UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK LOUIS FREEMAN, II, a/k/a Derrick Louis Freeman, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00031-MR-1)
Submitted: October 16, 2008 Decided: November 10, 2008
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, P.L.L.C., Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a conditional plea of guilty, Derrick Louis
Freeman, II, was convicted of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000), and
sentenced to forty months in prison. The conviction arose out of
a routine traffic stop; Freeman was stopped by Officer Hogue
because he was operating a moped in excess of the thirty miles per
hour permitted for such a vehicle.1 During the stop, Hogue
observed that Freeman lacked not only a license plate but a
driver’s license, registration, and insurance. Freeman consented
to a pat-down, during which a firearm fell out of Freeman’s pants
onto the concrete. The district court denied Freeman’s motion to
suppress.
On appeal, Freeman contends that the district court erred
in denying the motion to suppress the firearm.2 He argues that
because the arresting officer had neither articulable facts nor
1
Under North Carolina law, a moped is excluded from the
definition of a motor vehicle. N.C. Gen. Stat. § 20-4.01(23)
(2007). Pursuant to N.C. Gen. Stat. § 20-4.01(27)(d1) (2007), a
moped is defined in N.C. Gen. Stat. § 105-164.3(22) (2007), as
follows: “A vehicle that has two or three wheels, no external
shifting device, and a motor that does not exceed 50 cubic
centimeters piston displacement and cannot propel the vehicle at a
speed greater than 30 miles per hour on a level surface.” Under
N.C. Gen. Stat. § 20-51(9) (2007), a moped is “exempt from the
requirement of registration and certificate of title” applicable to
motor vehicles.
2
By entering a conditional guilty plea, Fed. R. Crim. P.
11(a)(2), Freeman preserved his right to appeal this issue.
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probable cause for the stop, the stop violated the Fourth
Amendment.
Legal conclusions underlying the denial of a motion to
suppress are reviewed de novo and factual findings for clear error.
United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008).
“Observing a traffic violation provides sufficient justification
for a police officer to detain the offending vehicle for as long as
it takes to perform the traditional incidents of a routine traffic
stop.” Id. at 335. In the course of a routine traffic stop, an
officer can ask for driver’s license and registration and perform
a computer check on these before issuing a citation. United States
v. Farrior, 535 F.3d 210, 217 (4th Cir. 2008). “Any further
investigative detention, however, is beyond the scope of the Terry
stop and therefore illegal unless the officer has a reasonable
suspicion of a serious crime or the individual consents to the
further detention.” Id. (internal quotation marks and citations
omitted).
Freeman’s sole argument on appeal is that Hogue was not
qualified to determine whether the moped was capable of a speed
higher than thirty miles per hour on hilly terrain; therefore, his
determination that Freeman was speeding was a mere hunch that did
not justify the traffic stop. However, as the district court
found, Hogue tested Freeman’s speed with a radar gun and followed
him for two miles to assess the moped’s speed, which was over
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forty-five miles per hour. Based on that evidence, Hogue concluded
that Freeman’s moped was propelling itself in excess of thirty
miles per hour, and therefore was a motor vehicle subject to state
licensing and registration requirements. Based on these facts, we
conclude that the district court did not err in concluding Officer
Hogue had a reasonable suspicion that Freeman was violating the law
and the stop was therefore justified. Branch, 537 F.3d at 335.
Accordingly, the district court properly denied the motion to
suppress.
We affirm Freeman’s conviction and sentence. 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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