                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5160


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MOSES LIRAN DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00343-F-1)


Argued:   May 14, 2010                    Decided:   June 15, 2010


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: William Lee Davis, III, Lumberton, North Carolina, for
Appellant. William Miller Gilmore, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.     ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     A    jury    convicted      Moses     Liran      Davis    of    narcotics        and

firearms offenses.          On appeal, Davis challenges the denial of

his motion to suppress, certain evidentiary rulings, the jury

instructions, and the sufficiency of the evidence.                       We affirm.



                                          I.

     Davis’s      arrest       resulted    from      an     undercover       operation

designed to apprehend Christian Angel McDuffie, a suspected drug

dealer.        Detective     Chad      Hines   of    the    Wake    County       Special

Response Team (“SRT”), working undercover, had purchased drugs

from McDuffie on two prior occasions.                  McDuffie agreed to meet

Detective Hines at a BP gas station in Raleigh, North Carolina,

for a third drug transaction on May 19, 2007.                       The SRT planned

to arrest McDuffie after the drugs and money changed hands, and

several SRT officers waited in a van parked close to Detective

Hines’s vehicle, ready to effectuate the “takedown.”

     The situation grew more dangerous than the officers had

anticipated when McDuffie told Detective Hines that, because his

regular   supplier      could    not    provide     him    with    drugs,    he   would

arrive    at   the     BP   station     with   his    “boys.”        McDuffie       told

Detective      Hines    that    his     friends      “didn’t      deal    with    white

people,” but would come to the station with him and wait to

collect their share of the proceeds.                      At 7:22 p.m., McDuffie

                                           2
called to inform Detective Hines that he was on his way “with

his boys.”      Detective Hines relayed all of this information to

the other officers at the scene.

       A few minutes later, Detective Hines saw McDuffie’s white

Acura pull into the BP station parking lot.                      Detective Wade

Allen, who was sitting in the car with Detective Hines, saw

another car pull in “almost at the exact same time as the white

Acura.”      Detective Hines communicated to the officers waiting in

the SRT van that the suspect had arrived, at which point those

officers also saw the second car pull into the parking lot.

       Davis, the driver of the second car, backed his car into

the space next to the SRT van.               (Davis’s car faced Detective

Hines’s vehicle, and the SRT van faced the opposite direction.)

From   his    parking   spot,   Davis       had    an   unobstructed     view   of

Detective Hines’s car, where the drug sale between McDuffie and

Detective Hines would take place.                 Detective Aldolphus McGhee,

one of the SRT members waiting in the van, watched Davis for

approximately forty-five seconds, during which time Davis did

not “make any effort to pump gas or get services from the gas

station.”       Detective   McGhee   testified          that   Davis’s   behavior

struck him as unusual:      “I found it peculiar and strange that he

was sitting in the car.         He wasn’t going into the store.                 He

wasn’t motioning for his wallet or phone.                 He was just sitting

in the car observing the undercover vehicle, looking in that

                                        3
direction.”       Because of McDuffie’s statements about his friends’

impending arrival, the close proximity in time of the two cars’

entry     into      the     station,        Davis’s       post-parking            behavior,

McDuffie’s statement that his friends would not deal with white

people, and Davis’s non-white race, the officers suspected that

the Davis was one of McDuffie’s drug-dealing “boys.”

       While the SRT officers observed Davis, McDuffie left his

vehicle    and    walked     to    Detective       Hines’s      car,    where      he   sold

Detective     Hines       $120    worth   of     powder    cocaine.          After      they

completed the sale, some SRT officers emerged from the van to

arrest McDuffie, Detective Hines, and Detective Allen.                              Others

went to Davis’s car and, with their weapons drawn, “ordered him

out of the car and onto the ground.”                      Detective McGhee opened

the car door, pulled Davis out, placed him in handcuffs, and

then    “looked     back”    at    Davis’s       car,   where    he    saw    a    “bag   of

marijuana in the [car] door.”

       The officers then searched the car.                      They found marijuana

in the driver’s side door, a loaded .38 caliber pistol under the

driver’s side floor mat, cocaine and plastic baggies in a Crown

Royal bag in the glove compartment, crack cocaine and a Tanita

digital scale in the console, $320 in cash between the driver’s

seat    and   the   pull-up       parking      brake,     and    a    9mm    pistol     with

obliterated serial numbers in the trunk.



                                             4
       On   November          20,    2007,      a    grand   jury    charged    Davis       with

possessing cocaine, cocaine base, and marijuana with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) (2006); being

a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924; and using and carrying a firearm during

and in relation to a drug trafficking crime, in violation of id.

§ 924 (c)(1)(A).

       Prior to trial, Davis moved to suppress the evidence found

in   the    car,       contending        that       it   constituted   the     fruit    of    an

illegal     search.           At     the   suppression        hearing,    the       Government

presented testimony from officers at the scene.                              The Government

also moved to admit into evidence the written reports of some

officers         who    did    not       testify.         Davis     objected    on     hearsay

grounds.

       Without relying on the written reports or admitting them

into   evidence,         the    court         denied     Davis’s    motion     to    suppress.

Although the court found that the police officers did not have

probable cause to arrest Davis at the moment they pulled him out

of his car, it concluded that they did have reasonable suspicion

to conduct an investigatory stop “in order to assure officer

safety      in    the    wake       of   an    executed      drug    transaction       on    the

scene.”      The court further reasoned that this investigatory stop

permitted the officers to view “a bag of marijuana in plain



                                                    5
sight in the door of Davis’s car” and thus provided “probable

cause to search the remainder of Davis’s car.”

        At trial, the Government presented testimony describing the

McDuffie-Hines transaction, Davis’s appearance on the scene, the

investigative stop of Davis, and the evidence found in Davis’s

car.     The defense presented no evidence.

        The jury found Davis guilty on all counts, and the court

sentenced him to 420 months in prison.

        Davis timely noted this appeal.



                                        II.

        Davis first challenges the district court’s order denying

his motion to suppress.           “[W]e review a district court’s factual

findings for clear error and its legal determinations de novo.”

United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).

When,    as   here,   the    district    court   has   denied   a   motion   to

suppress, we “construe the evidence in the light most favorable

to the government.”         Id.

                                        A.

        Generally, “a search or seizure without probable cause is

unreasonable    and,   thus,      unconstitutional.”      United    States   v.

Neely, 564 F.3d 346, 349 (4th Cir. 2009) (per curiam).                       The

district court did not find, and the Government does not argue,

that the police officers had probable cause to arrest Davis when

                                         6
they pulled him from his car.                      Rather, the Government contends,

and    the   district       court       found,         that     the       officers    conducted   a

legal investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1

(1968).

       Under Terry, “an officer may conduct a brief investigatory

stop    where       the   officer           has        reasonable          suspicion    [but    not

probable cause to believe] that criminal activity may be afoot.”

Perkins, 363 F.3d at 321.                    To satisfy the Fourth Amendment, a

temporary       stop      must     be       “justified           at       its     inception”    and

“reasonably         related        in    scope           to     the       circumstances        which

justified the interference in the first place.”                                   Terry, 392 U.S.

at 20.       The police may stop a suspect when they can “point to

specific      and      articulable          facts        which,           taken    together     with

rational inferences from those facts, reasonably warrant that

intrusion.”         Id. at 21.          Courts must judge those facts “against

an objective standard: would the facts available to the officer

at the moment of the seizure or the search warrant a man of

reasonable      caution       in      the    belief           that    the    action     taken    was

appropriate?”        Id. at 21-22 (internal quotation marks omitted).

       Applying      that     standard            to    this     case,       the     officers    had

reasonable      suspicion        to     stop       Davis.            We    have    explained    that

“factors which by themselves suggest only innocent conduct may

amount to reasonable suspicion when taken together,” and “our

determination of reasonable suspicion must give due weight to

                                                   7
common sense judgments reached by officers in light of their

experience and training.”               Perkins, 363 F.3d at 321.                In this

case, the police knew that McDuffie planned to bring his “boys”

to    the    drug   sale,   that     those       “boys”    had    provided      drugs   to

McDuffie and did not like white people, that a car had arrived

at roughly the same time as McDuffie’s car and been positioned

in viewing distance of the anticipated drug sale, and that the

car was driven by a non-white man who did not buy gas or enter

the gas station store.             A reasonable police officer would also

have understood the close relationship between drugs and guns

and    the    possible      danger      inherent      in    a      drug      transaction.

Ultimately, “[a] determination that reasonable suspicion exists

. . . need not rule out the possibility of innocent conduct.”

United States v. Arvizu, 534 U.S. 266, 277 (2002).                               Although

Davis might have arrived at the BP gas station without nefarious

purpose, the officers reasonably could have suspected otherwise

from    the    circumstances       of    his      arrival        and   his    subsequent

actions.

       Furthermore, the officers’ conduct in detaining Davis did

not transform the encounter from a Terry stop (requiring only

reasonable suspicion) to a full-scale arrest (requiring probable

cause).       We have held that a Terry stop becomes a custodial

arrest not because of the degree to which officers restrict the

suspect’s liberty, or the means they employ to do so, but rather

                                             8
as a result of the duration of the stop.                          See United States v.

Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995).                         Terry permits a

“brief   but     complete       restriction       of    liberty”      so   long    as   the

restriction lasts “no longer than necessary to verify or dispel

the officer’s suspicion.”               Id. at 1109 (emphasis added).                    We

have explicitly recognized that valid Terry stops may involve

“drawing weapons, handcuffing a suspect, placing a suspect in a

patrol   car     for    questioning,        or    using      or    threatening     to   use

force,” particularly if the officers “reasonably suspect[] that

[the   detainee        is]    armed   and    dangerous.”            United    States     v.

Elston, 479 F.3d 314, 320 (4th Cir. 2007) (internal quotation

marks omitted).              The specific circumstances of the detention

dictate whether the officers “exceed[ed] the limits of a Terry

stop.”    Id.

       Davis’s       detention    occurred        during     a    dangerous     take-down

operation in which the arresting officers had to ensure not only

their own safety, but also that of two undercover officers, the

many patrons at the busy BP station, and the suspected drug

dealers.        To    minimize    the      risk    of    a   shoot-out     or     physical

confrontation, they needed to restrain any potentially dangerous

persons until they could “verify or dispel” their suspicions

about them.       Based on Davis’s behavior, the officers could have

reasonably      suspected       him   of    being       McDuffie’s     drug     supplier.

They could have reasonably believed that Davis was dangerous,

                                             9
had a gun at the ready (as indeed he did), and was in an ideal

location to use that gun to attack them.                  The officers were

entitled to restrain Davis for the brief period necessary to

ascertain whether he actually posed a threat.

                                      B.

     The SRT officers legally searched Davis’s vehicle.                   The

police “may search a car without a warrant as long as there is

probable cause to believe the car contains contraband.”               United

States   v.    Carter,   300   F.3d   415,   422   (4th    Cir.   2002)   (per

curiam).      After seeing the marijuana in the door, the police had

probable cause to search the passenger compartment.                 Cf. id. 1

The district court did not err in admitting the evidence the

police gathered from their search.




     1
       The police also searched the trunk of the car and found a
gun inside. Although probable cause to search one area of a car
does not necessarily extend to the rest of the car, see Carter,
300 F.3d at 422, the district court held -- without explanation
-- that the marijuana bag in the car door gave the police
probable cause to search the entire car, including the trunk.
Davis did not (and does not) specifically challenge the search
of the trunk.   We need not now decide whether the officers had
probable cause to search the trunk. After finding a gun, drugs,
a digital scale, and cash in the passenger compartment, clearly
the police would have inevitably discovered the gun in the
trunk.   See United States v. Lynn, 592 F.3d 572, 583 n.7 (4th
Cir. 2010) (upholding a trunk search because after the police
found drugs and drug paraphernalia in the passenger compartment,
they had probable cause to arrest the defendant and perform an
inventory search of the vehicle, which would “inevitably have
led the officers to discover the [contraband] in the trunk”).


                                      10
                                  III.

     Davis also argues that the district court erred in several

of its evidentiary rulings.           We “review the district court’s

evidentiary rulings for abuse of discretion.”             United States v.

Delfino, 510 F.3d 468, 470 (4th Cir. 2007).              “A district court

abuses its discretion when it acts arbitrarily or irrationally,

fails to consider judicially recognized factors constraining its

exercise of discretion, relies on erroneous factual or legal

premises, or commits an error of law.”         Id.

                                      A.

     Davis    contends   that   the    court    erred    in    allowing   the

Government to introduce as evidence at the suppression hearing

written reports prepared by officers who did not testify at the

hearing.     Petr.’s Br. at 24.        However, the district judge did

not admit the evidence at the hearing, but rather asked for

briefing on whether he should do so.           In denying the motion to

suppress, the court never mentioned these reports.             Instead, the

court solely relied on “the evidence offered [and] the testimony

received”    at   the    suppression       hearing,     “and   the   court’s

determination as to the credibility of the witnesses.”               Because

nothing in the record indicates that the district court ever

admitted the written reports, we cannot conclude that it abused

its discretion in doing so.



                                      11
                                       B.

        Davis also, albeit briefly, argues that the court abused

its discretion in admitting into evidence exhibits regarding the

McDuffie-Hines       drug     transaction.     He    maintains     that     this

evidence “was not relevant . . . and was prejudicial.”                   Petr.’s

Br. at 23.         Specifically, Davis objects to Government Exhibits

26 and 26A, which consist of photographs of the cocaine from the

McDuffie-Hines drug sale, and the cocaine itself. 2

     “‘Relevant evidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it   would    be    without    the   evidence.”      Fed.   R.     Evid.     401.

“Although relevant, evidence may be excluded if its probative

value    is   substantially      outweighed   by    the   danger    of     unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”         Fed. R. Evid. 403.

     The cocaine from the McDuffie transaction placed in context

the discovery of Davis’s contraband and connected Davis to drug-


     2
       Davis also objects to Government exhibits that consist of
photographs of the gas station and photographs of the items
seized from Davis and his car, as well as the actual items. The
district court did not err in admitting this evidence.     As we
have explained, the police properly conducted the search and
seizure, and the court did not err in denying Davis’s motion to
suppress.


                                       12
selling     activity      (thereby          negating       the      argument       that    he

possessed     the    drugs      in   his     car      merely       for    personal     use).

Further, the court instructed the jury that the cocaine was “not

to be attributed to the possession of Mr. Davis for any reason”

and elaborated that “the charge against Mr. Davis doesn’t relate

to [the McDuffie] charge.”               We presume that jurors follow the

instructions    that      the    court       gives     them.         United      States    v.

Williams, 461 F.3d 441, 451 (4th Cir. 2006).                             Accordingly, the

district court did not abuse its discretion in admitting this

evidence.



                                            IV.

     Davis additionally contends that the district court erred

in refusing to give a jury instruction on the lesser-included

offense of simple possession.                     We review “a district court’s

decision     whether      to    give    a    jury      instruction         for    abuse    of

discretion.”        United States v. Kennedy, 372 F.3d 686, 698 (4th

Cir. 2004).

     Davis argues that the relatively small amount of cocaine

involved     (4.1    grams)      produces         a    fair      inference       of   simple

possession     and     therefore       entitles        him    to    a     lesser-included

offense    instruction.          Petr.’s      Br      at   27-28.        Our     holding    in

United     States    v.    Wright,       131       F.3d      1111    (4th      Cir.    1997)

forecloses    his     argument.         In     Wright,        the    police      found     the

                                             13
defendant with 3.25 grams of crack cocaine.                 Id. at 1112.        The

district     court    denied    the   defendant’s      request    for   a   simple

possession instruction.         Id.   We affirmed, explaining that

      [a] defendant is not entitled to a lesser-included
      offense instruction as a matter of course.    In order
      to receive a lesser-included offense instruction, the
      proof of the element that differentiates the two
      offenses must be sufficiently in dispute that the jury
      could rationally find the defendant guilty of the
      lesser offense but not guilty of the greater offense.
      . . .    For an element to be placed sufficiently in
      dispute so as to warrant a lesser-included offense
      instruction, one of two conditions must be satisfied.
      Either the testimony on the distinguishing element
      must be sharply conflicting, or the conclusion as to
      the lesser offense must be fairly inferable from the
      evidence presented.

Id. (internal quotation marks and citation omitted).

      Like Wright, Davis did not produce “sharply conflicting”

testimony as to the “distinguishing element,” Davis’s intent in

possessing the drugs.           Rather, he “presented no evidence from

which a reasonable jury could find that [his] intent was to

possess the cocaine for personal use.”               Id.   No one testified at

trial that Davis used drugs or possessed the cocaine “for any

purpose other than distribution.”            Id.

      Furthermore, again like Wright, Davis did not demonstrate

that possession was fairly inferable from the evidence, given

that the     amount    of   cocaine   “is    simply    insufficient     alone    to

require the lesser-included offense instruction requested.”                     Id.

at   1113.     In     Wright,   the   police       found   the   defendant    with


                                        14
cocaine,       a    razor        blade    with      cocaine        residue,       and    cash;   we

concluded that “[f]rom none of this evidence could a jury fairly

infer that [the defendant] possessed his crack for personal use

only.”      Id.         Similarly, the police found Davis with guns, a

scale,    plastic          baggies,          cocaine,       and    cash,     and    no    witness

testified that Davis used cocaine.                          The evidence simply did not

provide a fair inference of simple possession.

       Thus, the district court did not err in denying the request

for a lesser-included offense instruction.



                                                    V.

       Finally,         Davis        argues    that       the    district     court      erred    in

denying his motion for judgment of acquittal pursuant to Federal

Rule of Criminal Procedure 29.                           We consider de novo a district

court’s denial of a Rule 29 motion.                              United States v. Alerre,

430     F.3d       681,        693    (4th     Cir.       2005).       “In     reviewing         the

sufficiency of the evidence following a conviction, this court

views the evidence and the reasonable inferences to be drawn

therefrom          in   the      light       most    favorable       to     the    Government.”

United    States          v.    Lomax,       293    F.3d    701,     705    (4th    Cir.    2002)

(internal quotation marks omitted).                             If “any rational trier of

fact could have found the essential elements of the crime beyond

a     reasonable        doubt,”        the     appellant’s          sufficiency          challenge

fails.     Id. (internal quotation marks omitted).

                                                    15
      The   district         court     did     not    err    in     denying   the    Rule    29

motion as to Count One -- possessing cocaine, cocaine base, and

marijuana    with      the      intent    to    distribute,          in   violation    of    21

U.S.C. § 841(a)(1).             “To convict a defendant of possession with

the   intent      to   distribute,           the     government       must    prove:        (1)

possession of a narcotic controlled substance; (2) knowledge of

the   possession;         and    (3)     the    intent       to   distribute.”         United

States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).                                       The

prosecution    presented          evidence         that     Davis    knowingly      possessed

drugs, drug trafficking paraphernalia including digital scales

and plastic bags with the corners torn off, $320 in $20 bills,

and two guns.          Petr.’s Br. at 30.                 Detectives testified as to

the connection between those items and narcotic distribution.

That evidence provided a sufficient basis for a reasonable juror

to find possession with intent to distribute.

      The district court also did not err in denying the Rule 29

motion as to Count Two -- being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924.                                Davis

stipulated     to      being     a     felon,      and    the     prosecution       presented

evidence that Davis knowingly possessed two firearms.

      Nor   did     the    district       court       err    in     denying   the    Rule    29

motion as to Count Three -- using and carrying a firearm during

and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924 (c)(1)(A).                Section 924(c) “requires the government

                                                16
to present evidence indicating that the possession of a firearm

furthered,   advanced,   or   helped   forward   a   drug   trafficking

crime.”   Lomax, 293 F.3d at 705.      Although “whether the firearm

served such a purpose is ultimately a factual question,” this

court has noted several ways a firearm could further or advance

drug trafficking, including protection and intimidation.           Id.

In this case, the SRT officers found one of the guns underneath

the driver’s side floor mat, at Davis’s feet.          The jury could

reasonably infer that the presence of an illegally possessed and

easy-to-reach gun alongside indicia of drug distribution showed

that the gun furthered Davis’s drug trafficking.

     In sum, the district court did not err in denying Davis’s

Rule 29 motion.



                                 VI.

     For these reasons, we affirm the judgment of the district

court.

                                                              AFFIRMED




                                  17
