United States v. Cousins , 291 F. App'x 497 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4823
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EUGENE ROSS COUSINS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00008-gec)
Submitted: May 30, 2008 Decided: July 7, 2008
Before NIEMEYER and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,
Jr., Assistant Federal Public Defender, Christine Madeleine
Spurell, Research and Writing Attorney, Charlottesville, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Eugene Ross Cousins
entered a conditional guilty plea to two counts of distribution of
methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(c)
(West 1999 & Supp. 2008); two counts of possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2000); and two counts of a drug user in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2)
(2000). We have reviewed the record and find no reversible error.
On November 19, 2004, Cousins was driving his car in
Waynesboro, Virginia. Police Officer Kevin Miller heard a loud
noise coming from Cousins’ exhaust system and continued to hear it
even when the vehicle drove seventy feet away from Miller. Miller
initiated a traffic stop because he suspected the exhaust system
violated Virginia law and Waynesboro city noise ordinances. After
Miller approached the car, he saw a plainly visible firearm next to
the front console and initiated a search of the vehicle. Cousins
was arrested after the search revealed a concealed firearm and drug
residue on a digital scale. Cousins filed a pretrial motion to
suppress this evidence as well as statements made during the
vehicle stop, asserting that the stop was unconstitutional. After
the district court denied the motion, Cousins entered a
conditional guilty plea reserving the right to challenge on appeal
- 2 -
the district court’s denial of the motion to suppress the evidence
seized following the traffic stop.
On appeal, Cousins renews his challenge to the traffic
stop, but also claims his arrest and the search of his car were
unconstitutional. Because Cousins did not raise these claims in
the motion to suppress below, we find that they are not preserved
for appeal, Fed. R. Evid. 11(A)(2), and are otherwise waived. Fed.
R. Crim. P. 12(b)(3), (e); United States v. Ricco, 52 F.3d 58, 62
(4th Cir. 1995); see United States v. Lockett, 406 F.3d 207, 212
(3d Cir. 2005) (“[I]n the context of a motion to suppress, a
defendant must have advanced substantially the same theories of
suppression in the district court as he . . . seeks to rely upon in
this Court.”). Therefore, we review only the constitutionality of
the initial stop.
“[A]n officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry v. Ohio, 392
U.S. 1, 30-31 (1968).* To conduct a Terry stop, there must be “at
least a minimal level of objective justification for making the
stop.” Wardlow, 528 U.S. at 123. Reasonable suspicion requires
*
“Because an ordinary traffic stop is analogous to an
investigative detention, it has been historically reviewed under
the investigatory detention framework first articulated in Terry
. . . .” United States v. Delfin-Colina, 464 F.3d 392, 396 (3rd
Cir. 2006).
- 3 -
more than a hunch but less than probable cause, and it may be based
on the collective knowledge of the police officers. Id. In
assessing police conduct in a Terry stop, courts must look to the
totality of the circumstances. United States v. Sokolow, 490 U.S.
1, 8 (1989).
All vehicles operated in Virginia must be equipped with
an exhaust system that “prevent[s] excessive or unusual levels of
noise.” Va. Code Ann. § 46.2-1049 (2005 & 2007 Supp.). Miller
testified the exhaust noise from Cousins’ car was unusual and
excessive in comparison to similar vehicles. The district court
did not err when it found that this excessive and unusual noise
supported a reasonable and articulable suspicion of a violation of
§ 46.2-1049.
Miller suspected Cousins altered the factory muffler to
produce more noise. Cousins argues he did not alter his exhaust
system and therefore Miller erroneously conducted the traffic stop.
However, Miller could not see the exhaust system and decided to
investigate the possibility of a modified exhaust system due to the
excessive noise. Any mistake by Miller in guessing the cause of
the exhaust noise did not eliminate his reasonable and articulable
suspicion that the exhaust system violated § 46.2-1049. See United
States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003)
(holding officer’s reasonable mistake of fact may provide the
objective grounds for reasonable suspicion).
- 4 -
Miller believed the exhaust system noise also violated
City of Waynesboro ordinances prohibiting loud noises coming from
a vehicle audible for over fifty feet. The city ordinances do not
impose a distance requirement related to vehicle or exhaust noise,
but do categorize “loud and disturbing noises” from vehicles and
exhaust discharge as a public nuisance at any distance.
Waynesboro, Va., Code § 38.12(7)(d), (f) (2004). Miller’s mistake
as to the specifics of the ordinance did not undercut his
reasonable and articulable suspicion of a violation of a city
ordinance required to justify the traffic stop.
Accordingly, we affirm Cousins’ conviction. We deny
Cousins’ 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
- 5 -