United States v. McCrae , 234 F. App'x 150 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4988
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN DAVID MCCRAE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:06-cr-00025-JPJ)
Submitted: July 13, 2007 Decided: July 25, 2007
Before MOTZ and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Zachary T.
Lee, Special Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Brian D. McCrae guilty of conspiracy to
commit robbery of controlled substances after traveling in
interstate commerce, in violation of 18 U.S.C. § 2118(d) and
(b)(1)(B)(2000), taking by force controlled substances after
traveling in interstate commerce and the use of a dangerous weapon,
in violation of 18 U.S.C. §§ 2, 2118(a), (a)(1) (2000), and
knowingly possessing with intent to distribute and distributing
oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)
(2000). McCrae was sentenced to three concurrent terms of 60
months’ imprisonment. On appeal, McCrae argues the district court
erred by denying his motion to suppress. We affirm.
This Court reviews the factual findings underlying the
denial of a motion to suppress for clear error and its legal
conclusions de novo. United States v. Johnson, 400 F.3d 187, 193
(4th Cir.), cert. denied, 126 S. Ct. 134 (2005). The evidence is
construed in the light most favorable to the prevailing party
below. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998). In determining whether probable cause existed for McCrae’s
arrest, the court must look at the totality of the circumstances
surrounding the arrest. Illinois v. Gates, 462 U.S. 213, 230-32
(1983); Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996).
Probable cause for a warrantless arrest is defined as “facts and
circumstances within the officer’s knowledge that are sufficient to
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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.”
United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998) (citations
omitted). Determining whether the information surrounding an
arrest is sufficient to establish probable cause is an
individualized and fact-specific inquiry. Wong Sun v. United
States, 371 U.S. 471, 479 (1963). Additionally, officers are
permitted to draw on their experience and specialized training to
make inferences from and deductions about cumulative evidence.
United States v. Arvizu, 534 U.S. 266, 273 (2002). “[E]ven
‘seemingly innocent activity’ when placed in the context of
surrounding circumstances,” can give rise to probable cause.
United States v. Humphries, 372 F.3d 653, 657 (4th Cir.
2004)(citation omitted).
McCrae does not challenge the constitutionality of the
officer’s pat-down search of his front pants pockets. Such a
challenge would be unavailing in any event because McCrae was
present during the arrest of his co-conspirator, Sean Osborne, who
was a suspect in the robbery of a pharmacy, and was observed to
have a large bulge in his left front pants pocket. McCrae argues,
however, that the police exceeded the permissible scope of the
search by manipulating the object inside of his pants to discern
that it felt like pills. He contends that the search should have
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ceased as soon as it became evident the bulge was not created by a
weapon.
McCrae acknowledges that at the time the search was
performed, police knew a drug store had been robbed by an
individual meeting the description of Osborne; McCrae had returned
home with Osborne; Osborne had told his girlfriend that he had done
something illegal; Osborne’s girlfriend had discovered pill
bottles; and McCrae had a bulge in his front pants pocket. McCrae
ignores, however, the testimony of the officer who conducted the
pat-down search that when he felt the lump he immediately
recognized it to be a pocketful of pills. After reviewing the
totality of the circumstances, we find the police did not exceed
the scope of a permissible pat-down search, and that the evidence
lawfully found in the course of the search providing probable cause
to arrest McCrae. Accordingly, we find the district court properly
denied McCrae’s motion to suppress.
Based on the foregoing, we affirm the district court’s
judgment. 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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