NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1094n.06
No. 11-4108
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. CL EOPHAS L . DAVI S, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHE RN DI STRI CT OF OHI O

Be fore : MERRI TT, MARTI N, and GI L MAN, Circuit J udg es.

PER C URI AM. Cleophas L

. Davis, who is r epre sented by counsel, appea ls his conviction for possessing a fire arm a s a convic ted fe lon. Davis was char g ed with being a felon in possession of a firea rm and ammunition in violation of 18 U.S.C. § 922(g )(1)

. Davis filed a motion to suppress evidenc e seized during a traff ic stop. The district court held an evidentiar y hear ing. The evidenc e prese nted at the hear ing showed that Davis was the passeng er in a vehicle driven by his mother, J acque line Davis, whe n two office rs stopped the vehicle for a traff

ic violation. The office rs asked Davis whether h e had “any thing on him.” Davis responde d that he had a firea rm in his back pocket. Following the evide n tiary hear ing, the district co u rt d en i ed Davis’s motion to suppress. Davis then pleade d g uilty to the char g e, but prese rved his rig ht to appea l the district court’s denial of his motion to suppress. The district court sentenc ed Da

vis to thi rty -five months of imprisonment.No. 11-4108 - 2 - On appea l, Davis arg

ues that the district court err ed in deny ing h i s motion to suppress beca use t here was no probable cause to conduct a traff ic s top and the office rs ex cee d ed t h e scope of the tra ffic stop by

questioning him. When revie wing a district court’s d en i al o f a motion to suppress, we revie w the district court’s fac tual finding s for clea r err or and its leg al conclusions de novo. United States v. Foster , 376 F.3d 57 7 , 5 8 3 (6th Cir. 2004). A fac tual finding is clea rly err oneous if, afte r revie wing all of the evidenc e, we are “left wi t h t he definite and firm conviction that a mistake has been committed.” United States v. Navarro-Camacho , 186 F.3d 701, 705 (6th C ir. 1999). “[T] he district court’s

cre d ib il it y d e te r minations reg arding witness testimony [are aff orded] g rea t defe renc e,” United States

v. Esteppe , 483 F.3d 447, 452 (6th Cir. 2007), and the evidenc e is viewed in the light most favor able to the g overnme nt. United States v. Gunte r , 551 F.3d 472, 479 ( 6th Cir. 2009). An office r may lawfully stop a motorist who he has probable cause to believe has committed
a tra ffic violation. See U nited States v. Free man , 209 F.3d 464, 466 (6th Cir. 2000). I n this case, there was probable cause to believe that J acque line Davis had committed a traff ic violation beca

use the two office rs who stopped her vehicle, Detec tive Tere sa Volk and Serg eant Kevin Kelly , testified that they saw Davis’s vehicle cross t he double y ellow l ine i nto oncoming traff ic and a lmost st rike
anot her vehicle. See Ohio Rev. Code § 4511.25(A). The district court did not clea rly err in deter mining that the officers’ testimony was credible because they testified consist ently ab out the
nature of the traff

ic infrac tion and the location in which the traff ic infrac tion occur

red. To the extent that Davis arg ues that the office rs’ true motivation for initiating the stop was to investiga te possible drug activity , this arg ument is unavailing

. “The Four th Amendment

. . . permits an office r who has probable cause to believe that a traff ic violation is occur

ring to detain the automobile, reg ardle ss of the office r’s subjective motivation for the stop.” United States v. Burton , 334 F.3d 514, 516 (6th Cir. 2003) (c iting W

hren v. U nited States , 517 U.S. 806, 812–13 (1996)).No. 11-4108 - 3 - Davis nex t contends that, even if the i nitial stop was supported by probable cause , Offic er Kelly violated the Four

th Amendment by asking Da v i s i f h e had “any thing on him.” The g overnme nt responds that Davis waived revie w of this issue beca use he did not raise it in his motion to suppress, or a t the suppression hea ring . The g overnme nt corre ctly notes that Davis’s motion to suppress focused sol ely on whether the i nitial stop was supported by probable caus e. The dist rict
court noted at the outset of the evidentiar y hear ing that “the sole issue befor e the Court is the fac tual question in dispute whether Ms. Davis committed a traff ic violation that war

rant ed s t opping her vehicle.” Thus, Davis arg uably has waived the arg ument that he now seeks to prese nt. See United States v. Critt on , 43 F.3d 1089, 1 0 9 3 (6 t h Cir. 1995). Neve rtheless, the district court proper ly conclude d that no Four

th Amendment violation occur red. Offic er Kelly ’s question to Davis did not constitute a sear ch and, there fore , did not violate the Four th Amendment, beca

use simply asking an individual “if h e h a[ s ] a we apon” or “if he ha[s] any thing on him” is not the verba l equivalent of

rea ching into an individual’s pocket or order ing an individual to “empty his pockets.” United States

v. Street , 614 F.3d 228, 234 (6th Cir. 2010). Fur thermore , the office rs did not unrea sonably extend the leng th of the stop by asking Davis if he “had any thing on him.” Davis rema ined seate d in the car . Offic er Kelly asked Davis a single question shortly afte r asking J acque line Davis for her license and insurance , and bef

ore chec king J acque line’s driving status. Under these circ umstances, no Four th Amendment violation occur red. See United States v. Lyons , 687 F.3d 754, 764 ( 6th Cir. 2012). The district cour

t’s judgme nt is affirmed.