United States v. Spivey ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4346
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP SCOTT SPIVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:07-cr-00220-JAB-1)
Submitted: July 1, 2008 Decided: July 25, 2008
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Anand P.
Ramaswamy, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Phillip Scott
Spivey entered a conditional guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C.A. §§ 922(g)(1),
924(e) (West 2000 & Supp. 2008). Spivey reserved the right to
challenge on appeal the district court’s denial of his motion to
suppress the evidence seized during a traffic stop. We have
reviewed the record and find no reversible error.
On December 1, 2006, Montgomery County (North Carolina)
Sheriff Deputy Michael Concannon and Biscoe Police Officer M.
Glover stopped a vehicle due to an expired inspection sticker and
license registration. Spivey sat in the front passenger seat.
Concannon asked Spivey to exit the vehicle; a frisk of his person
did not reveal any weapons. Concannon did not place Spivey under
arrest and left him with Glover. Concannon then looked underneath
the front passenger seat and found a loaded handgun. Spivey
admitted it was his firearm.
The sole issue on appeal is whether Concannon’s search of
the vehicle was a valid protective search authorized under Michigan
v. Long, 463 U.S. 1032 (1983). Under Long, a police officer may
conduct a protective search of the passenger compartment of a
lawfully stopped automobile where the “officer possesses a
reasonable belief based on ‘specific and articulable facts which,
taken together with the rational inferences from those facts,
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reasonably warrant’ the officer in believing that [a] suspect is
dangerous and the suspect may gain immediate control of weapons”
within the vehicle. Id. at 1049-50 (quoting Terry v. Ohio, 392
U.S. 1, 21 (1968)).
Concannon conducted the protective search of the vehicle
because he considered Spivey to be armed and dangerous due to
Spivey’s criminal history. Concannon knew Spivey often carried
firearms, had multiple prior convictions involving firearms, and
had pending charges for shooting into a house occupied by children.
We have held:
Quite simply, reasonable suspicion of a suspect’s
dangerousness need not be based solely on activities
observed by the police during or just before the relevant
police encounter, but can be based on the suspect’s
commission of violent crimes in the past--especially when
those crimes indicate a high likelihood that the suspect
will be ‘armed and dangerous’ when encountered in the
future.
United States v. Holmes, 376 F.3d 270, 278 (4th Cir. 2004). We
conclude Concannon had a reasonable belief of Spivey’s
dangerousness sufficient to conduct a protective search of the
vehicle.
Accordingly, we affirm Spivey’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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