UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-5110

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

STANAUS MCCOY, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:06-cr-00208-GBL-1) 

Argued: September 23, 2009 Decided: October 27, 2009 

Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Todd M. Richman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Alexandria, Virginia, for Appellant. Jenny C. Ellickson, OFFICE 

OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for 

Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, 

Acting United States Attorney, Jonathan L. Fahey, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 The Defendant, Stanaus McCoy, appeals the district court’s 

denial of a motion to reopen a suppression hearing in light of 

new evidence that he claims the Government withheld in violation 

of Brady v. Maryland, 373 U.S. 83 (1963). Because McCoy cannot 

show that the evidence was material to the suppression hearing’s 

outcome, we affirm the district court’s denial of the motion to 

reopen the hearing and affirm McCoy’s conviction. 

I. 

 McCoy was charged with three counts of possession with 

intent to distribute crack cocaine, pursuant to 21 U.S.C. 

§ 841(a)(1) (2006), and two counts of being a convicted felon in 

possession of a firearm, pursuant to 18 U.S.C. §§ 922(g)(1) and 

924(e) (2006). The charges arose from an incident in a Loudon 

County, Virginia parking lot in which a police officer observed 

a drug deal between McCoy and another individual in a tow truck. 

Prior to trial, McCoy moved to suppress guns and drugs that the 

police found in his possession on the grounds that the officer 

lacked reasonable suspicion to search and detain him under the 

Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968). 

The district court initially granted McCoy’s motion, but was 

reversed by a divided panel of this Court. United States v. 

McCoy, 513 F.3d 405, 407 (4th Cir. 2008). 

2 
 In that opinion, we held that several factors leading up to 

the police stopping and then arresting McCoy gave rise to the 

requisite, reasonable suspicion: (1) the observing-officer knew 

that almost half of drug deals in Loudon County occur in public 

parking lots, like the one in which McCoy was arrested; (2) the 

specific parking lots in which the officer observed McCoy were 

frequent meeting places for drug deals; (3) drug dealers 

frequently change transaction locations at the last minute, just 

as McCoy did; (4) the officer saw McCoy arrive with his 

girlfriend at the parking lot and wait in his car for several 

minutes; (5) the officer saw McCoy point in “a southerly 

direction” when the tow-truck driver asked him where he wanted 

to meet; (6) both McCoy and the tow-truck driver went to another 

supermarket parking lot and neither went inside; (7) the officer 

saw McCoy enter the tow-truck for less than a minute; (8) the 

tow-truck driver “performed no towing services” and then left 

after McCoy exited the truck; and finally, the factor relevant 

to this appeal, (9) that when the officer ordered the tow-truck 

driver to pull over, he “responded by driving away at a high 

rate of speed.” Id. at 412-13. One panel member wrote 

separately to emphasize that he found “the tow-truck driver’s 

flight to be highly suspicious” and a key factor in the 

reasonable-suspicion calculus. Id. at 416 (Wilson, J., 

concurring). 

3 
 Before trial, the Government disclosed to McCoy’s counsel 

grand jury testimony by the tow-truck driver to whom McCoy sold 

the drugs. The tow-truck driver testified that rather than 

speed away from the parking lot, he merely “eased on out the 

road. [He] didn’t speed away or nothing like that, just—the 

lights were green. [He] just eased on out like nothing ever 

happened.” (J.A. 786.) Defense counsel moved to reopen the 

suppression hearing on the grounds that it undermined and 

impeached the officer’s claim that when he told the tow-truck 

driver to pull over, the tow-truck driver “responded by driving 

away at a high rate of speed.” The district court denied the 

motion, because it found that even if the tow-truck driver eased 

away, he still drove away to elude police. The officer, 

therefore, would still have had reasonable suspicion to stop 

McCoy. 

 A jury subsequently convicted McCoy of all-but one count in 

the indictment: three counts of possession with intent to 

distribute crack cocaine and one count of being a convicted 

felon in possession of a firearm. The district court sentenced 

him to 216 months in prison, and McCoy timely appealed. We have 

jurisdiction pursuant to 28 U.S.C. § 1291 (2006). 

4 
II. 

A. 

 We review a district court’s denial of a motion to reopen a 

suppression hearing for abuse of discretion. United States v. 

Dickerson, 166 F.3d 667, 678 (4th Cir. 1999), rev’d on other 

grounds, 530 U.S. 428 (2000). 

B. 

 To show that the district court abused its discretion when 

it refused to reopen the suppression hearing, McCoy must 

establish that the Government violated Brady by withholding the 

tow-truck driver’s testimony. See United States v. Stokes, 261 

F.3d 496, 502 (4th Cir. 2001). To establish a Brady violation, 

a defendant must show that the new evidence was (1) favorable to 

him for exculpatory or impeachment purposes; (2) that it was 

intentionally or unintentionally withheld by the Government; and 

(3) that the evidence was material. Strickler v. Greene, 527 

U.S. 263, 282 (1999); Moseley v. Branker, 550 F.3d 312, 318 (4th 

Cir. 2008). McCoy cannot do so here. 

 Assuming, without deciding, that the tow-truck driver’s 

grand jury testimony was both favorable and withheld under 

Brady, McCoy failed to prove that the new evidence was material. 

For new evidence to be material, a defendant must show that 

“there is a reasonable probability that had the evidence been 

disclosed to the defense, the result of the proceeding would 

5 
have been different.” United States v. Bagley, 473 U.S. 667, 

682 (1985); Stokes, 261 F.3d at 502. It is quite clear that 

evidence that merely contradicts a legally-insignificant witness 

statement or fact offered by the Government is, by definition, 

immaterial. See Hoke v. Netherland, 92 F.3d 1350, 1356-57 (4th 

Cir. 1996) (evidence of victim’s past consensual, sexual 

activity, which contradicted prosecution’s portrayal of victim 

as a virtuous woman not material to determining whether 

defendant raped the victim); United States v. Williams, 10 F.3d 

1070, 1078 (4th Cir. 1993) (evidence that contradicted a 

witness’s testimony that she had seen the defendant’s car twice 

was not material because whether the witness personally saw the 

car twice was not relevant to the court’s finding probable 

cause). 

 The tow-truck driver’s testimony here contradicts an 

irrelevant factor in the reasonable suspicion analysis: whether 

the tow-truck driver sped or simply “eased away” when he refused 

a police officer’s order for him to stop. Nothing in any of 

this Court or the district court’s prior analyses of reasonable 

suspicion in this case identify the speed at which the tow-truck 

driver eluded police as a relevant factor. And in our view, 

whether a subject speeds or eases away from a police officer’s 

order to stop does little to mitigate the individual’s flight in 

the first instance. 

6 
7 

 Contrary to McCoy’s contention, the testimony also does not 

rebut the officer’s testimony that the tow-truck driver fled 

after the officer told him to stop — a fact corroborated by 

other witnesses, including McCoy when he testified at the 

suppression hearing. Defense counsel’s argument that the 

testimony - in light of McCoy’s own statement that the tow-truck 

driver did not look at the officer as he left the parking lot - 

shows that the tow-truck driver did not respond to the officer’s 

command is overly-speculative and is not proof of materiality. 

In any event, whether or not the tow-truck driver subjectively 

responded to the officer’s command is unavailing, because Terry

requires the court to look only at what an objective officer 

would believe an individual to be doing, not to what that 

individual secretly intended. 392 U.S. 1, 27 (1968). McCoy 

cannot show that the new evidence contradicts the district court 

and this Court’s finding that he refused to stop. 

III. 

 For the above reasons, the district court did not clearly 

err when it denied McCoy’s motion to reopen the suppression 

hearing. We therefore affirm McCoy’s conviction. 

AFFIRMED