UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4714
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OSCAR LAMONT ALDRIDGE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-42)
Submitted: May 17, 2006 Decided: June 6, 2006
Before WILKINS, Chief Judge, and TRAXLER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Oscar Lamont Aldridge appeals his conviction for being a felon
in possession of a firearm, see 18 U.S.C.A. § 922(g)(1) (West
2000), arguing that the magistrate judge erred in denying his
motion to suppress. For the reasons set forth below, we affirm.
I.
Late in the afternoon on April 13, 2003, Sergeant John Smith
of the New Bern, North Carolina Police Department was patrolling a
high-crime area near the Craven Terrace housing project. Sergeant
Smith was concerned, in particular, with an area across the street
from the housing project near a store called “The Red Sea.” While
in the area, Sergeant Smith observed Aldridge approaching people,
touching their hands briefly, and walking away, without ever
leaving the area. Sergeant Smith was concerned that Aldridge was
engaging in hand-to-hand drug transactions. Aldridge was with
another individual, and their conduct led Sergeant Smith to believe
that the pair was avoiding him.
Sergeant Smith contacted Officer Timothy Martin and asked him
to conduct a field interview of the individuals. When Officer
Martin arrived, he observed that a third officer had engaged
Aldridge’s companion in conversation. Aldridge had walked away,
which Officer Martin thought was odd. Officer Martin also observed
that Aldridge was holding his right arm close to his body, while
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his left arm swung freely, and that the right side of Aldridge’s
jacket seemed to be weighed down. Concerned that Aldridge might be
armed, Officer Martin--who had, by this time, exited his vehicle--
instructed Aldridge to stop walking and place his hands on his head
with his fingers interlaced. Aldridge was facing away from Officer
Martin. When the latter spoke, Aldridge turned around, causing the
object in his right jacket pocket to hit Officer Martin’s hand.
Recognizing the feel of a firearm, Officer Martin seized the weapon
and arrested Aldridge with the assistance of another officer.
Prior to trial, Aldridge moved to suppress the firearm on the
basis that Officer Martin lacked a reasonable and articulable
suspicion of criminal activity sufficient to authorize an
investigative detention. See Terry v. Ohio, 392 U.S. 1, 21-22
(1968). During the suppression hearing before a magistrate judge,
Officer Martin was asked why several details about the arrest--
including the manner in which Aldridge was holding his right arm
and the right side of his jacket being weighed down--were not set
forth in the two-page, hand-written incident report filed on the
evening of the arrest. Officer Martin responded that he “didn’t
want to clutter the report up with the most minute details.” J.A.
51.
The magistrate judge issued a report and recommendation
suggesting that the motion to suppress be denied. The judge stated
that he was “troubled by the fact that Officer Martin’s testimony
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... substantially expanded on his contemporaneous report.” Id. at
82. However, noting that Officer Martin had testified under oath
and that Aldridge “offered no evidence to rebut or impeach Officer
Martin’s version of the events,” id. at 83, the judge found Officer
Martin to be credible.
Aldridge filed objections to the magistrate judge’s report.
The district court overruled these objections and adopted the
recommendation of the magistrate judge. Following a bench trial,
the court found Aldridge guilty of being a felon in possession of
a firearm. In the course of rendering its verdict, the court
reiterated its view that the motion to suppress was properly
denied.
II.
The Fourth Amendment prohibits “unreasonable searches and
seizures.” U.S. Const. amend. IV. It is well settled that a
search conducted without a warrant is per se unreasonable unless it
falls within one of the “well-delineated exceptions” to the warrant
requirement. Katz v. United States, 389 U.S. 347, 357 (1967). One
such exception is the authority of law enforcement officers to
effect a limited investigatory detention when they possess “a
reasonable and articulable suspicion that the person seized is
engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440
(1980) (per curiam); see Terry, 392 U.S. at 21-22 (1968). A
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reasonable and articulable suspicion is “a particularized and
objective basis for suspecting the person stopped of criminal
activity.” Ornelas v. United States, 517 U.S. 690, 696 (1996)
(internal quotation marks omitted). In determining whether a
detention is supported by reasonable suspicion, the court must look
to the circumstances known to the officer and “the specific
reasonable inferences which he is entitled to draw from the facts
in light of his experience.” Terry, 392 U.S. at 27. In so doing,
the court must consider “the totality of the circumstances--the
whole picture.” United States v. Cortez, 449 U.S. 411, 417 (1981).
In reviewing the denial of a motion to suppress, we review the
factual findings of the district court for clear error and its
legal conclusions de novo. See United States v. Johnson, 114 F.3d
435, 439 (4th Cir. 1997).
In challenging the denial of the motion to suppress, Aldridge
argues that the magistrate judge improperly credited Officer
Martin’s testimony despite the differences between his testimony
and the written report. Aldridge acknowledges the general rule
that “we cannot review ... a credibility finding on appeal,” Conner
v. United States, 434 F.3d 676, 682 (4th Cir. 2006), but maintains
that we are entitled to reverse on the grounds that the magistrate
judge (1) failed to consider factors relevant to Officer Martin’s
credibility, and (2) improperly placed the burden of persuasion on
Aldridge.
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Aldridge’s first ground for reversal appears to rest primarily
on the fact that the magistrate judge did not specifically discuss
a variety of factors that might be considered in determining
whether a witness is credible. However, the fact that the
magistrate judge did not explicitly discuss these factors is no
indication that the judge did not, in fact, evaluate various
considerations in reaching his credibility determination. We are
equally unpersuaded by Aldridge’s contention that the magistrate
judge violated his Fifth Amendment right against self incrimination
by noting that no evidence or testimony contradicted Officer
Martin’s version of events. Aldridge was not required to surrender
his Fifth Amendment rights in order to testify at the suppression
hearing. See Simmons v. United States, 390 U.S. 377, 394 (1968).
III.
For the reasons set forth above, we affirm the denial of the
motion to suppress. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the
decisional process.
AFFIRMED
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