US v. Zwede Smith, No. 14-4164 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4164 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ZWEDE Y. SMITH, a/k/a Zwede Yohannes Smith, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:13-cr-00134-REP-1) Submitted: August 29, 2014 Decided: September 15, 2014 Before KING and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Robert J. Wagner, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, Michael A. Jagels, Special Assistant United States Attorney, Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Zwede Y. Smith appeals his conviction after pleading guilty to possession of a firearm by a convicted violation of 18 U.S.C. ยง 922(g)(1) (2012). felon, in Smith filed a motion to suppress evidence found during a search of the backpack he was carrying station. when approached by police officers at The district court denied the motion. the bus On appeal, Smith challenges only the district court s denial of his motion to suppress. We affirm. Smith argues first that Terry v. Ohio, 392 U.S. 1 (1968), does not allow for a full search of an item incident to a Terry detention, rather it permits only a frisk or patdown a limited search for weapons or evidence that may be destroyed. In the alternative, he argues that there was no reasonable suspicion to support the detention and that a reasonable person would not have approached, felt thus free he to was leave seized when when the approached him at the front of the bus. that once reasonable Smith justified sprinted suspicion in to searching away believe the from backpack he to officers officers first first The Government argues the that the officers, they had was and were armed determine whether it contained a weapon or contraband. We regarding the review motion the district to suppress 2 court s for clear factual error, findings and the court s legal conclusions de novo. United States v. Burgess, 684 F.3d 445, 452 (4th Cir.), cert. denied, 133 S. Ct. 490 (2012); United States v. Edwards, 666 F.3d 877, 882 (4th Cir. 2011). When, as here, a motion to suppress has been denied, we view the evidence presented in the light most favorable to the government. 2013). The United States v. Black, 707 F.3d 531, 534 (4th Cir. court also defer[s] to the district court s credibility findings, as it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress. United States v. Griffin, 589 F.3d 148, 150-51 n.1 (4th Cir. 2009) (internal quotation marks omitted). In general, we apply a particularly strong clear error standard to factual testimony. determinations when they are based on oral United States v. Lattimore, 87 F.3d 647, 650 51 (4th Cir. 1996). We have reviewed the joint appendix, including the district court s order denying the motion to suppress, and the parties briefs. Finding no error in the district court s determination that the search of Smith s backpack was lawful, we affirm on the reasoning of the district court. United States v. Smith, No. 3:13-cr-00134-REP-1 (E.D. Va. Dec. 30, 2013). We dispense with oral argument because the facts and legal contentions are adequately 3 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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