US v. Charles Ashe, Jr., No. 12-4498 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4498 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES ANTHONY ASHE, JR., Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District Judge. (8:11-cr-00659-DKC-1) Submitted: March 28, 2013 Decided: April 4, 2013 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Timothy J. Sullivan, BRENNAN SULLIVAN & MCKENNA LLP, Greenbelt, Maryland, for Appellant. Sandra Wilkinson, Assistant United States Attorney, Paul Nitze, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM Charles Anthony Ashe, Jr., appeals his conviction following his conditional guilty plea, pursuant to a written plea agreement, controlled to possession substances, dangerous ยง 841(a)(1) (2006). with intent in to distribute of 21 violation U.S.C. On appeal, Ashe s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning whether the district vehicle. to suppress, the we a denying his warrantless motion to Finding no error, we affirm. considering during in the motion found erred suppress In drugs court district review court s the search of his denial of the district court s legal determinations de novo and its factual determinations for clear error. United States v. Buckner, 473 F.3d 551, 553 (4th Cir. 2007). Since the district court denied the defendant s motion below, we construe the evidence in the light most favorable to the [G]overnment. See United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). [W]e treat a traffic stop, whether based on probable cause or reasonable suspicion, under the standard set forth in Terry v. Ohio, 392 U.S. 1 . . . (1968). Digiovanni, analysis 650 F.3d involves 498, first 506 (4th Cir. determining 2 United States v. 2011). whether The the Terry police officer s action was justified at its inception. Id. We conclude that the officers stop of Ashe was justified by their observance of him driving a vehicle without wearing a seatbelt. The second prong of Terry requires analyz[ing] whether the police officer s subsequent actions were reasonably related in scope to the circumstances that justified the stop. Id. We conclude that the district court did not err in finding that the police officer s observance of marijuana residue on the floorboard of the vehicle was reasonable. Under the automobile exception to the warrant requirement of the Fourth Amendment, once the police officer probable observed cause marijuana contained contraband warrant. See United States v. Kelly, 592 F.3d 586, 589 (4th search that the the the had could believe residue, officers and to the vehicle vehicle without a Cir. 2010) (finding, post-Arizona v. Gant, 556 U.S. 332 (2009), that if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more ) (internal quotation marks and brackets omitted). To the extent Ashe challenges the officers credibility, [w]e . . . defer to a district court s credibility determinations, for it is the role of the district credibility court during a to observe pre-trial witnesses motion to and weigh suppress. their United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal 3 quotation marks omitted). Thus, we conclude that the district court did not err in denying Ashe s motion to suppress the drugs and other physical evidence recovered during the search. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Ashe, in writing, of the right to petition the Supreme Court of the United States for further review. If Ashe requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Ashe. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4