UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4518
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN J. WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cr-00068-TSE)
Submitted: July 10, 2009 Decided: July 24, 2009
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert L. Jenkins, Jr., BYNUM & JENKINS, PLLC, Alexandria,
Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Dennis M. Fitzpatrick, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Stephen J. Washington of possession
with intent to distribute cocaine base, possession with intent
to distribute marijuana, and possession of firearms in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1); 21 U.S.C. § 841(a)(1) (2006), and the
district court sentenced Washington to a total of 130 months’
imprisonment. On appeal, Washington’s counsel contends that the
district court erred in denying the motion to suppress drugs and
firearms seized from the vehicle Washington was driving.
Finding no error, we affirm.
We review the factual findings underlying the denial
of a motion to suppress for clear error and the court’s legal
conclusions de novo. United States v. Branch, 537 F.3d 328, 337
(4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). The
evidence is construed in the light most favorable to the
prevailing party below. United States v. Uzenski, 434 F.3d 690,
704 (4th Cir. 2006).
Counsel does not challenge the propriety of the
traffic stop initiated by law enforcement. Rather, he asserts
that the officer improperly extended the traffic stop into an
unauthorized Terry * stop. Counsel concludes that the officer’s
*
Terry v. Ohio, 392 U.S. 1 (1968).
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entry into Washington’s vehicle to retrieve a partially consumed
bottle of alcohol violated the Fourth Amendment and that
evidence resulting therefrom should be suppressed.
“If a police officer wants to detain a driver beyond
the scope of a routine traffic stop, . . . he must possess a
justification for doing so other than the initial traffic
violation that prompted the stop in the first place.” Branch,
537 F.3d at 336. One such justification for extending a traffic
stop is to investigate a reasonable suspicion of criminal
activity, known as a Terry stop. Id.; see also United States v.
Sokolow, 490 U.S. 1, 7 (1989) (“[T]he police can stop and
briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable
facts that criminal activity ‘may be afoot,’ even if the officer
lacks probable cause.” (quoting Terry, 392 U.S. at 30)). In
assessing the validity of a Terry stop, “we consider the
totality of the circumstances . . . giv[ing] due weight to
common sense judgments reached by officers in light of their
experience and training.” United States v. Perkins, 363 F.3d
317, 321 (4th Cir. 2004).
Upon initiating the traffic stop, officer Koenigsberg
observed that Washington had bloodshot, watery eyes and was
shaking. The officer stated that, in his experience, this was
an indication of intoxication. Moreover, the officer was
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alerted to a partially consumed bottle of alcohol located on the
rear passenger side floorboard. Based on these facts, the
officer had a reasonable suspicion of criminal activity,
violation of Va. Code Ann. § 18.2-323.1 (2004) (prescribing
rebuttable presumption that driver is drinking while operating a
motor vehicle when partially consumed container of alcohol is
located within passenger area and the behavior or the physical
characteristics of the driver is consistent with the consumption
of alcohol), that permitted the extension of the traffic stop.
However, counsel asserts that Washington did not smell
of alcohol, was not slurring his speech, and was able to keep
his balance. Counsel also notes that, when questioned,
Washington denied that he was intoxicated and denied ownership
of the bottle. Koenigsberg likewise did not administer a field
sobriety test. While Koenigsberg testified on cross-examination
that he did not believe Washington was drunk, he nevertheless
indicated that, in his experience, Washington’s physical
appearance was consistent with some manner of intoxication.
Thus, construing the evidence in the light most favorable to the
Government, as we must, we conclude that Koenigsberg was not
unreasonable in his suspicion that Washington was intoxicated.
Additionally, the officer was within the scope of the
automobile exception when he initiated the warrantless entry
into Washington’s vehicle to retrieve the bottle. See
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Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) (“If there is
probable cause to believe a vehicle contains evidence of
criminal activity, . . . a [warrantless] search of any area of
the vehicle in which the evidence might be found[] [is
authorized].”); United States v. Ross, 456 U.S. 798, 825 (1982)
(stating automobile exception permits search that “is no broader
and no narrower” than that which could be authorized pursuant to
a warrant). Therefore, the district court properly denied the
motion to suppress.
Accordingly, we affirm the judgment of the district
court. We deny Washington’s motion to place the appeal in
abeyance and deny his motion for leave to file a pro se reply
brief. 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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