UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5225

RICKY NELSON STONE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5405

TIMOTHY WAYNE DODSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Chief District Judge.
(CR-94-106)

Submitted: September 24, 1996

Decided: November 15, 1996

Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Peter A. Katt, LAW OFFICES OF DANIEL L. CRANDALL, P.C.,
Roanoke, Virginia; Lance M. Hale, LANCE M. HALE & ASSO-
CIATES, Roanoke, Virginia, for Appellants. Robert P. Crouch, Jr.,
United States Attorney, Ray B. Fitzgerald, Jr., Assistant United States
Attorney, John Horn, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

These cases were consolidated because the Appellants were
indicted in the same indictment. Each appeal will be discussed sepa-
rately.

No. 95-5225

Ricky Nelson Stone (Stone) appeals his sentence imposed pursuant
to his conviction for aiding and abetting the distribution of cocaine
base. An undercover officer arranged the purchase of the cocaine with
Gilmer Stone, at a house Gilmer Stone frequented. Gilmer Stone
requested the officer to come back in twenty minutes. The officer
returned in twenty minutes and Stone brought the cocaine from the
house to the officer and collected the money for Gilmer Stone,
explaining that Gilmer Stone had stepped out for a while.

Stone's presentence report gave him the benefit of the "safety
valve" provision in 18 U.S.C.S. § 3553(f) (West Supp. 1996), which
allows a court to forgo applying the statutorily-mandated minimum
sentence and impose a sentence within the defendant's guideline
range. At Stone's sentencing hearing, however, the Government
argued that Stone was not entitled to the application of § 3553(f)
because Stone did not affirmatively act to provide the Government
with any truthful information about his offense. See § 3553(f)(5). The
district court found that Stone was not entitled to the application of
§ 3553(f). After the court made its ruling, Stone's counsel sought the

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court's permission for Stone to testify so that he could comply with
the provisions of § 3553(f). However, the court denied the request and
sentenced Stone to the statutory mandatory minimum sentence.

On appeal, Stone claims that the district court erred in finding that
he was not entitled to relief pursuant to § 3553(f) from the statutory
minimum sentence. Stone claims that the district court did not depart
downward from the statutory minimum because it did not believe it
had the authority to depart. This court, therefore, has jurisdiction to
hear Stone's claim. See United States v. Bayerle , 898 F.2d 28, 30 (4th
Cir.), cert. denied, 498 U.S. 819 (1990). Further, the district court's
determination of whether Stone fulfilled the requirements of
§ 3553(f)(5) is a question of fact reviewed for clear error. United
States v. Romo, 81 F.3d 84, 86 (8th Cir. 1996); United States v.
Rodriguez, 69 F.3d 136, 144 (7th Cir. 1995).

In order for a defendant to be entitled to relief under § 3553(f) he
must satisfy five requirements. Both parties agree that Stone met the
first four requirements of § 3553(f). At issue is whether Stone com-
plied with the final requirement enunciated in § 3553(f)(5) that he
truthfully provide to the Government all information and evidence he
had concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan. Stone claims that
he satisfied the required proffer of information in his statements given
at his guilty plea hearing, his statements made to his probation officer,
the conversations between his attorney and the Government, the video
tape of his offense, and the testimony of the undercover agent. Stone
further alleges that he "stood ready" to provide whatever other infor-
mation the court required.

It is not enough that Stone accepted responsibility for his own acts
or that he was willing to cooperate if the Government questioned him.
United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996), cert.
denied, ___ U.S. ___, 64 U.S.L.W. 3837 (U.S. June 17, 1996) (No.
95-8998); see United States v. Wrenn, 66 F.3d 1, 2-3 (1st Cir. 1995).
Defendants seeking to avail themselves of the application of § 3553(f)
"bear the burden of affirmatively acting, no later than sentencing, to
ensure that the Government is truthfully provided with all information
and evidence the defendants have concerning the relevant crimes."
Ivester, 75 F.3d at 185. We find that the district court did not clearly

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err in finding that Stone did not affirmatively act to ensure that the
Government was truthfully provided with all the information and evi-
dence Stone possessed. Further, even though Stone was willing to tes-
tify at his sentencing hearing after the district court ruled that he was
ineligible for the application of § 3553(f), his willingness did not con-
stitute an affirmative act as contemplated by § 3553(f)(5). See id. at
184-85. Accordingly, we affirm Stone's sentence.

No. 95-5405

Timothy W. Dodson (Dodson) appeals his conviction for possess-
ing with the intent to distribute cocaine. Officer Lonnie Ray Kennedy,
Jr., responded to a Danville Police Department dispatch describing
the suspect of a robbery that had taken place at a Kemper Express
Mart. The dispatch stated that the suspect fled the scene of the rob-
bery in a green and white "Capital" taxicab with a double zero dis-
played on its trunk, heading in the direction of South Main Street.

Officer Kennedy saw a taxicab matching the description provided
by the dispatch heading away from the South Main Street area and
pulled the taxicab over. After talking to the driver, Officer Kennedy
learned that the taxicab had picked up its passenger at the Kemper
Express Mart. While Officer Kennedy questioned the passenger, he
noticed a woman's brown purse sitting at the passenger's feet that
matched the description of the purse stolen from the robbery victim.
Officer Kennedy also noticed a red bank bag sitting between the pas-
senger's feet.

When Officer Kennedy questioned the passenger about the purse
at his feet, the passenger admitted that he had taken it from his wife
at the Kemper Express Mart. At Officer Kennedy's request, the pas-
senger provided him with a driver's license bearing a fictitious name.
Officer Durwood Creed then arrived at the scene and informed Offi-
cer Kennedy that the passenger was in fact Dodson.

The officers requested Dodson to exit the taxicab. Dodson did so
and handed the purse to Officer Kennedy. While holding Dodson's
elbows, the officers began to escort Dodson in the direction of the
police cars. However, Dodson began to resist the officers and
attempted to break free from their control, stating that he wanted to

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return to the taxicab to retrieve "his bag." The officers told Dodson
that they would retrieve the bag for him, but Dodson kept resisting the
officers.

The officers subdued Dodson, handcuffed him, and searched his
person. The officers then placed Dodson in the rear seat of the police
car and shut the door behind him so that he could not get out. Officer
Creed retrieved Dodson's red bank bag from the passenger compart-
ment of the taxicab. The officers opened the bag and discovered two
pill bottles containing crack and powder cocaine, along with several
rolls of bundled cash. The bag also contained a real-estate receipt in
Dodson's name.

Dodson moved to suppress the evidence arising from the search of
Dodson's bank bag. However, the district court denied the motion.
Dodson pled guilty to possessing with the intent to distribute cocaine,
but reserved the right to appeal the district court's adverse ruling on
his motion to suppress evidence.

On appeal, Dodson claims that the district court erred by denying
his motion to suppress as evidence the red bank bag and its contents
found by the officers in the taxicab. The district court found that the
police officers had arrested Dodson at the time they secured him in
the police car and the search was incident to a lawful arrest. The
determination of when an arrest took place is a question of fact.
Peters v. New York, 392 U.S. 40, 67 (1968). We will not reverse fac-
tual findings unless they are clearly erroneous. United States v.
McCraw, 920 F.2d 224, 227 (4th Cir. 1990).

To constitute an arrest there must be an actual or constructive sei-
zure or detention of the suspect, performed with intention to effect an
arrest, so understood by the person detained, and the restraint must be
under real or pretended legal authority. United States v. Comi, 336
F.2d 856, 858 (4th Cir. 1964), cert. denied, 379 U.S. 992 (1965); see
Peters, 392 U.S. at 67. Further, a person is seized within the meaning
of the Fourth Amendment: (1) whenever physical force (however
slight) is applied or; (2) whenever there is a show of official authority
such that a reasonable person would have believed that he was not
free to terminate the encounter and the person submits to the show of
authority. California v. Hodari D., 499 U.S. 621, 623-29 (1991). The

                     5
test for the existence of a show of authority is an objective one, deter-
mined by whether the officer's words and actions would have con-
veyed a show of authority to a reasonable person. Id. at 628.

When Dodson exited the taxicab, the officers initially held Dodson
by his elbows and when Dodson began to resist them, the officers
used physical force to subdue and handcuff him. The officers then
placed Dodson in the back of the police car with the doors closed. It
is irrelevant that the officers did not tell Dodson that he was under
arrest. Comi, 336 F.2d at 858. We find that Dodson was under arrest
when the officers used physical force to seize him in order to effect
an arrest under their legal authority. Dodson must have understood
that he was under arrest as he was handcuffed and placed in the police
car. Therefore, the district court's finding as to the time of arrest was
not clearly erroneous.

For the incident search to have been constitutionally permissible,
it must have been conducted incident to a valid custodial arrest. New
York v. Belton, 453 U.S. 454, 462-63 (1981). The Fourth Amendment
requires that a warrantless arrest be based upon probable cause.
United States v. Watson, 423 U.S. 411, 414-24 (1976). Probable cause
exists when the facts and circumstances within the officer's knowl-
edge justify a person of reasonable caution to believe that someone
has committed a crime. Beck v. Ohio, 379 U.S. 89 (1964). Further,
probable cause is based upon the totality of the circumstances. Illinois
v. Gates, 462 U.S. 213, 230-31 (1983).

Considering the totality of the circumstances at the time of Dod-
son's arrest--when the officers placed him in the police car--the offi-
cers had probable cause to arrest him. Officer Kennedy responded to
a dispatch identifying the suspect as having fled in a green and white
"Capital" taxicab with double zero on the trunk. Officer Kennedy
observed a taxicab matching the description in the geographic area
relayed by the dispatch. Upon stopping the taxicab, the driver
informed Officer Kennedy that he had picked up his passenger at the
Kemper Express Mart, the location where the robbery had taken
place. When looking through the taxicab driver's window, Officer
Kennedy noticed a woman's brown pocketbook lying at Dodson's
feet. Dodson told Officer Kennedy that he took the purse from his
wife. At this point, Officer Creed arrived on the scene and told Offi-

                     6
cer Kennedy that the driver's license provided by Dodson had a ficti-
tious name on it. Thus, Dodson's arrest was lawful.

Further, a search incident to a lawful arrest encompasses a search
of the area that is within the "immediate control" of the defendant.
Belton, 453 U.S. at 460. The passenger seat floor, the area where
Dodson placed his wife's pocketbook and the red bank bag, was
clearly within Dodson's immediate control. See United States v.
Hatfield, 815 F.2d 1068, 1071 (6th Cir. 1987). It is irrelevant that
Dodson was separated from the taxicab immediately prior to the
search. See Belton, 453 U.S. at 462.

Because a warrantless search incident to a lawful arrest is constitu-
tionally permissible, and since the search in this case was conducted
in the course of a valid arrest, the district court did not err in denying
Dodson's motion to suppress the evidence seized as a result of the
search of the taxicab. Accordingly, we affirm Dodson's sentence and
conviction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

No. 95-5225 - AFFIRMED
No. 95-5405 - AFFIRMED

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