                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4241


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL FRED ALSTON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:09-cr-01345-DCN-1)


Submitted:   September 28, 2012           Decided:   October 4, 2012


Before WILKINSON, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary   Gordon   Baker,   Assistant   Federal    Public  Defender,
Charleston, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, Matthew J. Modica, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Daniel Fred Alston was convicted of possession with

intent to distribute a quantity of cocaine and five grams or

more       of   cocaine       base.          He       was        sentenced     to    72     months’

imprisonment.           On appeal, he challenges the district court’s

denial of his motion to suppress evidence discovered during a

traffic stop, during which the officers discovered a cigar box

containing marijuana cigarettes and crack cocaine in Alston’s

waistband       and    a   bag    of    crack         cocaine       and    cocaine        powder    in

Alston’s front pocket.              We affirm.

                While executing a traffic stop, an officer noticed the

odor of marijuana and that the passenger, Alston, was sweating

profusely and repeatedly reaching toward his left pocket and the

center      console     of    the     vehicle.              In    the    interest     of    officer

safety, Alston was asked to step out of the vehicle.                                      As he did

so,    the      officer      noticed     a    bulge          in    the     front     of    Alston’s

waistband.        The officer asked Alston what it was and, as Alston

reached for it, the officer grabbed and removed the object — a

cigar box — from Alston’s waistband.                              Looking through the clear

cellophane window of the box, the officer saw what he believed

to    be    three     marijuana        cigarettes.                Alston     was    placed     under

arrest and, during the search incident to arrest, the officers

discovered a plastic baggie containing cocaine or cocaine base

in     Alston’s       pants      pocket.          Alston           moved     to     suppress       the

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evidence, arguing that the officers had no legitimate reason for

stopping the vehicle, no reasonable suspicion that he was armed,

and that the protective search exceeded that which was necessary

to determine whether he was armed.

              When     the   district      court    has     denied       a    suppression

motion, this court “construe[s] the evidence in the light most

favorable to the government.”               United States v. Kelly, 592 F.3d

586, 589 (4th Cir.), cert. denied, 130 S. Ct. 3374 (2010).                                 We

review the district court’s legal determinations de novo and its

factual determinations for clear error, id., and we “defer to a

district court’s credibility determinations, for it is the role

of    the   district      court     to   observe    witnesses      and       weigh    their

credibility         during   a   pre-trial      motion     to    suppress.”          United

States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal

quotation marks omitted).

              The “decision to stop an automobile is reasonable when

police have probable cause to believe that a traffic violation

has    occurred.”         Whren     v.   United    States,       517   U.S.        806,   810

(1996).       Observation of any traffic violation, no matter how

minor,      gives    an   officer    probable      cause    to    stop       the   vehicle.

United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993).

The district court credited the officer’s testimony that the

driver of the vehicle failed to signal a turn; thus the traffic

stop was based on probable cause.                  See United States v. Kellam,

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568 F.3d 125, 136 (4th Cir. 2009) (“[I]f an officer has probable

cause or a reasonable suspicion to stop a vehicle, there is no

intrusion upon the Fourth Amendment.”).

             During a traffic stop, the passenger may be required

to exit the vehicle without any indication that the passenger

poses a risk to officer safety.                    Maryland v. Wilson, 519 U.S.

408, 413-15 (1997).           Additionally, if the officer has reasonable

suspicion that a passenger is armed or is engaged in criminal

activity, the officer may pat down the passenger for weapons.

Terry v. Ohio, 392 U.S. 1, 30 (1968); see United States v.

Sakyi, 160 F.3d 164, 168-69 (4th Cir. 1998); United States v.

Raymond, 152 F.3d 309, 312 (4th Cir. 1998).

             Based     on     the     totality       of   the      circumstances,      we

conclude    that      the   district     court      properly       found    the    officer

justified in asking Alston to step out of the vehicle.                                 The

officer     smelled     the    odor    of     marijuana      as    he   approached     the

vehicle, Alston repeatedly reached toward his left pocket and

the    center    console      area,    and    Alston      was     sweating      profusely.

Moreover,       the    district       court       properly      concluded       that   the

officer’s       concerns      with    respect       to    the     bulge    in     Alston’s

waistband were appropriate.                 See United States v. Sokolow, 490

U.S.   1,   8    (1989)     (judging    reasonableness            of    pat-down    search

based on the totality of the circumstances).                              The bulge was

large enough to be a weapon and, when asked about it, Alston

                                              4
reached for the area.                  The officer — with justifiable concern

for his safety — grabbed the object from Alston’s waistband. *

See United States v. Swann, 149 F.3d 271, 275 (4th Cir. 1998)

(holding that officer may conduct frisk search and seize item to

ensure that it is not a weapon).

                  Upon removing the cigar box from Alston’s waistband,

the officer saw through the clear cellophane on the box that it

contained three marijuana cigarettes.                      Based on this discovery,

the officer was permitted to seize the incriminating evidence.

See    United          States    v.    Green,   599   F.3d      360,   376   (4th   Cir.)

(explaining that plain view doctrine allows warrantless seizure

of evidence when officer lawfully is in the area in which he

sees       the    object,       has    lawful   access     to   the    object,   and   the

incriminating nature of the object is apparent), cert. denied,

131 S. Ct. 271 (2010).

                  Once they arrested Alston on the charge of possession

of marijuana, the officers were authorized to conduct a search

incident to arrest.               During this search, the baggie containing

cocaine          and   crack     was    discovered    in    Alston’s     front   pocket.

Alston presented evidence and argument that the bag was not in


       *
       Although Alston challenges the officer’s belief that a
weapon could be contained within the cigar box, the court
credited the officer’s testimony that a .25 caliber Lorcin
pistol is small enough to fit inside that size box.



                                                5
his pocket and was too large to fit in his pocket, implying that

the officers fabricated the evidence.                     However, the district

court, having viewed the actual evidence, determined that the

sandwich-bag-sized plastic bag “could easily fit into a pants

pocket.”       The court also made the factual determination that the

officer    was     credible.       In   light      of    these   findings     by   the

district court, the search incident to arrest and the discovery

of the baggie containing crack and cocaine were valid.                             See

United States v. Robinson, 414 U.S. 218, 235 (1973) (holding

that, upon lawful warrantless arrest, police may conduct a full

search    of     an   arrestee’s    person       and     personal    items   in    his

possession and control, without any additional justification).

               Because the evidence was discovered during a lawful

traffic stop and a lawful search incident to arrest, we affirm

the     district      court’s     order        denying    Alston’s     motion      and

supplemental motion to suppress evidence.                    We therefore affirm

Alston’s conviction.          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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