UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4994

ANDREW LINWOOD WOODSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-97-74)

Submitted: August 18, 1998

Decided: September 22, 1998

Before WILKINS and NIEMEYER, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen T. Harper, Bradford F. Johnson, JOHNSON & WALKER,

P.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United

States Attorney, Mark Healy Bonner, UNITED STATES DEPARTMENT OF JUSTICE, Richmond, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Andrew Woodson entered a conditional plea of guilty to a charge

of violating 21 U.S.C. § 841 (1994). His plea reserved his right to

challenge on appeal the district court's denial of his motion to suppress evidence. The circumstances leading to the discovery of the

inculpatory evidence arose on the evening of November 16, 1996.

Richmond police officers Michael Musselwhite, John O'Conner and

John O'Kleasky were patrolling in their vehicle near Decatur Street,

known by police to be an open-air drug market. As they approached

1917 Decatur, they observed Woodson standing and conversing with

another individual next to a van parked in front of the residence. The

officers were familiar with Woodson, having arrested him approximately five months earlier and having had contact with him about

once a week since that time.

The officers noticed that when Woodson saw them, he abruptly

broke off his conversation and broke into a very fast walk or slow run

toward the porch of the residence. The officers pulled over and got

out of the car. Officer O'Connor yelled, "hey, how's it going?"

Woodson turned toward the police, who could then see marijuana cigarettes protruding from his closed fist. Officer O'Conner then said,

"hey, man, if that's all you got is a little weed, maybe we can give

you a break." The district court credited the officers' testimony that

Woodson then said, "all right," and dropped the cigarettes and the

keys to the van which he held in his other hand to the ground.

The officers then arrested Woodson and searched him. During the

search they found over $1200 in cash, a plastic bag containing a large

off-white chunk of material later determined to be crack cocaine,

together with a razor blade, marijuana, two packets of rolling papers,

and a pager. The cigarettes Woodson dropped to the ground proved

to contain marijuana.

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Following a hearing, the district court denied Woodson's suppression motion, which argued that all the incriminating evidence against

Woodson was the product of an illegal search and seizure. The district

court held that the officers did not need a reasonable articulable suspicion to merely approach Woodson, and that once they saw the marijuana cigarettes in his hand, they had probable cause to arrest him. All

evidence discovered after that point was recovered pursuant to a

search that was incident to a lawful arrest.

On appeal, Woodson avers that when the officers approached and

surrounded him on his front porch, they effectively seized him, invoking Fourth Amendment protections. He contends that at the time he

was seized, the officers lacked an objectively reasonable articulable

suspicion that any criminal activity was afoot. Hence, all evidence

acquired after this point was the fruit of the poisonous tree.

In reviewing the denial of a motion to suppress evidence, we

review the district court's factual findings for clear error, and its ultimate suppression decision de novo. United States v. Gordon, 895 F.2d

932, 937 (4th Cir. 1990). A person is seized when, under all the surrounding circumstances, a reasonable person would not feel free to

leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980). A person is not seized within the meaning of the Fourth Amendment when

he is merely approached by law enforcement officers in public and

asked questions to which he is willing to listen. Florida v. Royer, 460

U.S. 491, 497 (1983). Examples of circumstances that might indicate

a seizure include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person

of the citizen, or the use of language or tone of voice indicating that

compliance with the officer's request might be compelled. Id.

Woodson alleges that the officers in this case wore uniforms and

badges, and displayed their weapons. Coupled with the fact that the

officers regularly stopped to talk to him, Woodson argues that a reasonable person in his position would not have felt free to leave. The

record does not support, however, Woodson's allegation in his brief

that the officers "displayed" their weapons. The assertion appears to

stem from an officer's affirmative response at the hearing to an

inquiry by counsel as to whether his gun could be"seen." There was

no indication that any officer ever took his gun out of its holster.

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Given the absence of any display of weaponry, the factors discussed in Mendenhall do not weigh in favor of a finding that the officers seized Woodson merely by approaching him. Although Woodson

testified that one of the officers held his left arm and asked him to

open his hands, the district court could properly discredit this testimony and accept the officers' version of the events, particularly since

the district court found other parts of Woodson's testimony "inherently incredible," such as his claim that the $1200 found on his person

came from washing cars. Moreover, Woodson articulates no compelling reason why familiarity with the officers would make a reasonable

person feel that he was not free to leave.

Law enforcement officers may lawfully arrest an individual without a warrant for any offense committed in their presence. See United

States v. Watson, 423 U.S. 411, 418 (1976). We therefore agree with

the district court that when the officers observed that Woodson possessed marijuana, they had the right to arrest him. Further, after making a valid arrest, the officers had the right to search Woodson

incident to that arrest. See New York v. Belton , 453 U.S. 454, 461

(1981).

Woodson also asserts that his dropping the marijuana amounted to

a nonverbal confession, which was elicited without proper warnings

under United States v. Miranda, 384 U.S. 436 (1966). We agree with

the Government's position on appeal, however, that this conduct was

irrelevant because at the point it occurred the officers had already

seen the marijuana in Woodson's hand. Accordingly, the judgment

order of the district court is affirmed. 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

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