United States v. Sidney Mitchell , 587 F. App'x 33 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4758
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SIDNEY STEVONS MITCHELL, a/k/a Sidney Stephon Mitchell,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00024-TDS-1)
Submitted: July 7, 2014 Decided: September 24, 2014
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Ripley
Rand, United States Attorney, Kyle D. Pousson, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sidney Mitchell pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced him to 26 months’ imprisonment.
Mitchell contends that the district court erred in denying
his motion to suppress a firearm that a police officer found in
the car that Mitchell was driving. 1 The district court concluded
that the officer had reasonable suspicion to make a traffic stop
and probable cause to search the car. We affirm.
I.
“We review legal conclusions made pursuant to a district
court’s suppression determination de novo, but review the
underlying factual findings for clear error.” United States v.
Seidman, 156 F.3d 542, 547 (4th Cir. 1998). We recite the
relevant evidence in the light most favorable to the government.
Id.A.
At approximately 5:00 p.m. on November 20, 2012, Officer
Douglas Welch of the Durham, North Carolina Police Department
observed a car turn north onto South Roxboro Road. Welch’s
1
Mitchell entered a conditional plea of guilty, thus
preserving his right to appeal the district court’s ruling.
2
attention was drawn to “[t]he darkness of the [car’s] window
tint,” which he suspected violated North Carolina law. J.A. 29.
He followed it to view the windows from several different angles
and compare them to those of other nearby cars. 2 Welch had done
this “hundreds” of times during his ten years as a police
officer. J.A. 30.
After following the car for about a mile, Welch stopped it.
As he sat in his patrol car, Welch saw the “silhouette of the
driver bent over as if to place something on the floor or in
that direction or pick something up from that direction.” J.A.
34. Welch then approached the car, and saw Mitchell in the
driver's seat, an adult in the passenger seat, and two children
in the backseat. When Welch asked Mitchell for identification,
Mitchell avoided eye contact and appeared nervous.
Welch ran Mitchell's name through a police database and
learned that Mitchell had prior drug and firearm arrests.
Mitchell also had alerts for being armed and dangerous, fleeing,
being a validated gang member, and being a STARS 3 offender.
Welch called for assistance, and Officer Watt responded.
2
According to Welch, “[i]t was fairly light out [and he]
had no trouble seeing.” J.A. 28.
3
The parties’ briefs explain that STARS is an offender
notification program, which informs prior felons of the
consequences of continued violations of the law, including
possession of a firearm.
3
Before Watt arrived, Welch again approached the car to test
the window tint. To perform the test, Welch placed part of the
testing device on the interior of the driver’s side window. As
he performed the test, Welch noticed that Mitchell was sweating.
Welch also smelled the odor of burnt marijuana coming from where
Mitchell was seated. 4
Welch asked Mitchell if he had been smoking marijuana.
Mitchell denied it. Welch then directed Mitchell to get out of
the car. At that point, Welch asked Mitchell for consent to
search him. Mitchell raised his hands, said he knew “the
routine,” and Welch frisked him. J.A. 59. A subsequent search
of the car uncovered a small “residue” amount of marijuana on
the driver's side floorboard, which was too little to collect or
photograph, and a firearm underneath the driver's seat. J.A.
46-47.
B.
Mitchell moved to suppress the firearm found in the car.
After a hearing, at which Officer Welch testified, the district
court denied the motion. The court determined that Welch had
reasonable suspicion to believe that the car’s window tint
violated North Carolina law. The court found Welch to be
4
The test revealed that the window tint did not violate
North Carolina law.
4
credible and reasoned that Welch’s belief as to the window tint
violation was based on his extensive prior experience in such
matters, as well as Welch’s comparison of the windows with those
of nearby cars. The court also concluded that the odor of burnt
marijuana emanating from the car gave Welch probable cause to
search it.
On appeal, Mitchell does not contest the validity of the
traffic stop. Instead, he focuses on the lawfulness of the
subsequent search of the car, to which we now turn.
II.
Before an officer may search a car, he must first have
probable cause. California v. Acevedo, 500 U.S. 565, 580
(1991). Probable cause exists when, based on the totality of
the circumstances, “there is a fair probability that contraband
or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). We have held that
an odor of marijuana emanating from inside a car is sufficient
to establish probable cause. United States v. Scheetz, 293 F.3d
175, 184 (4th Cir. 2002).
Mitchell contends that Welch’s testimony “was contradictory
or insufficient to form a basis for probable cause and justify
the warrantless search.” Appellant's Br. at 15. According to
Mitchell, the district court should not have credited Welch's
5
testimony about this particular traffic stop because "an officer
conducting so many stops [for window tint violations] is
unlikely to remember all the significant details from each of
them." Id. at 16. He also argues that the district court
should have viewed Welch’s testimony regarding what he saw
inside the car “with great skepticism.” Id. at 19.
Specifically, Mitchell says that Welch could not have seen
Mitchell’s movements in the car because he was “looking through
heavily tinted auto glass after sunset” 5 and not during “a clear
day with sufficient light.” Id. Finally, Mitchell contends
that Welch's testimony about smelling burnt marijuana is not
believable because Welch failed to notice the odor of marijuana
when he first approached the car.
At bottom, Mitchell's arguments challenge Welch’s
credibility. But “this court is generally reluctant to overturn
factual findings of the trial court, [and] this is doubly so
where the question goes to the demeanor and credibility of
witnesses at trial, since the district court is so much better
situated to evaluate these matters.” United States v. D'Anjou,
16 F.3d 604, 614 (4th Cir. 1994). We find no cause to overturn
the district court’s factual findings in this case.
5
Mitchell points out that sunset in Durham, North Carolina
on November 22, 2012 occurred at 5:05 p.m., at or near the time
of the traffic stop.
6
To begin with, Mitchell fails to provide support for his
argument that Welch’s substantial experience with window tint
violations prevented him from remembering the details of this
particular traffic stop. As a result, the district court was
free to credit Welch’s testimony.
Mitchell’s attack on Welch’s ability to observe the events
he described at the hearing also fails. The district court
heard and apparently credited Welch’s testimony that he saw the
driver bending over “as if to place something on the floor.”
J.A. 34. And while we appreciate Mitchell’s contention that
Welch’s testimony is suspect given that the events in question
occurred at or near sunset, he never made this argument before
the district court. We are generally loath to allow a party to
supplement the record with facts not presented to the district
court. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239
(4th Cir. 1989). But even if we were to accept Mitchell’s
proffer as fact, it does not necessarily discredit Welch. As a
matter of common understanding, daytime does not “begin at
sunrise or end at sunset, but includes dawn at the one end and
twilight at the other.” United States v. Gosser, 339 F.2d 102,
111 (6th Cir. 1964) (internal quotation marks omitted). Thus,
it is entirely feasible that there was sufficient light at
sunset for Welch to see what he described.
7
Mitchell next emphasizes that Welch smelled the odor of
burnt marijuana only when he returned to test the car’s window
tint. According to Mitchell, such an odor would have been
strongest when Welch first approached the car. He also contends
that the district court should have rejected Welch’s version of
the events given that the police failed to recover any marijuana
in the car.
As it was free to do, however, the district court credited
Welch’s testimony that he first smelled the odor of marijuana
when he placed a part of the window tint testing device inside
the car. 6 Once the court found Welch believable on that score,
it then correctly concluded that this fact alone gave Welch
probable cause to search the car. See Scheetz, 293 F.3d at 184.
III.
For the forgoing reasons, 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 this court and argument would not aid the decisional
process.
AFFIRMED
6
The district court also credited Welch’s testimony that he
saw residue of marijuana in the car, but that it was too small
to collect.
8