UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5752

HENRY LEE WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-95-10)

Argued: March 7, 1997

Decided: April 7, 1997

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel Smith Johnson, Winston-Salem, North Carolina,
for Appellant. Clifton Thomas Barrett, Assistant United States Attor-
ney, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter
C. Holton, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:

Henry Lee White appeals his conviction for possession of a firearm
by a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West Supp. 1997),
and the enhancement of his sentence under the Armed Career Crimi-
nal Act, see 18 U.S.C.A. § 924(e)(1) (West Supp. 1997). He argues
that the firearm was seized in violation of his Fourth Amendment
rights, that using the same prior offense to support a conviction under
§ 922(g)(1) and an enhancement under § 924(e)(1) violates the double
jeopardy clause, and that § 922(g)(1) exceeds Congress's ability to
regulate under the Commerce Clause. Finding no error, we affirm.

I.

At 5:15 p.m. on September 2, 1994, Officer Patricia A. McClure
of the Winston-Salem police department saw White's vehicle stopped
in a moving lane of traffic, about 25 feet from a stop sign. While the
vehicle was stopped, a man walked up to the driver's window, placed
his hands on the windowsill, and conversed with White. Officer
McClure testified that during this conversation, she was unable to see
the hand movements of the unidentified man. When White and the
unidentified man saw Officer McClure, they "abruptly ended their
conversation." (Appellee's Br. at 3.) The man walked away from
White's car in the opposite direction from Officer McClure, and
White drove to the stop sign.

Officer McClure suspected that White had just completed a drug
transaction. White was in an area known for drug activity, and Officer
McClure had previously purchased drugs while undercover in a simi-
lar fashion. Officer McClure also believed that White's vehicle
inspection sticker had expired. Based on these circumstances, Officer
McClure stopped White. She immediately learned that the inspection
sticker was valid, but she nonetheless asked for White's license and

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registration. She also told White that she suspected that he had just
engaged in a drug transaction, and she asked if he had engaged in any
illegal activities. White said no.

Officer McClure called in White's license and learned that it had
been revoked. Driving with a revoked license is an arrestable offense.
Officer McClure returned to White's car and, after telling him to exit
the car, asked him again if he was involved in any illegal activity.
Following White's second denial, Officer McClure asked White if she
could search the car. She told him that he could be arrested for driving
with a revoked license, and that if he did not consent to the search,
she could arrest him and lawfully search the car. She then asked if he
had any weapons in the car. This time, White admitted that he had a
loaded gun under the driver's seat. Officer McClure searched the area
described and seized the loaded weapon. She then issued him a cita-
tion for driving with a revoked license and sent him on his way. Later,
White was indicted for possession of a firearm by a convicted felon.
See 18 U.S.C.A. § 922(g)(1) (West Supp. 1997).

Alleging a deprivation of his Fourth Amendment rights, White
filed a motion to suppress physical evidence on February 16, 1995.
The district court heard argument on this motion on March 6, 1995,
and denied it on March 28, 1995. Thereafter, on March 29, 1995, the
government filed a notice of enhancement under the Armed Career
Criminal Act. See 18 U.S.C.A. § 924(e)(1). White filed a motion
arguing that such an enhancement would violate the Double Jeopardy
Clause. Around the same time, White filed another motion arguing
that 18 U.S.C.A. § 922(g)(1) was unconstitutional under United States
v. Lopez, 115 S. Ct. 1624 (1995). Pending disposition of these two
motions, White entered a conditional guilty plea on April 5, 1995,
reserving his right to appeal the district court's decisions on the sup-
pression motion, the double jeopardy claim, and the alleged Lopez
violation. White was sentenced to 135 months imprisonment followed
by three years of supervised release.

On August 24, 1995, the district court denied both of White's
pending motions. At the same time, the district court entered formal
judgment. White now appeals.

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II.

White challenges Officer McClure's seizure of the firearm, claim-
ing that the firearm should have been inadmissible because it was
seized in violation of his constitutional rights. He argues that his ini-
tial detention violated the Fourth Amendment because it was not
based on reasonable suspicion. He further argues that, because he was
not given Miranda warnings before he told Officer McClure that he
had a gun, the gun was "fruit of the poisonous tree." We address these
arguments in order, and reject each one.

A.

White first argues that Officer McClure did not have the necessary
reasonable suspicion to justify the initial investigatory stop. In
White's view, upholding this stop would mean that"anytime that two
black males had a conversation in a `high crime' area and this conver-
sation was observed by a law enforcement officer, these black males
would be subject to an investigatory detention." (Appellant's Br. at 5.)
On the other hand, the Government contends that the character of the
neighborhood, White's reaction upon seeing Officer McClure, and
Officer McClure's practical experience in recognizing drug transac-
tions all support the existence of reasonable suspicion. The district
court agreed with the Government, concluding that the totality of the
circumstances supported Officer McClure's claim that she had rea-
sonable suspicion to stop White.

The parties correctly assume that "reasonable suspicion" is required
to justify an investigatory stop of an automobile. See United States v.
Cortez, 449 U.S. 411, 417-18 (1981); United States v. Lender, 985
F.2d 151, 154-55 (4th Cir. 1993); cf. Whren v. United States, 116 S.
Ct. 1769, 1772 (1996) (noting that an automobile stop is "subject to
the constitutional imperative that it not be `unreasonable' under the
circumstances"). This standard, an "elusive concept," Cortez, 449
U.S. at 417, requires "that the totality of the circumstances -- the
whole picture -- must be taken into account. Based upon that whole
picture the detaining officers must have a particularized and objective
basis for suspecting the particular person stopped of criminal activ-
ity." Id. at 417-18. For our part, in considering the district court's
denial of White's motion to suppress, we review its legal conclusions

                     4
de novo and its factual findings for clear error. See United States v.
Rusher, 966 F.2d 868, 873 (4th Cir. 1992). The specific determination
of reasonable suspicion is a legal matter, subject to de novo review.
See United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991)
(reviewing probable cause determination de novo).

As noted above, the Government argues that the men's conduct
upon seeing Officer McClure, the character of the neighborhood, and
Officer McClure's practical experience support the existence of rea-
sonable suspicion to stop White. We have previously held that these
factors may be considered in establishing reasonable suspicion. See
United States v. Stanfield, ___ F.3d #6D 6D6D#, No. 96-4061, at 13-16 (4th
Cir. March 31, 1997); Lender, 985 F.2d at 154 (considering evasive
conduct and the arresting officer's practical experience pertinent to
reasonable suspicion); United States v. Moore , 817 F.2d 1105, 1107
(4th Cir. 1987) (noting that the defendant's presence in a high crime
area may be relevant to reasonable suspicion). More specifically, the
Fourth Circuit has previously upheld a comparable investigatory
detention. In Lender, the arresting officer observed four or five men
"huddled on a corner" in a known drug area. 985 F.2d at 153. One of
the men "had his hand stuck out with his palm up, and the other men
were looking down toward his palm." Id. When the group of men saw
the police officers, they "began to disperse, and the defendant walked
away from the officers with his back to them." Id. Based on the hour
of the day, the group's dispersal upon seeing the officers, the known
character of the neighborhood, and the officers' practical experience
in recognizing drug transactions, the court upheld the investigatory
detention.

On the other hand, White relies on United States v. Sprinkle, ___
F.3d ___, No. 95-5441, Slip op. at 1 (4th Cir. Feb. 11, 1997), in argu-
ing that there was not reasonable suspicion to support the stop. In
Sprinkle, the arresting officer observed Victor Poindexter, who the
officer knew had recently completed a prison sentence for a drug-
related conviction, sitting in the driver's seat of a car. Id. at 2. Soon
thereafter, Carl Sprinkle walked out of a nearby house and got into
the passenger side of Poindexter's car. Sprinkle and Poindexter then
"`huddled to the center of the console of the vehicle' with their hands
`close[ ] together.'" Id. at 3 (alteration in original). Although the
arresting officer could see their hands, he did not see any contraband

                     5
or exchange. When Poindexter saw the officer, he covered his face.
Then, when the arresting officer went to his own car, Poindexter
started his car and drove off. "[H]e did not speed, drive erratically, or
commit any traffic violations." Id. Nonetheless, the arresting officer
tried to stop Poindexter and Sprinkle. When Sprinkle sought to
exclude evidence seized as a result of this investigatory detention, the
Government offered five factors supporting reasonable suspicion:

          (1) [The arresting officer] knew that Poindexter had a
          criminal record and had recently been released from prison
          after serving time for narcotics violations, (2) the subjects
          were spotted in a neighborhood known by the officers for
          high (narcotics) crime, (3) when Sprinkle entered the Cou-
          gar, he and Poindexter huddled toward the center console
          with their hands close together, (4) as [the arresting officer]
          walked past the car, Poindexter put his head down and his
          hand up to his face as if to avoid recognition, and (5)
          Poindexter drove away as soon as the officers walked by the
          car.

Id. at 5. Despite this confluence of factors, we concluded that there
was not reasonable suspicion to justify an investigatory detention.

In White's view, Sprinkle controls his case. We disagree. First,
White was stopped in a moving lane of traffic when first observed by
Officer McClure. Even though the Government disclaims reliance on
United States v. Whren, 116 S. Ct. 1769, 1772 (1996), violation of the
state or local traffic laws is a factor that may be considered in assess-
ing the reasonableness of investigatory actions. See Stanfield, slip op.
at 13. Second, Officer McClure, like the arresting officer in Lender
and unlike the arresting officer in Sprinkle, could not see the hands
of White and the unidentified man during their conversation. There-
fore, there was no evidence to dispel Officer McClure's suspicion that
they were engaged in an illegal transaction. Third, the unidentified
man "abruptly" turned and walked away from Officer McClure when
he saw her. This conduct, unlike that of the suspects in Sprinkle but
like the conduct of the suspects in Lender, was sufficiently evasive to
elevate Officer McClure's suspicion of illegal activity. Fourth, Officer
McClure, unlike the arresting officer in Sprinkle, specifically relied

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on her practical experience as an undercover officer in forming her
suspicion.

Accordingly, we conclude that this case is closer to Lender than to
Sprinkle. Because Lender controls, the district court did not err in
finding that Officer McClure had the requisite reasonable suspicion
to justify an investigatory detention of White.

B.

White next argues that, even if his initial detention was lawful, the
subsequent seizure of the gun from the passenger compartment of his
car was unconstitutional. He argues primarily that his Miranda rights
were violated, that the seizure of the gun was therefore "tainted," and
that the inevitable discovery rule does not apply. The Government
apparently concedes that there was a Miranda violation and that the
gun is therefore tainted, but argues that the inevitable discovery
exception to the exclusionary rule allows its introduction.* The dis-
trict court agreed with the Government's position, ruling that Officer
_________________________________________________________________
*We disagree with the district court's view that a Miranda violation
automatically triggers the "fruit of the poisonous tree" doctrine. The fruit
of the poisonous tree doctrine, as articulated in Wong Sun v. United
States, 371 U.S. 471 (1963), applies only to constitutional violations. See
Oregon v. Elstad, 470 U.S. 298, 307 (1985). Because the failure to
administer Miranda warnings is not in itself a constitutional violation,
the fruits of an unwarned statement are not "inherently tainted." See
Correll v. Thompson, 63 F.3d 1279, 1290 (4th Cir. 1995) (distinguishing
between confessions "obtained in violation of . .. Fifth Amendment
rights" and those "obtained in technical violation of Miranda," and
applying fruit of the poisonous tree analysis only to the former). In other
words, if White's unwarned confession was not "involuntary" within the
meaning of the Fifth Amendment, then the seizure of the gun would not
be tainted. See United States v. Crowder, 62 F.3d 782, 786-88 (6th Cir.
1995) (noting that the fruit of the poisonous tree doctrine does not apply
to evidence obtained as a result of an unwarned statement if the state-
ment was voluntary under the Fifth Amendment), cert. denied, 116 S. Ct.
731 (1996); United States v. McCurdy, 40 F.3d 1111, 1116-17 (10th Cir.
1994) (same). Because the Government argues only that the inevitable
discovery exception applies, however, we consider only that issue, and
assume without deciding that White's statement was not "voluntary"
under the Fifth Amendment. We also assume without deciding that
White's consent to search the car was not voluntary, and we therefore
conclude that there is no need for a remand to apply the voluntariness
test articulated in United States v. Lattimore , 87 F.3d 647, 650 (4th Cir.
1996) (en banc).

                    7
McClure would have arrested White had he not been cooperative. In
the district court's view, because Officer McClure then could have
lawfully searched the vehicle -- either as a search incident to an
arrest or during a subsequent inventory search -- discovery of the gun
was inevitable.

As framed by the parties, then, the only issue is whether the inevi-
table discovery rule should apply here. In reviewing the district
court's suppression ruling, the court reviews the district court's legal
conclusions de novo and its factual findings for clear error. See
United States v. McDonald, 61 F.3d 248, 254 (4th Cir. 1995). The dis-
trict court found, as a fact, that "had Mr. White not been cooperative,
Officer McClure would have arrested him. Accordingly, she would
have arrested Mr. White and conducted a search incident to a lawful
arrest." This finding is supported by Officer McClure's testimony.
Therefore, because the district court's finding that Officer McClure
would have arrested White had he not been cooperative is credible
and is supported by the record, we affirm it as not clearly erroneous.

The remaining question is whether the district court properly
applied the inevitable discovery rule to these facts. The inevitable dis-
covery rule allows the admission of illegally seized evidence if the
Government can prove "by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by
lawful means." Nix v. Williams, 467 U.S. 431, 444 (1984); see also
United States v. George, 971 F.2d 1113, 1121 (4th Cir. 1992). Here,
White argues that the inevitable discovery rule cannot "be applied
only on the basis of the police officer's mere intention to use legal
means subsequently . . . ." (Appellant's Br. at 11.) In other words,
White's primary objection to the district court's ruling is that it relies
on "speculative elements" instead of "demonstrated historical facts
capable of ready verification or impeachment." (Appellant's Br. at 11
(citing Nix, 467 U.S. at 444 n.5).)

Unfortunately for White, he is wrong. In George , we accepted the
government's theory that "even if the search warrant was defective
and Leon's good faith exception inapplicable, the inevitable discovery
doctrine would permit the introduction of the [illegally seized evi-
dence] if the police would have found the blades pursuant to an
inventory search of the lawfully impounded vehicle ." 971 F.2d at 1121

                     8
(emphasis added) (footnote omitted). Although the court excluded the
evidence on factual grounds -- by concluding that the evidence
would not have been found during such an inventory search --
George clearly supports the Government's position in this case. As
noted above, the district court found that if White had not been "coop-
erative," or had not allowed the search of his car, then Officer
McClure would have arrested him and searched the car incident to the
arrest. During this search, she would have found the gun. Therefore,
because the gun would have been discovered in any event, it was
properly admitted.

III.

White next argues that, as applied to him, § 924(e) violates the
Double Jeopardy Clause. His argument relies on the fact that his
"prior 1991 conviction was a necessary element to the 18 U.S.C. Sec-
tion 922(g)(1) charge. That same conviction was then used to estab-
lish a violation falling under the purview of 18 U.S.C. Section
924(e)(1)." (Appellant's Br. at 13.) In other words, he complains that
he had only three prior violent or drug-related convictions, and that
one of those three supported both the § 922(g) conviction and the
§ 924(e) enhancement.

Our circuit and others have rejected this argument. See United
States v. Presley, 52 F.3d 64, 68 (4th Cir.) (holding, in a case where
the defendant had only three prior convictions, that§ 924(e) "does not
violate the Double Jeopardy Clause"), cert. denied, 116 S. Ct. 237
(1995); United States v. Bates, 77 F.3d 1101, 1106 (8th Cir.) (reject-
ing a challenge to "the constitutionality of using [a defendant's] prior
felony convictions both to establish his substantive offense under sec-
tion 922(g)(1) and to enhance his sentence under section 924(e)(1)"),
cert. denied, 117 S. Ct. 215 (1996); United States v. Wallace, 889
F.2d 580, 584 (5th Cir. 1989) (rejecting defendant's argument that his
sentence was in "violation of the double jeopardy clause . . . because
one of his three prior felony convictions was `used' twice -- once to
bring him within the scope of the substantive offense . . . and again
to bring him within the scope of the sentence enhancement provi-
sion"). Accordingly, we affirm the district court's rejection of this
claim.

                    9
IV.

White's final argument on appeal is that in light of United States
v. Lopez, 115 S. Ct. 1624 (1995), § 922(g) exceeds Congress's power
to legislate under the Commerce Clause. After White filed his brief,
we decided United States v. Wells, 98 F.3d 808 (4th Cir. 1996), which
forecloses this argument. In Wells, we concluded that "[t]he existence
of this jurisdictional element [in § 922(g)], requiring the Government
to show that a nexus exists between the firearm and interstate com-
merce to obtain a conviction under § 922(g), distinguishes Lopez and
satisfies the minimal nexus required for the Commerce Clause." 98
F.3d at 811. Therefore, White's argument fails.

V.

In conclusion, we hold that reasonable suspicion supported the ini-
tial detention of White and that the seizure of the firearm was valid
under the inevitable discovery exception. Moreover, we conclude that
using the same prior conviction to sustain a substantive offense under
§ 922(g)(1) and an enhancement under § 924(e)(1) does not violate
the Double Jeopardy Clause. Finally, we have already rejected the
argument that § 922(g)(1) offends the Commerce Clause. Accord-
ingly, we affirm.

AFFIRMED

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