UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4478

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONY MITCHELL MARTIN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., Chief District Judge. (1:13-cr-00406-WO-1)

Submitted: January 22, 2015 Decided: February 3, 2015

Before WILKINSON, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, 

Greensboro, North Carolina, for Appellant. Ripley Rand, United 

States Attorney, Terry M. Meinecke, Assistant United States 

Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Tony Mitchell Martin appeals his conviction following 

his guilty plea to possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal, Martin 

argues that the district court erred in denying his motion to 

suppress evidence found subsequent to an allegedly illegal 

seizure. Finding no error, we affirm. 

Detectives Larry Leonard and Jerry Hodge of the 

Lexington Police Department were investigating a complaint that 

prescription drugs were being used or sold in room 58 of the 

extended stay portion of the Economy Inn Motel. While 

interviewing the occupants of rooms 56 and 58, the detectives 

observed a white vehicle pulled up in front of room 58. The 

detectives were familiar with Kendra Presnell, the driver, based 

on her prior history of selling cocaine. The detectives spoke 

with Presnell and obtained consent to search her car. 

While conducting the search of Presnell’s vehicle, a 

gray Kia pulled into the parking lot and parked a few spaces 

down from room 58. Martin, the passenger of the Kia, got out of 

the vehicle, looked over at Detective Leonard and asked, “what 

are you looking at?” He then proceeded to root around in the 

vehicle as if looking for something. Leonard walked around the 

Kia to the passenger side to talk with Martin. Leonard asked 

Martin a series of questions to establish if he was staying at 
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the motel or visiting someone at the motel, and what he was 

doing there. Martin responded to the questions, stated that he 

was trying to find the charger for his cell phone, and he 

continued to look in various places within the vehicle. Leonard 

could see a cell phone charger between the console on the front 

seats, and he asked Martin why he drove all the way to the back 

of the motel, rather than pull into the front parking lot to 

look for the charger. 

Leonard asked Martin if he had any identification on 

him, to which Martin responded that he did not, and informed 

Leonard that he was on probation and that he had no outstanding 

warrants. Leonard obtained Martin’s consent to pat him down for 

weapons, and did so, not locating any weapons or contraband. 

Leonard informed Martin that he was going to call Martin’s 

probation officer. 

After Leonard completed his phone call with Martin’s 

probation officer and informed Martin that his probation officer 

was on the way, the driver of the Kia, Erica Anderson, got out 

of the car and walked toward the motel. Leonard testified that 

she appeared to be holding onto something in her left pocket. 

Leonard requested that she remove her left hand from her pocket;

she pulled out her right hand instead. Leonard then pulled 

Anderson’s left hand from her pocket and patted her down. He 

discovered a baggie containing several Oxymorphone tablets. 
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Anderson stated that the pills belonged to the occupant of room 

58.

The officers then arrested Anderson, placed Martin in 

handcuffs for their safety, and searched the vehicle. Martin 

requested to use a telephone and was allowed to do so. An 

officer overheard Martin telling the person with whom he was 

speaking on the phone to “get rid of something” and to do 

whatever he needed to get inside Martin’s house, including 

breaking in, if necessary. Upon being advised of the overheard 

portions of Martin’s telephone conversation, Martin’s probation 

officer decided to conduct a search of Martin’s residence, as is 

permitted under the terms of his supervision. During the 

search, the officers discovered a .45 caliber Bersa semiautomatic handgun with an obliterated serial number. 

The district court denied Martin’s motion to suppress 

finding that his encounter with the officers was consensual. 

Specifically, the court found Detective Leonard’s testimony to 

be credible and Martin’s incredible to the extent that it 

differed from Leonard’s. The court noted that, up until the 

time the officer found drugs in Anderson’s possession, Martin 

had not been told to remain at the scene and he did not ask to 

leave. Once Martin was informed that his probation officer was 

on his way to the motel, he reasonably believed that he was not 

free to leave, but the time between being informed that the 
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probation officer was on the way and the arrest of Anderson was 

“no more than a couple of minutes.” The court noted that the 

officers never physically restrained Martin until after the 

discovery of drugs on Anderson. 

Following the denial of his motion to suppress, Martin 

pled guilty to possession of a firearm by a person previously 

convicted of a felony. On appeal, Martin contends that the 

district court erred by determining that the encounter with the 

police was voluntary and not a seizure within the meaning of the 

Fourth Amendment. When considering the denial of a motion to 

suppress, we review the district court’s legal determinations de 

novo and its factual determinations for clear error. United 

States v. Black, 707 F.3d 531, 537 (4th Cir. 2013). “[B]ecause 

the district court denied [the defendant’s] motion to suppress, 

we construe the evidence in the light most favorable to the 

Government on appeal.” United States v. Bumpers, 705 F.3d 168, 

175 (4th Cir.) (internal quotation marks omitted), cert. denied, 

134 S. Ct. 218 (2013).

“[P]olice may approach an individual on a public 

street and ask questions without implicating the Fourth 

Amendment’s protections. An unconstitutional seizure occurs 

when a police “officer, by means of physical force or show of 

authority, terminates or restrains [an individual’s] freedom of 

movement.” Brendlin v. California, 551 U.S. 249, 254 (2007) 
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(internal quotation marks omitted). Such a seizure occurs “only 

if, in view of all of the circumstances surrounding the 

incident, a reasonable person would have believed that he was 

not free to leave.” United States v. Mendenhall, 446 U.S. 544, 

554 (1980). We consider the totality of the circumstances and 

look to the specific following factors:

(i) the number of police officers present at the 

scene; (ii) whether the police officers were in 

uniform; (iii) whether the police officers displayed 

their weapons; (iv) whether they touched the defendant 

or made any attempt to physically block his departure 

or restrain his movement; (v) the use of language or 

tone of voice indicating that compliance with the 

officer’s request might be compelled; (vi) whether the 

officers informed the defendant that they suspected 

him of illegal activity rather than treating the 

encounter as routine in nature; and (vii) whether, if 

the officer requested from the defendant . . . some 

form of official identification, the officer promptly 

returned it.

Black, 707 F.3d at 537-38 (internal quotation marks omitted).

In considering the totality of the circumstances, we 

conclude that, for purposes of the Fourth Amendment, Martin was 

not seized by Detective Leonard as he was questioned in the 

motel parking lot. First, only one officer was engaged with 

Martin. The officers were not in uniform and did not display 

their weapons. Additionally, Detective Leonard did not touch 

Martin except for patting him down after requesting and 

receiving consent, and did not block his departure or restrain 

his movement. The district court specifically found that 
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“Detective Leonard did not raise his voice or threaten 

[Martin].” And, the fact that Martin continued to move around 

the vehicle and search in various places in the car while 

Leonard posed questions factors against any claim that Martin

felt intimidated by Leonard’s presence. 

Martin also was not informed that the detective 

suspected him of illegal activity. Further, the type and degree 

of questions posed did not, as the district court found, “rise 

above a level of routine questioning in light of [Martin’s] 

comment and circumstances.” Based on a consideration of the 

totality of the circumstances, as directed by the factors listed 

in Mendenhall, we conclude that the encounter between Martin and 

Leonard was not a seizure, but rather a consensual encounter 

that did not “trigger Fourth Amendment scrutiny.” See

Florida v. Bostick, 501 U.S. 429, 439 (1991) (“[A] seizure does 

not occur simply because a police officer approaches an 

individual and asks a few questions.”).

Martin contends that his encounter with the officer is 

similar to that in United States v. Jones, 678 F.3d 293, 295-99 

(4th Cir. 2012), in which we determined that a seizure occurred 

based on the fact that uniformed officers in a police vehicle 

followed Jones’ car on the streets and into an apartment 

complex, blocked Jones’ vehicle from leaving, and immediately 

asked Jones and his companion to lift their shirts to show that 
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they were unarmed, provide identification and grant permission 

for a pat down search. Jones, 678 F.3d at 295-99. We disagree. 

Here, unlike in Jones, Martin was not aware of the officers’ 

presence until after the vehicle he was riding in had stopped at 

the motel. His means of exit was not blocked by the officers. 

Additionally, Detective Leonard’s inquiries of Martin concerning 

why he was in the parking lot and why he pulled all the way to 

the back parking lot, were not as confrontational and accusatory 

as the officers’ initial requests in Jones that the defendant 

lift his shirt to show whether he possessed a weapon.

Martin also contends that an unlawful seizure occurred 

when Detective Martin informed him that he called Martin’s 

probation officer and that the probation officer was on his way 

to the motel. As the district court found, this occurred almost 

simultaneously with the discovery that Anderson, Martin’s 

companion, was in possession of the illegal pills. We find no 

seizure and no violation of the Fourth Amendment. 

Accordingly, we affirm the district court’s denial of 

the motion to suppress and affirm Martin’s conviction. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED