UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4447

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

OTIS LEON STORY, a/k/a Shawn Jones, 

 Defendant – Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Patrick Michael Duffy, District 

Judge. (2:07-cr-00738-PMD-1) 

Submitted: April 13, 2009 Decided: May 1, 2009 

Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Walter J. Wiggins, Edward E. Kopko, WIGGINS & KOPKO, LLP, 

Ithaca, New York, for Appellant. W. Walter Wilkins, United 

States Attorney, Alston C. Badger, Assistant United States 

Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Otis Leon Story pled guilty to one count of knowingly, 

intentionally and unlawfully possessing with intent to 

distribute 500 grams or more of cocaine, in violation of 21 

U.S.C.A. § 841(a)(1), (b)(1)(B) (West 2000 & Supp 2008), and one 

count of using and carrying a firearm during and in relation to 

a drug trafficking crime, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(i) (2006). In his plea agreement, Story reserved 

the right to appeal the district court’s order denying his 

motion to suppress evidence, to hold a Leon/Franks* hearing and 

to dismiss the indictment. We affirm. 

 Hotel employees found a quantity of cocaine in a hotel 

room in which Story had been staying. The manager alerted the 

police, who replaced the package of cocaine with an identical 

“sham” package and left behind a black gym back also found in 

the room. Story was later observed entering the hotel room and 

then leaving the room moments later with the gym bag. He was 

arrested and the subsequent search of the gym bag revealed the 

sham package of cocaine. 

 The district court’s legal conclusions underlying the 

denial of a motion to suppress are reviewed de novo, while the 

 * United States v. Leon, 468 U.S. 897, 922-23 (1984); 

Franks v. Delaware, 438 U.S. 154, 171-72 (1978). 

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predicate factual conclusions are reviewed for clear error when 

assessed in the light most favorable to the party prevailing 

below. United States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 

2003). The Fourth Amendment proscribes unreasonable searches by 

the government. The protection afforded by the Amendment is 

“wholly inapplicable ‘to a search or seizure, even an 

unreasonable one, effected by a private individual not acting as 

an agent of the Government or with the participation or 

knowledge of any governmental official.’” United States v. 

Jacobsen, 466 U.S. 109, 113-14 (1984) (quoting Walter v. United 

States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). 

 Story claimed the hotel employees were acting as 

agents of the government, or with the participation and 

knowledge of the government, when they seized the package in the 

hotel room. For purposes of the exclusionary rule, a private 

actor must “be regarded as having acted as an ‘instrument’ or 

agent of the state,” in order for a private search to be 

considered action by the government. Coolidge v. New Hampshire, 

403 U.S. 443, 487 (1971). “One highly pertinent consideration 

is whether the government knew of and acquiesced in the 

intrusive conduct and whether the private party’s purpose for 

conducting the search was to assist law enforcement efforts or 

to further her own ends.” United States v. Ellyson, 326 F.3d 

522, 527 (4th Cir. 2003) (internal quotation marks omitted). 

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 We find no error in the district court’s conclusion 

that the hotel employees were not agents of law enforcement. 

Law enforcement authorities did not know of or acquiesce in the 

intrusive conduct. After-the-fact knowledge and acquiescence by 

law enforcement cannot transform the relationship between the 

employees and the police into an agency relationship. There 

must be some evidence of the government participation in the 

private search or affirmative encouragement. See United 

States v. Jarrett, 338 F.3d 339, 346-47 (4th Cir. 2003). 

 We further find the district court did not err in not 

finding the initial search by a police officer exceeded the 

scope of the search conducted by the hotel employees. Insofar 

as Story argues that Officer Campbell’s seizure of the cocaine 

was error because it was permanent, the claim is without merit. 

“[T]he plain-view doctrine authorizes warrantless seizures of 

incriminating evidence when (1) the officer is lawfully in a 

place from which the object may be plainly viewed; (2) the 

officer has a lawful right of access to the object itself; and 

(3) the object’s incriminating character is immediately 

apparent.” United States v. Jackson, 131 F.3d 1105, 1109 (4th 

Cir. 1997). Here, Officer Campbell was lawfully in a place 

where he could plainly view the cocaine, he had lawful right of 

access to the package, and the incriminating character of the 

package was apparent. 

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 We also agree with the district court that there was 

no reason to quash the search warrant. Officer Campbell’s 

search and seizure of the cocaine was proper and the search 

warrant’s supporting affidavit did not contain false or 

misleading information. 

 We further find law enforcement had probable cause to 

arrest Story. Probable cause “to justify an arrest means facts 

and circumstances within the officer’s knowledge that are 

sufficient to warrant a prudent person, or one of reasonable 

caution, in believing, in the circumstances shown, that the 

suspect has committed, is committing, or is about to commit an 

offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The 

evidence needed to establish probable cause is more than a mere 

suspicion, rumor, or strong reason to suspect but less than 

evidence sufficient to convict. Wong Sun v. United States, 371 

U.S. 471, 479 (1963); United States v. Williams, 74 F.3d 537, 

541 (4th Cir. 1996). Clearly, there was sufficient evidence to 

support the belief that Story was in possession of cocaine. 

 Story also argues there was insufficient evidence to 

support the indictment. The claim is without merit. “[C]ourts 

lack authority to review the sufficiency of evidence supporting 

an indictment, even when a mistake was mistakenly made.” United 

States v. Wills, 346 F.3d 476, 488 (4th Cir. 2003). “An 

indictment returned by a legally constituted and unbiased grand 

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jury, . . . if valid on its face, is enough to call for trial of 

the charges on the merits.” Costello v. United States, 350 U.S. 

349, 363 (1956). An indictment is valid if it states each of 

the essential elements of the offense. United States v. 

Lockhart, 382 F.3d 447, 449 (4th Cir. 2004). 

 Finally, while we grant Story’s motion to file a pro 

se brief, we have reviewed the issues raised in the brief, some 

of which are duplicative of the issues raised by counsel, and 

find them to be without merit. There is sufficient evidence to 

support the conviction. In addition, claims of ineffective 

assistance of counsel are not cognizable on direct appeal unless 

the record conclusively demonstrates ineffective assistance. 

See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). 

 Accordingly, we affirm the convictions and sentence 

and we grant the motion to file a supplemental brief. 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