all evidence of other crimes relevant to an issue in

a trial except that which tends to prove only criminal disposition." Id.

(internal quotation marks omitted). This evidence was relevant to the

issues at trial and otherwise met the requirements for admission.

However, we need not reach the merits of Simmons’ argument

because any error in the admission of this evidence was harmless. See

Fed. R. Crim. P. 52(a). We will find an evidentiary ruling harmless

if we are able to conclude "without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by

the error." Kotteakos v. United States, 328 U.S. 750, 765 (1946); see

United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). We conclude that, even if the district court admitted the Rule 404(b) evidence

in error, the error did not substantially affect Simmons’ convictions

for possession of a firearm by a convicted felon, possession with

intent to distribute crack cocaine, use of a firearm in relation to a drug

trafficking crime, and aiding and abetting the making of a false statement in connection with the purchase of a firearm. The government

presented testimony from Abram and Norma Reese that they had been

buying crack cocaine from Simmons for approximately one month

and that on May 2, 1997, the day police raided 67 Nunan Street and

arrested Simmons, they had purchased crack from Simmons. Moreover, the Reeses testified that on May 2, they saw Simmons in possession of a gun. Norma Reese was hiding in a bathroom in upstairs

apartment D when the police entered. She saw Simmons enter the

bathroom, and then heard a metal object fall into the sink. Officers

later recovered a handgun from the bathroom in apartment D. Also,

during the execution of the search warrant, officers watching on the

ground outside of the apartment building saw an individual with dark

clothing pointing a gun toward the street; the individual was wearing

a gold bracelet. Within minutes, Simmons was arrested as he

8 UNITED STATES v. SIMMONS
attempted to run from apartment D. He was wearing dark clothing and

a gold bracelet. Simmons had in his possession a sum of money that

was divided in a manner that was consistent with the way drug dealers

divide their money. Furthermore, Leslie Bolton testified that, at Simmons’ request, she purchased the gun seized from 67 Nunan Street by

police officers on May 2. She used the name Shenita Whitfield to purchase the firearm for Simmons; pawn shop records introduced by the

government confirmed her testimony. 

In view of the overwhelming evidence presented by the government, we conclude that even if the evidence of Simmons’ prior bad

acts was improperly admitted, the error was harmless. 

IV.

Finally, Simmons contends that his sentence is unconstitutional

under the Supreme Court’s decision in Apprendi v. New Jersey, 530

U.S. 466 (2000), because the district court concluded, based on several prior convictions that were not alleged in the indictment or presented to the jury, that Simmons was subject to an enhanced sentence

as an armed career criminal, see 18 U.S.C.A. § 924(e) (West 2000);

U.S. Sentencing Guidelines Manual § 4B1.4 (2000), and a career

offender, see U.S.S.G. § 4B1.1. This argument is foreclosed by our

decision in United States v. Sterling, 283 F.3d 216, 219-20 (4th Cir.),

cert. denied, 122 S. Ct. 2606 (2002), in which we concluded that the

prior convictions used to enhance a sentence under § 924(e) were specifically excluded from the holding of Apprendi. We see no reason to

conclude that Apprendi would apply to prior convictions used to sentence a defendant as a career offender when it does not apply to those

used to enhance a sentence under § 924(e). See United States v. Collins, 272 F.3d 984, 987 (7th Cir. 2001), cert. denied, 122 S. Ct. 1938

(2002). Accordingly, we reject Simmons’ Apprendi argument. 

AFFIRMED

UNITED STATES v. SIMMONS 9