UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4029

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARIO MARQUISE TAYLOR,

Defendant – Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Max O. Cogburn, Jr., 

District Judge. (3:13-cr-00253-MOC-1)

Argued: January 28, 2016 Decided: March 15, 2016

Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy 

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, 

North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, 

Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, 

INC., Charlotte, North Carolina, for Appellant. Jill 

Westmoreland Rose, Acting United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Mario Marquise Taylor was charged with being a felon in

possession of a firearm after officers found a gun near a car in 

which Taylor was a passenger. The DNA on the gun matched 

Taylor’s. He moved to suppress evidence of his identity 

obtained during the encounter with police, arguing that the 

officers lacked reasonable suspicion to stop and question the

car’s occupants. The district court denied Taylor’s motion in a 

decision that Taylor now appeals. For the reasons explained 

below, we affirm the judgment of the district court.

I. Background

Officers Aaron Skipper and Todd Watson were patrolling on 

their motorcycles on November 26, 2012, investigating an area of 

Charlotte, North Carolina, where a burglary was recently 

reported. The officers saw Taylor, Preston Fields, and Marquise 

Randolph pass by in a blue Crown Victoria. The officers noted 

that the men “either look[ed] away or look[ed] down” as they 

drove past. J.A. 120. Finding this suspicious, the officers

turned to follow the car, which rounded a bend and accelerated

from approximately 35 to 50 miles per hour. The car then 

“turned into a driveway in an abrupt motion,” braking quickly 

such that it “nose dived.” J.A. 450. 
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As the officers approached, they saw that Taylor’s 

passenger side window was rolled down and his hand was extended 

outside the car, despite the “very cool” temperature. J.A. 97. 

They drove past the Crown Victoria and parked in a field on the 

opposite side of the street, 60 to 75 feet away. From there, 

the officers watched Fields get out of the car and knock on the 

front door of the house adjoining the driveway where he had 

parked. No one answered, and Fields returned to the car. 

After observing the three men sit in the car for about 45 

seconds without moving, the officers pulled their motorcycles 

into a gravel area beside the driveway, about 20 feet behind the 

rear left of the Crown Victoria. Officer Skipper approached to 

question the driver, while Watson remained about 15 to 20 feet 

behind the car and off to the side, so that he could keep an eye 

on the scene. 

Officer Skipper asked Fields if anyone was home, and Fields 

explained that he and his companions had come to meet someone 

there but that no one answered. Skipper asked if anyone had an 

ID, and Fields handed over his ID while Taylor and Randolph gave

their names. Skipper proceeded to question the men and conduct 

consensual searches, finding no drugs or weapons. 

Meanwhile, Officer Watson received a call from dispatch 

that a bus passenger had seen a firearm lying in the grass near 

where two motorcycle officers were talking with some men. Upon 
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investigation, Watson found a loaded Taurus .38 caliber revolver 

in the grass, about 75 feet away from the Crown Victoria, which 

had passed the spot before parking. The gun was on the side of 

the road Taylor’s window had faced. 

DNA analysis showed DNA of at least three people on the 

gun’s grip, with one strong profile considered a “partial major”

profile. J.A. 548. The partial major profile was later matched 

to a DNA sample from Taylor that was previously obtained and on 

file. 

A federal grand jury returned an indictment against Taylor, 

charging him with possession of a firearm by a convicted felon, 

in violation of 18 U.S.C. § 922(g)(1). Taylor unsuccessfully 

moved to suppress evidence of his identity obtained during his 

encounter with Officers Skipper and Watson. Following a trial, 

the jury returned a guilty verdict, and the district court

sentenced Taylor to 54 months’ imprisonment.

Taylor timely appealed, and we have jurisdiction under 18 

U.S.C. § 3742 and 28 U.S.C. § 1291. 

II. Discussion

A.

Taylor’s primary argument on appeal is that the district 

court erred in denying the motion to suppress evidence of his 

identity. In his view, the court should not have concluded that 
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Officers Skipper and Watson had reasonable suspicion to initiate 

the stop that led to their obtaining Taylor’s identity. 

We review factual findings underlying the denial of a 

motion to suppress for clear error and legal determinations de 

novo. United States v. Hill, 776 F.3d 243, 247 (4th Cir. 2015). 

Because the district court denied Taylor’s motion, we construe 

the evidence in the light most favorable to the government. 

United States v. Green, 740 F.3d 275, 277 (4th Cir. 2014). We

“accord particular deference to a district court’s credibility 

determinations,” because of “the district court’s role of 

observing the witnesses and of weighing their credibility.” 

United States v. Hilton, 701 F.3d 959, 964 (4th Cir. 2012). 

Under the Fourth Amendment, “an investigatory detention of 

a citizen by an officer must be supported by reasonable 

articulable suspicion that the individual is engaged in criminal 

activity.” United States v. Black, 707 F.3d 531, 537 (4th Cir. 

2013) (citing Terry v. Ohio, 392 U.S. 1, 21 (1967)). Here, we 

assume without deciding that the encounter constituted “an 

investigatory detention” –- or, in other words, a “seizure” –-

and we move directly to the issue of whether the officers acted 

on a reasonable suspicion.

In assessing reasonable suspicion, we “look at the 

‘totality of the circumstances’ of each case to see whether the 

detaining officer has a ‘particularized and objective basis’ for 
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suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 

266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 

417-18 (1981)). An “inchoate and unparticularized suspicion or 

hunch” is insufficient. United States v. Foster, 634 F.3d 243,

246 (4th Cir. 2011). Still, “the likelihood of criminal 

activity need not rise to the level required for probable cause, 

and it falls considerably short of satisfying a preponderance of 

the evidence standard.” Arvizu, 534 U.S. at 274. Factors to be 

considered include “the context of the stop, the crime rate in 

the area, and the nervous or evasive behavior of the suspect.” 

United States v. George, 732 F.3d 296, 299 (4th Cir. 2013).

Here, a number of factors would have given an officer an 

objective basis to suspect that the men in the Crown Victoria 

were up to some illegal activity. As the district court noted, 

the officers saw the men avert their eyes, away both from the 

officers and from where on the road the officers testified a 

normal person would have been looking while driving. This 

conduct would have immediately aroused some level of suspicion, 

given that the officers were investigating a recent burglary. 

At that point, the officers may yet have lacked reasonable 

suspicion, but the Crown Victoria proceeded in a matter that 

erased that doubt. That is, after passing the officers, the 

driver accelerated rapidly from around 35 to 50 miles per hour, 

seemed to speed up even more when out of sight, and then turned 
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“abrupt[ly]” to “nose dive[]” into a driveway. J.A. 450. An 

objective officer could view that manner of driving as an 

attempt to get off the road and hide –- an inference that is 

further supported by the fact that no one responded when Fields 

knocked on the front door of the house. The overall sequence of 

apparently evasive conduct provided Officers Skipper and Watson 

with reasonable suspicion to initiate the brief encounter that 

led to the evidence of Taylor’s identity.* The district court 

did not err in denying Taylor’s motion to dismiss.

B.

Taylor raises two additional issues on appeal that we 

likewise find unpersuasive. First, he asserts that, contrary to 

Batson v. Kentucky, 476 U.S. 79 (1986), the government had a 

racially discriminatory purpose for using a preemptory strike 

against the only remaining black juror, Ms. Robinson. At trial,

the government had explained that Ms. Robinson had a “meek 

voice” and “hearing issues,” “look[ed] lost in the courtroom, 

with a lost look in her eyes,” and when asked a follow-up 

 * Two additional factors the district court cited –- the 

open window and the delay in leaving the driveway after knocking 

on the door –- are more ambiguous. While neither of these 

factors is particularly indicative of criminal activity standing 

alone, they could conceivably bolster the officers’ suspicion 

when considered as part of the “totality of the circumstances.” 

Arvizu, 534 U.S. at 273. All the same, the circumstances noted 

above adequately establish reasonable suspicion such that we 

need not rely on these other factors.
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question about guns, “could not explain why and would not 

explain why, and would not make eye contact.” J.A. 335-36. The 

district court accepted this race-neutral explanation and 

consequently found that that Taylor had not “established 

purposeful discrimination,” as is required for a defendant to 

prevail on a Batson challenge. 476 U.S. at 98. 

We review a district court’s finding regarding a Batson

challenge for clear error. Jones v. Plaster, 57 F.3d 417, 421 

(4th Cir. 1995). Because findings on the issue of 

discriminatory intent “largely will turn on evaluation of 

credibility,” Batson, 476 U.S. at 98 n.21, we accord the

district court’s decision “great deference on appeal.” 

Hernandez v. New York, 500 U.S. 352, 364 (1991). 

Here, that deference leads us to find no error in the 

district court’s decision to deny Taylor’s Batson challenge. 

The court’s own findings confirmed the government’s stated

rationale. The court agreed that Ms. Robinson was “somewhat 

distracted” and “much more uncomfortable than the rest of the 

folks on the panel.” J.A. 338. Further, it explained that 

“[e]ye contact is a big thing” and that “the government’s 

reasons for taking that juror off do ring true.” J.A. 339-40. 

Taylor insists that the district court failed to conduct a 

“comparative juror analysis,” see United States v. Barnette, 644 

F.3d 192, 205 (4th Cir. 2011), but the district court made such 
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a finding: It stated unequivocally that the juror appeared “much 

more uncomfortable than the rest of the folks on the panel.” 

J.A. 338. Any potential deficiency in the district court’s 

analysis falls far short of clear error.

Second, Taylor asserts that the district court erred in 

giving an instruction as to constructive possession of the 

firearm. He contends that no evidence supported constructive 

possession -- as opposed to actual possession –- and that the 

instruction therefore may have confused the jury. See United 

States v. Whittington, 26 F.3d 456, 463 (4th Cir. 1994) (stating 

that a jury instruction is proper “only if there is a foundation 

in evidence to support” it). This Court reviews a district 

court’s “decision to give or not to give a jury instruction 

. . . for an abuse of discretion.” United States v. Moye, 454 

F.3d 390, 397-98 (4th Cir. 2006). 

We find that the district court did not abuse its 

discretion by giving the constructive possession instruction. 

The record provides factual support for the instruction. Given 

the possibility that someone other than Taylor threw the gun 

from the car, Taylor’s DNA and position in the car could suggest 

he nonetheless had control over the gun. See United States v. 

Blue, 957 F.2d 106, 107 (4th Cir. 1992) (“[T]o establish 

constructive possession, the government must produce evidence 

showing ownership, dominion, or control over the contraband 
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itself or the premises or vehicle in which the contraband is 

concealed.”). As the district court observed, “If [the gun] was 

close enough for him to drop sweat on it, it had to be close 

enough for him that he could have constructively possessed it.” 

J.A. 623. In any event, we are satisfied that any error would 

be harmless. See United States v. McCoy, 767 F.2d 395, 398 (7th 

Cir. 1985) (holding that a constructive possession instruction 

constituted harmless error). Taylor provides no reason to 

conclude that the constructive possession instruction, which was 

an accurate statement of law, would have confused the jury in 

its application of an actual possession theory. See Dawson v. 

United States, 702 F.3d 347, 350 (6th Cir. 2012) (“As in McCoy, 

the jury in Dawson’s trial is unlikely to have been confused by 

the instruction.”). 

III.

For the foregoing reasons, the district court’s judgment is

AFFIRMED.