UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4109

RONALD M. RUBOTTOM,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, District Judge.
(CR-95-23-M)

Submitted: August 29, 1997

Decided: October 24, 1997

Before LUTTIG and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Thomas
B. Murphy, Assistant United States Attorney, Raleigh, North Caro-
lina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Following a bench trial, Ronald M. Rubottom was convicted of dis-
regarding a lawful order or signal of an authorized official directing,
controlling or regulating the movement of traffic on a national wild-
life refuge and of operating a motor vehicle while under the influence
of intoxicating beverages or controlled substances on a national wild-
life refuge.* Rubottom now appeals the denial of his motion to sup-
press the prearrest statement he gave to Officer Ponz.

Rubottom was not given a Miranda v. Arizona, 384 U.S. 436, 444
(1966), warning before he answered Officer Ponz's questions. Rubot-
tom claims that the admission of his statements against him at trial
constituted a Miranda violation. See Berkemer v. McCarty, 468 U.S.
420, 440 (1984) (stating that Miranda is triggered when roadside
detention and questioning are elevated to custodial interrogation). The
Government argues that there was no Miranda violation because
Rubottom was not subject to a custodial interrogation when he made
the statements, but rather, was subject to a stop pursuant to Terry v.
Ohio, 392 U.S. 1, 30-31 (1968).

After a review of the record, we conclude that Officer Ponz's stop
of Rubottom did not exceed the bounds of a Terry stop. Officer
Ponz's observation of Rubottom lighting a marijuana pipe in a van
parked the wrong way on the shoulder of the road warranted a Terry
stop to confirm or dispel the suspicion of criminal activity. See United
States v. Cortez, 449 U.S. 411, 418 (1981). Officer Ponz's grabbing
of Rubottom's arm when Rubottom tried to flee did not elevate Offi-
cer Ponz's lawful stop into a custodial arrest for Miranda purposes.
See United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995)
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*At the start of trial, Rubottom pleaded guilty to possession of a con-
trolled substance on a national wildlife refuge.

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(stating that "drawing weapons, handcuffing a suspect, placing a sus-
pect in a patrol car for questioning, or using or threatening to use
force does not necessarily elevate a lawful stop into a custodial
arrest"). Nor did Officer Ponz's chase and subsequent stop of Rubot-
tom when he fled exceed the bounds of a Terry stop. See Leshuk, 65
F.3d at 1110. Further, Officer Ponz's questions did not elevate the
stop to a custodial arrest. See Berkemer, 468 U.S. at 439 (stating that
"moderate number of questions" may be asked"to try to obtain infor-
mation confirming or dispelling the officer's suspicions"). Officer
Ponz merely inquired as to what was going on, and the stop was com-
paratively nonthreatening. See United States v. Perdue, 8 F.3d 1455,
1464-65 (10th Cir. 1993) (finding that stop exceeded Terry where
defendant was forced out of car and onto ground at gunpoint and was
questioned in that position with police helicopters hovering over-
head). Thus, because Officer Ponz's questions were neither coercive
nor intimidating and the intrusion was limited, we find that Officer
Ponz's actions did not elevate his lawful Terry stop into a custodial
arrest for Miranda purposes. See Leshuk , 65 F.3d at 1110.

To the extent that Officer Ponz's routine traffic stop may have
matured into a custodial interrogation, we conclude that the admission
of Rubottom's statements against him at trial was harmless error. See
Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir. 1980); see also
Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991). A review of the
record indicates that Rubottom's statement did not materially contrib-
ute to his conviction and that the trier of fact would have convicted
him had his statement not been admitted at trial. See Fulminante, 499
U.S. at 295-96. We find that the record contains overwhelming evi-
dence supporting Rubottom's conviction of operating a motor vehicle
while under the influence of alcohol or a controlled substance without
Rubottom's statements to Officer Ponz. Thus, we conclude that even
if the district court's denial of Rubottom's motion to suppress his
statement was error, such error was harmless. See Williams, 632 F.2d
at 360.

Accordingly, we affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before us and argument would not
aid in the decisional process.

AFFIRMED

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