UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4907

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL LAMONT BOOMER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Henry E. Hudson, District Judge.

(CR-04-89)

Submitted: November 30, 2005 Decided: February 3, 2006

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

William J. Dinkin, DINKIN, PURNELL & JOHNSON, PLLC, Richmond,

Virginia, for Appellant. Paul J. McNulty, United States Attorney,

Michael J. Elston, Angela Mastandrea-Miller, Assistant United States

Attorneys, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
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PER CURIAM:

Michael Lamont Boomer was convicted after a jury trial for

possession with intent to distribute cocaine base, in violation of

21 U.S.C. § 841(a)(1) & (b)(1)(A) (2000), possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) &

(b)(1)(D) (2000), and possession of a firearm in furtherance of drug

trafficking, in violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp.

2005). He argues that the search warrant for his home was invalid,

that the district court erred in denying his motion for a new trial

on the ground that police destroyed evidence, and that his

conviction for possession of a firearm in furtherance of a drug

trafficking crime was not supported by sufficient evidence. Finding

no error, we affirm.

I.

Boomer argues that the district court erred by denying his

motion to suppress the evidence obtained through the execution of a

search warrant for his home because probable cause did not support

the warrant and the court erred in finding that the good faith

exception to the exclusionary rule applied. If a warrant is found

to be defective, the evidence obtained from the defective warrant

may nevertheless be admitted under the good faith exception to the

exclusionary rule. United States v. Leon, 468 U.S. 897, 922-23

(1984). Evidence seized pursuant to a defective warrant will not be
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suppressed unless: (1) the affidavit contains knowing or reckless

falsity; (2) the magistrate acts as a rubber stamp for the police;

(3) the affidavit does not provide the magistrate with a substantial

basis for determining the existence of probable cause; or (4) the

warrant is so facially deficient that an officer could not

reasonably rely on it. United States v. Wilhelm, 80 F.3d 116, 121-

22 (4th Cir. 1996); United States v. Hyppolite, 65 F.3d 1151, 1156

(4th Cir. 1995).

Where, as here, the challenge is to both the probable

cause determination and also the conclusion that the good faith

exception applies, the court will ordinarily address the good faith

determination first, unless the case involves the resolution of a

novel question of law necessary to provide guidance to police

officers and magistrates. See United States v. Legg, 18 F.3d 240,

243 (4th Cir. 1994); United States v. Craig, 861 F.2d 818, 820 (5th

Cir. 1988) (“Principles of judicial restraint and precedent dictate

that, in most cases, we should not reach the probable cause issue if

. . . the good-faith exception of Leon will resolve the matter.”).

Boomer contends that the good faith exception should not

apply in this case because Officer Godsey’s reliance on the

allegedly insufficient search warrant was objectively unreasonable.

Godsey’s affidavit stated that he was experienced in narcotics

investigation and identified the plant seeds and stems as marijuana,

and identified sandwich bag materials. The officer also found in
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the same trash a piece of mail with the residence’s address on it.

Based on these facts, we conclude that an objectively reasonable

police officer could rely on the integrity of the warrant.

Therefore, the district court properly applied the good faith

exception. See United States v. Dickerson, 166 F.3d 667, 694-95

(4th Cir. 1999), rev’d in part on other grounds, 530 U.S. 428

(2000); see also Leon, 468 U.S. at 926; United States v. Lalor, 996

F.2d 1578, 1583 (4th Cir. 1993).

II.

Boomer filed a motion for a new trial under Fed. R. Crim.

P. 33, arguing that the Government did not comply with the discovery

order because it did not make the potentially exculpatory videotape

of the search available to him. The district court denied the motion

finding that there was no due process violation because Boomer did

not prove that the evidence would have been favorable to him, that

it was material, or that the police destroyed the tape in bad faith.

In evaluating whether the government’s withholding of

material evidence as to guilt or punishment violates a defendant’s

due process rights, the court looks to Brady v. Maryland, 373 U.S.

83 (1963). To prove a Brady violation, a defendant must show that

the non-disclosed evidence was (1) favorable to the defendant; (2)

material; and (3) intentionally suppressed by the government. Moore

v. Illinois, 408 U.S. 786, 794-95 (1972). When law enforcement
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officers fail “to preserve evidentiary material of which no more can

be said than that it could have been subjected to tests, the results

of which might have exonerated the defendant,” a defendant must show

bad faith on the part of law enforcement officers to establish a

denial of constitutional due process. Arizona v. Youngblood, 488

U.S. 51, 57 (1988). 

Boomer argues that the exculpatory value of the destroyed

videotape was apparent to the police before its destruction because

the Government’s case turned on Boomer’s constructive possession of

drugs and the firearm. Therefore Boomer argues that the videotape

would have demonstrated, to Boomer’s benefit, the distance between

himself and the contraband. Further, police testimony was that

Boomer confessed to the crimes, but that his confession was not

recorded in Godsey’s notes. Boomer maintained that he did not

confess, but did not testify at trial.

At trial, Officer Godsey testified that it is the

Chesterfield County Police Department’s standard operating procedure

to videotape the execution of a search warrant. The purpose of the

videotape is to protect the police against claims by citizens

asserting that their property was damaged during the search. The

tapes are recycled as a matter of course every thirty to forty-five

days. Godsey further testified that the tape was recycled before

Boomer had been charged at all because the police thought that he

would be a cooperating witness. It was not until approximately six
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months after the search that Boomer was indicted. Godsey further

testified that he did not remember anyone in the room with him when

Boomer confessed and therefore it is unlikely that Godsey’s

interaction with Boomer was videotaped.

Boomer has not sustained his burden that the videotape

would have been favorable to him or was material to his case. In

addition, there was no evidence that the police may have destroyed

or recycled the videotape in bad faith. Therefore, the district

court did not abuse its discretion in denying a new trial on this

basis.

III.

Boomer argues that there was insufficient evidence to

convict him on count three: possession of a firearm in furtherance

of a drug trafficking crime. Boomer specifically argues that even

if the Government proved that he possessed a firearm and he

committed a drug trafficking crime, it did not prove that possession

of the firearm was in furtherance of the crime. 

A defendant challenging the sufficiency of the evidence

faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997). In reviewing a sufficiency challenge, “[t]he

verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). This
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court “ha[s] defined ‘substantial evidence,’ in the context of a

criminal action, as that evidence which ‘a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of

a defendant’s guilt beyond a reasonable doubt.’” United States v.

Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996)).

We conclude that there was substantial evidence to support

the verdict that Boomer possessed a firearm in furtherance of a drug

trafficking crime. Boomer confessed to police that he possessed the

drugs with intent to sell them. The drugs were found in a bedroom

that was not Boomer’s, but Boomer stated that when he heard the

police approach he picked them up from the front living room and

tossed the items on a bed. Boomer told Godsey that he had purchased

the marijuana and crack cocaine in Richmond earlier in the weekend

and that the other individual in the house at the time of arrest had

come to purchase marijuana from him. Boomer indicated which bedroom

belonged to him, and officers observed a silver 9 mm handgun loaded

with sixteen rounds on a table at the end of the bed. Officers also

observed a bulletproof vest on the floor between the dresser and

nightstand. Boomer told the officers that the gun and bulletproof

vest were his and that he had purchased them in Richmond. Police

also found a dresser drawer that had been pulled out of the dresser

and was on the floor containing $1500 in currency and another small

bag of marijuana. Finally, Special Agent Terpening testified that
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drug dealers often have guns to protect themselves and that he based

his opinion that the gun was possessed in furtherance of the

trafficking crime on the location of the gun near the drugs.

Although Boomer argues that Agent Terpening’s opinion is

not sufficient to establish the nexus between the gun and drug

trafficking, we find that Terpening’s opinion was not the only

evidence of the furtherance element. A reasonable jury could

conclude that Boomer possessed the firearm in furtherance of a drug

trafficking crime because the firearm was located near a large

amount of currency and an additional amount of marijuana, Boomer

told police that the other occupant of the house was there to

purchase marijuana, and the gun was on the dresser, easily

accessible and loaded with sixteen rounds. That evidence in

conjunction with Terpening’s opinion, was sufficient to find Boomer

guilty of the charge. See United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002) (discussing factors courts consider in determining

whether sufficient nexus exists between firearm and drug offenses).

 Accordingly, we affirm. We deny Boomer’s motion to file

a pro se 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