United States v. Daniel Alston ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4241
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL FRED ALSTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:09-cr-01345-DCN-1)
Submitted: September 28, 2012 Decided: October 4, 2012
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Matthew J. Modica, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Fred Alston was convicted of possession with
intent to distribute a quantity of cocaine and five grams or
more of cocaine base. He was sentenced to 72 months’
imprisonment. On appeal, he challenges the district court’s
denial of his motion to suppress evidence discovered during a
traffic stop, during which the officers discovered a cigar box
containing marijuana cigarettes and crack cocaine in Alston’s
waistband and a bag of crack cocaine and cocaine powder in
Alston’s front pocket. We affirm.
While executing a traffic stop, an officer noticed the
odor of marijuana and that the passenger, Alston, was sweating
profusely and repeatedly reaching toward his left pocket and the
center console of the vehicle. In the interest of officer
safety, Alston was asked to step out of the vehicle. As he did
so, the officer noticed a bulge in the front of Alston’s
waistband. The officer asked Alston what it was and, as Alston
reached for it, the officer grabbed and removed the object — a
cigar box — from Alston’s waistband. Looking through the clear
cellophane window of the box, the officer saw what he believed
to be three marijuana cigarettes. Alston was placed under
arrest and, during the search incident to arrest, the officers
discovered a plastic baggie containing cocaine or cocaine base
in Alston’s pants pocket. Alston moved to suppress the
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evidence, arguing that the officers had no legitimate reason for
stopping the vehicle, no reasonable suspicion that he was armed,
and that the protective search exceeded that which was necessary
to determine whether he was armed.
When the district court has denied a suppression
motion, this court “construe[s] the evidence in the light most
favorable to the government.” United States v. Kelly, 592 F.3d
586, 589 (4th Cir.), cert. denied, 130 S. Ct. 3374 (2010). We
review the district court’s legal determinations de novo and its
factual determinations for clear error, id., and we “defer to a
district court’s credibility determinations, for it is the role
of the district court to observe witnesses and weigh their
credibility during a pre-trial motion to suppress.” United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted).
The “decision to stop an automobile is reasonable when
police have probable cause to believe that a traffic violation
has occurred.” Whren v. United States, 517 U.S. 806, 810
(1996). Observation of any traffic violation, no matter how
minor, gives an officer probable cause to stop the vehicle.
United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993).
The district court credited the officer’s testimony that the
driver of the vehicle failed to signal a turn; thus the traffic
stop was based on probable cause. See United States v. Kellam,
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568 F.3d 125, 136 (4th Cir. 2009) (“[I]f an officer has probable
cause or a reasonable suspicion to stop a vehicle, there is no
intrusion upon the Fourth Amendment.”).
During a traffic stop, the passenger may be required
to exit the vehicle without any indication that the passenger
poses a risk to officer safety. Maryland v. Wilson, 519 U.S.
408, 413-15 (1997). Additionally, if the officer has reasonable
suspicion that a passenger is armed or is engaged in criminal
activity, the officer may pat down the passenger for weapons.
Terry v. Ohio, 392 U.S. 1, 30 (1968); see United States v.
Sakyi, 160 F.3d 164, 168-69 (4th Cir. 1998); United States v.
Raymond, 152 F.3d 309, 312 (4th Cir. 1998).
Based on the totality of the circumstances, we
conclude that the district court properly found the officer
justified in asking Alston to step out of the vehicle. The
officer smelled the odor of marijuana as he approached the
vehicle, Alston repeatedly reached toward his left pocket and
the center console area, and Alston was sweating profusely.
Moreover, the district court properly concluded that the
officer’s concerns with respect to the bulge in Alston’s
waistband were appropriate. See United States v. Sokolow, 490
U.S. 1, 8 (1989) (judging reasonableness of pat-down search
based on the totality of the circumstances). The bulge was
large enough to be a weapon and, when asked about it, Alston
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reached for the area. The officer — with justifiable concern
for his safety — grabbed the object from Alston’s waistband. *
See United States v. Swann, 149 F.3d 271, 275 (4th Cir. 1998)
(holding that officer may conduct frisk search and seize item to
ensure that it is not a weapon).
Upon removing the cigar box from Alston’s waistband,
the officer saw through the clear cellophane on the box that it
contained three marijuana cigarettes. Based on this discovery,
the officer was permitted to seize the incriminating evidence.
See United States v. Green, 599 F.3d 360, 376 (4th Cir.)
(explaining that plain view doctrine allows warrantless seizure
of evidence when officer lawfully is in the area in which he
sees the object, has lawful access to the object, and the
incriminating nature of the object is apparent), cert. denied,
131 S. Ct. 271 (2010).
Once they arrested Alston on the charge of possession
of marijuana, the officers were authorized to conduct a search
incident to arrest. During this search, the baggie containing
cocaine and crack was discovered in Alston’s front pocket.
Alston presented evidence and argument that the bag was not in
*
Although Alston challenges the officer’s belief that a
weapon could be contained within the cigar box, the court
credited the officer’s testimony that a .25 caliber Lorcin
pistol is small enough to fit inside that size box.
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his pocket and was too large to fit in his pocket, implying that
the officers fabricated the evidence. However, the district
court, having viewed the actual evidence, determined that the
sandwich-bag-sized plastic bag “could easily fit into a pants
pocket.” The court also made the factual determination that the
officer was credible. In light of these findings by the
district court, the search incident to arrest and the discovery
of the baggie containing crack and cocaine were valid. See
United States v. Robinson, 414 U.S. 218, 235 (1973) (holding
that, upon lawful warrantless arrest, police may conduct a full
search of an arrestee’s person and personal items in his
possession and control, without any additional justification).
Because the evidence was discovered during a lawful
traffic stop and a lawful search incident to arrest, we affirm
the district court’s order denying Alston’s motion and
supplemental motion to suppress evidence. We therefore affirm
Alston’s conviction. 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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