                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4227


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JOHN JAMAR DAVIS,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Graham C. Mullen, Senior District Judge. (3:15-cr-00259-GCM-DCK-1)


Submitted: December 28, 2017                                  Decided: February 12, 2018


Before DIAZ, FLOYD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Roderick G. Davis, LAW OFFICE OF RODERICK G. DAVIS, PLLC, Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       John Jamar Davis appeals his conviction following a jury trial for being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal, Davis

contends that the district court erred in denying his motion to suppress a firearm seized

during a traffic stop and abused its discretion by admitting at trial excerpts from two of

Davis’s jail calls. We affirm.

       “When reviewing a district court’s ruling on a motion to suppress, we review factual

findings for clear error and legal determinations de novo.” United States v. Lull, 824 F.3d

109, 114 (4th Cir. 2016) (internal quotation marks omitted). We “construe the evidence in

the light most favorable to the prevailing party and give due weight to inferences drawn

from those facts by resident judges and law enforcement officers.” Id. at 114–15. “When

reviewing factual findings for clear error, we particularly 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. Palmer, 820

F.3d 640, 653 (4th Cir. 2016) (brackets and internal quotation marks omitted).

       “A traffic stop is a seizure within the meaning of the Fourth Amendment and must

be reasonable under the circumstances.” Id. at 648 (internal quotation marks omitted). We

assess “the constitutionality of a traffic stop under the two-prong standard articulated in

Terry v. Ohio, 392 U.S. 1 (1968),” determining first “whether the articulated bases for the

traffic stop were legitimate” and second “whether the actions of the authorities during the

traffic stop were reasonably related in scope to the bases for the seizure.” Id. at 648–49

(internal quotation marks omitted). “In assessing the legitimacy of a traffic stop, we do not

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attempt to discern an officer’s subjective intent for stopping the vehicle,” but rather “ask

whether the circumstances, viewed objectively, justify the action.” Id. at 649 (brackets and

internal quotation marks omitted).

       Davis argues that the officers lacked a legitimate basis for conducting the traffic

stop. The officers testified at the suppression hearing that they stopped the car because the

passenger-side headlight was not working, and the magistrate judge credited their

testimony rather than the testimony of Davis’s witness that both headlights were working

properly. This credibility determination was not clearly erroneous, and thus the basis for

the stop was legitimate. Because the officers did not impermissibly prolong the stop or

take actions not reasonably related in scope to its basis, we conclude that the traffic stop

did not violate Davis’s Fourth Amendment rights.

       Davis further asserts that the officers illegally searched the car and improperly

seized the firearm without a warrant. The district court found the seizure of the firearm

constitutional under the plain view doctrine.

       For the plain view exception to the warrant rule to apply, the government
       must show that: (1) the officer was lawfully in a place from which the object
       could be viewed; (2) the officer had a lawful right of access to the seized
       items; and (3) the incriminating character of the items was immediately
       apparent.

United States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012) (internal quotation marks

omitted). The magistrate judge credited the testimony of the officer who discovered the

gun that, while his partner was speaking with Davis on the driver side of the car, he shined

his flashlight through the front passenger window and saw the firearm partially under the

passenger seat. This credibility determination was not clearly erroneous, and the district

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court correctly found that the officer discovered the firearm from a lawful vantage point.

Although the district court did not address the other two prongs of the plain view doctrine,

Davis does not assert error as to these factors on appeal, and we conclude that the district

court did not err in determining that the seizure was a constitutional plain view seizure.

Accordingly, the district court properly denied Davis’s motion to suppress.

       Davis also contends that the district court erred in denying his motion in limine to

exclude, under Fed. R. Evid. 403, excerpts of two telephone calls he made from jail relating

to his possession of the firearm. We review the district court’s evidentiary rulings for abuse

of discretion. United States v. Faulls, 821 F.3d 502, 508 (4th Cir. 2016). “Except under

the most extraordinary of circumstances, where that discretion has been plainly abused,

this Court will not overturn a trial court’s Rule 403 decision.” In re C.R. Bard, Inc., 810

F.3d 913, 920 (4th Cir. 2016) (brackets and internal quotation marks omitted). Under Rule

403, relevant evidence may be excluded “if its probative value is substantially outweighed

by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. We have

noted that “[p]rejudice, as used in Rule 403, refers to evidence that has an undue tendency

to suggest decision on an improper basis, commonly, though not necessarily, an emotional

one.” United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997) (internal quotation marks

omitted); see Old Chief v. United States, 519 U.S. 172, 180 (1997).

       Although Davis characterizes the excerpts as cumulative, the district court correctly

determined that if credited by the jury, the excerpts were highly probative of the contested

element of possession. The district court did not abuse its discretion by determining that

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the potential for unfair prejudice caused by the profanity and racially insensitive remarks

in the excerpts did not substantially outweigh their probative value, or that the offensive

remarks were sufficiently interwoven in the excerpts such that attempting to excise them

would deprive the excerpts of essential context. We therefore conclude that the district

court did not abuse its discretion by denying Davis’s motion in limine and admitting the

excerpts at trial.

       Accordingly, we affirm Davis’s conviction. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                                AFFIRMED




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