                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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.

                                                 2
              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.

                                         3
              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.

                                              4
            Matthews was also well known to the Baltimore City

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

infamous    “Stop      Snitching”      video 1        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.

            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.”

                                             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     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

     1
         The actual film title is “Stop F***ing Snitching.”
     2
         PODSS stands for Police Overt Digital Surveillance System.


                                             5
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

                                                6
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 four-

day   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

                                              7
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

                                            8
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

                                        9
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

                                          10
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

                                             11
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

                                         12
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

                                             13
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

                                         14
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    Pre-

Sentence 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

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.


       3
       Indeed, Matthews’s criminal history was so extensive that,
even absent the career offender designation, his criminal
history category was VI.


                                                15
            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   below-

Guidelines 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

                                           16
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



                                           17
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




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