UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4047

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEION PENTECOST,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Richmond. Henry E. Hudson, Senior District Judge. (3:21-cr-00039-HEH-1)

Submitted: October 13, 2022 Decided: December 15, 2022

Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Geremy C. Kamens, Federal Public Defender, Nia Ayanna Vidal, Assistant 

Federal Public Defender, Caroline S. Platt, Appellate Attorney, OFFICE OF THE 

FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, 

United States Attorney, Kenneth R. Simon, Jr. Assistant United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Before pleading guilty to possession by a felon of a firearm, in violation of 18 U.S.C. 

§ 922(g)(1), the defendant Deion Pentecost filed a motion to suppress evidence seized 

during a search of his vehicle during a traffic stop. The district court denied the motion, 

and Pentecost filed this appeal, challenging the search under the Fourth Amendment. We 

affirm.

I

On January 8, 2021, in Henrico County, Virginia, three Henrico County police 

officers were patrolling near a Motel 6, which was the location of a large amount of violent 

crime. The officers personally had made arrests there for drug violations, robberies, and 

assaults.

In the early evening of January 8, Officer Hill observed a suspicious vehicle “backed 

against the wood line” that had been sitting there for some 20 minutes with its headlights 

on but with no apparent interaction with the Motel 6. On checking the license plate, he 

discovered that the vehicle was owned by Pentecost and that Pentecost had earlier been 

convicted of murder involving the use of a firearm. Officer Hill also learned that Pentecost 

was a member of the Bloods gang and that he had not been out of prison for long. The 

officers continued to observe the site, and eventually Pentecost exited the Motel 6 and 

entered the passenger side of the vehicle. 

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After following the vehicle, Officer Ritchie, one of the three officers on patrol that 

night, made a traffic stop of Pentecost’s vehicle based on the vehicle’s failure to stop at a 

stop sign, defects in the vehicle’s brake light and a taillight, and an expired registration.

While Officer Ritchie was conducting the traffic stop and checking into information 

related to the stop, Officer Podolak spoke with Pentecost who was in the passenger seat. 

The conversation, as recorded on the officer’s body camera, showed that it was casual and 

friendly. Prior to the conversation, however, Officer Podolak observed a piece of paper on 

the passenger floorboard in front of Pentecost that he believed, based on his experience, 

was of the kind used in smoking marijuana. Officer Podolak began the conversation by 

asking Pentecost, “Y’all doing alright tonight?” Pentecost replied, “Yes sir.” Officer 

Podolak stated, “Alright. Where were y’all headed to?” Pentecost replied, “Back to his 

room.” Officer Podolak stated, “Ok. What’s your name, sir? I’m sorry I didn’t get it. I 

know you spoke to my partner.” Pentecost replied, “Deion.” Officer Podolak asked, “Is it 

cool if I call you Deion?” Defendant responded, “Yes sir.” Officer Podolak then asked, 

“Can you come on out and talk to me real quick, Deion? You’re not in trouble or anything.”

Pentecost exited the vehicle, and as he did so, Officer Podolak observed marijuana 

on the front of his pants. Based on his training and experience that drugs are often 

associated with firearms, Officer Podolak asked Pentecost, “Do you have any weapons on 

you man?” Pentecost replied, “No sir.” Officer Podolak then asked, “You’re cool if I pat 

you down real quick?” The defendant, who was facing Officer Podolak, raised his arms 

up and out to the side. He then used his left hand to wipe the marijuana off his pants before 

turning his back to Officer Podolak and raising his arms up and out to the side again. 

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During the pat-down, Officer Podolak smelled marijuana and felt semi-firm objects 

consistent with “marijuana nuggets” in Pentecost’s front pocket. When questioned about 

them, Pentecost admitted to having marijuana in his pocket. 

At that point, Officer Podolak detained Pentecost, placing him in handcuffs but 

advising him that he was not under arrest. Officer Ritchie then searched the vehicle and 

found a sealed bag that had marijuana residue in it, as well as a .357 Magnum firearm 

underneath the passenger seat where Pentecost had been sitting. The officers arrested 

Pentecost and gave him his Miranda warnings. Pentecost then explained that he had, that 

same day, purchased the firearm for $200 and that he was smoking the marijuana to 

celebrate his birthday. He also acknowledged that he had previously been convicted of 

murder.

After Pentecost was charged with the illegal possession of a firearm, he filed a 

motion to suppress the evidence obtained during the traffic stop, arguing (1) that he had 

not consented to the pat-down and (2) that Officer Podolak did not have a reasonable, 

articulable suspicion that he was armed and thus dangerous to justify the pat-down.

Following a hearing, the district court denied Pentecost’s motion to suppress, 

finding that Pentecost consented to the pat-down and that, in any event, Officer Podolak 

had a reasonable, articulable suspicion for conducting the pat-down. As to its finding of 

consent, the district court found:

Defendant here raised his arms while facing Officer Podolak, then turned to 

face away from Officer Podolak and raised his arms again. Like the 

defendant in [United States v. Cohen, 593 F. App’x 196 (4th Cir. 2014)], 

Defendant here never protested, moved away, or in any way demonstrated 

discomfort while Officer Podolak executed the pat-down. . . . Defendant’s 

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actions and demeanor here mirror established physical manifestations of 

consent.

And as to the surrounding circumstances that were relevant to its consent finding, it noted:

The circumstances surrounding the pat-down in this case closely track those 

in Cohen. The officers outnumbered the vehicle passengers only by one, and 

the pat-down itself was a one-on-one interaction between Defendant and 

Officer Podolak. Officer Podolak was calm and relaxed and asked Defendant 

his name and if he had a weapon before asking Defendant if it was “cool” for 

him to pat Defendant down. No officer drew a weapon during the interaction. 

Officer Podolak obtained Defendant’s consent to a pat-down without 

employing coercion, force, or intimidation.

* * *

[T]he officers here were polite, Officer Podolak’s questions and tone were 

never accusatory or commanding, and Defendant was not blocked in a 

confined space. Accordingly, and in consideration of the totality of the 

circumstances, the Court finds that the pat-down was voluntary and 

consensual.

As to its finding that the pat-down was, in any event, justified, the court stated:

Here, the police first encountered Defendant at a Motel 6 known for criminal 

activity. During the traffic stop, Office Podolak observed a piece of paper 

consistent with marijuana use at Defendant’s feet and marijuana residue on 

Defendant’s person as he stepped out of the vehicle. Finally, though not 

alone dispositive, the officers were aware that Defendant was a known 

member of the Bloods gang and had a prior conviction for murder. Taking 

all of these factors into consideration, Officer Podolak objectively had 

sufficient reasonable suspicion to justify patting down Defendant.

On appeal, Pentecost does not challenge the justification for the traffic stop, nor 

does he challenge the district court’s underlying factual findings. Rather, he argues that 

the underlying facts do not justify the finding that the pat-down was consensual, nor do 

they provide a reasonable suspicion that Pentecost was armed and dangerous. We address 

each argument in turn, reviewing the district court’s factual findings for clear error and its 

legal conclusions de novo. United States v. Green, 740 F.3d 275, 277 (4th Cir. 2014). 

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Also, “[w]e construe the evidence in the light most favorable to the government, as the 

prevailing party below.” Id.

II

With respect to the consent issue, we begin with the principle that searches 

conducted without a warrant are per se unreasonable under the Fourth Amendment unless 

a valid exception applies. And consensual searches are such an exception. United States 

v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 

218, 219 (1973)). “The question whether consent to search is voluntary — as distinct from 

being the product of duress or coercion, express or implied — is one ‘of fact to be 

determined from the totality of all the circumstances.’” United States v. Azua-Rinconada, 

914 F.3d 319, 324 (4th Cir. 2019) (quoting Bustamonte, 412 U.S. at 227). Moreover, 

consent to a search need not be express but “may be inferred from actions as well as words.” 

United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003). In United States v. Drayton, 

the Supreme Court found that voluntary consent was provided when the defendant 

responded to the officer’s request for permission to search him “by lifting his hands about 

eight inches from his legs” and allowing the officer to conduct a pat-down. 536 U.S. 194, 

199 (2002). Similarly, in United States v. Wilson, we found that voluntary consent was 

provided when the officer asked to search the defendant’s person and “without making an 

oral response, [the defendant] simply shrugged his shoulders and extended his arms.” 895 

F.2d 168, 170 (4th Cir. 1990). Lastly, in United States v. Cohen, the officer asked the 

defendant if he had a weapon, and the defendant replied “no” and then “voluntarily raised 

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his arms,” which the officer “reasonably interpreted as an implied consent to search.” 593 

Fed. App’x 196, 201 (4th Cir. 2014). We noted further in Cohen that the defendant “did 

not lower his arms, protest, or move away at any point before, during, or after the patdown” as additional indicia of consent. Id. (internal quotation marks omitted). 

In this case, Pentecost, like the defendants in Drayton, Wilson, and Cohen, 

responded to Officer Podolak’s request to pat him down with physical conduct that implied 

consent. Pentecost raised his arms while facing Officer Podolak and then turned to face 

away from Officer Podolak and raised his arms again. Pentecost did not protest or attempt 

to move away at any point but rather lifted his arms and turned his body to facilitate the 

pat-down. Further, the interaction between Pentecost and Officer Podolak was a one-onone interaction in which Officer Podolak used a calm and friendly tone and did not brandish 

his weapon or otherwise threaten or attempt to intimidate Pentecost. See Drayton, 536 

U.S. at 203–07 (considering factors such as whether there was an application or show of 

force, intimidating movement, brandishing of weapons, threats or commands, or an 

authoritative tone of voice in assessing whether consent was coerced or voluntary). Based 

on this evidence, we conclude that the district court did not clearly err in finding that 

Pentecost voluntarily consented to the pat-down search. See Azua-Rinconada, 914 F.3d at 

324.

In view of our holding, we need not reach Pentecost’s alternative argument that 

Officer Podolak, in any event, did not have reasonable suspicion that Pentecost was armed 

and dangerous, thereby making the pat-down lawful even if Pentecost did not give his 

consent.

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The judgment of the district court is accordingly

AFFIRMED.

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