UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4747
DARWYN LEE PAYNE, a/k/a Darwin
Lee Payne,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-00-172-A)
Submitted: December 20, 2001
Decided: January 14, 2002
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher B. Amolsch, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Mark A. Grider, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PAYNE
OPINION
PER CURIAM:
Following a jury trial, Darwyn Lee Payne was convicted on one
count each of possession of less than five grams of crack cocaine,
possession of five grams or more of crack cocaine, and possession of
marijuana, all in violation of 21 U.S.C.A. § 844 (West 1999). The dis-
trict court sentenced him to sixty-three months in prison. Darwyn
appeals, challenging the constitutionality of § 844, the propriety of the
stop of his vehicle, and the scope of the ensuing search of his car. We
find his claims to be meritless; consequently, we affirm.
On April 14, 2000, Officer Nancy Leggieri of the United States
Park Police was patrolling the George Washington Memorial Park-
way when she noticed that the driver of a blue Chevrolet Corsica was
not wearing a seatbelt. She began to follow him and turned on her
emergency lights to signal her intention to pull him over. The driver,
later identified as Darwyn Lee Payne, failed to stop so she sounded
her police siren. Payne eventually stopped approximately three-
quarters of a mile from the spot where the officer first activated her
emergency lights.
When Leggieri approached the car and told Payne that she saw that
he had not been wearing his seatbelt, he answered, "I don’t know
what you’re talking about." She asked for his driver’s license and reg-
istration, but he was only able to produce his license. Leggieri then
asked Payne to exit his car. At first he refused and appeared increas-
ingly nervous. Finally, Payne got out of the vehicle. However, he con-
tinued to behave belligerently, refusing the officer’s directives until
they were repeated several times, and he continued to appear nervous,
peering inside the car and trying to edge closer to it. Once a back up
officer arrived, Leggieri noticed the neck of a bottle sticking out from
under the driver’s seat of Payne’s car. The seal on the cap had been
broken. Payne told Leggieri that the bottle contained Hennessy
cognac. The officer retrieved the bottle and emptied the small amount
of brown liquid remaining in the bottle, noting the odor of alcohol.
Leggieri then looked in the console area where she had observed
Payne reaching before he stopped his car. Inside the lidless console,
UNITED STATES v. PAYNE 3
she found a clear plastic baggie containing crack. A narcotics canine
unit was called to the scene and the dog alerted to the trunk where
marijuana and crack were discovered.
A grand jury indicted Payne on one count of possession with intent
to distribute crack, in violation of 21 U.S.C.A. § 841 (West 1999 &
Supp. 2001) (Count 1), one count of possession with intent to distrib-
ute five grams or more of crack, in violation of 21 U.S.C.A. § 841
(Count 2), and one count of possession of marijuana, in violation of
21 U.S.C.A. § 844(a) (Count 3). Payne filed an unsuccessful motion
to suppress the drugs seized from his car. The jury convicted Payne
on Count 3 and on the lesser included offenses of possession of crack
in Counts 1 and 2, all in violation of 21 U.S.C.A. § 844. The court
sentenced him to sixty-three months in prison and Payne timely
appealed.
Payne first argues that 21 U.S.C.A. § 844 is unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We find
that this argument is foreclosed for the reasons set forth in United
States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001).
Next, Payne argues that the initial traffic stop was illegal under
Virginia law. The parties agree that traffic on the George Washington
Memorial Parkway is governed by the Code of Federal Regulations.
Under 36 C.F.R. § 4.2(a) (2001), "[u]nless specifically addressed by
regulations in this chapter, traffic and the use of vehicles within the
park area are governed by State law." The federal regulations
expressly require all occupants of motor vehicles to wear seatbelts
when the vehicle is in motion. 36 C.F.R. § 4.15. Payne argues that,
under Va. Code Ann. § 46.2-1094(F) (Michie 1998), police officers
may not stop a car solely for violation of the state’s seatbelt law and
that, because the federal regulations do not expressly address this
issue, state law applies and Officer Leggieri lacked the authority to
stop Payne’s car solely on the basis of his failure to wear his seatbelt.
Payne is mistaken. In promulgating 36 C.F.R. § 4.15, the National
Park Service ("NPS") expressly stated that this rule does "not require
another traffic violation to occur before the vehicle may be stopped."
Safety Belt Use Within the NPS System, 62 Fed. Reg. 61631, 61631
(Nov. 19, 1997) (final rule codified at 36 C.F.R. § 4.15 effective Dec.
19, 1997). Cf. United States v. Knott, 722 F. Supp 1365, 1369 (E.D.
4 UNITED STATES v. PAYNE
Va. 1989) (where Code of Federal Regulations specifically addressed
violation and punishment for that violation, magistrate judge could
not look to state law to impose different penalty).
Finally, Payne argues that, even if the initial traffic stop was per-
missible, the ensuing search of the car that revealed the narcotics
exceeded the scope of a legitimate search. Payne concedes that there
was probable cause to search for alcohol, and we find that the search
conducted did not exceed the scope of the search for alcohol. See Cal-
ifornia v. Acevedo, 500 U.S. 565, 580 (1991) (discussing standard for
warrantless automobile search). Accordingly, we need not address the
alternative grounds cited by the district court to justify the search.
For these reasons, we affirm Payne’s sentence and conviction. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED