UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4099

EDWARD E. MURPHY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Parkersburg.

Charles H. Haden II, Chief District Judge.

(CR-95-122)

Submitted: August 6, 1996

Decided: August 21, 1996

Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Miller A. Bushong,

III, Assistant United States Attorney, Charleston, West 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Unpublished opinions are not binding precedent in this circuit.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:

Appellant Edward E. Murphy pled guilty to possession with intent

to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1988) but

preserved the right to challenge the denial of his motion to suppress

on appeal. We affirm.

During an investigatory detention pursuant to Terry v. Ohio, 392

U.S. 1 (1968), and just prior to entering a police cruiser in order to

accompany the police to the station for questioning, a police officer

observed Murphy, who was not under arrest at the time, abandon a

package that subsequently proved to contain twenty-one individually

packaged hits of heroin. Murphy contends: (1) that he was in fact

arrested, not just detained, prior to his abandonment of the heroin, as

he was not questioned where he was found and was not told he was

"free to go"; (2) the police had no probable cause to justify his arrest,

and he did not consent to accompanying the police to the police station for questioning; (3) the seizure of the heroin was the direct result

of Murphy's illegal arrest; (4) and no intervening event purged the

taint of the illegal arrest, making the packet of heroin inadmissible.

For the reasons that follow, we find his arguments unpersuasive.

The investigatory detention occurred after police arrested a woman

for filling a forged prescription at a Wal-Mart store. When the police

asked the woman to take them to the people that were with her, the

woman led police to a van in which two individuals (including Murphy) were seated. Murphy exited the van and was subjected to a pat

down. The officer doing the pat down first noted what he described

as a package of gum in Murphy's front pants pocket, which the officer left undisturbed. The officer then felt what he believed to be pills

in Murphy's back pocket. The officer reached in and removed what

appeared to be prescription drugs. No charges relating to the pills

were brought against Murphy.

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A short time later, the police officers decided to have the three people accompany them to the police station for additional questioning

related to the forged prescription. As Murphy and an officer

approached the police cruiser that would transport Murphy to the station, the officer observed Murphy drop a packet onto the ground that

was about the size of the package of gum which the officer had felt

earlier in Murphy's front pocket. Not knowing what the packet contained, the officer picked it up and inspected it. The package contained twenty-one individually packaged hits of heroin. Murphy was

advised of his Miranda* rights, transported to the police station, and

ultimately charged with possession with intent to distribute heroin.

Murphy's first argument that he was arrested in the parking lot fails

because the officers did not exceed the scope of their Terry stop. A

police officer may stop and briefly detain a person for investigative

purposes if the officer has a reasonable, articulable suspicion that

criminal activity is afoot. Terry, 392 U.S. at 30. The presence or

absence of a reasonable suspicion is determined based on the totality

of the circumstances confronting the police officer at the time the

officer decides to stop the suspect, including consideration of all

information available to the officer and any reasonable inferences that

can be drawn. United States v. Crittendon, 883 F.2d 326, 328 (4th Cir.

1989). An appellate court reviews the district court's findings of fact

about the stop for clear error and must give "due weight to inferences

drawn from those facts by resident judges and local law enforcement

officers." Ornelas v. United States, ___ U.S. ___, 64 U.S.L.W. 4373,

4376 (U.S. May 28, 1996) (No. 95-5257) (indicating that trial judges

view "the facts of a particular case in light of the distinctive features

and events of the community; likewise a police officer views the facts

through the lens of his police experience and expertise.").

Although a person is seized for Fourth Amendment purposes when,

under the same circumstances, a reasonable person would have

believed he was not free to leave, the person's perception of their

freedom is "`insufficient to convert a Terry stop into an arrest.'"

United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (quoting

United States v. Moore, 817 F.2d 1105, 1108 (4th Cir.), cert. denied,

484 U.S. 965 (1987)). Terry stops typically involve "`detentions

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*Miranda v. Arizona, 384 U.S. 436 (1966).

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where the person detained is not technically free to leave while the

officer pursues the investigation.'" Id. (quoting United States v.

Manbeck, 744 F.2d 360, 376-77 (4th Cir. 1984), cert. denied, 469

U.S. 1217 (1985). Nevertheless, a custodial interrogation moves

beyond an acceptable Terry stop when the stop lasts "longer than necessary to verify or dispel the officer's suspicion." Id.

In Murphy's case, the police had a reasonable suspicion that criminal activity was afoot based on the call to the Wal-Mart for a woman

forging prescriptions and being led by that woman to the van in which

Murphy was found. Based on their reasonable suspicion, the police

stopped Murphy, asked him for identification, questioned him briefly,

and subjected him to a pat down. None of these actions exceeded the

scope of Terry. In addition, Murphy did not show that the detention

took an inordinate amount of time or that the officer's continued to

detain him even after they had completed their investigation. Thus,

Murphy failed to prove that his detention went beyond a reasonable

Terry stop and became an unlawful seizure.

Murphy's assertion that there was no probable cause to arrest him

is meritless because we find that he was not arrested, but rather lawfully detained pursuant to Terry. Included in his probable cause argument, Murphy asserts that the officers illegally seized the pills from

his back pocket. This argument fails. When a police officer "lawfully

pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been

no invasion of the suspect's privacy. . . ." Minnesota v. Dickerson,

508 U.S. 366, 375 (1993).

We disagree with Murphy's argument that he did not consent to

being taken to the station for interrogation. One police officer testified

that Murphy consented to going to the police station. In addition, no

officer handcuffed, physically restrained, or threatened Murphy in any

way; no officer told him he was under arrest; no officer displayed a

weapon or used strong language or tone to indicate compliance was

compelled. Thus, because Murphy provided no evidence that the officer's compelled him to go to the station, his argument fails.

As with Murphy's probable cause argument, his argument that he

would not have dropped the packet of heroin but for the fact that he

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was being taken into custody illegally, also fails. When Murphy abandoned the heroin, he was not in custody and even if he had been, he

voluntarily dropped the package of heroin in plain view. The officer

failed to discover the heroin in his initial pat down, so there was no

reason for Murphy to disclose what was in his pocket. Even when the

officer examined the contents of the package, there was no violation

of Murphy's rights because he gave up his expectation of privacy by

abandoning the property in plain view. See California v. Hodari D.,

499 U.S. 621, 629 (1991) (holding cocaine abandoned while defendant was running away from police was not the fruit of an illegal seizure); Abel v. United States, 362 U.S. 217, 241 (1960) (holding

warrantless seizure of items left in wastebasket in vacated hotel room

was admissible because the Court found the property had been abandoned).

Finally, Murphy argues that there was a close causal connection

between his illegal arrest and seizure of the heroin, thereby making

the heroin inadmissible. Again, because there was no illegal arrest,

this argument fails.

Finding no violation of Murphy's Fourth Amendment rights, we

affirm the ruling of the district court denying the motion to suppress

the evidence. 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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