UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4901

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID BRAXTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William D. Quarles, Jr., District 

Judge. (1:08-cr-00444-WDQ-1)

Argued: September 22, 2011 Decided: November 30, 2011

Before WILKINSON, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished opinion. Judge Wilkinson wrote the

majority opinion, in which Judge Floyd joined. Judge Wynn wrote 

a dissenting opinion.

ARGUED: Warren Eugene Gorman, Chevy Chase, Maryland, for 

Appellant. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES 

ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. 

Rosenstein, United States Attorney, Baltimore, Maryland, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

WILKINSON, Circuit Judge: 

Appellant David Braxton was convicted after trial of one 

count of possession of a firearm by a convicted felon. Because 

of the nature of his prior convictions, Braxton was subsequently 

given an enhanced sentence under the Armed Career Criminal Act. 

Braxton raises multiple issues in this appeal, including (among 

others) denial of his suppression motion, the ineffectiveness of 

his counsel, and violations of his statutory and constitutional 

rights to a speedy trial. We now affirm.

I.

On May 17, 2006, in Baltimore, Maryland, Baltimore City 

Police Officer Richard Allen observed a vehicle passing him with 

dark tinted windows. Officer Allen’s radio check of the license 

plates revealed further that the tags belonged to another 

vehicle. After double-checking this information, Officer Allen 

obtained the assistance of two nearby plainclothes officers, and 

stopped the car. Officer Allen observed four occupants in the 

vehicle, and he approached the driver while one of the backup 

officers, Baltimore City Police Officer Kenneth Williams, 

approached the passenger side. Braxton was seated in the front 

passenger seat, and Officer Williams reported that, although the 

other passengers were complaining about being stopped, Braxton 

“looked very just nervous.” 
3

After discovering that the driver of the vehicle had a 

provisional license, which did not permit him to carry the 

passengers in the vehicle, Officer Allen asked everyone to get 

out of the car. When Braxton stepped out, Officer Williams 

advised him that he needed “to pat [him] down for weapons for 

safety.” While frisking Braxton, Officer Williams felt a 

handgun, prompting him to yell “Gun,” to alert his fellow 

officers to the danger of the situation. Braxton then elbowed 

Officer Williams in an attempt to escape, but he was subdued 

after a struggle with Officer Williams and another assisting 

officer. 

Braxton was indicted by a grand jury in the District of 

Maryland on March 15, 2007 on one count of possession of a 

firearm by a convicted felon in violation of 18 U.S.C. 

§ 922(g)(1). The case was assigned to Judge J. Frederick Motz 

and set for trial. Because Officer Allen deployed to Iraq in 

October 2007, the Government was forced to ask for continuances 

until, on September 16, 2008, Judge Motz decided to deny a 

further continuance and to dismiss the indictment without 

prejudice. 

On September 17, 2008, the grand jury returned a second 

indictment of Braxton for the same felon-in-possession charge, 

and the new case was assigned to Judge William D. Quarles. On 

October 10, 2008, Braxton filed new motions to dismiss the 
4

indictment and to suppress the gun discovered during the traffic 

stop. Those motions remained pending until March 16, 2009, the 

first day of trial, when the district court held a brief hearing 

and denied the motions. Braxton was convicted after a three-day 

jury trial.

At his sentencing hearing on September 4, 2009, Braxton 

objected to his classification as an armed career criminal under 

18 U.S.C. § 924(e). He conceded that two of his prior 

convictions qualified as “serious drug offense[s],” but disputed 

the status of a third prior offense. After the government 

produced a certified conviction and certified charging document, 

the district court rejected Braxton’s objection and sentenced 

him to 235 months’ imprisonment. This appeal followed.

II.

We begin with Braxton’s claim that the district court erred 

in refusing to suppress the firearm found by Officer Williams 

during the pat-down. Because the district court properly 

concluded that the encounter was a Terry stop, see Terry v. 

Ohio, 392 U.S. 1 (1968), not a consensual encounter, the frisk 

may only be justified if two independent criteria were

satisfied. First, the police must have a reasonable suspicion 

“that criminal activity may be afoot,” id. at 30, in order to 

make the stop in the first place. Second, the police must 
5

similarly have reasonable suspicion “that the persons with whom 

[they are] dealing may be armed and presently dangerous” in 

order to justify “a carefully limited search of the outer 

clothing of such persons in an attempt to discover weapons.” 

Id. This bifurcated analysis has led to separate terms for the 

permissible police actions: the “Terry stop” and the “Terry

frisk,” see, e.g., Florida v. J.L.

In considering Braxton’s challenge to the suppression 

ruling, we consider the district court’s factual findings solely 

for clear error, but we review legal determinations de novo. 

, 529 U.S. 266, 272-73 (2000).

See United States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003). 

When a suppression motion has been denied, “[w]e construe the 

evidence in the light most favorable to the Government.” United 

States v. Seidman

A.

, 156 F.3d 542, 547 (4th Cir. 1998).

Here, the district court properly analyzed the 

justification for the investigative stop of the vehicle, finding 

explicitly that “[t]he lack of an appropriate tag on the 

vehicle, of course, is an appropriate basis for the Terry

In discussing the frisk, the district court appears to have 

misspoken, repeating the standard for the stop as the 

stop.” 

Indeed, Braxton does not challenge the stop itself in this 

appeal. He does challenge the appropriateness of the frisk, 

however, and there, the district court did err.
6

appropriate analysis for the frisk: “[W]hen there is reasonable 

suspicion of the passenger’s participation in criminal activity, 

then Terry does permit a frisk of the passenger.” Further, this 

conflation of the two steps of Terry analysis was error; the 

district court should have stated that “the officers . . .

needed reasonable, articulable suspicion that [Braxton] was 

armed and dangerous.” United States v. Brown

B.

, 401 F.3d 588, 592 

(4th Cir. 2005).

But the district court’s failure to articulate the proper 

measure of a Terry frisk does not necessarily entitle Braxton to 

relief. In considering the suppression ruling, “[w]e are not 

limited to evaluation of the grounds offered by the district 

court to support its decision, but may affirm on any grounds 

apparent from the record.” United States v. Smith, 395 F.3d 

516, 519 (4th Cir. 2005). Here, the district court explicitly 

found that the police had a reasonable “suspicion that the 

Defendant may have been involved in the theft of a car” -- a 

conclusion amply supported by the testimony about the license 

plates that did not belong to the vehicle, heavily tinted 

windows on the car, Braxton’s nervousness about the arrival of 

the police (especially in contrast to the boisterousness of the 

other passengers), and the nature of the area in which the stop 

occurred. 
7

None of these primary facts are in dispute, much less 

clearly erroneous. While in some cases the circumstances of an 

investigative stop would not supply the rationale for a Terry

frisk, in others, the circumstances leading to the stop would 

bear directly upon the reasonableness of the subsequent Terry

frisk. Such is the case here. It seems unnecessary, therefore, 

to remand to the district court to reiterate what the court’s 

findings have already revealed -- that Officer Williams had a 

reasonable suspicion that Braxton was armed and dangerous. 

After all, as the District of Columbia Circuit has emphasized, 

“car theft is a crime that often involves the use of weapons and 

other instruments of assault that could jeopardize officer 

safety, and thus justifies a protective frisk under Terry.” 

United States v. Bullock

The cases to this effect are legion. 

, 510 F.3d 342, 347 (D.C. Cir. 2007). 

See, e.g., United 

States v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003) 

(approving pat-down when “[i]nability to provide proof of 

registration gives rise to suspicion of a stolen vehicle”); 

United States v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) 

(“[L]aw enforcement could infer the vehicle might be stolen, and 

as possible car thieves [defendants] might possess weapons.”); 

United States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003) 

(holding that defendants “might have stolen the car and, 

therefore, might have weapons in the car that they used during 
8

the theft or had available in case they were discovered”); 

United States v. Tuggle, 284 Fed.Appx. 218, 227 (5th Cir. 2008) 

(“[W]hen [defendant]’s conduct reasonably suggested that he 

might be part of that auto-theft ring, the officers were 

justified in fearing for their safety.”); United States v. 

Williams, 7 Fed.Appx. 876, 885 (10th Cir. 2001) (Officer’s 

“frisk of [defendant] for weapons . . . was permissible under 

Terry” in light of “the objectively reasonable suspicion that 

the van was stolen.”) United States v. Bradley

It is not at all a bad thing for trial courts to dot the 

“i” and cross the “t”, and the court should have done so here. 

But the factual finding that the officers had a reasonable

“suspicion that the Defendant may have been involved in the 

theft of a car,” together with the other circumstances 

surrounding the encounter, leave the record sufficiently clear 

that the proper 

, 1990 WL 124205 

at *2 (6th Cir. 1990) (“It was reasonable for the officer to 

believe that appellant, who was suspected of having recently 

been involved in a car theft, might have been armed and 

dangerous.”) 

Terry standard was satisfied. We may thus 

affirm the ultimate ruling of admissibility notwithstanding the 

fact that the criteria for the Terry stop and Terry frisk should 

have been independently articulated and applied. 
9

Contrary to the dissent’s assertion, we are not 

“making . . . findings on a cold appellate record.” Post at 23. 

The district court made the critical finding that this 

particular defendant may have been involved in auto theft, and 

that a Terry frisk was therefore justified. In accord with a 

variety of other courts, we merely hold that a factual finding 

that the defendant is a potential car thief supports the legal 

conclusion that there is reasonable suspicion that he is armed 

and dangerous.1

 1 This court’s decision in United States v. Powell, ___ F.3d 

___, No. 08-4696 (4th Cir. Nov. 14, 2011), is not to the 

contrary. In Powell, we held that a defendant’s criminal 

history and misrepresentations about his driver’s license were 

insufficient to justify a Terry frisk. See id. (slip op. at 11, 

14). This case presents substantially different facts. At the 

very outset, the stop in Powell was for a burned-out headlight, 

whereas here the car in which Braxton was a passenger had 

license plates that did not match the vehicle -– a much greater 

indication that a serious crime was afoot in addition to being a 

traffic violation. When executing the stop, the police in 

Powell confronted a “relatively safe” situation in which there 

were more officers present than passengers in the car, and there 

was no evidence that the area where the stop occurred was itself 

notably dangerous. See id. (slip op. at 10-11). Here, the 

officers were both outnumbered and conducted the stop in a more 

treacherous area. Finally, while the stop was underway, the 

defendant in Powell was “amicable [and] cooperative,” id. (slip 

op. at 11), whereas the district court here made the express 

finding that Braxton could have been involved in the theft of 

the car that the police had stopped –- an immediate crime of a 

serious nature that six other circuits have held presents a 

sufficiently inherent risk of confronting an armed and dangerous 

suspect that a Terry frisk is justified.
10

C.

In affirming the district court, we recall as well that a 

frisk is justified by the “‘legitimate and weighty’ interest in 

officer safety,” Arizona v. Johnson, 129 S. Ct. 781, 786 (2009)

(quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)) -- a 

different purpose than “investigating possibly criminal 

behavior,” Terry, 392 U.S. at 22, that justifies a stop in the 

first place. That protective interest is not attenuated because 

Braxton was a passenger and not the driver of the vehicle. For 

as the Supreme Court has noted, “the motivation of a passenger 

to employ violence to prevent apprehension of such a crime is 

every bit as great as that of the driver.” Maryland v. Wilson

Here, the officers confronted a dangerous situation 

presenting numerous indicia of criminal activity. They were 

outnumbered by the passengers in a vehicle bearing bad tags

traveling through a dangerous area with darkly tinted windows. 

While “[w]e do not exclude the possibility that in some 

circumstances a patdown is not required[,]. . . we hesitate 

before criticizing [Officer Williams’s] choice of the means to 

protect himself in emergent circumstances on the street from the 

relative calm and safety of chambers.” 

, 

519 U.S. 408, 414 (1997). 

United States v. Casado, 

303 F.3d 440, 448-49 (2d Cir. 2002) (citing Graham v. Connor, 

490 U.S. 386, 396 (1989)). 
11

Proper adherence to the standards of Terry does not require 

us to gamble with the lives of police officers who exercise 

reasonable judgment in fulfilling their duty in the trying 

situation presented by a roadside car stop. The Supreme Court 

has long noted that “investigative detentions involving suspects 

in vehicles are especially fraught with danger to police 

officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983) (citing 

Mimms, 434 U.S. 106). Officer Williams executed a minimally 

intrusive frisk, justified at the time by a reasonable suspicion 

that he and his fellow officers were in a situation that could 

escalate and place both the officers and the occupants of the 

car at risk. Where the totality of circumstances supports a 

reasonable suspicion that Braxton was “armed and dangerous,” the 

absence of those three talismanic words, while error, is not 

fatal to the district court’s ruling in this case.

III.

Second, Braxton asserts that his original attorney provided 

him with ineffective assistance of counsel by failing to conduct 

an adequate investigation during plea negotiations. Braxton 

does not assert that the trial that resulted in his present 

conviction was unfair, only that his counsel’s failure to obtain 

a recording of police radio communications induced him to reject 

a favorable guilty plea and exercise his right to trial. We 
12

note that the Supreme Court is currently considering the broader 

question Braxton’s appeal implicates -- whether a defendant is 

ever prejudiced by going to trial rather than accepting a guilty 

plea, even if that decision results from deficient performance 

of counsel -- in two consolidated cases. See Lafler v. Cooper,

131 S. Ct. 856 (No. 10-209) (2011); Missouri v. Frye, 131 S. Ct. 

856 (No. 10-444) (2011). We need not await the resolution of 

those cases, however, because Braxton’s appeal may be rejected 

on much narrower grounds; specifically, we agree with the 

district court that Braxton’s counsel’s performance did not fall 

“below an objective standard of reasonableness.” Strickland v. 

Washington

Braxton’s claim derives from the failure of his counsel to 

obtain the “KGA tape,” a recording of police radio 

communications during an incident. Braxton’s counsel requested 

(but did not subpoena) a copy of the tape from the government, 

but was told that the tape no longer existed. This was 

consistent with the prior experience of Braxton’s counsel, who 

knew that KGA recordings are typically only kept for a short 

period of time after an incident. Braxton’s counsel did 

subpoena the “CAD report,” a written summary of those radio 

communications.

, 466 U.S. 668, 688 (1984).

The CAD report erroneously contained inconsistencies with 

the testimony of Officer Allen, reporting that he only requested 
13

a check of the vehicle’s license plates after initiating the 

Terry

Later, however, the KGA tape was discovered, to the 

surprise of both the government and Braxton’s counsel. The 

recording confirmed Officer Allen’s account of the order in 

which events transpired, essentially eliminating the impeachment 

value of the CAD report. 

stop. Braxton’s counsel discussed with him the options 

this presented for seeking suppression of the firearm recovered 

in that stop and for impeaching the testimony of the police 

officers involved. During this time, the government offered 

Braxton two separate plea agreements, one for a federal charge 

of possession of a stolen gun and one for a state firearms 

charge. During both negotiations, Braxton’s counsel recommended 

that he accept the plea offers. Braxton ignored this advice and 

rejected the deals, proceeding to trial apparently in the belief 

that the inconsistencies in the CAD report might lead to his 

acquittal.

Braxton simply cannot show that his counsel performed 

deficiently. First, and most plainly, Braxton acted against the 

advice of counsel in rejecting the guilty pleas. While it is an 

open question before the Supreme Court whether a defendant is 

prejudiced when he follows the erroneous advice of counsel to 

seek a trial, Braxton rejected counsel’s wise advice to plead 

guilty -- counsel knew that, even before emergence of the 
14

damaging KGA tape, Braxton’s chances of success at trial were 

bleak. In essence, Braxton seeks to blame his counsel, who gave 

him good advice, for not giving that advice well enough. We 

will not permit the buyer’s remorse of a defendant who insists 

on going to trial to impugn the sound advice of his attorney 

that he pursue the more prudent path of the plea bargain.

Second, Braxton’s claim boils down to the assertion that it 

was ineffective for his counsel merely to have “requested” the 

KGA tape, rather than subpoenaing it. While it is doubtful that 

a subpoena would have actually brought forth the evidence 

sought, since the government was, at that time, also unaware 

that the tape was available, the distinction between a request 

and a subpoena is not one of constitutional moment here. 

The Court in Strickland did not require that counsel employ 

every investigative technique imaginable, but rather held that 

“strategic choices made after less than complete investigation 

are reasonable precisely to the extent that reasonable 

professional judgments support the limitations on 

investigation.” Strickland, 466 U.S. at 690-91. Braxton’s 

counsel reasonably believed -- based on long experience as a 

Federal Public Defender -- that the tape would not be available.

He took the precautionary step of requesting it anyway, and, 

when told the tape did not exist, counsel subpoenaed the CAD 

report as the next best evidence of what transpired. It was not 
15

a deficiency of Braxton’s counsel that the CAD report did not 

accurately record when in the course of the encounter the 

request for a license plate check was made, nor was it subpar 

performance for Braxton’s counsel to believe the government’s 

representation that the KGA tape did not exist. In short, 

Braxton’s counsel’s actions throughout fell “well within the 

range of professionally reasonable judgments.” Id. at 700.

IV.

Third, Braxton asserts violations of both his statutory and 

constitutional rights to a speedy trial. 

A.

The Speedy Trial Act, 18 U.S.C. § 3161, provides that a 

defendant shall be brought to trial “within seventy days from 

the filing date (and making public) of the information or 

indictment, or from the date the defendant has appeared before a 

judicial officer of the court in which such charge is pending, 

whichever date last occurs.” Id. § 3161(c)(1). Braxton asserts 

that because it was almost three years from his arrest until his 

trial, he suffered an impermissible delay. But the statute also 

provides that “delay resulting from any pretrial motion, from 

the filing of the motion through the conclusion of the hearing 

on, or other prompt disposition of, such motion” is excludable 
16

from the 70-day window. Id.

Braxton’s initial appearance on the first indictment took 

place on September 24, 2007. His first set of motions was filed 

twenty-nine days later, on October 23, 2007. Those motions 

remained pending until the dismissal of his first indictment on 

September 17, 2008. He was then reindicted, and had his initial 

appearance on that charge on September 24, 2008. His second set 

of motions was filed sixteen days later, on October 10, 2008. 

Those motions were pending until their resolution on the first 

day of trial, March 16, 2009. Giving the defendant the benefit 

of any doubt and combining both the twenty-nine day period on 

the first indictment and the sixteen day period on the second 

indictment, only 45 total non-excludable days of the permissible 

70 elapsed -- well within the permissible bounds of the Speedy 

Trial Act.

§ 3161(h)(1)(D). Braxton’s case 

was brought well within this window.

2

B.

Braxton also alludes to the constitutional requirement of a 

prompt trial under the Sixth Amendment. We employ the four part 

 2 Braxton contends, with no supporting authority, that this 

time should not be excluded because the motions were “simple.” 

This court has been clear, however, that when a trial court 

defers resolution of a pretrial motion until the trial itself, 

all pending time may properly be excluded under the Act, and 

there is “no requirement that this time be justified as 

reasonable.” United States v. Riley, 991 F.2d 120, 124 (4th 

Cir. 1993).
17

test established by the Supreme Court in Barker v. Wingo, 407 

U.S. 514 (1972), to evaluate this claim. The factors to be 

considered are (1) the length of the delay; (2) the reason for 

the delay; (3) whether the defendant timely asserted his right; 

and (4) whether delay prejudiced the defendant’s case. Id.

First, the delay here amounted to almost exactly two years 

from the initial indictment until the beginning of trial. While 

that time period is long enough to merit further examination of 

the 

at 

530.

Barker factors, it is consistent with other cases in which 

this court has found no Sixth Amendment violation. See, e.g., 

United States v. Hall

Second, the reason for the delay was eminently reasonable: 

a key law enforcement witness had been called up for deployment 

to Iraq. It is particularly jarring for Braxton to describe 

Officer Allen’s absence -– occasioned by military service to 

this nation overseas -- as due to “negligence or lack of 

diligence” on the part of the government. In all events, this 

court has been clear that “a missing witness” qualifies as a 

“valid reason for delay” by the prosecution. 

, 551 F.3d 257 (4th Cir. 2009). 

Id.

Third, Braxton only first raised this claim on February 9, 

2009, hardly a prompt insistence on strict observance of 

constitutional timeliness requirements. 

at 272. 
18

Lastly, Braxton points to no way in which he was 

prejudiced. He shows no evidence that was lost. He makes no 

demonstration that his case was harmed other than the naked 

assertion that “[h]e had witnesses who were originally available 

that may have been helpful.” None of this approaches Barker

error, and we affirm the district court’s rejection of Braxton’s 

constitutional speedy trial claim.3

 3 Braxton raises three other claims that are equally 

meritless. First, he claims that his second indictment should 

have been reassigned to Judge Motz rather than newly distributed 

to Judge Quarles, speculating that he was prejudiced because 

Judge Motz “may have made a different ruling” on Braxton’s 

motions. No legal authority entitles Braxton to a particular 

jurist, and his speculation as to rulings is as irrelevant as it 

is unsupported.

Second, Braxton asserts that his Fifth Amendment rights 

were violated by failure of the government to resubmit his case 

to the grand jury after Judge Motz dismissed the initial 

indictment. This contention is false. The September 17, 2008 

second indictment was plainly returned by the grand jury, 

bearing the “True Bill” designation. 

Finally, Braxton asserts that the district court erred in 

considering one of his Maryland narcotics convictions as a 

predicate under the Armed Career Criminal Act. The government, 

however, provided certified documents showing that the 

convictions were for qualifying felonies under Maryland state 

law. Further, Braxton has made no showing other than his own 

assertion that the Maryland conviction was in any way 

uncounselled, a point his primary brief does not raise and that 

in no way justifies overturning the reasoned sentencing 

conclusions of the district court.
V.

Finding each of Braxton’s claims to be without merit, the 

judgment of the district court is

AFFIRMED.
WYNN, Circuit Judge, dissenting:

This case involves the patdown search of a passenger in, 

not the driver of, a vehicle. Recently, in Arizona v. Johnson, 

the Supreme Court held: “To justify a patdown of the driver or 

a passenger during a traffic stop, however, just as in the case 

of a pedestrian reasonably suspected of criminal activity, the 

police must harbor reasonable suspicion that the person 

subjected to the frisk is armed and dangerous.” 555 U.S. 323, 

327 (2009). 

The majority opinion agrees that the record in this matter 

shows conclusively that the district court made no findings 

regarding whether Defendant, the passenger in this case, was 

armed and dangerous. Ante at p.6. Even further, the majority 

opinion agrees that the district court erred in holding that the 

officers were justified in patting down the passenger based only

on the “suspicion that the Defendant may have been involved in 

the theft of a car.” J.A. 30. 

However, whereas the majority sees the district court’s 

erroneous conclusion as a mere harmless failure to “dot the ‘i’ 

and cross the ‘t,’” I consider the error to be both a 

misstatement and, more importantly, a misapplication of binding 

Supreme Court precedent. For a patdown search to be justified, 

Arizona v. Johnson explicitly requires a finding that the 

officer had a reasonable suspicion that this particular 

passenger was armed and dangerous. 555 U.S. at 327. Not only 
21

did the district court fail to make any such a finding, no 

evidence exists in this case that would be sufficient for this 

Court to assume the role of a trial court and make such finding 

in its stead. I must therefore, with great respect for the 

differing view of my colleagues, dissent. 

It is important to note that the district court here did 

correctly observe that “merely being a passenger in a car that 

was stopped does not necessarily give the Government the right 

to frisk one.” Volume I, Transcript of Motions Hearing, at 120, 

United States v. Braxton, Case No. 1:08-cr-00444-WDQ-1 (Mar. 16, 

2009) [hereinafter referred to as “Transcript”]. Likewise, our 

own Court’s case law provides that “[b]ecause a frisk or ‘pat

down’ is substantially more intrusive than an order to exit a 

vehicle or to open its doors, . . . an officer must have 

justification for a frisk or a ‘pat down’ beyond the mere 

justification for the traffic stop.” United States v. Sakyi, 

160 F.3d 164, 169 (4th Cir. 1998) (emphasis added). Despite 

this clear precedent, under the majority’s holding, any 

passenger in a vehicle with bad license tags could be subjected 

to a patdown search, even absent a finding of reasonable 

suspicion that particular individual is armed and dangerous, if 

the vehicle is stopped in a high-crime area.

To support this extension of the law, the majority states: 

“In accord with a variety of other courts, we merely hold that a 
22

factual finding that the defendant is a potential car thief 

supports the legal conclusion that there is reasonable suspicion 

that he is armed and dangerous.” Ante p. 9. But the “variety” 

of cases relied upon by the majority generally involved the 

search of the driver, not the passenger, see United States v. 

Bullock, 510 F.3d 342 (D.C. Cir. 2007), and United States v. 

Garcia-Rivera, 353 F.3d 788 (9th Cir. 2003), or otherwise 

entailed additional extenuating circumstances, see United States 

v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) (search of the 

vehicle’s interior); United States v. Shranklen, 315 F.3d 959, 

963 (8th Cir. 2003) (patdown of passenger was with consent); 

United States v. Tuggle, 284 F. App’x 218, 227 (5th Cir. 2008) 

(search was not in context of a Terry stop but in course of 

ongoing investigation); and United States v. Williams, 7 F.

App’x 876, 885 (10th Cir. 2001) (stop became detention, and 

passenger’s inability to answer questions suggested he might be 

involved in the theft of the vehicle).

In this case, the record shows that the officers stopped 

the vehicle because it had an incorrect license tag, had heavily 

tinted windows, and was being driven in a high-crime area. 

Those observations constituted the justification for the traffic 

stop. Thus, at the time the vehicle was stopped, Defendant was 

merely a passenger in a car stopped by police for traffic 

infractions. The police had no information that linked 
23

Defendant to the alleged theft of the tags or that the vehicle 

itself was even stolen.

To be sure, the record includes Officer Williams’s 

testimony regarding Defendant’s “nervousness.” But the district 

court made no findings with respect to that testimony, or 

concerning Officer Williams’s statement that he conducted the 

patdown search of Defendant for “officer safety.” In short, the 

district court made no findings regarding whether Officer 

Williams had a reasonable suspicion that Defendant was armed and 

dangerous. Indeed, beyond the findings about the traffic 

infractions that justified the stop of the vehicle, the district 

court made no reference whatsoever to Defendant or his conduct, 

and certainly not that he was a “potential car thief” or even 

specifically that the suspected criminal activity was “auto 

theft,” rather than the theft of a license plate. Ante p. 9. 

Under these circumstances, this Court should not seek to 

create a particularized “justification . . . beyond the mere 

justification for the traffic stop,” Sakyi, 160 F.3d at 169,

namely, Defendant’s “nervousness about the arrival of the 

police,” ante p. 6. Making such findings on a cold appellate 

record, particularly those that rest on the credibility 

determinations of witnesses, falls well outside the proper role 

of this Court:

Factfinders exist for definite purposes, one of which 

is to observe the demeanor of [witnesses] . . . .
24

Appellate courts are well-positioned to determine 

whether a factual finding is without support in the 

evidence; we are much less able simply to overturn a 

factfinder on a question on which two views of the 

evidence are possible. . . . Factfinders routinely 

resolve discrepancies between evidentiary sources, and 

by being able to observe testimony first-hand, they 

are in the best position to do so. 

Harris v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of 

Labor, 3 F.3d 103, 106-07 (4th Cir. 1993). See also Anderson v. 

City of Bessemer City, 470 U.S. 564, 573 (1985) (“In applying 

the clearly erroneous standard to the findings of a district 

court sitting without a jury, appellate courts must constantly 

have in mind that their function is not to decide factual issues 

de novo.” (quotation marks and citation omitted)).

It is worthwhile to remember that we have long resisted 

engaging in such fact-finding, even when it might be expedient 

for reasons of judicial economy, and even when the evidence is 

undisputed:

We are unwilling to . . . substitute fact finding at 

the appellate level for fact-finding at the trial 

level. The fact-finding responsibility has long been 

recognized as one for the trial court and sound 

practice suggests strict observance of this division 

of responsibility between trial and appellate courts 

except in the most exceptional circumstances.

Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985). See also 

United States v. Stevenson, 396 F.3d 538, 543 (4th Cir. 2005) 

(“If appellate courts were to begin the practice of making 

competitive findings with respect to undisputed or documentary 

evidence, they would usurp the trial function . . . .”).
25

Here, while there was “testimony about the license plates 

that did not belong to the vehicle, heavily tinted windows on 

the car, [Defendant’s] nervousness about the arrival of the 

police, . . . and the nature of the area in which the stop 

occurred,” ante p. 6 (emphasis added), there are no actual 

findings by the district court about these critical facts, 

particularly with respect to Defendant’s failure to make eye 

contact, or whether Officer Williams’s concerns for his safety 

were reasonable or particularized to Defendant.1

On this record, it cannot be discerned why the district 

court failed to make the necessary findings. It is entirely 

possible that the district court heard Officer Williams’s 

testimony, the Government’s reasoning, and defense counsel’s 

 Hindsight 

cannot be the judge of such behavior. See United States v. 

Martinez-Fuerte, 428 U.S. 543, 565 (1976) (noting that a purpose 

of the Fourth Amendment is to “prevent hindsight from coloring 

the evaluation of the reasonableness of a search or seizure”).

 1 In fact, some of Officer Williams’s testimony suggests 

that his safety concerns were generalized and not specific to 

Defendant or his behavior. When he first heard the radio call, 

before he had even seen Defendant or gotten to the location of 

the traffic stop, he recalled that “four occupants in a vehicle 

in that area, bad tags, and, based on working in that area for . 

. . six years prior to that incident, that usually means some 

criminal activity possibly involved.” J.A. 17. After noting 

that Defendant seemed nervous during the stop, he testified that 

he told Defendant, “‘Sir, I’ve got to pat you down for weapons 

for safety,’ given the totality of the whole situation and my 

dealings with bad tags and individuals in that area.” J.A. 19.
26

arguments, and found the stated justifications for a suspicion 

of Defendant’s being armed and dangerous did not meet the 

standard of reasonable suspicion. Perhaps the district court 

instead only found it reasonable for Officer Williams to have 

suspected Defendant was engaged in criminal activity. Under 

clear Supreme Court precedent, that is not the required 

justification for a patdown search of a passenger in a vehicle 

subjected to a Terry stop.

Likewise, I can find no support in the record for the 

majority opinion’s statement that, “Braxton then elbowed Officer 

Williams in an attempt to escape, but he was subdued after a 

struggle with Officer Williams and another assisting officer.” 

Ante p. 3. The transcript shows that Officer Williams recalled 

that Defendant “attempted to elbow me to get me off of him.” 

Transcript, at 56. Nothing in the record indicates that Officer 

Williams stated that Defendant made “an attempt to escape.”

To the contrary, Officer Williams testified under crossexamination that the police report was incorrect if it reflected 

that Defendant “attempted to push [Officer Williams] back and 

run” and that in fact Defendant complied with Officer Williams’s 

request to get out of the vehicle and put his hands up, allowing 

Officer Williams to pat him down. Transcript, at 61. He 

further agreed that “any insinuation in the police report” that 

Defendant did not comply was incorrect. Id. at 62.
27

Moreover, because Defendant’s “nervousness” is the sole 

factor particularized to him and not related to the 

justification for the Terry stop, that conduct is the linchpin 

of whether the search in question was reasonable. See, e.g., 

Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s 

presence in an area of expected criminal activity, standing 

alone, is not enough to support a reasonable, particularized 

suspicion that the person is committing a crime.”). See also

Terry v. Ohio, 392 U.S. 1, 21 n.18 (1968) (“This demand for 

specificity in the information upon which police action is 

predicated is the central teaching of this Court’s Fourth 

Amendment jurisprudence.”). As such, the appellate fact-finding 

engaged in by the majority on this point is especially 

inappropriate.

I note as well that we have previously recognized that mere 

nervousness is not necessarily suspicious behavior. See United 

States v. Massenburg, 654 F.3d 480, 489 (4th Cir. 2011) (“Given 

the complex reality of citizen-police relationships in many 

cities, a young man’s keeping his eyes down during a police 

encounter seems just as likely to be a show of respect and an 

attempt to avoid confrontation.”). The panel in Massenburg

further quoted the following persuasive language from other 

courts:

[I]t is common for most people to exhibit 

signs of nervousness when confronted by a law 
28

enforcement officer whether or not the person is 

currently engaged in criminal activity. Thus, 

absent signs of nervousness beyond the norm, we 

will discount the detaining officer’s reliance on 

the detainee’s nervousness as a basis for 

reasonable suspicion.

[United States v. Salzano,] 158 F.3d 1107, 1113 (10th 

Cir. 1998) (internal quotation marks and citations 

omitted). See also State v. Lee, 265 Neb. 663, 658 

N.W.2d 669, 678–79 (2003) (“[N]ervousness is of 

limited value” to reasonable suspicion analyses as “it 

is common knowledge that most citizens whether 

innocent or guilty, when confronted by a law 

enforcement officer who asks them potentially 

incriminating questions are likely to exhibit some 

signs of nervousness.”).

Massenburg, 654 F.3d at 490. Even Officer Williams conceded 

that “different people react different ways when the police show 

up.” Defendant’s supposed nervousness, or failure to make eye 

contact, is hardly a definitive indicator of dangerousness.

Had the front-seat passenger in this case been the driver’s 

grandmother, whom the driver had perhaps just picked up to go 

shopping, rather than Defendant, then her nervousness may well 

have been deemed typical, rather than suspicious, behavior. And 

yet, I can find no evidence in this record to suggest that this 

particular Defendant had any more knowledge that the car in 

which he was a passenger was stolen than the driver’s 

grandmother might have. 

Nothing indicates that the vehicle to which the license 

plate actually belonged was stolen just prior to the traffic 

stop, or that the vehicle appeared to be attempting to flee the 
29

police, or that there was any information that more than one 

individual was responsible for the theft. Moreover, the radio 

call mentioned only that the tags did not match the vehicle, not 

that the vehicle itself was stolen. See United States v. 

Foster, 634 F.3d 243, 248 (4th Cir. 2011) (“[A]n officer and the 

Government must do more than simply label a behavior as 

‘suspicious’ to make it so. The Government must also be able to 

either articulate why a particular behavior is suspicious or 

logically demonstrate, given the surrounding circumstances, that 

the behavior is likely to be indicative of some more sinister 

activity than may appear at first glance.”); United States v. 

Powell, No. 08-4696, ___ F.3d ___, ___, 2011 U.S. App. LEXIS 

22795 (4th Cir. Nov. 14, 2011) (holding that the district court 

should have suppressed evidence seized during a patdown search 

of a passenger during a traffic stop despite the passenger’s 

prior criminal record for armed robbery and his “purported 

deliberate misrepresentation concerning the validity of his 

driver’s license”).2

 2 Unlike the district court in this case, the district court 

in Powell explicitly held that “the officers had reasonable 

suspicion that [Defendant] was armed and dangerous and were thus 

entitled to frisk him.” ___ F.3d at ___, 2011 U.S. App. LEXIS 

22795, *2. This Court’s analysis in Powell thus rightly focused 

instead on the question of whether the evidence supported such a 

conclusion.

 See also Terry, 392 U.S. at 21-22 (noting 

In so focusing, this Court also recognized the danger of 

“cobbling together a set of facts that falls far short of 

(Continued)
30

that police officers must have “specific and articulable facts” 

to justify a search, as “[a]nything less would invite intrusions 

upon constitutionally guaranteed rights based on nothing more 

substantial than inarticulate hunches”).

In sum, the district court’s error was not some harmless 

conflation of the two standards under Terry. Rather, the 

district court misstated and applied the wrong standard to 

determine the constitutionality of a search, a possible 

violation of one of the rights we hold most dear. The majority 

nonetheless makes its own findings to uphold the search in this 

matter on the basis that the reasonable suspicion that Defendant 

may have been involved in the theft of a car is sufficient to 

pass constitutional muster, when combined with an appellate 

court’s finding of “nervousness,” the sole factor particularized 

to Defendant. Such a conclusion, and the legal gymnastics it 

 

establishing reasonable suspicion.” Id. at ___, 2011 U.S. App. 

LEXIS 22795, at *3. Quoting Foster, Massenburg, and United 

States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011), as examples 

of cases in which “the Government failed to meet its minimal 

burden of articulating facts sufficient to support a finding of 

reasonable suspicion,” this Court vacated the judgment against 

Powell on the same grounds. Id. at ___, 2011 U.S. App. LEXIS 

22795, *2-*3.

Thus, the most critical distinction from Powell is that in 

this case it is this Court, rather than the district court, that 

is “cobbling together a set of facts that falls far short of 

establishing reasonable suspicion.” Id. at ___, 2011 U.S. App. 

LEXIS 22795, *3.
31

entails, is plainly contrary to the Supreme Court’s holdings in 

Terry and Johnson, as well as our own Court’s precedent 

concerning the propriety of appellate fact-finding. 

Accordingly, I must respectfully dissent.