                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

                                             4
               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




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