                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4029


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

MARIO MARQUISE TAYLOR,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00253-MOC-1)


Argued:   January 28, 2016                 Decided:   March 15, 2016


Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.     Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.    ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC.,   Charlotte,  North   Carolina,   for   Appellant.     Jill
Westmoreland Rose, Acting 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Unpublished opinions are not binding precedent in this circuit.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:

       Mario Marquise Taylor was charged with being a felon in

possession of a firearm after officers found a gun near a car in

which    Taylor    was    a    passenger.            The      DNA    on     the    gun    matched

Taylor’s.         He   moved       to    suppress         evidence        of      his    identity

obtained    during       the   encounter           with    police,        arguing       that   the

officers lacked reasonable suspicion to stop and question the

car’s occupants.         The district court denied Taylor’s motion in a

decision that Taylor now appeals.                         For the reasons explained

below, we affirm the judgment of the district court.


                                     I. Background

       Officers Aaron Skipper and Todd Watson were patrolling on

their motorcycles on November 26, 2012, investigating an area of

Charlotte,     North       Carolina,          where       a      burglary         was    recently

reported.     The officers saw Taylor, Preston Fields, and Marquise

Randolph pass by in a blue Crown Victoria.                             The officers noted

that the men “either look[ed] away or look[ed] down” as they

drove past.        J.A. 120.            Finding this suspicious, the officers

turned to follow the car, which rounded a bend and accelerated

from    approximately         35   to    50   miles        per      hour.         The    car   then

“turned into a driveway in an abrupt motion,” braking quickly

such that it “nose dived.”               J.A. 450.




                                               2
     As   the   officers    approached,       they       saw    that   Taylor’s

passenger side window was rolled down and his hand was extended

outside the car, despite the “very cool” temperature.                  J.A. 97.

They drove past the Crown Victoria and parked in a field on the

opposite side of the street, 60 to 75 feet away.                   From there,

the officers watched Fields get out of the car and knock on the

front door of the house adjoining the driveway where he had

parked.   No one answered, and Fields returned to the car.

     After observing the three men sit in the car for about 45

seconds without moving, the officers pulled their motorcycles

into a gravel area beside the driveway, about 20 feet behind the

rear left of the Crown Victoria.           Officer Skipper approached to

question the driver, while Watson remained about 15 to 20 feet

behind the car and off to the side, so that he could keep an eye

on the scene.

     Officer Skipper asked Fields if anyone was home, and Fields

explained that he and his companions had come to meet someone

there but that no one answered.           Skipper asked if anyone had an

ID, and Fields handed over his ID while Taylor and Randolph gave

their names.    Skipper proceeded to question the men and conduct

consensual searches, finding no drugs or weapons.

     Meanwhile,   Officer   Watson       received    a   call   from   dispatch

that a bus passenger had seen a firearm lying in the grass near

where two motorcycle officers were talking with some men.                  Upon

                                     3
investigation, Watson found a loaded Taurus .38 caliber revolver

in the grass, about 75 feet away from the Crown Victoria, which

had passed the spot before parking.           The gun was on the side of

the road Taylor’s window had faced.

      DNA analysis showed DNA of at least three people on the

gun’s grip, with one strong profile considered a “partial major”

profile.     J.A. 548.       The partial major profile was later matched

to a DNA sample from Taylor that was previously obtained and on

file.

      A federal grand jury returned an indictment against Taylor,

charging him with possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1).              Taylor unsuccessfully

moved to suppress evidence of his identity obtained during his

encounter with Officers Skipper and Watson.              Following a trial,

the   jury   returned    a    guilty   verdict,   and   the   district   court

sentenced Taylor to 54 months’ imprisonment.

      Taylor timely appealed, and we have jurisdiction under 18

U.S.C. § 3742 and 28 U.S.C. § 1291.


                                 II. Discussion

                                       A.

      Taylor’s primary argument on appeal is that the district

court erred in denying the motion to suppress evidence of his

identity.    In his view, the court should not have concluded that


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Officers Skipper and Watson had reasonable suspicion to initiate

the stop that led to their obtaining Taylor’s identity.

       We    review        factual    findings       underlying       the    denial      of   a

motion to suppress for clear error and legal determinations de

novo.       United States v. Hill, 776 F.3d 243, 247 (4th Cir. 2015).

Because the district court denied Taylor’s motion, we construe

the    evidence       in    the   light     most   favorable      to    the      government.

United States v. Green, 740 F.3d 275, 277 (4th Cir. 2014).                                    We

“accord particular deference to a district court’s credibility

determinations,”            because    of     “the     district        court’s     role       of

observing       the    witnesses      and     of   weighing      their       credibility.”

United States v. Hilton, 701 F.3d 959, 964 (4th Cir. 2012).

       Under the Fourth Amendment, “an investigatory detention of

a     citizen    by        an   officer     must     be    supported        by    reasonable

articulable suspicion that the individual is engaged in criminal

activity.”       United States v. Black, 707 F.3d 531, 537 (4th Cir.

2013) (citing Terry v. Ohio, 392 U.S. 1, 21 (1967)).                               Here, we

assume      without        deciding    that    the        encounter     constituted       “an

investigatory detention” –- or, in other words, a “seizure” –-

and we move directly to the issue of whether the officers acted

on a reasonable suspicion.

       In     assessing         reasonable        suspicion,      we     “look      at    the

‘totality of the circumstances’ of each case to see whether the

detaining officer has a ‘particularized and objective basis’ for

                                              5
suspecting legal wrongdoing.”            United States v. Arvizu, 534 U.S.

266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411,

417-18 (1981)).         An “inchoate and unparticularized suspicion or

hunch” is insufficient.          United States v. Foster, 634 F.3d 243,

246    (4th    Cir.    2011).        Still,    “the     likelihood    of    criminal

activity need not rise to the level required for probable cause,

and it falls considerably short of satisfying a preponderance of

the evidence standard.”          Arvizu, 534 U.S. at 274.            Factors to be

considered include “the context of the stop, the crime rate in

the area, and the nervous or evasive behavior of the suspect.”

United States v. George, 732 F.3d 296, 299 (4th Cir. 2013).

       Here, a number of factors would have given an officer an

objective basis to suspect that the men in the Crown Victoria

were up to some illegal activity.               As the district court noted,

the officers saw the men avert their eyes, away both from the

officers and from where on the road the officers testified a

normal    person      would   have    been    looking    while   driving.        This

conduct would have immediately aroused some level of suspicion,

given that the officers were investigating a recent burglary.

At    that    point,   the    officers   may    yet     have   lacked      reasonable

suspicion, but the Crown Victoria proceeded in a matter that

erased that doubt.            That is, after passing the officers, the

driver accelerated rapidly from around 35 to 50 miles per hour,

seemed to speed up even more when out of sight, and then turned

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“abrupt[ly]” to “nose dive[]” into a driveway.                            J.A. 450.         An

objective        officer       could      view    that   manner    of    driving       as   an

attempt to get off the road and hide –- an inference that is

further supported by the fact that no one responded when Fields

knocked on the front door of the house.                        The overall sequence of

apparently evasive conduct provided Officers Skipper and Watson

with reasonable suspicion to initiate the brief encounter that

led to the evidence of Taylor’s identity. *                         The district court

did not err in denying Taylor’s motion to dismiss.


                                                 B.

       Taylor         raises   two     additional        issues    on   appeal     that     we

likewise find unpersuasive.                 First, he asserts that, contrary to

Batson v. Kentucky, 476 U.S. 79 (1986), the government had a

racially discriminatory purpose for using a preemptory strike

against the only remaining black juror, Ms. Robinson.                             At trial,

the    government        had    explained        that    Ms.   Robinson     had    a   “meek

voice” and “hearing issues,” “look[ed] lost in the courtroom,

with       a   lost    look    in   her    eyes,”     and   when    asked   a     follow-up

       *
       Two additional factors the district court cited –- the
open window and the delay in leaving the driveway after knocking
on the door –- are more ambiguous.      While neither of these
factors is particularly indicative of criminal activity standing
alone, they could conceivably bolster the officers’ suspicion
when considered as part of the “totality of the circumstances.”
Arvizu, 534 U.S. at 273. All the same, the circumstances noted
above adequately establish reasonable suspicion such that we
need not rely on these other factors.


                                                 7
question    about      guns,       “could      not     explain          why      and       would   not

explain why, and would not make eye contact.”                               J.A. 335-36.           The

district       court     accepted        this       race-neutral              explanation          and

consequently       found      that       that       Taylor        had       not       “established

purposeful discrimination,” as is required for a defendant to

prevail on a Batson challenge.                  476 U.S. at 98.

       We review a district court’s finding regarding a Batson

challenge for clear error.                 Jones v. Plaster, 57 F.3d 417, 421

(4th     Cir.     1995).            Because         findings           on     the          issue     of

discriminatory         intent      “largely         will        turn     on       evaluation         of

credibility,”       Batson,        476    U.S.       at     98    n.21,          we     accord     the

district        court’s       decision         “great        deference                on    appeal.”

Hernandez v. New York, 500 U.S. 352, 364 (1991).

       Here,    that     deference       leads       us    to     find      no     error      in   the

district    court’s       decision        to    deny      Taylor’s          Batson         challenge.

The    court’s     own      findings      confirmed          the       government’s           stated

rationale.        The court agreed that Ms. Robinson was “somewhat

distracted” and “much more uncomfortable than the rest of the

folks on the panel.”                J.A. 338.             Further, it explained that

“[e]ye    contact      is     a    big    thing”       and       that       “the      government’s

reasons for taking that juror off do ring true.”                                      J.A. 339-40.

Taylor    insists      that       the    district         court    failed          to      conduct    a

“comparative juror analysis,” see United States v. Barnette, 644

F.3d 192, 205 (4th Cir. 2011), but the district court made such

                                                8
a finding: It stated unequivocally that the juror appeared “much

more uncomfortable than the rest of the folks on the panel.”

J.A.    338.       Any   potential       deficiency        in    the    district    court’s

analysis falls far short of clear error.

       Second, Taylor asserts that the district court erred in

giving      an    instruction     as     to    constructive        possession       of    the

firearm.          He contends that no evidence supported constructive

possession -- as opposed to actual possession –- and that the

instruction therefore may have confused the jury.                               See United

States v. Whittington, 26 F.3d 456, 463 (4th Cir. 1994) (stating

that a jury instruction is proper “only if there is a foundation

in evidence to support” it).                       This Court reviews a district

court’s “decision to give or not to give a jury instruction

. . . for an abuse of discretion.”                    United States v. Moye, 454

F.3d 390, 397-98 (4th Cir. 2006).

       We     find     that     the    district       court      did     not    abuse    its

discretion        by   giving    the    constructive        possession         instruction.

The record provides factual support for the instruction.                                Given

the possibility that someone other than Taylor threw the gun

from the car, Taylor’s DNA and position in the car could suggest

he nonetheless had control over the gun.                         See United States v.

Blue,       957   F.2d   106,     107    (4th       Cir.   1992)       (“[T]o     establish

constructive         possession,       the    government        must    produce    evidence

showing      ownership,       dominion,       or    control      over    the    contraband

                                               9
itself or the premises or vehicle in which the contraband is

concealed.”).    As the district court observed, “If [the gun] was

close enough for him to drop sweat on it, it had to be close

enough for him that he could have constructively possessed it.”

J.A. 623.     In any event, we are satisfied that any error would

be harmless.    See United States v. McCoy, 767 F.2d 395, 398 (7th

Cir. 1985) (holding that a constructive possession instruction

constituted    harmless   error).         Taylor   provides   no   reason   to

conclude that the constructive possession instruction, which was

an accurate statement of law, would have confused the jury in

its application of an actual possession theory.               See Dawson v.

United States, 702 F.3d 347, 350 (6th Cir. 2012) (“As in McCoy,

the jury in Dawson’s trial is unlikely to have been confused by

the instruction.”).


                                    III.

     For the foregoing reasons, the district court’s judgment is

                                                                   AFFIRMED.




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