                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5104


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RAYMOND T. HOLLOWAY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00213-RLW-1)


Submitted:   February 2, 2010             Decided:   February 26, 2010


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Keith N. Hurley, KEITH N. HURLEY, P.C., Richmond, Virginia, for
Appellant.    Dana J. Boente, Acting United States Attorney,
Michael A. Jagels, Special Assistant United States Attorney,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Raymond T. Holloway entered a conditional guilty plea,

pursuant to Fed. R. Crim. P. 11(a)(2), to possession with intent

to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)

(2006), and possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 922(g)(1) (2006).

He   was   sentenced   to    130   months      of    imprisonment.        Holloway

preserved his right to appeal the district court’s denial of his

motion     to   suppress    evidence    from    a    traffic     stop.     Having

reviewed the record and the parties’ arguments, we affirm.

             On March 20, 2008, Richmond, Virginia Police Officer

A.J. Catoggio heard loud music emanating from a Ford Expedition

driving in a high-drug, high-crime area of Richmond.                      Officer

Catoggio conducted a traffic stop for loud music.                    The driver,

Raymond    T. Holloway,      rolled    down    his   window    and   appeared   “a

little     nervous.”        Holloway    produced       a     restricted   license

allowing him to travel to and from work.                   When Officer Catoggio

questioned Holloway about his reasons for being in the high-

crime area with a restricted license, Holloway responded that he

owned an auto shop and was dropping off one of his employees.

             While Officer Catoggio was talking with Holloway, two

more officers arrived.          After Officer Catoggio ran Holloway’s

license and decided not to issue a summons, all three officers

approached Holloway’s vehicle.           Holloway again “appeared to get

                                        2
a little nervous” and “kept taking his hands, kind of putting

them   on   his    lap.”      Officer        Catoggio    noticed    that   Holloway’s

“breath was increasing,” raising the officer’s “suspicion . . .

a little bit more.”           However, Catoggio informed Holloway that he

was not going to issue a summons, returned Holloway’s license,

and began to step away from the vehicle.

               On further considering Holloway’s suspicious behavior,

however, Officer Catoggio turned back and asked Holloway to tell

him    again     why   he    was   in    a     high-drug,    high-crime       area   of

Richmond, and whether he had anything illegal in the vehicle.

Holloway    responded,        “There    is     nothing    illegal    in    this   car.”

When Officer Catoggio asked permission to search the vehicle,

Holloway       repeated,     “There     is    nothing    illegal     in    this   car.”

Officer Catoggio again asked to search the vehicle, and after

Catoggio responded           affirmatively        to   Holloway’s    question     about

whether he was free to leave, Holloway granted permission to

search the car.

               Holloway stepped out of the vehicle and “immediately

turned his back to the interior of the car door,” his arms “kind

of tense to the side . . . as if protecting something.”                              In

Officer Catoggio’s experience as a police officer, the behavior

seemed furtive and strange.             Officer Catoggio told Holloway that

he intended to pat him down.             Holloway refused to be patted down

and    moved    into   the    traffic        lane.      Officer    Catoggio   grabbed

                                              3
Holloway’s arm and pulled him out of the roadway.                                When he

reached the side of the road, Holloway told Officer Catoggio

that he had a gun.              Officer Catoggio handcuffed Holloway and

proceeded to pat him down.                  A .357 caliber revolver, a baggie

containing approximately thirty individually wrapped pieces of

cocaine base, and $1327 in cash were recovered from Holloway.

               Holloway now contends that the seizure and search of

his person violated his Fourth Amendment rights.                         We review the

factual       findings      underlying      a       district   court’s   ruling    on   a

motion to suppress for clear error and the legal conclusions de

novo.         United States v. Neely, 564 F.3d 346, 349 (4th Cir.

2009).

               The district court found that Holloway consented to

Officer Catoggio’s search of his vehicle.                       The court also found

that Officer Catoggio grabbed Holloway’s arm and pulled him from

the roadway for safety reasons, not as a seizure.                         Finally, the

district court concluded that the pat-down search of Holloway

was justified based on reasonable suspicion of criminal activity

and     for     officer      safety    because         Holloway    had    been    acting

suspiciously and admitted he possessed a firearm.

               We   agree    with     the   district       court’s   conclusion     that

Officer Catoggio did not “seize” Holloway.                        The district court

credited Officer Catoggio’s testimony that Holloway was stepping

into a traffic lane and he grabbed Holloway’s arm to protect him

                                                4
from moving vehicles.               Given this evidence, the district court

did not clearly err when it determined that Holloway was not

“seized” at that juncture.

               Holloway’s second argument is that the pat-down search

violated his Fourth Amendment rights.                            As a general rule, a

search or seizure without probable cause is unreasonable, and

thus unconstitutional.              See Kyllo v. United States, 533 U.S. 27,

32    (2001)    (noting          that    searches       without       probable      cause     are

"presumptively unconstitutional").                       This general rule, however,

is "subject to certain exceptions," Brigham City v. Stuart, 547

U.S.    398,    403    (2006),          and    "[w]e    are    to   approach       the     Fourth

Amendment . . . with at least some measure of pragmatism," Mora

v. City of Gaithersburg, 519 F.3d 216, 222 (4th Cir. 2008).

               An   officer        may        search    the    interior       of    a     vehicle

incident to a lawful traffic stop if he "possesses a reasonable

belief    based       on    specific          and   articulable       facts    which,       taken

together       with        the    rational          inferences        from    those       facts,

reasonably warrant the officer[] in believing that the suspect

is dangerous and . . . may gain immediate control of weapons” in

the    vehicle.        Michigan         v.     Long,    463    U.S.    1032,       1049    (1983)

(internal quotation marks omitted); see United States v. Holmes,

376 F.3d 270, 276 (4th Cir. 2004).                      In this case, the inquiry is

whether    (1)      Officer       Catoggio          could     reasonably      have      believed

Holloway was dangerous and, if so, (2) whether Officer Catoggio

                                                    5
could reasonably have believed that Holloway could have gained

immediate control of weapons.

           On    the    facts    recounted           above,    we    agree        with    the

district   court       that   Officer       Catoggio’s         pat-down      search        of

Holloway was justified by reasonable suspicion that Holloway was

dangerous and capable of gaining immediate control of weapons.

Because    Officer      Catoggio      had       a    reasonable       suspicion          that

Holloway   was    dangerous     and     could        gain     immediate      control       of

weapons,   his     pat-down     search          of   Holloway       did     not     violate

Holloway’s Fourth Amendment rights.

           The judgment of the district court is affirmed.                                 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




                                            6
