                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4213



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LANCE D. YOUNG,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:05-cr-00063-FPS)


Submitted:   February 20, 2008                Decided:   May 15, 2008


Before MICHAEL and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Elgine H. McArdle, MCARDLE LAW OFFICE, Wheeling, West Virginia, for
Appellant. Sharon L. Potter, United States Attorney, Randolph J.
Bernard, Robert H. McWilliams, Jr., Assistant United States
Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Lance     D.    Young   appeals    his   jury    convictions      for

conspiracy to possess with intent to distribute heroin in violation

of 21 U.S.C. §§ 846, 841(b)(1)(B) and 851 (2000); possession with

the intent to distribute heroin in violation of 21 U.S.C. §§

841(a)(1)(B), 841(b)(1)(C) and 851 (2000); aiding and abetting the

possession with intent to distribute heroin in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851 (2000); and possession of

a firearm in relation to a drug trafficking crime in violation of

18 U.S.C. § 924(c)(1)(A)(I) (2000).              He was sentenced to 420

months’ imprisonment.       On appeal, he asserts the district court

improperly accepted the recommendation of a magistrate judge and

denied his motion to suppress.         Finding no error, we affirm.

          On August 24, 2005, Marlana J. Grose voluntarily informed

law enforcement officers that she was involved with Young, her

boyfriend,    in   drug   activities   at   an   apartment   she   leased    in

Chester, West Virginia.      Grose told officers that Young conducted

a drug trafficking operation at the premises in which he weighed,

cut, and packaged bulk heroin into street level quantities.                 She

also stated Young kept guns in the apartment.             Grose alleged she

left the premises in late July 2005 because she was concerned for

her safety.

          Grose, the sole lessee, signed an open-ended consent to

search the premises and provided a copy of the lease agreement and


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her original key to the premises.    That same day, police officers

went to the premises to execute the consent search.   Young was not

at the apartment, and a search of the premises uncovered cash,

heroin, firearms, cell phones, and an empty firearm case.        On

August 26, 2005, after knocking and announcing, law enforcement

officers entered the premises and handcuffed Young and a companion

named Sonny Baxter.    The search of Young yielded a cell phone,

baggies and money.   Baxter also had a cell phone in his right pants

pocket.   Officers accessed the text messages stored on the phones

and wrote down the contents. On September 2, 2005, police officers

returned to the premises and found a baggie containing heroin.

          Young filed two motions to suppress the physical evidence

on the ground that it was illegally seized.    Following a hearing,

a magistrate judge recommended that the motions to suppress be

denied, and the district court adopted the report and denied the

motions to suppress.   Young now claims the district court erred in

denying his motions to suppress.       This court reviews factual

findings underlying a district court’s suppression determination

for clear error and the district court’s legal conclusions de novo.

United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007) (citing

Ornelas v. United States, 517 U.S. 690, 699 (1996)).       When the

district court has denied a suppression motion, this court reviews

the evidence in the light most favorable to the Government. United

States v. Uzenski, 434 F.3d 690, 704 (4th Cir. 2006).


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           The police entered the premises under Grose’s consent.

The   Government    can     justify    a   warrantless    search    by    showing

permission    to   search    by   “a   third    party   who   possessed   common

authority over or other sufficient relationship to the premises or

effects sought to be inspected.”               United States v. Matlock, 415

U.S. 164, 171 (1974).        Authority to consent arises from mutual use

of the property by those with joint access or control, so that a

cohabitant would recognize the risk that another might allow a

common area to be searched.            Trulock v. Freeh, 275 F.3d 391, 403

(4th Cir. 2001).

             As the sole lessee of the residence, Grose had authority

over the premises.          She occupied the space until a short time

before the search and had access to all areas of the premises.

Young argues Grose had abandoned the premises by moving out a few

weeks prior to the search.             Although she had moved most of her

belongings from the residence, she left a few personal items.

Grose did not inform the landlord that she was terminating the

lease, and the landlord had not terminated the lease or taken any

action to evict Grose from the premises.                 She had visited the

residence a week prior to the search and had discussed the rent

payment with Young the day before the search.                 Because Grose had

not abandoned the residence, she retained the authority to give

consent to allow police officers to search it.




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              Young also claims Grose’s observations were stale because

she had moved out weeks before the search.        As this court has made

clear, “[t]he vitality of probable cause cannot be quantified by

simply counting the number of days between the occurrence of the

facts supplied and the issuance of the affidavit.”            United States

v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984).             “Rather, we must

look to all the facts and circumstances of the case, including the

nature   of    the   unlawful   activity   alleged,   the    length   of   the

activity, and the nature of the property to be seized.”           Id.   Grose

detailed a continuing drug operation using the residence as a

heroin stash house for many months.         In addition, she had visited

the apartment a week prior to the August 24 search.           Looking at the

facts and circumstances of the case, the information provided by

Grose was not stale.

              When Officer McDonald entered the premises, he observed

pills on the table. McDonald dropped a capsule while examining it,

and when he picked up a roll of paper towels to stop the rolling

capsule, a clear plastic baggie fell out of the roll.            The package

contained heroin.       Young contends that the heroin was improperly

seized because it was not in plain view.               “[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


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is immediately apparent.” United States v. Jackson, 131 F.3d 1105,

1109 (4th Cir. 1997).        As the officers were searching the house

under a proper letter of consent looking for evidence of drugs, the

incriminating character of the pills on the table was immediately

apparent.      A byproduct of that search revealed the baggie with

heroin.   The seizure of the bag of heroin on the table was proper.

              Young finally claims that the information contained in

the text messages on the cell phones was improperly seized.           Young

argues that since the police had to manipulate the cell phones to

reveal the text messages they had no authority to examine the

phones’ contents without a warrant.          Privacy rights in the phone

are tempered by an arresting officer’s need to preserve evidence.

This   need    is   an   important   law   enforcement   component   of   the

rationale for permitting a search of a suspect incident to a valid

arrest.   See United States v. Robinson, 414 U.S. 218, 226 (1973).

              Albeit in an unpublished opinion, this court has ruled

that officers possess the authority to retrieve telephone numbers

seized from a pager seized incident to an arrest.               See United

States v. Hunter, No. 96-4259, 1998 WL 887289 (4th Cir. Oct. 29,

1998) (unpublished).        In a similar case, the Fifth Circuit has

ruled that officers may retrieve call records and text messages

from a cell phone under a search incident to arrest.            See United

States v. Finley, 477 F.3d 250, 259-60 (5th Cir.)            cert. denied,

127 S. Ct. 2065 (2007).         Here, officers had no way of knowing


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whether the text messages would automatically delete themselves or

be preserved.   Accordingly, based upon the reasoning of our prior

holding, the Fifth Circuit’s like conclusion, and the manifest need

of the officers to preserve evidence, we conclude that the officers

permissibly accessed and copied the text messages on the phone

during the search incident to arrest.

          Accordingly, we affirm Young’s convictions.   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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