UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5104
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYMOND T. HOLLOWAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00213-RLW-1)
Submitted: February 2, 2010 Decided: February 26, 2010
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Keith N. Hurley, KEITH N. HURLEY, P.C., Richmond, Virginia, for
Appellant. Dana J. Boente, Acting United States Attorney,
Michael A. Jagels, Special Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond T. Holloway entered a conditional guilty plea,
pursuant to Fed. R. Crim. P. 11(a)(2), to possession with intent
to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)
(2006), and possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 922(g)(1) (2006).
He was sentenced to 130 months of imprisonment. Holloway
preserved his right to appeal the district court’s denial of his
motion to suppress evidence from a traffic stop. Having
reviewed the record and the parties’ arguments, we affirm.
On March 20, 2008, Richmond, Virginia Police Officer
A.J. Catoggio heard loud music emanating from a Ford Expedition
driving in a high-drug, high-crime area of Richmond. Officer
Catoggio conducted a traffic stop for loud music. The driver,
Raymond T. Holloway, rolled down his window and appeared “a
little nervous.” Holloway produced a restricted license
allowing him to travel to and from work. When Officer Catoggio
questioned Holloway about his reasons for being in the high-
crime area with a restricted license, Holloway responded that he
owned an auto shop and was dropping off one of his employees.
While Officer Catoggio was talking with Holloway, two
more officers arrived. After Officer Catoggio ran Holloway’s
license and decided not to issue a summons, all three officers
approached Holloway’s vehicle. Holloway again “appeared to get
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a little nervous” and “kept taking his hands, kind of putting
them on his lap.” Officer Catoggio noticed that Holloway’s
“breath was increasing,” raising the officer’s “suspicion . . .
a little bit more.” However, Catoggio informed Holloway that he
was not going to issue a summons, returned Holloway’s license,
and began to step away from the vehicle.
On further considering Holloway’s suspicious behavior,
however, Officer Catoggio turned back and asked Holloway to tell
him again why he was in a high-drug, high-crime area of
Richmond, and whether he had anything illegal in the vehicle.
Holloway responded, “There is nothing illegal in this car.”
When Officer Catoggio asked permission to search the vehicle,
Holloway repeated, “There is nothing illegal in this car.”
Officer Catoggio again asked to search the vehicle, and after
Catoggio responded affirmatively to Holloway’s question about
whether he was free to leave, Holloway granted permission to
search the car.
Holloway stepped out of the vehicle and “immediately
turned his back to the interior of the car door,” his arms “kind
of tense to the side . . . as if protecting something.” In
Officer Catoggio’s experience as a police officer, the behavior
seemed furtive and strange. Officer Catoggio told Holloway that
he intended to pat him down. Holloway refused to be patted down
and moved into the traffic lane. Officer Catoggio grabbed
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Holloway’s arm and pulled him out of the roadway. When he
reached the side of the road, Holloway told Officer Catoggio
that he had a gun. Officer Catoggio handcuffed Holloway and
proceeded to pat him down. A .357 caliber revolver, a baggie
containing approximately thirty individually wrapped pieces of
cocaine base, and $1327 in cash were recovered from Holloway.
Holloway now contends that the seizure and search of
his person violated his Fourth Amendment rights. We review the
factual findings underlying a district court’s ruling on a
motion to suppress for clear error and the legal conclusions de
novo. United States v. Neely, 564 F.3d 346, 349 (4th Cir.
2009).
The district court found that Holloway consented to
Officer Catoggio’s search of his vehicle. The court also found
that Officer Catoggio grabbed Holloway’s arm and pulled him from
the roadway for safety reasons, not as a seizure. Finally, the
district court concluded that the pat-down search of Holloway
was justified based on reasonable suspicion of criminal activity
and for officer safety because Holloway had been acting
suspiciously and admitted he possessed a firearm.
We agree with the district court’s conclusion that
Officer Catoggio did not “seize” Holloway. The district court
credited Officer Catoggio’s testimony that Holloway was stepping
into a traffic lane and he grabbed Holloway’s arm to protect him
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from moving vehicles. Given this evidence, the district court
did not clearly err when it determined that Holloway was not
“seized” at that juncture.
Holloway’s second argument is that the pat-down search
violated his Fourth Amendment rights. As a general rule, a
search or seizure without probable cause is unreasonable, and
thus unconstitutional. See Kyllo v. United States, 533 U.S. 27,
32 (2001) (noting that searches without probable cause are
"presumptively unconstitutional"). This general rule, however,
is "subject to certain exceptions," Brigham City v. Stuart, 547
U.S. 398, 403 (2006), and "[w]e are to approach the Fourth
Amendment . . . with at least some measure of pragmatism," Mora
v. City of Gaithersburg, 519 F.3d 216, 222 (4th Cir. 2008).
An officer may search the interior of a vehicle
incident to a lawful traffic stop if he "possesses a reasonable
belief based on specific and articulable facts which, taken
together with the rational inferences from those facts,
reasonably warrant the officer[] in believing that the suspect
is dangerous and . . . may gain immediate control of weapons” in
the vehicle. Michigan v. Long, 463 U.S. 1032, 1049 (1983)
(internal quotation marks omitted); see United States v. Holmes,
376 F.3d 270, 276 (4th Cir. 2004). In this case, the inquiry is
whether (1) Officer Catoggio could reasonably have believed
Holloway was dangerous and, if so, (2) whether Officer Catoggio
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could reasonably have believed that Holloway could have gained
immediate control of weapons.
On the facts recounted above, we agree with the
district court that Officer Catoggio’s pat-down search of
Holloway was justified by reasonable suspicion that Holloway was
dangerous and capable of gaining immediate control of weapons.
Because Officer Catoggio had a reasonable suspicion that
Holloway was dangerous and could gain immediate control of
weapons, his pat-down search of Holloway did not violate
Holloway’s Fourth Amendment rights.
The judgment of the district court is affirmed. 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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