UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5027

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AKIBA MATTHEWS,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:07-cr-00581-CCB-1)

Submitted: March 10, 2010 Decided: April 13, 2010

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for 

Appellant. Rod J. Rosenstein, United States Attorney, Cheryl L. 

Crumpton, Assistant United States Attorney, Baltimore, Maryland, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Akiba Matthews appeals his conviction and sentence for 

knowingly and intentionally distributing and possessing with 

intent to distribute heroin, in violation of 21 U.S.C. 

§ 841(a)(1) & (b)(1)(C) (2006) (Count One), knowingly and 

unlawfully possessing a firearm during and in relation to a drug 

trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(2006) (Count Two), and knowingly and unlawfully possessing a 

firearm after having been convicted of a crime punishable by 

imprisonment for a term exceeding one year, in violation of 18 

U.S.C. § 922(g)(1) (2006) (Count Three). Finding no reversible 

error, we affirm.

I.

A.

Shortly before 8 p.m. on November 15, 2007, Detective 

Shawn Frey, a narcotics officer with the Baltimore City Police 

Department, received an anonymous call that a black male was 

selling drugs from a white van at the intersection of Frederick 

and Collins Avenues. Detective Frey, accompanied by two 

plainclothes narcotics detectives, Tavon McCoy and Yoo Kim, 

proceeded to the area in an unmarked police car to begin 

surveillance. All three detectives were experienced, having 

each conducted at least 1000 street-level narcotics arrests in 

Baltimore.
3

Several minutes after arriving in the general area, 

the detectives observed a white van pull to the side of the road 

and turn off its lights. The detectives observed a man exit the 

vehicle and approach a black female standing next to the van. 

At this point, the man was holding a dark colored bag, which the 

detectives suspected contained drugs based upon how the man held 

it and its apparent “weight.” Detective Frey then witnessed the 

unidentified female hand paper currency to the man, who reached 

into the bag, removed an item, and passed it to her. 

At that point, Detective Kim drove toward the white 

conversion van and moved to “box the van in” as the black male 

opened the driver’s side door of the vehicle. As the detectives 

approached the van, Detective Frey stated that he recognized the 

black male as Akiba Matthews. The three detectives exited their 

vehicle, identified themselves, and ordered Matthews to show his 

hands. Instead, Matthews began reaching into the area between 

the driver and passenger seats and kept the van in gear. 

Weapons drawn, the detectives repeated their request for 

Matthews to show his hands. Detective Frey, who had moved to 

the driver’s side of the van, radioed for backup and waved his 

flashlight to examine the van’s interior. In so doing, 

Detective Frey saw a handgun protruding from the area between 

the seats where Matthews was reaching. Matthews also began 

asking Detective Frey, by name, why he was being stopped. 
4

Shortly thereafter, Sergeant Darryl Collins arrived 

and proceeded to the driver’s side of the vehicle. As this 

backup arrived, Matthews placed his hands on the steering wheel. 

Sergeant Collins then assisted Detective Frey in removing 

Matthews from the vehicle without incident. As Matthews was 

exiting the vehicle, Detective McCoy observed several clear bags 

with what appeared to be drugs in the door panel. Detective Kim 

also secured the handgun, a loaded Ruger .40 caliber, that 

Detective Frey had seen between the seats. The clear bags that 

Detective McCoy saw contained 60 gel caps of heroin and some 

marijuana. The detectives also recovered a small amount of 

marijuana and $274 in cash from Matthews’s right pants pocket. 

B.

Prior to November 15, 2007, Detective Frey had two 

interactions with Akiba Matthews. First, in 2001, Detective 

Frey asked Matthews to vacate a street corner in a high crime 

area. After Matthews refused, Frey attempted to arrest him for 

loitering, but Matthews resisted and a wrestling match ensued. 

Next, in 2002, Detective Frey witnessed Matthews complete a 

hand-to-hand drug sale and attempted to arrest him. Matthews 

fled the scene on foot, and Detective Frey eventually caught him 

on a nearby front porch. Another fight occurred, this one 

ending with both Matthews and Detective Frey suffering bruises 

and cuts. 
5

Matthews was also well known to the Baltimore City

Police Department because of his role as the camera-man in the 

infamous “Stop Snitching” video1

In response, the Baltimore Police Department created 

its own video, “Keep Talking.” This video included footage of 

Matthews with his name in bold letters and described him as the 

“so-called cameraman” for “Stop Snitching.” 

that appeared in 2004. As 

defense counsel described it, that video featured “inner-city 

gangster types doing a lot of talking and bragging and 

threatening.” The video also gained traction in the national 

media because of an appearance by NBA star Carmelo Anthony. 

C.

Prior to trial, Matthews moved to dismiss the 

indictment, contending that the Government had destroyed 

exculpatory evidence — a videotape recording of his stop. The 

Baltimore City Police Department operates, at locations 

throughout the city, a system of surveillance cameras, commonly 

called PODSS TV cameras,2

 1 The actual film title is “Stop F***ing Snitching.” 

or “blue light camera[s].” PODSS 

cameras are unmanned cameras situated atop poles that record 

video footage to a removable hard drive located in a box under 

the cameras. The cameras rotate constantly on a 360 axis. The 

video footage stays on the hard drive for five days and is then 

2 PODSS stands for Police Overt Digital Surveillance System. 
6

recorded over. If someone requests the footage before the end 

of a five-day period, a technician in a bucket truck must be 

sent to physically remove the hard drive from the camera. 

The intersection where the detectives stopped 

Matthews, Frederick and Collins Avenues, has a PODSS camera. 

Matthews’s counsel in a state prosecution subpoenaed the PODSS 

footage on December 7 and December 14, 2007. Because, however, 

these requests were more than five days after the events in 

question, the recordings had been taped over and could not be 

recovered. At a hearing on Matthews’s motion to dismiss the 

indictment, Sergeant Derrick Lee, with the Department’s Legal 

Affairs Office, testified that upon receiving the subpoena he 

informed counsel that the footage could no longer be retrieved. 

Sergeant Lee further testified he had never personally viewed 

any footage that the Frederick/Collins camera recorded on 

November 17, and he did not know if the camera captured 

Matthews’s stop. Likewise, Detective Jesse Schmidt, a member of 

the Criminal Intelligence Unit that operates the PODSS system, 

testified that no one had requested the footage from that camera 

to see if Matthews’s stop was captured. Detectives Frey and 

McCoy testified that they were aware of the PODSS camera but 

that they never requested the recordings for their drug arrests 

because they found them unhelpful and not a part of their 

standard investigative practice. Detective Kim testified that 
7

he had once requested footage from a PODSS camera in a murder 

investigation but found the footage unhelpful because, on that 

occasion, “the POD camera was going 360. It saw the incident 

start, but it missed the homicide. When it came back, the 

suspect was gone.” 

The district court ultimately denied Matthews’s motion 

to dismiss, and the case proceeded to trial. Following a fourday jury trial, Matthews was convicted of all counts. The 

district court, however, granted Matthews’s unopposed motion for 

a new trial because an unredacted police memo was erroneously 

submitted to the jury. After a second jury trial, Matthews was 

again convicted of all counts. The district court ultimately 

sentenced Matthews to 360 months’ imprisonment. 

II.

On appeal, Matthews raises three arguments: that the 

district court erred in denying his motion to dismiss the 

indictment; that the district court erred in refusing to 

suppress the evidence seized during the stop; and that the 

district court abused its discretion in sentencing Matthews. We 

review each in turn.

A.

Matthews first argues that the district court erred in 

denying his motion to dismiss the indictment based on the 
8

Government’s failure to preserve the PODSS video footage. We

review the district court’s ruling on a motion to dismiss an 

indictment de novo. United States v. Brandon, 298 F.3d 307, 310 

(4th Cir. 2002). Any factual findings made by the district 

court are reviewed for clear error. United States v. Woolfolk, 

399 F.3d 590, 594 (4th Cir. 2005). 

Under the Due Process Clause of the Fourteenth 

Amendment, the Supreme Court developed “‘what might loosely be 

called the area of constitutionally guaranteed access to 

evidence.’” California v. Trombetta, 467 U.S. 479, 485 (1984) 

(quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867

(1982)). The Court has specified that, to the extent the 

Constitution imposes a duty upon the government to preserve 

evidence, “that duty must be limited to evidence that might be 

expected to play a significant role in the suspect's defense”-

i.e., evidence that is constitutionally material. Id. at 488-

89. To satisfy this standard, evidence must: (1) “possess an 

exculpatory value that was apparent [to the police] before the 

evidence was destroyed,” and (2) “be of such a nature that the 

defendant would be unable to obtain comparable evidence by other 

reasonably available means.” Id. at 489. The mere possibility 

that lost or destroyed evidence could have exculpated a 

defendant is not sufficient to satisfy Trombetta’s requirement 

that the exculpatory value be “apparent” to the police before 
9

destruction. Arizona v. Youngblood, 488 U.S. 51, 56 n.* (1988). 

Additionally, “if the exculpatory value of the evidence is 

indeterminate and all that can be confirmed is that the evidence 

was ‘potentially useful’ for the defense, then a defendant must 

show that the government acted in bad faith in destroying the 

evidence.” United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 

1994) (citing Youngblood, 488 U.S. at 58). “[M]ere negligence 

on the government's part in failing to preserve such evidence is 

inadequate for a showing of bad faith.” Id. at 912.

Applying this standard, we believe the district court 

correctly denied the motion to dismiss the indictment. The 

district court first held that the PODSS video footage did not 

rise to the level of Trombetta, that is, that the footage did 

not possess exculpatory value on its face. The district court 

found that it “takes fairly substantial efforts on the part of 

the police to extract the hard drive,” that PODSS footage is 

used “primarily in the situation where there is not a police 

officer witness,” and that “approximately 90% of the time it 

doesn’t capture anything worthwhile.” The district court 

further found that Detectives Frey, McCoy, and Kim never pulled 

PODSS footage for routine street-level drug arrests, such that 

“there is nothing out of the ordinary about the decision that

Detective Frey made in this particular case.” Building upon

these findings, the district court made the additional finding 
10

that “[t]here is simply nothing in the evidence in front of me 

at all, no testimony to show that this would be exculpatory.” 

As the district court explained, “[t]o suggest that the PODSS 

camera would show some different version of events, such as that 

the drug transaction never took place, on the record in front of 

me is speculation. There is simply nothing to support it.” 

Continuing, the district court concluded that, even under the 

Youngblood standard, that is, assuming the evidence was 

“potentially useful,” there was “not evidence of bad faith on 

the record.” 

We agree with the district court that this evidence 

did not satisfy the requirements of Trombetta because the 

evidence’s exculpatory value was not apparent on its face. 

Three experienced narcotics detectives testified as to the 

events leading to Matthews’s arrest. For this evidence to have 

apparent exculpatory value, all three detectives had to have

fabricated their testimony. In a similar situation, the Tenth 

Circuit found that neither prong of Trombetta was satisfied when 

a state trooper accidently erased footage of a traffic stop he 

conducted. United States v. Parker, 72 F.3d 1444 (10th Cir. 

1995). The stop eventually led to a search of the car that 

uncovered narcotics. In upholding the district court’s 

conclusion that the erasing of the video did not violate 

Trombetta, the Tenth Circuit explained, “the only way the erased 
11

video tape evidence could be ‘apparently’ exculpatory is if it 

demonstrated that the events did not occur as [the trooper] 

related, that is, that he was lying about the events.” Id. at 

1452. And, “[w]hether [the trooper] was telling the truth was 

essentially a question of credibility for the district court.” 

Id. Likewise, in this case, the district court found the three 

detectives were credible and made the factual finding that there 

was “nothing” to suggest the video would show anything other 

than Matthews conducting a drug deal with an unknown black 

female. 

As to the second prong, whether the evidence is 

otherwise readily available, the Tenth Circuit in Parker also 

answered this question in the negative, explaining “along with 

[two additional state troopers], [the] Defendants participated 

in the recorded events.” Id. Thus, “Defendants had a readily 

available source to replace the missing video tape — [the 

trooper’s testimony] and their own testimony of the events.” 

Id. Again, in this case the evidence Matthews sought — a 

narration of the events of that evening — was available in 

cross-examination of the detectives and in Matthews’s own 

testimony at the hearing. 

In the alternative, Matthews contends that the 

evidence on the PODSS camera was at least “potentially useful” 

and that Detective Frey’s actions in not requesting the tape 
12

were in bad faith. Again, the district court made the finding 

that the record was devoid of evidence of bad faith. In 

response, Matthews contends that his prosecution is a set-up by 

the police, and that such actions are obviously in bad faith. 

Matthews cannot rebut the fact, however, that failing to request 

the PODSS footage was in line with the detectives’ actions in 

all of their street-level drug arrests. At best, the failure to 

request the tape for purposes of evidence preservation would 

appear to be negligence, and “[m]ere negligence is not 

sufficient to establish . . . bad faith” in this context. 

Parker, 72 F.3d at 1452. 

Accordingly, we find no error in the district court’s 

denial of Matthews’s motion to dismiss the indictment.

B.

Matthews next argues that the district court erred in 

refusing to suppress the handgun and drugs discovered during the 

search of Matthews and his van or, in the alternative, in 

failing to grant a judgment of acquittal on those grounds. In 

reviewing the denial of a motion to suppress, the court reviews 

the district court’s findings of historical fact for clear 

error, “giving due weight to inferences drawn from those facts

by resident judges and local law enforcement officers.” Ornelas 

v. United States, 517 U.S. 690, 699 (1996). The court reviews

legal conclusions de novo. Id. And, “[b]ecause the district 
13

court denied the motion to suppress, we construe the evidence in 

the light most favorable to the Government.” United States v. 

Perkins, 363 F.3d 317, 320 (4th Cir. 2004). 

Our review of the record, however, leads us to 

conclude that Matthews did not preserve this claim. Prior to 

trial, Matthews moved for dismissal of the indictment under 

Trombetta and also filed a motion to suppress statements he made 

to Detective Frey after his arrest but before Miranda warnings 

were administered. Matthews never moved to suppress evidence 

recovered from the stop, and he may not do so now. See Fed. R. 

Crim. P. 12(b)(3) (noting that “motions that must be made before 

trial” include “a motion to suppress evidence”); see also United 

States v. Ruhe, 191 F.3d 376, 386 (4th Cir. 1999) (announcing 

the “general rule . . . that a defendant forfeits a suppression 

claim if that claim is not timely raised”). 

Moreover, even assuming Matthews preserved this claim, 

it is without merit. Police officers are permitted to make 

investigatory stops when they possess “reasonable suspicion,” 

based on articulable, particularized facts, that “criminal 

activity may be afoot.” Terry, 392 U.S. 1, 30 (1968). And, in 

the automobile context, “where a suspect is an occupant or 

recent occupant of a vehicle at the initiation of a Terry stop, 

and where the police reasonably believe the suspect may be 

dangerous and that there may be readily-accessible weapons in 
14

his vehicle, [Michigan v.]Long authorizes a protective search of 

the vehicle for weapons.” In United States v. Holmes, 376 F.3d 

270, 280 (4th Cir. 2004).

In this case, the detectives clearly had reasonable 

suspicion to initiate a traffic stop. Detective Frey received 

an anonymous tip that a white van in the area of Frederick and 

Collins Avenues was being used for drug deals; the three 

detectives began surveillance, observed the white van, and 

watched the driver conduct what all three experienced narcotics 

detectives believed was a hand-to-hand drug deal. These events 

created reasonable suspicion to stop Matthews. And, as the 

detectives approached the car and commanded Matthews to exit, he 

ducked down toward the area between the seats, where Detective 

Frey was able to see a handgun. That observation satisfies the 

requirements of Holmes for a protective search of the car. As 

Matthews was being removed from the car, Detective McCoy 

observed what he believed were drugs in the side of the driver’s 

side door, further providing authorization for the search. 

C.

Finally, Matthews challenges his sentence of 360 

months’ imprisonment. A sentence is reviewed for reasonableness 

under an abuse of discretion standard. Gall v. United States, 

552 U.S. 38, 51 (2007). This review requires consideration of 

both the procedural and substantive reasonableness of a 
15

sentence. Id. After determining whether the district court 

properly calculated the defendant's advisory guideline range, we 

consider whether the district court considered the § 3553(a) 

factors, analyzed the arguments presented by the parties, and 

sufficiently explained the selected sentence. Id.; see United 

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding 

that, while the “individualized assessment need not be elaborate 

or lengthy, . . . it must provide a rationale tailored to the 

particular case . . . and [be] adequate to permit meaningful 

appellate review”). Finally, we review the substantive 

reasonableness of the sentence, “taking into account the 

totality of the circumstances[.]” United States v. Pauley, 511 

F.3d 468, 473 (4th Cir. 2007).

In this case, a probation officer prepared a PreSentence Report (PSR) after the jury convicted Matthews. The 

PSR first determined that Matthews was a career offender under 

USSG § 4B1.1 and adjusted his criminal history category to VI.3

 3 Indeed, Matthews’s criminal history was so extensive that, 

even absent the career offender designation, his criminal 

history category was VI. 

 

With the career offender designation, his offense level was 

adjusted to 33, yielding an advisory guidelines range of 360 

months to life, when taking into consideration the mandatory 

consecutive 60 month sentence imposed on the § 924(c) charge.
16

At sentencing, Matthews moved for a downward departure 

based upon his age (36 years old at sentencing), the time 

between his prior convictions, the leniency received for past 

convictions, and his current conditions of confinement in a 

state Supermax facility. Matthews also contended that he was 

singled out for prosecution because of his role in the “Stop 

Snitching” video. Ultimately, Matthews requested a sentence of 

240 months’ imprisonment. The Government requested a sentence 

within the advisory guidelines range, focusing upon Matthews’s 

criminal history and his role in the “Stop Snitching” video.

The district court sentenced Matthews to 360 months’

imprisonment, the low end of the advisory guidelines range. The 

district court rejected Matthews’s argument that his criminal 

history was overstated, explaining “[t]he criminal history that 

[Matthews] has displayed, the consistency of it, and the 

sustained period of drug dealing he has been involved in, make 

it inappropriate to depart downward from the career offender 

status.” The district court next recounted the factors under 

§ 3553(a) and concluded that they did not support a belowGuidelines sentence. In particular, the district court noted 

that Matthews was “still not accepting responsibility for any of 

the activities in November of 2007, which I think were quite 

thoroughly proved twice to a jury.” The district court, in 

weighing whether a downward variance was appropriate, also 
17

considered Matthews’s presence in the “Stop Snitching” video, 

remarking that “that video and his involvement was perpetuating 

one of the most pernicious, dangerous aspects of Baltimore’s 

criminal culture.” Thus, “while it is not something that he 

should be punished for, it is certainly something that is . . . 

a legitimate factor to consider when being asked to vary and go 

below what is otherwise the guideline range in this case.” 

We believe the district court did not abuse its 

discretion in sentencing Matthews. The sentence is procedurally 

reasonable: the district court correctly calculated the 

criminal history category and offense level and correctly

identified the advisory guidelines range. The district court 

stated that it considered the § 3553(a) factors, and it included 

a lengthy statement of reasons as to why a sentence at the low 

end of the guidelines was appropriate but a downward variance 

was not. The district court’s decision to consider Matthews’s 

role in the “Stop Snitching” video was not improper; Matthews 

alluded to the video throughout trial, questioning each 

detective on their familiarity with the video. And, Matthews’s 

role with the video is certainly relevant to his personal 

circumstances and history. As the district court aptly 

explained, while Matthews did not deserve additional punishment 

for his role as the cameraman, it was certainly “a legitimate 
18

factor to consider when being asked to vary and go below what is 

otherwise the guidelines range.” 

The sentence is also substantively reasonable. 

Because the sentence was within the advisory guidelines range, 

it is presumptively reasonable. United States v. Abu Ali, 528 

F.3d 210, 261 (4th Cir. 2008). And, Matthews makes no arguments 

in his brief as to why the sentence is substantively 

unreasonable. 

III.

For the foregoing reasons, we affirm the district 

court’s judgment. 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