UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4676
SAMUEL JAMES WYATT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, District Judge.
(CR-02-27)
Argued: December 5, 2003
Decided: January 5, 2004
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: George Howard Lancaster, Jr., Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. John Lanier File,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Jonathan D. Byrne, Legal Research and Writing Specialist,
Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, Charleston, West Virginia, for Appellee.
2 UNITED STATES v. WYATT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Samuel Wyatt, convicted of being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1) (2000), appeals the district
court’s denial of his motion to suppress all evidence related to the dis-
covery of the firearm in his vehicle during a traffic stop. Wyatt argues
the discovering officer lacked reasonable suspicion to conduct the
protective frisk that led to the subsequent discovery of the firearm and
lacked probable cause to search his vehicle. Because we are satisfied
that both the frisk and search of Wyatt’s vehicle were reasonable, we
affirm.
I.
On October 12, 2001, Sergeant Samuel Lake of the West Virginia
State Police pulled Wyatt over for speeding. At Sergeant Lake’s
request, Wyatt exited his vehicle and began walking with Sergeant
Lake back to Lake’s patrol car. As the two approached the patrol car,
Sergeant Lake stopped, turned (coming within twelve to sixteen
inches of Wyatt), and asked Wyatt whether he had any guns or knives
in his possession. Wyatt dug his left hand into the left front pocket
of his jeans and produced two knives, which Sergeant Lake directed
Wyatt to place on the trunk of his car. Wyatt returned to his car as
Sergeant Lake directed but deposited the knives instead through the
open driver’s side window.
As Wyatt walked back to where Sergeant Lake stood, Sergeant
Lake noted that items remained in the right front pocket of his jeans.
Sergeant Lake asked Wyatt whether he had "anything else" on him
and stepped toward Wyatt as he finished his question. Sergeant
Lake’s arm extended slightly in the direction of Wyatt’s right front
pocket. At the same time, Wyatt began to stop and withdraw his arms
from the area in front of his waist. Pausing only momentarily after
UNITED STATES v. WYATT 3
Wyatt stopped moving, Sergeant Lake patted down Wyatt’s jeans,
starting with the right front pocket. Sergeant Lake felt hard objects in
his pocket, including one he believed could have been a knife. Fol-
lowing the conclusion of the frisk and at Sergeant Lake’s request,
Wyatt withdrew a third knife and a small amount of marijuana from
the right front pocket.
Sergeant Lake asked Wyatt to join him in his patrol car as he wrote
the traffic citation. During the discussion, Wyatt admitted having
prior arrests for possession of marijuana. Wyatt also admitted there
was a marijuana "roach" on the center console of his car. Sergeant
Lake continued the traffic stop while a canine drug detection unit
arrived to investigate Wyatt’s vehicle. The dog’s handler indicated
that the dog gave a positive indication for contraband in the area of
the front passenger-side floorboard and center console, prompting
Sergeant Lake to search those areas. In doing so, Sergeant Lake dis-
covered a loaded North American Arms .22 caliber revolver in the
closed center console compartment.
Following Wyatt’s indictment on the sole charge of being a felon
in possession of a firearm, see 18 U.S.C. § 922(g)(1) (2000), he
moved to suppress the revolver found in his car. Wyatt argued that
Sergeant Lake lacked reasonable suspicion to conduct the frisk that
lead to its eventual discovery. The district court disagreed, finding
that Wyatt’s conduct provided an adequate basis from which to imply
his consent to be frisked, and that the circumstances presented a rea-
sonable suspicion that Wyatt possessed additional weapons. Wyatt
thereafter pled guilty to the § 922(g)(1) charge while reserving his
right to challenge the district court’s ruling on his suppression motion.
See Fed. R. Crim. P. 11(a)(2). The district court imposed a fifty-one
month custodial sentence followed by three years’ supervised release.
This appeal ensued.
II.
In this appeal, Wyatt renews his contention that Sergeant Lake’s
frisk violated the Fourth Amendment. He argues specifically that the
circumstances of the stop did not provide Sergeant Lake with an ade-
quate basis to frisk him after he discarded the knives that were in his
left front pocket. In addition, Wyatt challenges Lake’s search of his
4 UNITED STATES v. WYATT
vehicle as an independent violation of the Fourth Amendment. We
examine these contentions in turn.
A.
The standard of review applicable to the denial of a motion to sup-
press is mixed. The legal determinations underlying the denial of a
motion to suppress are reviewed de novo. United States v. Hamlin,
319 F.3d 666, 671 (4th Cir. 2003). This includes determinations of
reasonable suspicion and probable cause. See Ornelas v. United
States, 517 U.S. 690, 699 (1996). However, the factual findings on
which those determinations are made are reviewed for clear error. Id.
Our review of the facts must be conducted in the light most favorable
to the party prevailing below, Hamlin, 319 F.3d at 671, and we must
give "due weight to inferences drawn from those facts by resident
judges and local law enforcement officers." Ornelas, 517 U.S. at 699.
Fourth Amendment jurisprudence makes it clear that a police offi-
cer observing unusual conduct that "leads him reasonably to conclude
. . . that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous," may
both briefly stop those individuals for questioning and conduct a pat-
down of the outer surfaces of their clothing. Terry v. Ohio, 392 U.S.
1, 30 (1968). The prerequisites for a valid stop and frisk, therefore,
are a reasonable suspicion of criminal activity and a concomitant
apprehension of danger. United States v. Burton, 228 F.3d 524, 528
(4th Cir. 2002).
It is equally well-established that the same general principles gov-
ern an officer’s ability to conduct a frisk of the driver or passengers
of a vehicle during a traffic stop. See United States v. Sakyi, 160 F.3d
164, 167-69 (4th Cir. 1998) (analyzing various applications of Terry
to traffic stops). However, in the context of a valid traffic stop, the
analysis must take into account that the fact the individual to be
frisked has already been stopped. See Pennsylvania v. Mimms, 434
U.S. 106, 110 (1977) (per curiam) ("In this case, unlike Terry v. Ohio,
there is no question about the propriety of the initial restrictions on
respondent’s freedom of movement."). Accordingly, the inquiry
focuses instead on whether any additional incursion by the officer,
UNITED STATES v. WYATT 5
beyond the stop itself, "was reasonable and thus permissible under the
Fourth Amendment." Id.
Given the facts presented in this appeal, we have no difficulty sus-
taining the district court’s determination of the validity of Sergeant
Lake’s frisk. The facts presented in this appeal are identical to those
presented in Mimms. In Mimms, the officer observed the defendant
driving with expired license plates. After stopping the vehicle, the
officer asked the defendant to step out of the car and, at that point,
"noticed a large bulge under respondent’s sports jacket." Id. at 107.
Similarly, here, after asking Wyatt to exit his car during a legitimate
traffic stop, Sergeant Lake noted the presence of protruding objects
at the bottom of the right front pocket of Wyatt’s jeans. As in Mimms,
this bulge in Wyatt’s clothing "permitted the officer to conclude that
[Wyatt] was armed and thus posed a serious and present danger to the
safety of the officer." Id. at 112. The reasonableness of this conclu-
sion is reinforced by Wyatt’s earlier admission that he had knives in
his left front pocket, and his deviation from Sergeant Lake’s specific
instructions as to where to place those weapons. Because these facts
provide a reasonable basis to conclude that Wyatt may have possessed
additional weapons as he returned from his car, we find no error in
the district court’s denial of Wyatt’s motion to suppress based on the
constitutionality of the frisk.1
B.
In his brief, Wyatt also argues that even if Sergeant Lake’s frisk
was permissible, the subsequent warrantless search of his vehicle vio-
lated the Fourth Amendment because Sergeant Lake lacked probable
cause of criminal activity. However, Wyatt did not raise this issue
before the court in his motion to suppress. Where a criminal defen-
dant advances on appeal an argument not raised before the district
court, this Court’s review is limited by the plain error standard. See
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
1
Wyatt also contests the district court’s conclusion that his conduct
demonstrated his consent to be frisked. However, because the search
constituted a valid protective frisk under Mimms, we do not reach this
issue.
6 UNITED STATES v. WYATT
(1993). As a result, Wyatt must, at a minimum, identify obvious error
affecting his substantial rights. See Olano, 507 U.S. at 732-34.
We find no error in Sergeant Lake’s search of Wyatt’s car. Under
the Fourth Amendment, a police officer may extend an otherwise
valid traffic stop beyond the time necessary to issue the citation if
there is reasonable suspicion of other criminal activity. United States
v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000) (en banc). If the exten-
sion of the traffic stop results in probable cause to believe that the car
contains contraband, officers may proceed with a warrantless search
of the vehicle. United States v. Carter, 300 F.3d 415, 422 (4th Cir.),
cert. denied, 537 U.S. 1187 (2002). That search may include any
closed containers that the officers have "probable cause to believe . . .
may contain contraband." Id.
Given the facts recounted in the district court’s order, Sergeant
Lake had both reasonable suspicion to extend the traffic stop and
probable cause to search Wyatt’s car. Sergeant Lake’s frisk of Wyatt
led to the discovery of marijuana in Wyatt’s right front pocket, and
Wyatt later admitted to having a marijuana "roach" on the center con-
sole of his car. Wyatt also acknowledged prior arrests for possession
of marijuana. In addition, a sweep of Wyatt’s car by a canine unit cal-
led to the scene following Wyatt’s admissions indicated the possible
presence of contraband in the area around the front passenger-side
floorboard and center console. Because Wyatt admitted to having
marijuana near the center console of his car,2 and the canine unit indi-
cated the presence of contraband close to the center console, see id.
(discussing scope of search permitted by a positive indication of con-
traband), we find that Sergeant Lake had probable cause to search
Wyatt’s vehicle.
III.
We find the district court properly concluded that Sergeant Lake
had a reasonable basis to conduct a protective frisk of Wyatt. Further,
we find no Fourth Amendment violation in Sergeant Lake’s decision
2
Although Sergeant Lake did not find the "roach" Wyatt stated that he
had left on the center console of his car, he eventually discovered the
firearm hidden in a closed compartment in the center console.
UNITED STATES v. WYATT 7
to search Wyatt’s car following Wyatt’s admission that he had mari-
juana in his car and a positive sweep of the car’s interior by a drug
sniffing dog. Accordingly, the district court’s suppression order is
AFFIRMED.