UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4204

MARK ANTHONY JACOBS,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

William L. Osteen, Sr., District Judge.

(CR-97-136)

Submitted: February 9, 1999

Decided: February 22, 1999

Before HAMILTON and WILLIAMS, Circuit Judges, and HALL,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Walter T. Johnson, Jr., Jackie Stanley, LAW OFFICES OF WALTER

T. JOHNSON, JR., Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Robert M. Hamilton, Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Mark Jacobs appeals his conviction of possession with intent to

distribute crack cocaine and the resulting sentence pursuant to his

guilty plea. The only issue before us is the propriety of the district

court's denial of Jacobs' motion to suppress evidence of the cocaine

found in his car. We affirm.

Jacobs was one of two drivers stopped by Officer Lisenby, a North

Carolina police officer. Both drivers were exceeding the speed limit

on the interstate. The other driver, a Caucasian male, was asked to

leave his car and sit in the police officer's vehicle while a warning

ticket was issued. After the ticket was issued, the driver was permitted

to leave the scene. The police officer then approached Jacobs, who is

African-American. Jacobs supplied the officer with his license and

registration. Jacobs was then asked to sit in the officer's vehicle while

a warning ticket was issued. While in the police cruiser, the officer

engaged Jacobs in a conversation in which Jacobs stated that he was

going to visit his aunt in the hospital. Jacobs stated that his aunt was

in "Hicksville," but he did not know the name of the hospital or his

aunt's address. He also appeared nervous and stated first he was traveling from Petersburg or Pittsburgh, and then New York. Jacobs was

issued a warning ticket and his documents were returned to him. As

Jacobs began to exit the police vehicle, the officer asked him if he had

any drugs, alcohol, or firearms in his car. Jacobs said that he did not.

The officer asked if he could do a "quick search" of Jacobs' car.

Jacobs replied, "Yes, you can search," but Jacobs refused to sign a

written consent form.

By this time, Officer Steele had arrived as back-up and had parked

behind Lisenby's vehicle. Lisenby had Jacobs wait with Steele during

the search of Jacobs' car. Lisenby used a trained narcotics dog to

carry out the search. Approximately fifteen minutes after the search

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began, Jacobs expressed concern to Steele about his not being able to

see the search and asked if he could leave Steele's police cruiser to

view the search more closely. Jacobs was told to remain in the cruiser

for safety reasons. An initial search of the vehicle did not uncover

anything illegal. However, Lisenby testified that his police dog

showed an interest in the back right portion of the car. Approximately

one hour after the search began, Officer Lisenby used a screwdriver

to remove the jack plate that held the tire jack and tools for the vehicle and found a package of white powder in a plastic bag secured with

duct tape. The powder was field tested and determined to be cocaine.

Jacobs was later indicted for possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841(a)(1) (1994). Jacobs

sought suppression of the drugs recovered during the traffic stop,

challenging his consent to the extent of the search and also contending that the stop was pretextual. During the motion hearing, the government played a videotape of the search and an audiotape of Jacobs'

conversations with Officer Lisenby. The district court denied Jacobs'

motion to suppress. Jacobs later pled guilty in accordance with a plea

agreement but reserved the right to appeal the adverse ruling on his

motion to suppress. Jacobs was sentenced to 163 months' imprisonment.

We review the district court's legal conclusions in regard to a

motion to suppress de novo and the factual determinations on suppression issues under a clearly erroneous standard. See United States

v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). Jacobs argues that the

search of his car violated his constitutional rights in several respects.

Jacobs first argues that his stop was pretextual and that race was

a motivating factor. Jacobs acknowledges that when an officer has

probable cause to believe that a defendant has violated a traffic law,

the officer's stop of the car is reasonable under the Fourth Amendment. See United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993).

Furthermore, Jacobs does not contest the allegation that he was speeding. However, Jacobs argues that the stop was pretextual based upon

Lisenby's questioning him about illegal substances immediately following issuance of the warning ticket. Jacobs asserts that because the

driver of the first car, a Caucasian male, was allowed to leave the

scene quickly without further questioning, the questioning of Jacobs

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is evidence of a pretextual stop based on the assumption that an African American male driving a moderately expensive car with New

York license plates is probably transporting drugs. The district court

properly concluded that the stop was neither pretextual nor unreasonable under the Fourth Amendment.

After the initial stop, the validity of which is not contested, Lisenby

did not question Jacobs about drugs until after he issued a citation and

returned Jacobs' driver's license, indicating that Jacobs was free to

go. See United States v. Lattimore, 87 F.3d 647, 653 (4th Cir. 1996)

(en banc). Jacobs does not contend that police used the stop to coerce

him into giving consent to the search, and Jacobs presents no other

basis upon which to find that the stop was pretextual. Furthermore,

mere questioning by the police, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. See

United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993) (citing

Florida v. Bostick, 501 U.S. 429, 433 (1991)).

Jacobs also contends that the police exceeded the scope of his consent in the search of his car. The nature of consent is a factual question to be determined in light of the totality of the circumstances, and

the district court's findings must therefore be affirmed unless clearly

erroneous. See United States v. Wilson, 895 F.2d 168, 171-72 (4th

Cir. 1990). When Officer Lisenby requested permission to conduct

the search, he asked if he could do a "quick search." Jacobs argues

that the one hour search that followed exceeded the scope of his consent. Furthermore, Jacobs contends that his refusal to sign a written

consent form, which contained consent for a detailed search, limited

his consent to a "quick search." Written consent to search, however,

is not the exclusive means of determining whether consent is valid,

and a defendant's subsequent refusal to execute a written consent

form does not taint any prior oral consent that he may have given. See

Lattimore, 87 F.3d at 651.

Jacobs has presented no evidence that he specifically limited the

scope of the search. Furthermore, Jacobs' rejection of the written consent form cannot be used as a yardstick to measure the scope of his

oral consent because Jacobs testified that he never even saw the form

or discussed its contents with police. Because Jacobs did not know the

contents of the form, he cannot successfully argue that his oral con-

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sent must have been to something less than what a signed form would

have permitted. Although Jacobs testified that he believed his consent

was only for Officer Lisenby to "take a look at the vehicle," there is

no evidence that Jacobs communicated his belief to police or otherwise set limits on the scope of the search. Based on the totality of the

circumstances, the district court properly found that Lisenby's search

did not exceed the scope of Jacobs' consent.

Jacobs also claims that he withdrew his consent when he asked to

leave Officer Steele's police vehicle. "`A consent to search is not

irrevocable, and thus if a person effectively revokes . . . consent prior

to the time the search is completed, then the police may not thereafter

search in reliance upon the earlier consent.'" Id. (quoting 3 Wayne R.

LaFave, Search and Seizure § 8.2(f), at 674 (3d ed. 1996) (alteration

in original); see United States v. McFarley, 991 F.2d 1188, 1191 (4th

Cir. 1993) (noting that "once consent is withdrawn or its limits

exceeded, the conduct of the officials must be measured against the

Fourth Amendment principles"). Although Jacobs expressed annoyance as to being unable to view the search and as to the amount of

time it was taking, he did not ask the officers to stop their search. The

district court properly found, after considering the totality of the circumstances, that Jacobs' expression of annoyance at the length of the

search was not a withdrawal of consent. Indeed, it is undisputed that

at no time did Jacobs expressly withdraw his consent for the search.

Because Jacobs did not withdraw his previous, voluntary, oral consent, we conclude that the entire search pursuant to that consent was

lawful.

For these reasons we affirm Jacobs' conviction and sentence. 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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