UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4982

TARRANT COUNTS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4219

TIMOTHY P. TYLER, a/k/a Tyrone

Gibson,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, Chief District Judge.

(CR-96-155-V)

Submitted: February 16, 1999

Decided: March 19, 1999

Before HAMILTON and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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No. 97-4982 dismissed and No. 98-4219 affirmed by unpublished per

curiam opinion.

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COUNSEL

Claire J. Rauscher, Grant Smithson, Charlotte, North Carolina, for

Appellants. Mark T. Calloway, United States Attorney, Robert J. Higdon, Jr., Assistant United States Attorney, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

Timothy P. Tyler and Tarrant Counts pled guilty to conspiracy to

possess with intent to distribute cocaine and cocaine base in violation

of 21 U.S.C. § 846 (1994). Counsel for Tyler and Counts have filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

addressing whether the district court erred when it failed to grant

Tyler's motion to suppress the cocaine seized at the time of his arrest

and when it failed to grant Counts' motion for a downward departure

under U.S. Sentencing Guidelines Manual (USSG) §§ 5H1.6, 5K2.0

(1997), due to unusual family hardship. Counsel asserts there are no

meritorious grounds for appeal. The Government has filed a motion

to dismiss Counts' appeal contending that Counts waived his rights

to appeal his conviction or sentence because he entered into an unconditional plea agreement. Tyler and Counts were informed of their

right to file a pro se supplemental brief. Counts filed an informal

brief, but Tyler did not. Because our review of the entire record

reveals no reversible error, we dismiss Counts' appeal and affirm

Tyler's conviction and sentence.

On September 11, 1996, law enforcement officials began an investigation into Counts' background, after receiving complaints suggesting that he was engaging in drug trafficking activities within The

Oaks, the apartment complex in which he lived. During their investi-

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gation, law enforcement officials determined that the vehicle identification number ("VIN") on Counts' vehicle ("Toyota") did not

correspond with the vehicle's registration and that Counts had an

extensive criminal history. Thereafter, law enforcement officials went

to The Oaks to determine whether Counts had lawful possession of

the Toyota.

While police were inspecting the Toyota, Counts, Tyler, and Joe

Nathan Green came out of The Oaks' garage area and walked toward

the Toyota. Police observed Counts carrying a large plastic garbage

bag and car keys, Tyler carrying a white plastic grocery bag, and

Green carrying a pair of jumper cables. As the men were exiting the

garage, the officers approached them, and Counts and Tyler dropped

the bags they were carrying under the Toyota.

After Counts informed Agent Blowers that he owned the Toyota,

Blowers identified himself as an FBI agent. Blowers asked Counts to

place his hands on the hood of the Toyota so that he could perform

a safety patdown. While Blowers frisked Counts, Tyler and Green

were asked to remain against the garage wall, and they were also

searched for weapons. Blowers then asked Counts to open the hood

of the vehicle so that he could compare the VIN on the engine with

the VIN on the vehicle registration. As Counts and Blower walked

toward the front of the Toyota, Counts kicked one of the two bags

previously dropped to the ground under the front of the vehicle.

Counts advised Blowers that the larger bag contained garbage and

Blowers asked for Counts' consent to search the bag. Counts initially

denied ownership of the bag, but he eventually consented to the

search. Blowers retrieved the bag, searched it, and found wrappers

used to package cocaine that contained cocaine residue. Blowers

arrested all three men. Officers could see that the second, smaller bag

contained other plastic bags that appeared to contain crack cocaine.

As an officer picked up the second bag, a quantity of crack cocaine

fell to the ground. The bag was then searched and officers found an

additional package of crack cocaine inside the bag.

Tyler moved to suppress the evidence seized as well as any statements he made to law enforcement officials on September 11, 1996,

contending that: (1) his initial detention was not based upon reason-

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able suspicion; (2) the plastic bags were searched without a warrant

or his consent; and (3) he was not advised of his Miranda rights prior

to being interviewed by investigators. Pursuant to 28 U.S.C.

§ 636(b)(1)(B) (1994), a magistrate judge was designated to recommend disposition of Tyler's suppression motion. The magistrate judge

recommended that the motion be denied, and Tyler filed objections.

After a de novo review, the district court accepted the magistrate

judge's recommendation and denied Tyler's motion to suppress.

Tyler entered into a conditional plea agreement, reserving his right

to appeal the suppression issue. Counts also entered into a plea agreement, but waived his right to appeal except for issues regarding ineffective assistance and prosecutorial misconduct. At sentencing

Counts' attorney filed a motion seeking a downward departure pursuant to USSG §§ 5K2.0, 5H1.6, due to unusual family hardship. The

motion was subsequently denied, and Counts was sentenced as a

career offender. Tyler and Counts timely appealed.

Tyler contends on appeal that the district court erred when it denied

his motion to suppress. In considering the denial of Tyler's motion to

suppress, we review the district court's legal conclusions de novo and

its factual findings for clear error. See United States v. Rusher, 966

F.2d 868, 873 (4th Cir. 1992). Tyler first asserts that the motion

should have been granted because he was illegally detained when he

first encountered law enforcement officials upon exiting the garage at

The Oaks apartment complex with Counts and Green. We disagree.

A law enforcement officer may stop and briefly detain a person for

investigative purposes when that officer has a reasonable suspicion of

ongoing criminal activity based on specific articulable facts. See

Terry v. Ohio, 392 U.S. 1, 30 (1968). In evaluating the validity of an

investigative stop, we must consider the totality of the circumstances.

See United States v. Sokolow, 490 U.S. 1, 8 (1989). At the time the

officers stopped the Defendants, they knew that Counts had a lengthy

criminal record that included violent crimes and drug related offenses,

and that he was on parole. They had received complaints that Counts

was dealing drugs. The officers further believed that the Toyota was

not properly registered, and therefore, may have been stolen. Finally,

Counts and Tyler were leaving the garage carrying plastic bags,

which they both dropped when they saw officers approaching. Based

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upon these facts, we find the officers had a reasonable suspicion,

which justified their decision to stop and detain Tyler.

Tyler further contends that his suppression motion should have

been granted because the plastic bags at issue were searched without

his consent or a warrant. All warrantless searches"are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Mincey v. Arizona,

437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S.

347, 357 (1967) (footnotes omitted)). One such exception is a search

incident to a lawful arrest. See Chimel v. California, 395 U.S. 752,

762-63 (1969). Blowers, with Counts' consent, opened the large plastic bag Counts dropped and saw what appeared to be cocaine in plastic wrappers. Based on this discovery, Counts, Tyler, and Green were

lawfully arrested for possession of cocaine. The smaller bag was only

a short distance from the three men, so it could lawfully be searched

incident to the arrest. Finally, the officers saw plastic bags containing

a substance that appeared to be crack cocaine protruding from the

smaller bag which Tyler had been carrying. In light of the contents

of the larger bag and the materials protruding from the smaller bag,

it was reasonable to believe that the smaller bag also contained drugs.

Thus, the search was also proper under the plain view doctrine

because the incriminating nature of the bag's contents was immediately apparent. See United States v. Legg, 18 F.3d 240, 242 (4th Cir.

1994).

Finally, Tyler claims that his motion to suppress should have been

granted with respect to the post-arrest statements he made to law

enforcement officials because he was not advised of his Miranda

rights prior to being interviewed. The record, however, reveals that

Tyler was advised of his rights under Miranda at the time of his

arrest. Accordingly, we find that the district court properly accepted

the magistrate judge's report and recommendation to deny Tyler's

suppression motion.

We grant the Government's motion to dismiss Counts' appeal

because he waived his right to appeal his conviction or sentence and

the waiver was valid and enforceable. Therefore he is foreclosed from

appealing.1 See United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th Cir. 1995).

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1 In any event, the denial of a motion to depart downward is generally

not appealable. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.

1990).

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Counts has also filed a pro se supplemental brief alleging that

counsel rendered ineffective assistance because: (1) he failed to file

objections to the presentence report; (2) he failed to argue that the

Government had not proven that cocaine base was"crack;" and (3) he

stipulated, in Counts' plea agreement, to a two-point increase for possession of a firearm under USSG § 2D1.1(b)(1)."[C]laim[s] of ineffective assistance should be raised in a 28 U.S.C.§ 2255 motion in

the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance." United States v. Williams, 977

F.2d 866, 871 (4th Cir. 1992). Based on our review of the record,

there has been no such showing, and the claim is not properly before

us.2

In accordance with the requirements of Anders , we have examined

the entire record and find no meritorious issues for appeal. Accordingly, Tyler's conviction and sentence are affirmed. We grant the

Government's motion to dismiss Counts' appeal. This court requires

that counsel inform their clients, in writing, of their right to petition

the Supreme Court of the United States for further review. If a client

requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave

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2 The record before the court reveals that counsel considered whether

to challenge a career criminal enhancement and stated that she would

make an objection if she found it appropriate. Because counsel made this

statement and did not file an objection we must conclude that counsel

determined the challenge to be meritless. Such a calculated decision by

counsel is not per se ineffective assistance of counsel. See e.g. Strickland

v. Washington, 466 U.S. 668, 687-94 (1984) (holding that defendant

must establish that counsel's performance was deficient and that counsel's performance affected the outcome of his case). The record further

discloses that law enforcement officials testified that the cocaine base

was protruding from a plastic bag and that it was a hard white to yellow

substance, suggesting that it was in its rock-like form rather than in a liquid or paste, and that the substance looked like crack cocaine. See id.

Moreover, we have held that crack cocaine and cocaine base are synonymous. See United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995).

Finally, Counts did not challenge the facts presented in the presentence

report; according to the report the police searched Counts' residence pursuant to a warrant and recovered cocaine powder, crack cocaine, and five

firearms.

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to withdraw from representation. Counsel's motion must state that a

copy thereof was served on the client.

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.

No. 97-4982 - DISMISSED

No. 98-4219 - AFFIRMED

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