     Case: 19-20330      Document: 00515293477         Page: 1    Date Filed: 01/31/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        January 31, 2020
                                    No. 19-20330
                                                                         Lyle W. Cayce
                                  Summary Calendar                            Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MELVIN MARQUISE STEWART,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CR-507-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In accordance with an agreement that preserved his right to appeal the
denial of his motion to suppress, Melvin Marquise Stewart pleaded guilty to
being a felon in possession of a firearm. In the motion, Stewart moved to
suppress a firearm and ammunition found in the car he was driving, arguing
that police officers lacked reasonable suspicion to detain him under the
circumstances.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-20330    Document: 00515293477     Page: 2   Date Filed: 01/31/2020


                                 No. 19-20330

      When reviewing a denial of a motion to suppress evidence, we review
factual findings for clear error and the ultimate constitutionality of law
enforcement’s action de novo. See Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). In addition to
deferring to the district court’s factual findings made on the basis of live
testimony, we must view the evidence in the light most favorable to the
prevailing party. United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005).
      The totality of the circumstances, see United States v. Arvizu, 534 U.S.
266, 273 (2002), surrounding the stop indicate that the officers had a
“reasonable, articulable suspicion that criminal activity [was] underfoot” when
they stopped Stewart for questioning. United States v. Jordan, 232 F.3d 447,
448 (5th Cir. 2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Stewart was
observed carrying a gun in a convenience store in a high crime area in the
middle of the night. See United States v. Hill, 752 F.3d 1029, 1035 (5th Cir.
2014). In addition, the officers detected the smell of marijuana in the area of
Stewart’s car, and the smell grew stronger as they approached the vehicle and
he exited it. See United States v. Casteneda, 951 F.2d 44, 47-49 (5th Cir. 1992).
Accordingly, the officers were justified in detaining Stewart and further
investigating the gun and marijuana odor. See Terry, 392 U.S. at 30. In light
of this ruling, we do not address Stewart’s related argument that the gun and
ammunition found in his car should be suppressed as the result of an illegal
seizure.
      AFFIRMED.




                                       2
