United States v. Marc Curry

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4253

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARC JUDSON CURRY,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:09-cr-00483-BEL-1)

Submitted: March 19, 2012 Decided: April 19, 2012

Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Ayn B. Ducao, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Consonant with the terms of his conditional plea

agreement, Marc Judson Curry appeals the district court’s denial

of his motion to suppress evidence obtained during a search of

his car pursuant to a traffic stop. We affirm.

The district court’s legal conclusions underlying a

suppression determination are reviewed de novo while its factual

findings are reviewed for clear error. United States v. Guijon-

Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). Because the district

court denied the motion to suppress, the evidence is construed

on appeal in the light most favorable to the government. United

States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).

Curry disputes the district court’s ruling on his

motion by developing two separate strands of argument. He first

claims that the law enforcement officers who detained him

impermissibly prolonged the traffic stop by requesting a Vehicle

Identification Number (“VIN”) verification despite the fact that

reasonable suspicion that he was unauthorized to drive his

vehicle had previously been entirely dissipated by Curry’s

production of his license, his registration, and a bill of sale.

But whatever the merits of this argument may be, the record

demonstrates that the detaining officers were nonetheless

justified in prolonging Curry’s detention longer than was

strictly necessary to issue him a ticket because they possessed

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reasonable suspicion that Curry was engaged in other criminal

activity. See Illinois v. Caballes, 543 U.S. 405, 407 (2005);

United States v. Ortiz, ___ F.3d ___, 2012 WL 604151, at *4 (4th

Cir. Feb. 27, 2012) (slip op.).

In our view, the collective import of Curry’s visible

tremulousness and attempts at concealing items in the glove

compartment and his pants pocket suggested behavior “in which

few innocent people would engage.” United States v. Foreman,

369 F.3d 776, 781 (4th Cir. 2004). See also United States v.

Digiovanni, 650 F.3d 498, 512 (4th Cir. 2011). Coupled with the

detaining officer’s knowledge that Curry previously had been

involved in a drug-related criminal offense, see United

States v. Powell, 666 F.3d 180, 188 (4th Cir. 2011), we conclude

that the assortment of peculiar circumstances observed by the

officer constituted “sufficient objective evidence”

demonstrating reasonable suspicion that Curry was involved in

some sort of criminality. United States v. Branch, 537 F.3d

328, 336 (4th Cir. 2008). Detaining Curry long enough to

investigate his suspicious behavior was therefore justifiable in

this case.

Curry next claims that the drug dog brought onto the

scene by the detaining officers did not alert on his car prior

to jumping inside of it, thereby violating his Fourth Amendment

rights by intruding into his car without probable cause, and

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that the district court erred in determining otherwise. Whether

the dog alerted before entering Curry’s vehicle is a question of

fact, United States v. Mason, 628 F.3d 123, 130 (4th Cir. 2010),

so appellate review is for clear error. Guijon-Ortiz, 660 F.3d

at 762.

Curry’s arguments boil down to an attack on the

credibility of the dog handler’s testimony at the suppression

hearing, which he claims consisted simply of post hoc attempts

to locate the dog’s alert at an earlier point in time than it

actually occurred. But on this score, Curry is up against the

principle that credibility is quintessentially a question for

the district court, whose role it is to “observe witnesses and

weigh their credibility during a pre-trial motion to suppress.”

United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008).

Nor, in our opinion, does the relevant video footage demonstrate

that the dog handler’s testimony was unworthy of belief.

Accordingly, the district court did not commit clear

error in accepting the dog handler’s testimony that the dog

alerted prior to entering Curry’s vehicle. See Mason, 628 F.3d

at 130. Because the dog’s alert provided probable cause to

enter the vehicle almost immediately after the dog began its

scan, Curry suffered no Fourth Amendment violation from the

dog’s subsequent intrusion into the car’s passenger compartment.

See United States v. Parada, 577 F.3d 1275, 1281-82 (10th Cir.

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2009) (distinguishing between a “general alert” and a “pinpoint

location,” and holding that an alert provided probable cause to

search a car, even in the absence of a pinpoint indication of

the location of the drugs). As a consequence, Curry’s motion to

suppress was properly denied by the district court.

Accordingly, we affirm the judgment of the district

court. We dispense with oral argument because the facts and

legal contentions are adequately presented in the material

before the court and argument will not aid the decisional

process.

AFFIRMED

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