United States v. Eric Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC LARON BROWN, a/k/a Little E,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:12-cr-00418-DCN-1)
Submitted: June 4, 2013 Decided: July 31, 2013
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John Robert Haley, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for
Appellant. William N. Nettles, United States Attorney, Nathan
S. Williams, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal, Eric Brown challenges the justification for
a traffic stop and subsequent search, which led to his
conviction for drug trafficking and the illegal possession of a
firearm. Finding his arguments unpersuasive, we affirm.
I
On March 5, 2012, Charleston County (South Carolina)
Sheriff’s Deputies Jay Christmas and Michael Buenting observed a
Mazda SUV traveling at approximately 50 miles per hour with
“less than a car length in between his front bumper and the back
bumper of the car in front of him,” in violation of South
Carolina law. The deputies agreed that the SUV was “following
too closely and was a traffic hazard.”
As the deputies turned on their blue lights and siren to
effect a stop of the SUV, they observed “something splatter[]
against the back glass” and both the driver and the passenger
engaging in “furtive movements,” such as digging in the center
console.
Once the vehicle was stopped, Deputy Christmas spotted
marijuana seeds on the back floorboard and a digital scale in
the pocket behind the passenger’s seat. Deputy Buenting asked
Harold Austin, the driver, to exit the vehicle and step to the
rear. The deputies then conferred with each other to confirm
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that each smelt burnt marijuana in the vehicle. Deputy
Christmas found the smell was so strong that he believed it had
been smoked earlier that day. He asked Austin about the smell,
and Austin replied that “some girls may have smoked marijuana.”
When Deputy Buenting told Austin the reason for the stop,
Austin “acknowledged that and said he wasn’t paying attention.”
Buenting then began to issue a warning citation, as Deputy
Christmas reviewed the vehicle’s documentation. He discovered
that the SUV was a rental vehicle, and the rental agreement was
not listed in either Austin’s name or the name of his passenger,
Eric Brown. Austin explained that his aunt had rented the
vehicle for him. When Deputy Christmas asked Austin for consent
to search the vehicle, Austin consented.
Deputy Christmas noticed that the passenger, Eric Brown,
was “grasping with his left hand on his left leg” with such
force that his arm muscles were tense. When Deputy Christmas
tried to engage Brown in conversation, Brown did not make eye
contact. Following standard procedure, Deputy Christmas asked
Brown to step outside of the vehicle so that the officers could
safely search it. As Brown stepped out of the vehicle,
perceptively slowly, Christmas noticed a white bag, which looked
like cocaine, sitting by his leg. (It was later confirmed to be
cocaine). Brown also continued to grab his left leg as he
exited, causing Deputy Christmas to suspect that Brown was
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holding something, probably a gun, under his pants. When Deputy
Christmas asked Brown if he would consent to a search, Brown
hesitated at first and then consented.
As Deputy Christmas patted Brown’s left leg, he believed he
felt an object consistent with a gun. A gun then fell out of
Brown’s pants -- a loaded .380 caliber Smith & Wesson pistol.
As Deputy Christmas continued his pat down, he felt a large lump
between Brown’s buttocks, which subsequently turned out to be a
bag of cocaine. And after Brown was taken to the Charleston
County Detention Center and strip-searched, officers found two
additional bags of crack cocaine. Brown acknowledged that the
various bags of cocaine were his.
After Brown was indicted for various drug and gun offenses,
he filed a motion to suppress the evidence obtained during the
stop of the SUV and the subsequent search. He argued that the
stop occurred “without reasonable suspicion and/or probable
cause” and that “he did not consent to the search of his person
and that there was not reasonable suspicion to support a frisk
of his person.” The district court rejected both reasons and
denied Brown’s motion. Brown then entered a conditional guilty
plea to drug trafficking and the illegal possession of a
firearm, as well as other unrelated offenses, preserving for
appeal a challenge to the district court’s ruling on his motion
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to suppress. The district court sentenced Brown to 96 months’
imprisonment, and this appeal followed.
II
Brown first contends that the traffic stop was unsupported
by probable cause because there were insufficient indicia of
reliability that a traffic offense had been committed. We find
the argument unpersuasive. “Observing a traffic violation
provides sufficient justification for a police officer to detain
the offending vehicle for as long as it takes to perform the
traditional incidents of a routine traffic stop.” United States
v. Branch, 537 F.3d 328, 335 (4th Cir. 2008). In this case,
Deputy Christmas and Deputy Buenting testified that, as they
proceeded down the highway in a lane parallel to the lane in
which Austin’s SUV was proceeding, each observed the SUV
traveling at about 50 miles per hour within a car length of the
vehicle in front of it. They both had a clear line of sight and
concluded that in the circumstances, the distance between
vehicles was “way too close” and constituted a “traffic hazard,”
in violation of South Carolina law. See S.C. Code Ann. § 56-5-
1930(a).
Brown nonetheless claims that the district court erred in
failing to apply our decision in United States v. Sowards, 690
F.3d 583, 592 (4th Cir. 2012), where we concluded that an
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officer’s estimate that a vehicle was exceeding the speed limit
by 5 miles per hour, traveling 75 miles per hour in a 70 mile-
per-hour zone, was too nuanced to justify finding an infraction
without having “additional indicia of reliability.” But here,
there was no such questionable estimate. Rather, the officers
actually saw the distance between Austin’s SUV and the vehicle
in front of him as they traveled parallel to it in a different
lane. The record contains no facts that cast doubt on the
accuracy of the deputies’ observations. Accordingly, we affirm
the district court’s conclusion that the traffic stop was
supported by probable cause.
Brown’s argument that he did not consent to the search of
his person and that the search was not otherwise supported by
reasonable suspicion is likewise unpersuasive. The record is
undisputed that Brown consented to the search of his person,
albeit reluctantly at first, as manifested by a short delay in
giving consent. As the district court correctly observed,
“reluctantly-given consent is not necessarily involuntarily-
given consent.” Indeed, pausing to think about whether to give
consent suggests thoughtfulness, not coercion.
Apart from Brown’s consent, Deputy Christmas also had
reasonable suspicion to believe that Brown was committing the
offenses of possessing controlled substances and possessing a
firearm. Christmas saw marijuana seeds on the floor, a digital
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hand scale in the back pocket of the passenger’s seat, and he
smelled what he believed to be recently burned marijuana. He
also saw a white bag that he suspected to be cocaine next to
Brown’s leg. In addition to his view of the drugs, Deputy
Christmas observed that Brown was continually “grasping his left
hand on his left leg” to protect what Deputy Christmas suspected
was, and what turned out to be, a firearm.
Accordingly, we also affirm the district court’s
conclusions that Brown consented to the search of his person and
that, in any event, the search was justified by reasonable
suspicion.
The judgment of the district court is accordingly
AFFIRMED.
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