UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4109

RONALD M. RUBOTTOM,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

Terrence W. Boyle, District Judge.

(CR-95-23-M)

Submitted: August 29, 1997

Decided: October 24, 1997

Before LUTTIG and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,

North Carolina, for Appellant. Janice McKenzie Cole, United States

Attorney, Anne M. Hayes, Assistant United States Attorney, Thomas

B. Murphy, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Following a bench trial, Ronald M. Rubottom was convicted of disregarding a lawful order or signal of an authorized official directing,

controlling or regulating the movement of traffic on a national wildlife refuge and of operating a motor vehicle while under the influence

of intoxicating beverages or controlled substances on a national wildlife refuge.* Rubottom now appeals the denial of his motion to suppress the prearrest statement he gave to Officer Ponz.

Rubottom was not given a Miranda v. Arizona, 384 U.S. 436, 444

(1966), warning before he answered Officer Ponz's questions. Rubottom claims that the admission of his statements against him at trial

constituted a Miranda violation. See Berkemer v. McCarty, 468 U.S.

420, 440 (1984) (stating that Miranda is triggered when roadside

detention and questioning are elevated to custodial interrogation). The

Government argues that there was no Miranda violation because

Rubottom was not subject to a custodial interrogation when he made

the statements, but rather, was subject to a stop pursuant to Terry v.

Ohio, 392 U.S. 1, 30-31 (1968).

After a review of the record, we conclude that Officer Ponz's stop

of Rubottom did not exceed the bounds of a Terry stop. Officer

Ponz's observation of Rubottom lighting a marijuana pipe in a van

parked the wrong way on the shoulder of the road warranted a Terry

stop to confirm or dispel the suspicion of criminal activity. See United

States v. Cortez, 449 U.S. 411, 418 (1981). Officer Ponz's grabbing

of Rubottom's arm when Rubottom tried to flee did not elevate Officer Ponz's lawful stop into a custodial arrest for Miranda purposes.

See United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995)

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*At the start of trial, Rubottom pleaded guilty to possession of a controlled substance on a national wildlife refuge.

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(stating that "drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use

force does not necessarily elevate a lawful stop into a custodial

arrest"). Nor did Officer Ponz's chase and subsequent stop of Rubottom when he fled exceed the bounds of a Terry stop. See Leshuk, 65

F.3d at 1110. Further, Officer Ponz's questions did not elevate the

stop to a custodial arrest. See Berkemer, 468 U.S. at 439 (stating that

"moderate number of questions" may be asked"to try to obtain information confirming or dispelling the officer's suspicions"). Officer

Ponz merely inquired as to what was going on, and the stop was comparatively nonthreatening. See United States v. Perdue, 8 F.3d 1455,

1464-65 (10th Cir. 1993) (finding that stop exceeded Terry where

defendant was forced out of car and onto ground at gunpoint and was

questioned in that position with police helicopters hovering overhead). Thus, because Officer Ponz's questions were neither coercive

nor intimidating and the intrusion was limited, we find that Officer

Ponz's actions did not elevate his lawful Terry stop into a custodial

arrest for Miranda purposes. See Leshuk , 65 F.3d at 1110.

To the extent that Officer Ponz's routine traffic stop may have

matured into a custodial interrogation, we conclude that the admission

of Rubottom's statements against him at trial was harmless error. See

Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir. 1980); see also

Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991). A review of the

record indicates that Rubottom's statement did not materially contribute to his conviction and that the trier of fact would have convicted

him had his statement not been admitted at trial. See Fulminante, 499

U.S. at 295-96. We find that the record contains overwhelming evidence supporting Rubottom's conviction of operating a motor vehicle

while under the influence of alcohol or a controlled substance without

Rubottom's statements to Officer Ponz. Thus, we conclude that even

if the district court's denial of Rubottom's motion to suppress his

statement was error, such error was harmless. See Williams, 632 F.2d

at 360.

Accordingly, we affirm the order of the district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before us and argument would not

aid in the decisional process.

AFFIRMED

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