     Case: 13-11291      Document: 00512845221         Page: 1    Date Filed: 11/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 13-11291
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                       November 21, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

ERIK WILLIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CR-156-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Erik Willis was convicted by a jury of being a felon in possession of a
firearm and possessing an unregistered firearm in violation of 18 U.S.C.
§§ 922(g)(1), 942(a)(2) and 26 U.S.C. §§ 5841, 4861(d) and 5871. Willis was
sentenced to a total of 140 months of imprisonment and a three-year term of
supervised release. He raises one issue on appeal: whether the district court
erred in denying his motion to suppress.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-11291    Document: 00512845221     Page: 2   Date Filed: 11/21/2014


                                 No. 13-11291

      In reviewing the denial of a motion to suppress, the district court’s
conclusions of law are reviewed de novo and its findings of facts, including
credibility determinations, are reviewed for clear error, viewing the evidence
in the light most favorable to the Government. United States v. Montes, 602
F.3d 381, 384-85 (5th Cir. 2010); see also United States v. Tompkins, 130 F.3d
117, 120 (5th Cir. 1997) (noting that historical facts about events leading up to
a search or seizure are reviewed for clear error while the district court’s
ultimate conclusion on reasonable suspicion is reviewed de novo). However,
we have held that the “failure to raise specific issues or arguments in pre-trial
suppression proceedings operates as a waiver of those issues or arguments for
appeal.” United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (internal
quotation marks and citation omitted).
      Because Willis did not raise in the district court the specific argument
that he raises now, that the pat-down itself constituted an unreasonable
seizure, he has waived that issue on appeal. See id. However, for “good
measure,” we have considered the issue under the plain error standard of
review. See id.; see also United States v. Baker, 538 F.3d 324, 328-29 & n.1
(5th Cir. 2008) (holding that this court will review an issue at most for plain
error if an appellant failed to present a specific argument during the
suppression inquiry in the district court).
      In determining the legality of a police investigative stop, this court
examines “(1) whether the officer’s action of stopping the vehicle was justified
at its inception, and (2) whether the officer’s actions were reasonably related
in scope to the circumstances that justified the stop.” United States v. Stevens,
487 F.3d 232, 244 (5th Cir. 2007) (citing Terry v. Ohio, 392 U.S. 1, 19-20
(1968)). Willis concedes that he was stopped for speeding and challenges only
the subsequent pat-down.



                                        2
    Case: 13-11291      Document: 00512845221    Page: 3   Date Filed: 11/21/2014


                                  No. 13-11291

      In the course of conducting a routine traffic stop, an officer may perform
a weapons “patdown” of all of the vehicle’s occupants upon “reasonable
suspicion that they may be armed and dangerous.” Arizona v. Johnson, 555
U.S. 323, 332 (2009); see Terry, 392 U.S. at 21-23. According to the suppression
hearing testimony, which the district court found to be credible, after Willis
was pulled over for speeding, Willis exited his vehicle in an irate state, yelling
and cursing at the officer, and approached the officer with his fists clenched.
Even if a reasonable officer on the scene would not have been warranted in
believing that his safety might be in danger based on Willis’s conduct, Willis
has failed to show that the evidence would have been suppressed based on his
challenge to the pat-down.      The evidence in Willis’s vehicle was seized
pursuant to an inventory search, which Willis does not challenge and which
was incident to Willis’s arrest for assault on a public servant and evading
arrest, and the evidence found in Willis’s house and place of business was
seized pursuant to affidavits obtained in a contemporaneous, separate
investigation. Accordingly, Willis has failed to show that the denial of his
motion to suppress constituted plain error. See Puckett v. United States, 556
U.S. 129, 135 (2009).
      The judgment of the district court is AFFIRMED.




                                        3
