UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4204

MARK ANTHONY JACOBS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-97-136)

Submitted: February 9, 1999

Decided: February 22, 1999

Before HAMILTON and WILLIAMS, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Walter T. Johnson, Jr., Jackie Stanley, LAW OFFICES OF WALTER
T. JOHNSON, JR., Greensboro, North Carolina, for Appellant. Wal-
ter C. Holton, Jr., United States Attorney, Robert M. Hamilton, Assis-
tant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Mark Jacobs appeals his conviction of possession with intent to
distribute crack cocaine and the resulting sentence pursuant to his
guilty plea. The only issue before us is the propriety of the district
court's denial of Jacobs' motion to suppress evidence of the cocaine
found in his car. We affirm.

Jacobs was one of two drivers stopped by Officer Lisenby, a North
Carolina police officer. Both drivers were exceeding the speed limit
on the interstate. The other driver, a Caucasian male, was asked to
leave his car and sit in the police officer's vehicle while a warning
ticket was issued. After the ticket was issued, the driver was permitted
to leave the scene. The police officer then approached Jacobs, who is
African-American. Jacobs supplied the officer with his license and
registration. Jacobs was then asked to sit in the officer's vehicle while
a warning ticket was issued. While in the police cruiser, the officer
engaged Jacobs in a conversation in which Jacobs stated that he was
going to visit his aunt in the hospital. Jacobs stated that his aunt was
in "Hicksville," but he did not know the name of the hospital or his
aunt's address. He also appeared nervous and stated first he was trav-
eling from Petersburg or Pittsburgh, and then New York. Jacobs was
issued a warning ticket and his documents were returned to him. As
Jacobs began to exit the police vehicle, the officer asked him if he had
any drugs, alcohol, or firearms in his car. Jacobs said that he did not.
The officer asked if he could do a "quick search" of Jacobs' car.
Jacobs replied, "Yes, you can search," but Jacobs refused to sign a
written consent form.

By this time, Officer Steele had arrived as back-up and had parked
behind Lisenby's vehicle. Lisenby had Jacobs wait with Steele during
the search of Jacobs' car. Lisenby used a trained narcotics dog to
carry out the search. Approximately fifteen minutes after the search

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began, Jacobs expressed concern to Steele about his not being able to
see the search and asked if he could leave Steele's police cruiser to
view the search more closely. Jacobs was told to remain in the cruiser
for safety reasons. An initial search of the vehicle did not uncover
anything illegal. However, Lisenby testified that his police dog
showed an interest in the back right portion of the car. Approximately
one hour after the search began, Officer Lisenby used a screwdriver
to remove the jack plate that held the tire jack and tools for the vehi-
cle and found a package of white powder in a plastic bag secured with
duct tape. The powder was field tested and determined to be cocaine.

Jacobs was later indicted for possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1) (1994). Jacobs
sought suppression of the drugs recovered during the traffic stop,
challenging his consent to the extent of the search and also contend-
ing that the stop was pretextual. During the motion hearing, the gov-
ernment played a videotape of the search and an audiotape of Jacobs'
conversations with Officer Lisenby. The district court denied Jacobs'
motion to suppress. Jacobs later pled guilty in accordance with a plea
agreement but reserved the right to appeal the adverse ruling on his
motion to suppress. Jacobs was sentenced to 163 months' imprison-
ment.

We review the district court's legal conclusions in regard to a
motion to suppress de novo and the factual determinations on sup-
pression issues under a clearly erroneous standard. See United States
v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). Jacobs argues that the
search of his car violated his constitutional rights in several respects.

Jacobs first argues that his stop was pretextual and that race was
a motivating factor. Jacobs acknowledges that when an officer has
probable cause to believe that a defendant has violated a traffic law,
the officer's stop of the car is reasonable under the Fourth Amend-
ment. See United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993).
Furthermore, Jacobs does not contest the allegation that he was speed-
ing. However, Jacobs argues that the stop was pretextual based upon
Lisenby's questioning him about illegal substances immediately fol-
lowing issuance of the warning ticket. Jacobs asserts that because the
driver of the first car, a Caucasian male, was allowed to leave the
scene quickly without further questioning, the questioning of Jacobs

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is evidence of a pretextual stop based on the assumption that an Afri-
can American male driving a moderately expensive car with New
York license plates is probably transporting drugs. The district court
properly concluded that the stop was neither pretextual nor unreason-
able under the Fourth Amendment.

After the initial stop, the validity of which is not contested, Lisenby
did not question Jacobs about drugs until after he issued a citation and
returned Jacobs' driver's license, indicating that Jacobs was free to
go. See United States v. Lattimore, 87 F.3d 647, 653 (4th Cir. 1996)
(en banc). Jacobs does not contend that police used the stop to coerce
him into giving consent to the search, and Jacobs presents no other
basis upon which to find that the stop was pretextual. Furthermore,
mere questioning by the police, even on a subject unrelated to the pur-
pose of the stop, is not itself a Fourth Amendment violation. See
United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993) (citing
Florida v. Bostick, 501 U.S. 429, 433 (1991)).

Jacobs also contends that the police exceeded the scope of his con-
sent in the search of his car. The nature of consent is a factual ques-
tion to be determined in light of the totality of the circumstances, and
the district court's findings must therefore be affirmed unless clearly
erroneous. See United States v. Wilson, 895 F.2d 168, 171-72 (4th
Cir. 1990). When Officer Lisenby requested permission to conduct
the search, he asked if he could do a "quick search." Jacobs argues
that the one hour search that followed exceeded the scope of his con-
sent. Furthermore, Jacobs contends that his refusal to sign a written
consent form, which contained consent for a detailed search, limited
his consent to a "quick search." Written consent to search, however,
is not the exclusive means of determining whether consent is valid,
and a defendant's subsequent refusal to execute a written consent
form does not taint any prior oral consent that he may have given. See
Lattimore, 87 F.3d at 651.

Jacobs has presented no evidence that he specifically limited the
scope of the search. Furthermore, Jacobs' rejection of the written con-
sent form cannot be used as a yardstick to measure the scope of his
oral consent because Jacobs testified that he never even saw the form
or discussed its contents with police. Because Jacobs did not know the
contents of the form, he cannot successfully argue that his oral con-

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sent must have been to something less than what a signed form would
have permitted. Although Jacobs testified that he believed his consent
was only for Officer Lisenby to "take a look at the vehicle," there is
no evidence that Jacobs communicated his belief to police or other-
wise set limits on the scope of the search. Based on the totality of the
circumstances, the district court properly found that Lisenby's search
did not exceed the scope of Jacobs' consent.

Jacobs also claims that he withdrew his consent when he asked to
leave Officer Steele's police vehicle. "`A consent to search is not
irrevocable, and thus if a person effectively revokes . . . consent prior
to the time the search is completed, then the police may not thereafter
search in reliance upon the earlier consent.'" Id. (quoting 3 Wayne R.
LaFave, Search and Seizure § 8.2(f), at 674 (3d ed. 1996) (alteration
in original); see United States v. McFarley, 991 F.2d 1188, 1191 (4th
Cir. 1993) (noting that "once consent is withdrawn or its limits
exceeded, the conduct of the officials must be measured against the
Fourth Amendment principles"). Although Jacobs expressed annoy-
ance as to being unable to view the search and as to the amount of
time it was taking, he did not ask the officers to stop their search. The
district court properly found, after considering the totality of the cir-
cumstances, that Jacobs' expression of annoyance at the length of the
search was not a withdrawal of consent. Indeed, it is undisputed that
at no time did Jacobs expressly withdraw his consent for the search.
Because Jacobs did not withdraw his previous, voluntary, oral con-
sent, we conclude that the entire search pursuant to that consent was
lawful.

For these reasons we affirm Jacobs' conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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