UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4478
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY MITCHELL MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00406-WO-1)
Submitted: January 22, 2015 Decided: February 3, 2015
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Terry M. Meinecke, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Mitchell Martin appeals his conviction following
his guilty plea to possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal, Martin
argues that the district court erred in denying his motion to
suppress evidence found subsequent to an allegedly illegal
seizure. Finding no error, we affirm.
Detectives Larry Leonard and Jerry Hodge of the
Lexington Police Department were investigating a complaint that
prescription drugs were being used or sold in room 58 of the
extended stay portion of the Economy Inn Motel. While
interviewing the occupants of rooms 56 and 58, the detectives
observed a white vehicle pulled up in front of room 58. The
detectives were familiar with Kendra Presnell, the driver, based
on her prior history of selling cocaine. The detectives spoke
with Presnell and obtained consent to search her car.
While conducting the search of Presnell’s vehicle, a
gray Kia pulled into the parking lot and parked a few spaces
down from room 58. Martin, the passenger of the Kia, got out of
the vehicle, looked over at Detective Leonard and asked, “what
are you looking at?” He then proceeded to root around in the
vehicle as if looking for something. Leonard walked around the
Kia to the passenger side to talk with Martin. Leonard asked
Martin a series of questions to establish if he was staying at
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the motel or visiting someone at the motel, and what he was
doing there. Martin responded to the questions, stated that he
was trying to find the charger for his cell phone, and he
continued to look in various places within the vehicle. Leonard
could see a cell phone charger between the console on the front
seats, and he asked Martin why he drove all the way to the back
of the motel, rather than pull into the front parking lot to
look for the charger.
Leonard asked Martin if he had any identification on
him, to which Martin responded that he did not, and informed
Leonard that he was on probation and that he had no outstanding
warrants. Leonard obtained Martin’s consent to pat him down for
weapons, and did so, not locating any weapons or contraband.
Leonard informed Martin that he was going to call Martin’s
probation officer.
After Leonard completed his phone call with Martin’s
probation officer and informed Martin that his probation officer
was on the way, the driver of the Kia, Erica Anderson, got out
of the car and walked toward the motel. Leonard testified that
she appeared to be holding onto something in her left pocket.
Leonard requested that she remove her left hand from her pocket;
she pulled out her right hand instead. Leonard then pulled
Anderson’s left hand from her pocket and patted her down. He
discovered a baggie containing several Oxymorphone tablets.
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Anderson stated that the pills belonged to the occupant of room
58.
The officers then arrested Anderson, placed Martin in
handcuffs for their safety, and searched the vehicle. Martin
requested to use a telephone and was allowed to do so. An
officer overheard Martin telling the person with whom he was
speaking on the phone to “get rid of something” and to do
whatever he needed to get inside Martin’s house, including
breaking in, if necessary. Upon being advised of the overheard
portions of Martin’s telephone conversation, Martin’s probation
officer decided to conduct a search of Martin’s residence, as is
permitted under the terms of his supervision. During the
search, the officers discovered a .45 caliber Bersa semi-
automatic handgun with an obliterated serial number.
The district court denied Martin’s motion to suppress
finding that his encounter with the officers was consensual.
Specifically, the court found Detective Leonard’s testimony to
be credible and Martin’s incredible to the extent that it
differed from Leonard’s. The court noted that, up until the
time the officer found drugs in Anderson’s possession, Martin
had not been told to remain at the scene and he did not ask to
leave. Once Martin was informed that his probation officer was
on his way to the motel, he reasonably believed that he was not
free to leave, but the time between being informed that the
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probation officer was on the way and the arrest of Anderson was
“no more than a couple of minutes.” The court noted that the
officers never physically restrained Martin until after the
discovery of drugs on Anderson.
Following the denial of his motion to suppress, Martin
pled guilty to possession of a firearm by a person previously
convicted of a felony. On appeal, Martin contends that the
district court erred by determining that the encounter with the
police was voluntary and not a seizure within the meaning of the
Fourth Amendment. When considering the denial of a motion to
suppress, we review the district court’s legal determinations de
novo and its factual determinations for clear error. United
States v. Black, 707 F.3d 531, 537 (4th Cir. 2013). “[B]ecause
the district court denied [the defendant’s] motion to suppress,
we construe the evidence in the light most favorable to the
Government on appeal.” United States v. Bumpers, 705 F.3d 168,
175 (4th Cir.) (internal quotation marks omitted), cert. denied,
134 S. Ct. 218 (2013).
“[P]olice may approach an individual on a public
street and ask questions without implicating the Fourth
Amendment’s protections. An unconstitutional seizure occurs
when a police “officer, by means of physical force or show of
authority, terminates or restrains [an individual’s] freedom of
movement.” Brendlin v. California, 551 U.S. 249, 254 (2007)
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(internal quotation marks omitted). Such a seizure occurs “only
if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was
not free to leave.” United States v. Mendenhall, 446 U.S. 544,
554 (1980). We consider the totality of the circumstances and
look to the specific following factors:
(i) the number of police officers present at the
scene; (ii) whether the police officers were in
uniform; (iii) whether the police officers displayed
their weapons; (iv) whether they touched the defendant
or made any attempt to physically block his departure
or restrain his movement; (v) the use of language or
tone of voice indicating that compliance with the
officer’s request might be compelled; (vi) whether the
officers informed the defendant that they suspected
him of illegal activity rather than treating the
encounter as routine in nature; and (vii) whether, if
the officer requested from the defendant . . . some
form of official identification, the officer promptly
returned it.
Black, 707 F.3d at 537-38 (internal quotation marks omitted).
In considering the totality of the circumstances, we
conclude that, for purposes of the Fourth Amendment, Martin was
not seized by Detective Leonard as he was questioned in the
motel parking lot. First, only one officer was engaged with
Martin. The officers were not in uniform and did not display
their weapons. Additionally, Detective Leonard did not touch
Martin except for patting him down after requesting and
receiving consent, and did not block his departure or restrain
his movement. The district court specifically found that
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“Detective Leonard did not raise his voice or threaten
[Martin].” And, the fact that Martin continued to move around
the vehicle and search in various places in the car while
Leonard posed questions factors against any claim that Martin
felt intimidated by Leonard’s presence.
Martin also was not informed that the detective
suspected him of illegal activity. Further, the type and degree
of questions posed did not, as the district court found, “rise
above a level of routine questioning in light of [Martin’s]
comment and circumstances.” Based on a consideration of the
totality of the circumstances, as directed by the factors listed
in Mendenhall, we conclude that the encounter between Martin and
Leonard was not a seizure, but rather a consensual encounter
that did not “trigger Fourth Amendment scrutiny.” See
Florida v. Bostick, 501 U.S. 429, 439 (1991) (“[A] seizure does
not occur simply because a police officer approaches an
individual and asks a few questions.”).
Martin contends that his encounter with the officer is
similar to that in United States v. Jones, 678 F.3d 293, 295-99
(4th Cir. 2012), in which we determined that a seizure occurred
based on the fact that uniformed officers in a police vehicle
followed Jones’ car on the streets and into an apartment
complex, blocked Jones’ vehicle from leaving, and immediately
asked Jones and his companion to lift their shirts to show that
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they were unarmed, provide identification and grant permission
for a pat down search. Jones, 678 F.3d at 295-99. We disagree.
Here, unlike in Jones, Martin was not aware of the officers’
presence until after the vehicle he was riding in had stopped at
the motel. His means of exit was not blocked by the officers.
Additionally, Detective Leonard’s inquiries of Martin concerning
why he was in the parking lot and why he pulled all the way to
the back parking lot, were not as confrontational and accusatory
as the officers’ initial requests in Jones that the defendant
lift his shirt to show whether he possessed a weapon.
Martin also contends that an unlawful seizure occurred
when Detective Martin informed him that he called Martin’s
probation officer and that the probation officer was on his way
to the motel. As the district court found, this occurred almost
simultaneously with the discovery that Anderson, Martin’s
companion, was in possession of the illegal pills. We find no
seizure and no violation of the Fourth Amendment.
Accordingly, we affirm the district court’s denial of
the motion to suppress and affirm Martin’s conviction. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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