UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKUS DAVIS, a/k/a Shawn Mark Davis,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, Chief District Judge. (2:17-cr-00035-1)
Submitted: June 29, 2018 Decided: July 24, 2018
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing Specialist, George H. Lancaster, Jr., Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, J. Matthew Davis, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
After unsuccessfully moving to suppress evidence recovered from a traffic stop
patdown, Markus Davis pleaded guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). Davis’ conditional plea agreement
reserved his right to contest the propriety of the district court’s suppression ruling. On
appeal, Davis challenges the constitutionality of both the traffic stop and the ensuing
patdown. For the reasons that follow, we affirm.
“In considering the appeal of a denial of a motion to suppress, we review the
district court’s legal conclusions de novo and its factual findings for clear error.” United
States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017) (internal quotation marks omitted).
“We further construe the evidence in the light most favorable to the government—the
prevailing party below.” United States v. Hill, 849 F.3d 195, 200 (4th Cir. 2017)
(internal quotation marks omitted).
Shortly after midnight on February 21, 2017, law enforcement received two 911
calls from a person who claimed that two occupants of a maroon Chevrolet Caprice had
driven by his house waving guns and talking about shooting people. In the early morning
hours of the following day, February 22, Sergeant Steven Webb spotted a car matching
the description of the vehicle involved in the brandishing incident. As Webb pursued the
maroon vehicle, searching for a reason to conduct a traffic stop, he observed that the
driver was not wearing his seatbelt. After asking another officer to run the vehicle’s tags,
Webb learned that the two registered owners of the vehicle had recently completed
federal prison sentences for firearms offenses. The maroon vehicle then pulled off to the
2 side of the road, at which point Webb turned on his lights and initiated a traffic stop. The
driver, after initially opening his door, complied with Webb’s command to remain in the
car.
Upon approaching the vehicle, Webb recognized the driver as Davis, whom Webb
had previously encountered during a strip search in which Davis became resistant and
started fighting with several police officers in a holding cell bathroom. Davis, rather than
exiting the vehicle as requested, stayed in his car and began reaching for something on
the passenger’s side. Roughly two minutes after Webb instructed Davis that he needed to
be searched, Davis stepped out of his vehicle, at which time he was arrested for resisting
and obstructing. The resulting search uncovered a loaded firearm on Davis’ person.
We analyze the constitutionality of a traffic stop under the two-prong standard
announced in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Williams, 808 F.3d 238,
245 (4th Cir. 2015). Because Davis offers no challenge to the scope of the traffic stop,
we need only determine whether the stop was “legitimate at its inception.” United States
v. Hill, 852 F.3d 377, 381 (4th Cir. 2017). “As a general matter, the decision to stop an
automobile is reasonable where the police have probable cause to believe that a traffic
violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996).
Davis acknowledges that pretextual traffic stops are not per se unreasonable, see
id. at 811-13, but argues that Webb’s ulterior motive for initiating the traffic stop should
factor into the assessment of Webb’s credibility. However, it is the province of the
suppression court, not this court, to judge a witness’ credibility. United States v.
Patiutka, 804 F.3d 684, 689 (4th Cir. 2015). For this reason, we accord great deference
3 to the district court’s credibility determinations, reviewing the court’s factual findings
only for clear error. United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016). Having
examined Webb’s testimony and the video footage from Webb’s dashcam, we are
unconvinced that the district court clearly erred in crediting Webb’s assertion that he
could see that Davis was not wearing a seatbelt. See United States v. Locklear, 829 F.2d
1314, 1317 (4th Cir. 1987) (“Absent compelling evidence to the contrary, this Court
declines to overturn a factual determination founded on witness demeanor and
credibility.”). Because Webb had probable cause to believe that Davis had committed a
traffic violation, we discern no error in the district court’s determination that the traffic
stop was lawful.
“To justify a patdown of the driver or a passenger during a traffic stop . . . , the
police must harbor reasonable suspicion that the person subjected to the frisk is armed
and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327 (2009). The reasonable
suspicion standard requires an objective inquiry into “whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that of others was
in danger.” United States v. Powell, 666 F.3d 180, 186 (4th Cir. 2011) (internal quotation
marks omitted). We measure reasonable suspicion against the totality of the
circumstances and “will not find reasonable suspicion lacking based merely on a
piecemeal refutation of each individual fact and inference.” United States v. George, 732
F.3d 296, 299-300 (4th Cir. 2013) (internal quotation marks omitted).
Davis attacks each of the factors supporting the district court’s finding of
reasonable suspicion. Specifically, Davis assails the court’s reliance on his criminal
4 history and his prior interaction with Webb. Davis also contends that his behavior on the
night of his arrest was not unusually suspicious. Lastly, Davis disputes the reliability of
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKUS DAVIS, a/k/a Shawn Mark Davis,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, Chief District Judge. (2:17-cr-00035-1)
Submitted: June 29, 2018 Decided: July 24, 2018
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing Specialist, George H. Lancaster, Jr., Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, J. Matthew Davis, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
After unsuccessfully moving to suppress evidence recovered from a traffic stop
patdown, Markus Davis pleaded guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). Davis’ conditional plea agreement
reserved his right to contest the propriety of the district court’s suppression ruling. On
appeal, Davis challenges the constitutionality of both the traffic stop and the ensuing
patdown. For the reasons that follow, we affirm.
“In considering the appeal of a denial of a motion to suppress, we review the
district court’s legal conclusions de novo and its factual findings for clear error.” United
States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017) (internal quotation marks omitted).
“We further construe the evidence in the light most favorable to the government—the
prevailing party below.” United States v. Hill, 849 F.3d 195, 200 (4th Cir. 2017)
(internal quotation marks omitted).
Shortly after midnight on February 21, 2017, law enforcement received two 911
calls from a person who claimed that two occupants of a maroon Chevrolet Caprice had
driven by his house waving guns and talking about shooting people. In the early morning
hours of the following day, February 22, Sergeant Steven Webb spotted a car matching
the description of the vehicle involved in the brandishing incident. As Webb pursued the
maroon vehicle, searching for a reason to conduct a traffic stop, he observed that the
driver was not wearing his seatbelt. After asking another officer to run the vehicle’s tags,
Webb learned that the two registered owners of the vehicle had recently completed
federal prison sentences for firearms offenses. The maroon vehicle then pulled off to the
2 side of the road, at which point Webb turned on his lights and initiated a traffic stop. The
driver, after initially opening his door, complied with Webb’s command to remain in the
car.
Upon approaching the vehicle, Webb recognized the driver as Davis, whom Webb
had previously encountered during a strip search in which Davis became resistant and
started fighting with several police officers in a holding cell bathroom. Davis, rather than
exiting the vehicle as requested, stayed in his car and began reaching for something on
the passenger’s side. Roughly two minutes after Webb instructed Davis that he needed to
be searched, Davis stepped out of his vehicle, at which time he was arrested for resisting
and obstructing. The resulting search uncovered a loaded firearm on Davis’ person.
We analyze the constitutionality of a traffic stop under the two-prong standard
announced in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Williams, 808 F.3d 238,
245 (4th Cir. 2015). Because Davis offers no challenge to the scope of the traffic stop,
we need only determine whether the stop was “legitimate at its inception.” United States
v. Hill, 852 F.3d 377, 381 (4th Cir. 2017). “As a general matter, the decision to stop an
automobile is reasonable where the police have probable cause to believe that a traffic
violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996).
Davis acknowledges that pretextual traffic stops are not per se unreasonable, see
id. at 811-13, but argues that Webb’s ulterior motive for initiating the traffic stop should
factor into the assessment of Webb’s credibility. However, it is the province of the
suppression court, not this court, to judge a witness’ credibility. United States v.
Patiutka, 804 F.3d 684, 689 (4th Cir. 2015). For this reason, we accord great deference
3 to the district court’s credibility determinations, reviewing the court’s factual findings
only for clear error. United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016). Having
examined Webb’s testimony and the video footage from Webb’s dashcam, we are
unconvinced that the district court clearly erred in crediting Webb’s assertion that he
could see that Davis was not wearing a seatbelt. See United States v. Locklear, 829 F.2d
1314, 1317 (4th Cir. 1987) (“Absent compelling evidence to the contrary, this Court
declines to overturn a factual determination founded on witness demeanor and
credibility.”). Because Webb had probable cause to believe that Davis had committed a
traffic violation, we discern no error in the district court’s determination that the traffic
stop was lawful.
“To justify a patdown of the driver or a passenger during a traffic stop . . . , the
police must harbor reasonable suspicion that the person subjected to the frisk is armed
and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327 (2009). The reasonable
suspicion standard requires an objective inquiry into “whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that of others was
in danger.” United States v. Powell, 666 F.3d 180, 186 (4th Cir. 2011) (internal quotation
marks omitted). We measure reasonable suspicion against the totality of the
circumstances and “will not find reasonable suspicion lacking based merely on a
piecemeal refutation of each individual fact and inference.” United States v. George, 732
F.3d 296, 299-300 (4th Cir. 2013) (internal quotation marks omitted).
Davis attacks each of the factors supporting the district court’s finding of
reasonable suspicion. Specifically, Davis assails the court’s reliance on his criminal
4 history and his prior interaction with Webb. Davis also contends that his behavior on the
night of his arrest was not unusually suspicious. Lastly, Davis disputes the reliability of
the vehicle description provided by the 911 caller.
We are unpersuaded by Davis’ arguments. First, Davis’ prior firearm offense was
certainly probative of whether he was armed and dangerous. See United States v.
Holmes, 376 F.3d 270, 278 (4th Cir. 2004). Although “[a] prior criminal record is not,
standing alone, sufficient to create reasonable suspicion,” United States v. Foster, 634
F.3d 243, 246 (4th Cir. 2011) (internal quotation marks omitted), Davis’ criminal history
was but one of several factors that contributed to Webb’s reasonable suspicion. Second,
based on his prior encounter with Davis, Webb could have reasonably concluded that, if
Davis previously attempted to fight several officers in a confined space, he might pose a
danger when approached in an uncontrolled environment in the wee hours of the night.
See George, 732 F.3d at 300 (“[T]hat the stop occurred late at night may alert a
reasonable officer to the possibility of danger.”); Powell, 666 F.3d at 186 (“The
determination of reasonable suspicion must be based on commonsense judgments and
inferences about human behavior . . . .” (internal quotation marks omitted)). Third, we
agree with the district court that Davis’ hand movements in the cabin of his vehicle lent
support to a finding of reasonable suspicion. See George, 732 F.3d at 299 (“A suspect’s
suspicious movements can . . . be taken to suggest that the suspect may have a weapon.”).
Fourth, contrary to Davis’ claim, Davis’ vehicle and the vehicle from the
brandishing incident were markedly similar, sharing the same make, model, color, and
approximate age. Finally, we reject Davis’ attempt to discredit the 911 caller. Although
5 the caller falsely identified himself on the phone, he later met with law enforcement at his
residence, where he provided his name and a signed statement. By exposing himself “to
the repercussions of misleading or deceiving the police,” United States v. Christmas, 222
F.3d 141, 144 (4th Cir. 2000), the caller adequately allayed the credibility concerns
stemming from his initial misrepresentation. Viewing the totality of the evidence, we
conclude that Webb’s patdown of Davis was supported by reasonable suspicion.
Accordingly, we affirm the judgment of the district court. 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