United States v. Furstonberg

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-40515 _____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

BERNARD J. FURSTONBERG, III,

Defendant - Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (USDC No. 2:01-CR-18-1)

March 18, 2003

Before REAVLEY, JOLLY, and JONES, Circuit Judges.

PER CURIAM:*

The United States appeals a district court order suppressing

five rounds of ammunition that were seized from the pocket of

Defendant Bernard J. Furstonberg, III by Ore City, Texas Police

Chief Scott Sartain during a pat-down search for weapons conducted

as part of an admittedly lawful investigatory stop. Although

Furstonberg argues that the Government has not demonstrated that it

has obtained approval for this appeal, as required by 18 U.S.C.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. § 3742(b), it is clear that the Government has demonstrated

compliance with § 3742(b)’s approval requirement. United States v.

Dadi, 235 F.3d 945, 955 (5th Cir. 2000). Therefore, the United

States’ appeal will not be dismissed.

In its March 4, 2002 order granting Furstonberg’s motion to

suppress, the district court determined that Sartain did not

immediately recognize the identity of the objects in Furstonberg’s

pocket when Sartain performed the pat-down search. After careful

consideration of the briefs, the oral arguments, and the record in

this case, we are unpersuaded that this factual determination was

clearly erroneous. United States v. Dortch, 199 F.3d 193, 197 (5th

Cir. 1999), op. corrected on denial of reh’g, 203 F.3d 883 (5th

Cir. 2000). Consequently, the order of the district court must be

affirmed. See Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993).

AFFIRMED.