UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5112

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSUE SANTANA,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. John Preston Bailey,

District Judge. (3:05-cr-00062-JPB-2)

Submitted: June 5, 2008 Decided: July 9, 2008

Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

William Francis Xavier Becker, Rockville, Maryland, for Appellant.

Sharon L. Potter, United States Attorney, Paul T. Camilletti,

Assistant United States Attorney, Martinsburg, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Josue Santana challenges the district court’s pretrial

denial of his motion to suppress evidence seized from his shoe

following a traffic stop, and his 78-month sentence for conspiracy

to distribute crack cocaine and distribution of crack cocaine.

Santana was indicted for conspiracy to distribute cocaine and crack

cocaine, distribution of crack cocaine and cocaine, and aiding and

abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846

(2000). Santana moved to suppress evidence against him that was

seized following a traffic stop, arguing that he was detained and

searched without probable cause. The district court denied the

motion after an evidentiary hearing. Santana was found guilty of

conspiracy to distribute crack cocaine and distribution of crack

cocaine following a jury trial.

Santana first argues on appeal that the district court

erred in denying his motion to suppress. He contends that the

police lacked probable cause for the stop because it occurred six

hours after the officer observed his vehicle in the driveway of a

known drug dealer. He also argues that the stop was deliberately

prolonged beyond the time necessary to write tickets for his

alleged infractions--excessively tinted windows and a suspended

registration--so that a K-9 officer could come to the scene with a

narcotic-sniffing dog, and that he was unreasonably and
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impermissibly required to remove his shoes, within which the

evidence against him was discovered.

We review the district court’s factual findings

underlying the denial of a motion to suppress for clear error and

its legal conclusions de novo. United States v. Grossman, 400 F.3d

212, 216 (4th Cir. 2005). When a suppression motion has been

denied, we construe the evidence in the light most favorable to the

Government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.

1998). “As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a

traffic violation has occurred,” regardless of the officer’s

subjective motivations. Whren v. United States, 517 U.S. 806, 810,

813-19 (1996) (citations omitted).

We hold that the stop of Santana’s vehicle was supported

by probable cause. Although the stop occurred significantly after

Santana was observed at the home of a known drug dealer, the stop

was based upon two traffic violations, excessively tinted windows

and a suspended registration. Accordingly, the stop was supported

by probable cause, regardless of the officer’s subjective

motivations.

“[I]n the case of a lawful custodial arrest a full search

of the person is not only an exception to the warrant requirement

of the Fourth Amendment, but is also a ‘reasonable’ search under

that Amendment.” United States v. Robinson, 414 U.S. 218, 235
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(1973). “[W]here the formal arrest quickly follows the challenged

search, it is not important that the search preceded the arrest.”

United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991)

(citations omitted). In order for the fruits of the search to be

admissible, the arrest must have been supported by probable cause

at the time that the search occurred. Id. A warrantless arrest is

supported by probable cause “where the facts and circumstances

within the arresting officer’s knowledge are sufficient for a

reasonable person to believe that a crime has been or is being

committed by the person to be arrested.” Id.

We hold that Santana’s detention following the stop and

the search of his shoes were supported by probable cause. After

Santana was stopped for traffic violations, but prior to the search

and arrest, Santana advised the officer that he was staying with a

friend. Based upon the officer’s personal observations, however,

he knew that Santana was staying at a nearby motel. Santana’s

conduct of giving false information constituted probable cause for

his warrantless arrest. Because the arrest was supported by

probable cause, the search of Santana’s person, including his

shoes, was reasonable and did not violate the Fourth Amendment.

Accordingly, the district court did not err in denying Santana’s

motion to suppress.

Santana also argues that the district court erred in

enhancing his sentence based upon facts that were determined by the
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court by a preponderance of the evidence. After the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005),

a district court is no longer bound by the range prescribed by the

sentencing guidelines. United States v. Hughes, 401 F.3d 540, 546

(4th Cir. 2005). Under an advisory guidelines scheme, a district

court does not violate the Sixth Amendment by making factual

findings as to sentencing factors by a preponderance of the

evidence as long as the fact-finding does not enhance the sentence

beyond the maximum term specified in the substantive statute. See

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding

that “Booker does not in the end move any decision from judge to

jury, or change the burden of persuasion”).

Because the district court treated the Guidelines as

advisory pursuant to Booker, the enhancements based on the court’s

factual findings did not violate Santana’s Sixth Amendment rights.

For the reasons stated above, we affirm the district

court’s denial of Santana’s motion to suppress and Santana’s

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