                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-5051



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


RIDER ORIACH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (CR-99-451-CMH)


Argued:   December 1, 2006                 Decided:   March 14, 2007


Before MOTZ and TRAXLER, Circuit Judges, and David A. FABER, Chief
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew Alan Wartel, Alexandria, Virginia, for Appellant.
John Anthony Nowacki, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.   ON BRIEF: Chuck Rosenberg, United States Attorney,
Lawrence J. Leiser, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Defendant Rider Oriach was convicted by a jury of conspiracy

to distribute 500 grams or more but less than five kilograms of

cocaine, in violation of 21 U.S.C.A. § 846 (West 1999).               The

district court sentenced Oriach to 63 months imprisonment.         Oriach

now appeals, contending that the district court erred in admitting

three photographs taken by police officers during the course of

their investigation and in denying his motion to suppress a large

amount of cash seized from him during a traffic stop.             For the

following reasons, we affirm.



                                    I.

     In February 1996, United States Park Police Detective Eddie

Ramos, Jr., working in an undercover capacity as a member of a Drug

Enforcement Agency (“DEA”) task force, initiated an investigation

of a suspected cocaine and crack distribution operation headed by

Franklin Tejada.    In connection with the investigation, the task

force applied for and received authorization for a wiretap on

Tejada’s   home    telephone   in    Fairfax,   Virginia,   and     began

surveillance of Tejada’s apartment.

     During the course of the investigation, Oriach and Jose

Fuertes traveled from New York to Virginia on at least four

occasions to sell powder cocaine to Tejada.      Tejada, in turn, sold

the drugs to various customers including, on at least one occasion,


                                    2
Detective Ramos in an undercover buy.    According to Tejada, who

testified at Oriach’s trial, Fuertes and Oriach traveled to his

apartment and sold him 1.5 or 2 kilograms of cocaine on February

27, 1996, 1 or 1.7 kilograms of cocaine on March 1, 1996, 1 or 2

kilograms of cocaine on March 8, 1996, and 1 or 2 kilograms of

cocaine on March 17, 1996. Ronnie Campbell and Richard Hollifield,

who were also customers of Tejada and purchased cocaine directly

from Fuertes and Oriach on at least one occasion, also confirmed

Oriach’s involvement in the cocaine distribution network.

     In addition to the testimony of Oriach’s customers, the

government introduced wiretap conversations documenting Tejada’s

arrangements to purchase and sell cocaine, three surveillance

photographs depicting Fuertes, Oriach, and their vehicle in the

vicinity of Tejada’s residence taken by police officers on March 1,

1996, and evidence of a large sum of cash seized from Fuertes and

Oriach during a traffic stop on March 17, 1996.



                               II.

     We begin with Oriach’s challenge to the district court’s

admission of three photographs depicting Fuertes, Oriach and the

vehicle they were traveling in on March 1, 1996.     Oriach argues

that the photographs should not have been admitted because they

were not properly authenticated under Rule 901(a) of the Federal

Rules of Evidence.


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       We review the district court’s decision to admit evidence at

trial for abuse of discretion.               See United States v. Jones, 356

F.3d 529, 535 (4th Cir. 2004).           Such rulings are also “subject to

harmless error review.” United States v. Brooks, 111 F.3d 365, 371

(4th Cir. 1997).         “In order to find a district court’s error

harmless, we need only be able to say with fair assurance, after

pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by

the error.” Id. (internal quotation marks and alteration omitted).

       Rule 901(a) provides that “[t]he requirement of authentication

or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.”                   Fed. R. Evid.

901(a).      By way of example, authentication can be satisfied by

“[t]estimony of a witness with knowledge . . . that a matter is

what    it   is   claimed    to   be,”   Fed.    R.   Evid.   901(b)(1),    or   by

“[e]vidence describing a process or system used to produce a result

and    showing    that   the   process   or     system   produces    an   accurate

result,” Fed. R. Evid. 901(b)(9). The requirement that evidence be

authenticated “represents a special aspect of relevancy, in that

evidence cannot have a tendency to make the existence of a disputed

fact more or less likely if the evidence is not that which its

proponent claims.”          United States v. Branch, 970 F.2d 1368, 1370

(4th Cir. 1992) (internal citation, quotation marks, and alteration


                                         4
omitted).    “Questions of authentication take many forms.”           United

States v. Patterson, 277 F.3d 709, 713 (4th Cir. 2002).           However,

“[t]he necessary foundation for the introduction of a photograph is

most commonly established through eyewitness testimony that the

picture   accurately   depicts    the   scene   in    question   or   expert

testimony that the picture was generated by a reliable imaging

process.”    Id.

       At trial, Tejada testified that he purchased 1 or 2 kilograms

of cocaine from Fuertes and Oriach on March 1, 1996.          Aware of the

impending deal, the DEA task force placed a surveillance team in

the vicinity of Tejada’s apartment to videotape the suspected drug

dealers when they arrived.       The challenged evidence consists of

three still photographs that were lifted from the videotape,

depicting Oriach, Fuertes, and a black Toyota Supra in which they

were traveling, at Tejada’s apartment.               The photographs were

admitted into evidence through the testimony of Detective Ramos,

over Oriach’s objection.    Detective Ramos testified that, although

he was not present at the scene when the surveillance team shot the

video, he reviewed the evidence immediately after it was returned

to the station and was aware that it had been taken at Tejada’s

residence on that date at approximately 3:00 p.m.         Detective Ramos

also   testified   that   the   date-stamp   on   the    videotape,    which

specified the video recorder’s default date of January 1, 1990, was




                                    5
inaccurate because the task force agent videotaping the scene

either did not realize he had to set it or accidentally reset it.

     Oriach contends that the district court abused its discretion

in allowing Detective Ramos to authenticate the photographs because

Detective Ramos was not an eyewitness to the taping, had no first

hand knowledge of the date or time of the photographs, and could

not testify that the photographs were generated by a reliable

imaging process. The government argues that Ramos’s involvement in

the investigation as a member of the DEA/Park Police task force,

coupled   with   the   testimony   that   he   immediately   reviewed   the

videotape when it was returned to the office that day, was a

sufficient basis from which the jury could reasonably find that the

challenged evidence was authentic.

     We agree that Detective Ramos’s knowledge, by virtue of his

involvement in the investigation, was sufficient to authenticate

the photographs insofar as they could be said to depict the

location under surveillance, as well as the persons and vehicle

under surveillance by the team.      Detective Ramos could also verify

that, as a result of the wiretap activities, the task force was

aware of an impending deal and dispatched members to videotape the

exterior of the residence on that date.             Detective Ramos was

unable, however, to testify from personal knowledge that the

photographs were actually taken at the specified date and time.

Detective Ramos admitted that he was not present on the scene at


                                     6
the   time   the   videotaping   occurred,   and   the   videotape   itself

contained an inaccurate date stamp.      Thus, Detective Ramos had no

first-hand knowledge of the date and time of the photographs, only

the hearsay statements of the surveillance team members upon their

return to the station, and no other reliable, circumstantial

evidence that the video was taken at that time and on that date.

      However, while we agree that the district court erred in

admitting the photographic exhibits as having been taken on the

specified date and time without proper authentication, the error

was harmless.      Detective Ramos’s testimony identifying the alleged

date of the photographs was cumulative to Tejada’s testimony that

he purchased cocaine from Oriach and Fuertes at his residence on

March 1, 1996, and the specific time of the purchase was not

material to the charge.      It is also clear, based upon the jury’s

verdict, that the jury credited Tejada’s testimony regarding this

transaction with Fuertes and Oriach, as well as the additional

three transactions discussed above.      In sum, given the substantial

evidence supporting Oriach’s conviction and the cumulative nature

of the photographic evidence, we are satisfied that the admission

of the photographs was harmless error.




                                     7
                                     III.

       Oriach next contends that the district court erred in denying

his motion to suppress evidence of the large sum of cash seized by

Officer Matias from Oriach during a March 17, 1996 traffic stop.

       In addition to the prior three transactions mentioned above,

Tejada testified that Fuertes and Oriach delivered 1 or 2 kilograms

of cocaine to him at his residence on March 17, 1996, and that he

paid    the   men   $14,000   for    this    particular        delivery.        At

approximately 10:30 p.m., Detective Ramos notified U.S. Park Police

Officer Raul Matias to be on the lookout for two Hispanic males in

a black Toyota Supra with Virginia license plates. Detective Ramos

advised   Officer   Matias    that   the    men   had   been    involved   in   a

narcotics transaction and would likely be traveling through his

patrol area.    As anticipated, Officer Matias spotted the vehicle

shortly thereafter and followed it for approximately a mile. After

clocking the vehicle’s speed at 48 mph in a 35 mph zone, Officer

Matias activated his emergency lights and siren.                   The vehicle

pulled to the right-hand side of the road.

       Immediately after stopping the vehicle, Fuertes, who was

driving the vehicle, extended his hands out of the driver’s side

window and displayed his keys in one hand.          Officer Matias, who had

never seen this behavior before, thought it “extremely unusual” and

“very suspicious.” J.A. 155. After calling for backup assistance,

Officer Matias approached the vehicle and asked the driver for his


                                      8
license and registration and explained the reason for the stop.

Fuertes provided Officer Matias with the requested documentation,

although it was in the false name of Henry Alberto Perez.

      At that point, Fuertes began to gratuitously “explain[] to

[Officer Matias] that his brother was a police officer in New York

and that a police officer had been shot in the previous two days,

and that’s why he pulled his hands out of the car.”               J.A. 156.

After a brief exchange about where the men were coming from and

going, Officer Matias returned to his patrol car.            While waiting

for   backup   units,   Officer   Matias   wrote   a   warning   ticket   for

speeding in Perez’s name.     He then returned to the vehicle to give

Fuertes the ticket and advised Fuertes that he was free to leave.

      Fuertes, however, chose not to leave, opting instead to again

engage Officer Matias in a conversation about the recent murder of

a New York police officer.        Officer Matias then asked Fuertes if

there were any weapons in his vehicle.             Fuertes responded that

there were not and told Officer Matias that he was “welcome to

check the whole car if [he] want[ed].”        J.A. 157.     Officer Matias

“took him up on the offer,” asked both men to step out of the

vehicle, and conducted a patdown search of their clothing.                Id.

During the patdown of Oriach, Officer Matias felt a bulge in

Oriach’s pocket and pulled out $5369 in cash in small bills.               An

additional $8,615 was found on Fuertes.       Suspecting that the money

was the fruit of the suspected illegal narcotics activity, Officer


                                     9
Matias called for a canine unit to search the vehicle for drugs and

separated the men to interview them.

     Although no drugs were found in the vehicle, the men gave

inconsistent answers as to how they knew one another and for how

long, and they continued to act in a nervous and suspicious manner.

Fuertes   told   Officer   Matias   that   he   had   known   Oriach   for

approximately one year, and that they were car dealers who had

traveled from New York to Virginia to purchase a car.              Oriach

initially avoided Officer Matias’s questions and acted confused and

evasive, and Fuertes attempted to tell Oriach, in Spanish, to tell

Officer Matias that they had known one another for one year.

Officer Matias, however, understood Spanish.          Eventually, Oriach

told Officer Matias that he had known Fuertes for five years, since

high school. Oriach then changed his story and told Officer Matias

that he knew Fuertes through his uncle “Juan,” but was then unable

or unwilling to provide Juan’s last name or any other identifying

information.

     After his indictment for conspiracy, Oriach filed a motion to

suppress the $5369 in cash seized from him on March 17, 1996.

Oriach alleged that his Fourth Amendment right to be free from

unreasonable searches and seizures was violated when Officer Matias

patted him down prior to searching the vehicle.         We disagree.

     Because “every traffic stop poses a meaningful level of risk

to the safety of police officers,” United States v. Sakyi, 160 F.3d


                                    10
164, 168 (4th Cir. 1998), police officers making a lawful traffic

stop may order the driver and passengers to step out of the vehicle

as a matter of course, see Maryland v. Wilson, 519 U.S. 408, 410

(1997). Police officers may also patdown or frisk the occupants of

the vehicle “without a warrant if, under the totality of the

circumstances, the officer has an articulable, reasonable suspicion

that a person is involved in criminal activity and that he is

armed.”    United States v. Raymond, 152 F.3d 309, 312 (4th Cir.

1998).    “The reasonableness of the search is measured objectively.

If a reasonably prudent person would believe that his safety, or

the safety of others, is endangered, he may conduct a limited

search of outer clothing to discover any weapons.”             Id.

       Here, it is undisputed that Officer Matias’s initial stop of

the Toyota Supra for speeding was lawful and that Fuertes, after he

was told he was free to leave, instead consented to and in fact

invited Officer Matias to search the vehicle in which he and Oriach

were traveling. The issue on appeal is whether, under the totality

of the circumstances, Officers Matias’s decision to frisk or

patdown Oriach prior to conducting the vehicle search ran afoul of

Oriach’s Fourth Amendment rights.             We conclude that it did not.

       At the time of the traffic stop and subsequent patdown, the

Park   Police   and   the   DEA   were    conducting   a   joint   task   force

investigation of suspected drug dealer Tejada, which included a

court-authorized wiretap of Tejada’s telephone as well as on-site


                                         11
surveillance       of     Tejada’s        residence.          Officer    Matias       was

specifically advised by Detective Ramos that two Hispanic men

traveling in a Toyota Supra with a Virginia license plate were

suspected of having been involved in a narcotics transaction and

was   told    to   be    on    the   lookout     for     a   vehicle    meeting    that

description.       Upon stopping the vehicle, Officer Matias observed

specific, articulable behavior on the part of Fuertes, including

Fuertes’s act of sticking his hands out of the window without being

prompted to do so and gratuitously bringing up a police officer

shooting      within     the    last      two    days,       which   Officer    Matias

understandably viewed as suspicious.               When Officer Matias advised

the men that they were free to leave, Fuertes chose not to do so

and again engaged in suspicious and nervous behavior by bringing up

the police officer shooting and inviting Officer Matias to enter

the vehicle and search it.

      Given    the      totality     of    the   circumstances,        including      the

unfortunate reality that “guns often accompany drugs,” Sakyi, 160

F.3d at 169, we think Officer Matias’s decision to conduct a

patdown search of the vehicle occupants for weapons prior to

placing himself in the vulnerable positions inherent in searching

the vehicle of suspected drug dealers during nighttime hours was an

imminently     reasonable       one.        Because      Officer     Matias    “had    an

objectively reasonable suspicion” that illegal drugs were in the

vehicle and “a legitimate concern about his own safety,” we hold


                                            12
that “he acted lawfully under the Fourth Amendment in ‘patting

down’ the passenger.”   id. at 165.   Accordingly, Oriach is not

entitled to relief on his Fourth Amendment claim.



                               IV.

     For the foregoing reasons, we affirm Oriach’s conviction and

sentence.

                                                         AFFIRMED




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