                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-4901


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

DAVID BRAXTON,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cr-00444-WDQ-1)


Argued:   September 22, 2011                 Decided:   November 30, 2011


Before WILKINSON, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion.     Judge Wilkinson wrote the
majority opinion, in which Judge Floyd joined. Judge Wynn wrote
a dissenting opinion.


ARGUED: Warren Eugene Gorman, Chevy Chase, Maryland, for
Appellant. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
WILKINSON, Circuit Judge:

     Appellant David Braxton was convicted after trial of one

count of possession of a firearm by a convicted felon.                  Because

of the nature of his prior convictions, Braxton was subsequently

given an enhanced sentence under the Armed Career Criminal Act.

Braxton raises multiple issues in this appeal, including (among

others) denial of his suppression motion, the ineffectiveness of

his counsel, and violations of his statutory and constitutional

rights to a speedy trial.      We now affirm.



                                      I.

     On May 17, 2006, in Baltimore, Maryland, Baltimore City

Police Officer Richard Allen observed a vehicle passing him with

dark tinted windows.    Officer Allen’s radio check of the license

plates   revealed   further    that    the   tags   belonged     to    another

vehicle.    After double-checking this information, Officer Allen

obtained the assistance of two nearby plainclothes officers, and

stopped the car.     Officer Allen observed four occupants in the

vehicle, and he approached the driver while one of the backup

officers,   Baltimore   City     Police      Officer   Kenneth        Williams,

approached the passenger side.         Braxton was seated in the front

passenger seat, and Officer Williams reported that, although the

other passengers were complaining about being stopped, Braxton

“looked very just nervous.”

                                      2
     After      discovering       that     the    driver    of    the    vehicle         had    a

provisional      license,     which       did     not    permit    him       to    carry       the

passengers in the vehicle, Officer Allen asked everyone to get

out of the car.            When Braxton stepped out, Officer Williams

advised him that he needed “to pat [him] down for weapons for

safety.”         While     frisking       Braxton,       Officer     Williams           felt    a

handgun,       prompting    him     to     yell    “Gun,”    to    alert          his   fellow

officers to the danger of the situation.                         Braxton then elbowed

Officer Williams in an attempt to escape, but he was subdued

after a struggle with Officer Williams and another assisting

officer.

     Braxton was indicted by a grand jury in the District of

Maryland on March 15, 2007 on one count of possession of a

firearm    by     a    convicted         felon    in     violation       of       18    U.S.C.

§ 922(g)(1).          The case was assigned to Judge J. Frederick Motz

and set for trial.           Because Officer Allen deployed to Iraq in

October 2007, the Government was forced to ask for continuances

until,    on    September     16,    2008,       Judge    Motz    decided         to    deny    a

further    continuance        and     to     dismiss       the    indictment            without

prejudice.

     On September 17, 2008, the grand jury returned a second

indictment of Braxton for the same felon-in-possession charge,

and the new case was assigned to Judge William D. Quarles.                                     On

October    10,    2008,     Braxton       filed    new     motions      to    dismiss       the

                                             3
indictment and to suppress the gun discovered during the traffic

stop.     Those motions remained pending until March 16, 2009, the

first day of trial, when the district court held a brief hearing

and denied the motions.          Braxton was convicted after a three-day

jury trial.

      At his sentencing hearing on September 4, 2009, Braxton

objected to his classification as an armed career criminal under

18    U.S.C.    § 924(e).        He        conceded      that     two   of    his   prior

convictions qualified as “serious drug offense[s],” but disputed

the   status    of   a   third   prior       offense.           After   the     government

produced a certified conviction and certified charging document,

the district court rejected Braxton’s objection and sentenced

him to 235 months’ imprisonment.                 This appeal followed.



                                            II.

        We begin with Braxton’s claim that the district court erred

in refusing to suppress the firearm found by Officer Williams

during    the    pat-down.       Because           the   district       court    properly

concluded that the encounter was a Terry stop, see Terry v.

Ohio, 392 U.S. 1 (1968), not a consensual encounter, the frisk

may     only    be   justified        if     two     independent        criteria     were

satisfied.      First, the police must have a reasonable suspicion

“that criminal activity may be afoot,” id. at 30, in order to

make the stop in the first place.                        Second, the police must

                                             4
similarly have reasonable suspicion “that the persons with whom

[they    are]     dealing    may    be    armed     and    presently      dangerous”         in

order    to     justify     “a    carefully       limited       search    of     the       outer

clothing of such persons in an attempt to discover weapons.”

Id.     This bifurcated analysis has led to separate terms for the

permissible       police    actions:        the    “Terry      stop”     and    the    “Terry

frisk,” see, e.g., Florida v. J.L., 529 U.S. 266, 272-73 (2000).

      In      considering        Braxton’s        challenge      to     the     suppression

ruling, we consider the district court’s factual findings solely

for clear error, but we review legal determinations de novo.

See United States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003).

When a suppression motion has been denied, “[w]e construe the

evidence in the light most favorable to the Government.”                               United

States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

                                             A.

        Here,      the      district        court         properly        analyzed          the

justification for the investigative stop of the vehicle, finding

explicitly       that     “[t]he     lack    of     an    appropriate          tag    on    the

vehicle, of course, is an appropriate basis for the Terry stop.”

Indeed,    Braxton       does     not    challenge       the    stop     itself      in     this

appeal.         He does challenge the appropriateness of the frisk,

however, and there, the district court did err.

      In discussing the frisk, the district court appears to have

misspoken,        repeating        the    standard        for     the     stop        as    the

                                             5
appropriate analysis for the frisk: “[W]hen there is reasonable

suspicion of the passenger’s participation in criminal activity,

then Terry does permit a frisk of the passenger.”                        Further, this

conflation of the two steps of Terry analysis was error; the

district    court       should    have        stated      that   “the   officers . . .

needed    reasonable,      articulable             suspicion     that   [Braxton]    was

armed and dangerous.”            United States v. Brown, 401 F.3d 588, 592

(4th Cir. 2005).

                                              B.

     But the district court’s failure to articulate the proper

measure of a Terry frisk does not necessarily entitle Braxton to

relief.     In considering the suppression ruling, “[w]e are not

limited to evaluation of the grounds offered by the district

court to support its decision, but may affirm on any grounds

apparent from the record.”                United States v. Smith, 395 F.3d

516, 519 (4th Cir. 2005).               Here, the district court explicitly

found    that    the    police    had     a    reasonable        “suspicion   that   the

Defendant may have been involved in the theft of a car” -- a

conclusion amply supported by the testimony about the license

plates    that    did    not     belong       to    the    vehicle,     heavily   tinted

windows on the car, Braxton’s nervousness about the arrival of

the police (especially in contrast to the boisterousness of the

other passengers), and the nature of the area in which the stop

occurred.

                                               6
     None      of     these    primary      facts      are    in     dispute,      much     less

clearly erroneous.            While in some cases the circumstances of an

investigative stop would not supply the rationale for a Terry

frisk, in others, the circumstances leading to the stop would

bear directly upon the reasonableness of the subsequent Terry

frisk.     Such is the case here.               It seems unnecessary, therefore,

to remand to the district court to reiterate what the court’s

findings have already revealed -- that Officer Williams had a

reasonable       suspicion         that    Braxton      was        armed    and    dangerous.

After all, as the District of Columbia Circuit has emphasized,

“car theft is a crime that often involves the use of weapons and

other    instruments          of    assault     that     could          jeopardize    officer

safety,    and      thus    justifies       a   protective          frisk    under    Terry.”

United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007).

     The cases to this effect are legion.                                See, e.g., United

States    v.    Garcia-Rivera,            353   F.3d    788,       791     (9th    Cir.   2003)

(approving       pat-down          when    “[i]nability        to        provide    proof     of

registration        gives     rise    to    suspicion         of    a    stolen    vehicle”);

United States v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003)

(“[L]aw enforcement could infer the vehicle might be stolen, and

as possible car thieves [defendants] might possess weapons.”);

United States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003)

(holding       that    defendants          “might      have    stolen        the    car     and,

therefore, might have weapons in the car that they used during

                                                7
the    theft    or     had     available     in      case     they    were     discovered”);

United States v. Tuggle, 284 Fed.Appx. 218, 227 (5th Cir. 2008)

(“[W]hen       [defendant]’s         conduct         reasonably       suggested        that    he

might    be     part    of       that     auto-theft        ring,     the      officers      were

justified      in    fearing        for    their      safety.”);         United      States   v.

Williams,      7     Fed.Appx.      876,     885      (10th    Cir.      2001)       (Officer’s

“frisk of [defendant] for weapons . . . was permissible under

Terry” in light of “the objectively reasonable suspicion that

the van was stolen.”)               United States v. Bradley, 1990 WL 124205

at *2 (6th Cir. 1990) (“It was reasonable for the officer to

believe that appellant, who was suspected of having recently

been    involved       in    a     car     theft,      might      have    been       armed    and

dangerous.”)

       It is not at all a bad thing for trial courts to dot the

“i” and cross the “t”, and the court should have done so here.

But    the    factual       finding       that   the       officers      had    a    reasonable

“suspicion      that     the     Defendant       may    have      been    involved      in    the

theft    of     a      car,”      together       with       the      other     circumstances

surrounding the encounter, leave the record sufficiently clear

that    the    proper       Terry    standard        was    satisfied.          We    may    thus

affirm the ultimate ruling of admissibility notwithstanding the

fact that the criteria for the Terry stop and Terry frisk should

have been independently articulated and applied.



                                                 8
      Contrary     to   the   dissent’s    assertion,    we     are    not

“making . . . findings on a cold appellate record.”           Post at 23.

The   district     court   made   the   critical   finding    that    this

particular defendant may have been involved in auto theft, and

that a Terry frisk was therefore justified.          In accord with a

variety of other courts, we merely hold that a factual finding

that the defendant is a potential car thief supports the legal

conclusion that there is reasonable suspicion that he is armed

and dangerous. 1




      1
       This court’s decision in United States v. Powell, ___ F.3d
___, No. 08-4696 (4th Cir. Nov. 14, 2011), is not to the
contrary.    In Powell, we held that a defendant’s criminal
history and misrepresentations about his driver’s license were
insufficient to justify a Terry frisk. See id. (slip op. at 11,
14). This case presents substantially different facts. At the
very outset, the stop in Powell was for a burned-out headlight,
whereas here the car in which Braxton was a passenger had
license plates that did not match the vehicle -– a much greater
indication that a serious crime was afoot in addition to being a
traffic violation.     When executing the stop, the police in
Powell confronted a “relatively safe” situation in which there
were more officers present than passengers in the car, and there
was no evidence that the area where the stop occurred was itself
notably dangerous.    See id. (slip op. at 10-11).      Here, the
officers were both outnumbered and conducted the stop in a more
treacherous area.    Finally, while the stop was underway, the
defendant in Powell was “amicable [and] cooperative,” id. (slip
op. at 11), whereas the district court here made the express
finding that Braxton could have been involved in the theft of
the car that the police had stopped –- an immediate crime of a
serious nature that six other circuits have held presents a
sufficiently inherent risk of confronting an armed and dangerous
suspect that a Terry frisk is justified.


                                    9
                                          C.

     In affirming the district court, we recall as well that a

frisk is justified by the “‘legitimate and weighty’ interest in

officer safety,” Arizona v. Johnson, 129 S. Ct. 781, 786 (2009)

(quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)) -- a

different     purpose         than     “investigating           possibly       criminal

behavior,” Terry, 392 U.S. at 22, that justifies a stop in the

first place.     That protective interest is not attenuated because

Braxton was a passenger and not the driver of the vehicle.                          For

as the Supreme Court has noted, “the motivation of a passenger

to employ violence to prevent apprehension of such a crime is

every bit as great as that of the driver.”                   Maryland v. Wilson,

519 U.S. 408, 414 (1997).

     Here,      the    officers        confronted       a   dangerous         situation

presenting numerous indicia of criminal activity.                             They were

outnumbered     by    the   passengers     in    a    vehicle    bearing      bad   tags

traveling through a dangerous area with darkly tinted windows.

While   “[w]e    do     not    exclude     the       possibility     that      in   some

circumstances     a    patdown    is    not    required[,].      .   .   we    hesitate

before criticizing [Officer Williams’s] choice of the means to

protect himself in emergent circumstances on the street from the

relative calm and safety of chambers.”                  United States v. Casado,

303 F.3d 440, 448-49 (2d Cir. 2002) (citing Graham v. Connor,

490 U.S. 386, 396 (1989)).

                                          10
      Proper adherence to the standards of Terry does not require

us to gamble with the lives of police officers who exercise

reasonable      judgment   in   fulfilling    their    duty   in    the   trying

situation presented by a roadside car stop.                The Supreme Court

has long noted that “investigative detentions involving suspects

in   vehicles     are   especially   fraught        with   danger   to    police

officers.”      Michigan v. Long, 463 U.S. 1032, 1047 (1983) (citing

Mimms, 434 U.S. 106).           Officer Williams executed a minimally

intrusive frisk, justified at the time by a reasonable suspicion

that he and his fellow officers were in a situation that could

escalate and place both the officers and the occupants of the

car at risk.        Where the totality of circumstances supports a

reasonable suspicion that Braxton was “armed and dangerous,” the

absence of those three talismanic words, while error, is not

fatal to the district court’s ruling in this case.



                                     III.

      Second, Braxton asserts that his original attorney provided

him with ineffective assistance of counsel by failing to conduct

an   adequate    investigation    during     plea   negotiations.         Braxton

does not assert that the trial that resulted in his present

conviction was unfair, only that his counsel’s failure to obtain

a recording of police radio communications induced him to reject

a favorable guilty plea and exercise his right to trial.                      We

                                      11
note that the Supreme Court is currently considering the broader

question Braxton’s appeal implicates -- whether a defendant is

ever prejudiced by going to trial rather than accepting a guilty

plea, even if that decision results from deficient performance

of counsel -- in two consolidated cases.                         See Lafler v. Cooper,

131 S. Ct. 856 (No. 10-209) (2011); Missouri v. Frye, 131 S. Ct.

856 (No. 10-444) (2011).                  We need not await the resolution of

those cases, however, because Braxton’s appeal may be rejected

on    much       narrower     grounds;      specifically,         we    agree    with    the

district court that Braxton’s counsel’s performance did not fall

“below an objective standard of reasonableness.”                             Strickland v.

Washington, 466 U.S. 668, 688 (1984).

      Braxton’s claim derives from the failure of his counsel to

obtain       the     “KGA      tape,”       a        recording     of     police      radio

communications during an incident.                      Braxton’s counsel requested

(but did not subpoena) a copy of the tape from the government,

but   was    told     that     the    tape      no     longer    existed.        This     was

consistent with the prior experience of Braxton’s counsel, who

knew that KGA recordings are typically only kept for a short

period      of     time     after    an    incident.        Braxton’s         counsel    did

subpoena     the     “CAD     report,”     a    written    summary      of    those     radio

communications.

      The CAD report erroneously contained inconsistencies with

the testimony of Officer Allen, reporting that he only requested

                                                12
a check of the vehicle’s license plates after initiating the

Terry stop.        Braxton’s counsel discussed with him the options

this presented for seeking suppression of the firearm recovered

in that stop and for impeaching the testimony of the police

officers involved.           During this time, the government offered

Braxton two separate plea agreements, one for a federal charge

of possession of a stolen gun and one for a state firearms

charge.     During both negotiations, Braxton’s counsel recommended

that he accept the plea offers.                    Braxton ignored this advice and

rejected the deals, proceeding to trial apparently in the belief

that the inconsistencies in the CAD report might lead to his

acquittal.

     Later,       however,       the    KGA    tape       was   discovered,      to     the

surprise    of    both     the   government         and     Braxton’s    counsel.       The

recording      confirmed     Officer      Allen’s         account   of   the    order    in

which events transpired, essentially eliminating the impeachment

value of the CAD report.

     Braxton       simply    cannot       show       that    his    counsel    performed

deficiently.       First, and most plainly, Braxton acted against the

advice of counsel in rejecting the guilty pleas.                         While it is an

open question before the Supreme Court whether a defendant is

prejudiced when he follows the erroneous advice of counsel to

seek a trial, Braxton rejected counsel’s wise advice to plead

guilty    --     counsel    knew       that,   even       before    emergence    of     the

                                              13
damaging KGA tape, Braxton’s chances of success at trial were

bleak.     In essence, Braxton seeks to blame his counsel, who gave

him good advice, for not giving that advice well enough.                         We

will not permit the buyer’s remorse of a defendant who insists

on going to trial to impugn the sound advice of his attorney

that he pursue the more prudent path of the plea bargain.

       Second, Braxton’s claim boils down to the assertion that it

was ineffective for his counsel merely to have “requested” the

KGA tape, rather than subpoenaing it.               While it is doubtful that

a     subpoena   would    have   actually      brought      forth   the    evidence

sought, since the government was, at that time, also unaware

that the tape was available, the distinction between a request

and a subpoena is not one of constitutional moment here.

       The Court in Strickland did not require that counsel employ

every investigative technique imaginable, but rather held that

“strategic choices made after less than complete investigation

are     reasonable       precisely     to     the   extent     that       reasonable

professional         judgments       support          the     limitations        on

investigation.”          Strickland,    466    U.S.    at   690-91.        Braxton’s

counsel reasonably believed -- based on long experience as a

Federal Public Defender -- that the tape would not be available.

He took the precautionary step of requesting it anyway, and,

when told the tape did not exist, counsel subpoenaed the CAD

report as the next best evidence of what transpired.                  It was not

                                        14
a deficiency of Braxton’s counsel that the CAD report did not

accurately     record    when    in    the     course    of    the    encounter    the

request for a license plate check was made, nor was it subpar

performance for Braxton’s counsel to believe the government’s

representation    that    the    KGA     tape    did    not    exist.     In   short,

Braxton’s    counsel’s    actions      throughout       fell    “well    within    the

range of professionally reasonable judgments.”                   Id. at 700.



                                         IV.

      Third, Braxton asserts violations of both his statutory and

constitutional rights to a speedy trial.

                                         A.

      The Speedy Trial Act, 18 U.S.C. § 3161, provides that a

defendant shall be brought to trial “within seventy days from

the   filing   date     (and    making    public)       of    the    information   or

indictment, or from the date the defendant has appeared before a

judicial officer of the court in which such charge is pending,

whichever date last occurs.”             Id. § 3161(c)(1).           Braxton asserts

that because it was almost three years from his arrest until his

trial, he suffered an impermissible delay.                    But the statute also

provides that “delay resulting from any pretrial motion, from

the filing of the motion through the conclusion of the hearing

on, or other prompt disposition of, such motion” is excludable



                                         15
from the 70-day window.         Id. § 3161(h)(1)(D).         Braxton’s case

was brought well within this window.

     Braxton’s initial appearance on the first indictment took

place on September 24, 2007.        His first set of motions was filed

twenty-nine    days   later,   on   October   23,    2007.   Those   motions

remained pending until the dismissal of his first indictment on

September 17, 2008.      He was then reindicted, and had his initial

appearance on that charge on September 24, 2008.             His second set

of motions was filed sixteen days later, on October 10, 2008.

Those motions were pending until their resolution on the first

day of trial, March 16, 2009.         Giving the defendant the benefit

of any doubt and combining both the twenty-nine day period on

the first indictment and the sixteen day period on the second

indictment, only 45 total non-excludable days of the permissible

70 elapsed -- well within the permissible bounds of the Speedy

Trial Act. 2

                                     B.

     Braxton also alludes to the constitutional requirement of a

prompt trial under the Sixth Amendment.             We employ the four part


     2
       Braxton contends, with no supporting authority, that this
time should not be excluded because the motions were “simple.”
This court has been clear, however, that when a trial court
defers resolution of a pretrial motion until the trial itself,
all pending time may properly be excluded under the Act, and
there is “no requirement that this time be justified as
reasonable.”   United States v. Riley, 991 F.2d 120, 124 (4th
Cir. 1993).

                                     16
test established by the Supreme Court in Barker v. Wingo, 407

U.S. 514 (1972), to evaluate this claim.                   The factors to be

considered are (1) the length of the delay; (2) the reason for

the delay; (3) whether the defendant timely asserted his right;

and (4) whether delay prejudiced the defendant’s case.                    Id. at

530.

       First, the delay here amounted to almost exactly two years

from the initial indictment until the beginning of trial.                  While

that time period is long enough to merit further examination of

the Barker factors, it is consistent with other cases in which

this court has found no Sixth Amendment violation.                  See, e.g.,

United States v. Hall, 551 F.3d 257 (4th Cir. 2009).

       Second, the reason for the delay was eminently reasonable:

a key law enforcement witness had been called up for deployment

to Iraq.     It is particularly jarring for Braxton to describe

Officer Allen’s absence -– occasioned by military service to

this    nation    overseas   --    as   due   to    “negligence    or    lack   of

diligence” on the part of the government.                 In all events, this

court has been clear that “a missing witness” qualifies as a

“valid reason for delay” by the prosecution.               Id. at 272.

       Third, Braxton only first raised this claim on February 9,

2009,    hardly    a   prompt     insistence       on   strict   observance     of

constitutional timeliness requirements.



                                        17
     Lastly,    Braxton      points    to    no   way   in   which    he     was

prejudiced.     He shows no evidence that was lost.             He makes no

demonstration   that   his    case    was   harmed   other   than   the    naked

assertion that “[h]e had witnesses who were originally available

that may have been helpful.”            None of this approaches Barker

error, and we affirm the district court’s rejection of Braxton’s

constitutional speedy trial claim. 3




     3
        Braxton raises three other claims that are equally
meritless.   First, he claims that his second indictment should
have been reassigned to Judge Motz rather than newly distributed
to Judge Quarles, speculating that he was prejudiced because
Judge Motz “may have made a different ruling” on Braxton’s
motions.   No legal authority entitles Braxton to a particular
jurist, and his speculation as to rulings is as irrelevant as it
is unsupported.
     Second, Braxton asserts that his Fifth Amendment rights
were violated by failure of the government to resubmit his case
to the grand jury after Judge Motz dismissed the initial
indictment.   This contention is false.    The September 17, 2008
second indictment was plainly returned by the grand jury,
bearing the “True Bill” designation.
     Finally, Braxton asserts that the district court erred in
considering one of his Maryland narcotics convictions as a
predicate under the Armed Career Criminal Act. The government,
however,   provided   certified   documents   showing   that  the
convictions were for qualifying felonies under Maryland state
law.   Further, Braxton has made no showing other than his own
assertion   that  the   Maryland   conviction  was   in  any way
uncounselled, a point his primary brief does not raise and that
in no way justifies overturning the reasoned sentencing
conclusions of the district court.

                                      18
                               V.

     Finding each of Braxton’s claims to be without merit, the

judgment of the district court is

                                                     AFFIRMED.
WYNN, Circuit Judge, dissenting:

      This case involves the patdown search of a passenger in,

not the driver of, a vehicle.              Recently, in Arizona v. Johnson,

the Supreme Court held:             “To justify a patdown of the driver or

a passenger during a traffic stop, however, just as in the case

of a pedestrian reasonably suspected of criminal activity, the

police     must    harbor      reasonable       suspicion       that     the     person

subjected to the frisk is armed and dangerous.”                        555 U.S. 323,

327 (2009).

      The majority opinion agrees that the record in this matter

shows    conclusively       that    the   district     court    made    no     findings

regarding whether Defendant, the passenger in this case, was

armed and dangerous.           Ante at p.6.       Even further, the majority

opinion agrees that the district court erred in holding that the

officers were justified in patting down the passenger based only

on the “suspicion that the Defendant may have been involved in

the theft of a car.”         J.A. 30.

      However,     whereas     the    majority    sees    the    district       court’s

erroneous conclusion as a mere harmless failure to “dot the ‘i’

and     cross   the    ‘t,’”    I    consider    the     error    to     be     both    a

misstatement and, more importantly, a misapplication of binding

Supreme Court precedent.             For a patdown search to be justified,

Arizona    v.     Johnson    explicitly      requires     a     finding       that     the

officer     had    a    reasonable        suspicion      that    this     particular

passenger was armed and dangerous.               555 U.S. at 327.              Not only
did the district court fail to make any such a finding, no

evidence exists in this case that would be sufficient for this

Court to assume the role of a trial court and make such finding

in its stead.           I must therefore, with great respect for the

differing view of my colleagues, dissent.

       It is important to note that the district court here did

correctly observe that “merely being a passenger in a car that

was stopped does not necessarily give the Government the right

to frisk one.”         Volume I, Transcript of Motions Hearing, at 120,

United States v. Braxton, Case No. 1:08-cr-00444-WDQ-1 (Mar. 16,

2009) [hereinafter referred to as “Transcript”].                                Likewise, our

own Court’s case law provides that “[b]ecause a frisk or ‘pat

down’ is substantially more intrusive than an order to exit a

vehicle    or    to    open     its   doors,       .     .       .    an   officer    must   have

justification         for   a   frisk    or    a       ‘pat          down’   beyond    the   mere

justification for the traffic stop.”                             United States v. Sakyi,

160 F.3d 164, 169 (4th Cir. 1998) (emphasis added).                                      Despite

this     clear    precedent,          under        the       majority’s         holding,     any

passenger in a vehicle with bad license tags could be subjected

to   a   patdown       search,    even    absent             a       finding   of     reasonable

suspicion that particular individual is armed and dangerous, if

the vehicle is stopped in a high-crime area.

       To support this extension of the law, the majority states:

“In accord with a variety of other courts, we merely hold that a

                                              21
factual      finding    that    the      defendant          is   a    potential      car    thief

supports the legal conclusion that there is reasonable suspicion

that he is armed and dangerous.”                       Ante p. 9.          But the “variety”

of   cases    relied    upon        by   the     majority        generally       involved       the

search of the driver, not the passenger, see United States v.

Bullock, 510 F.3d 342 (D.C. Cir. 2007), and United States v.

Garcia-Rivera,         353    F.3d       788     (9th       Cir.      2003),    or   otherwise

entailed additional extenuating circumstances, see United States

v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) (search of the

vehicle’s interior); United States v. Shranklen, 315 F.3d 959,

963 (8th Cir. 2003) (patdown of passenger was with consent);

United States v. Tuggle, 284 F. App’x 218, 227 (5th Cir. 2008)

(search was not in context of a Terry stop but in course of

ongoing      investigation);         and       United       States     v.    Williams,      7    F.

App’x    876,   885    (10th        Cir.    2001)       (stop      became      detention,       and

passenger’s inability to answer questions suggested he might be

involved in the theft of the vehicle).

      In this case, the record shows that the officers stopped

the vehicle because it had an incorrect license tag, had heavily

tinted    windows,      and    was       being        driven     in    a    high-crime      area.

Those observations constituted the justification for the traffic

stop.     Thus, at the time the vehicle was stopped, Defendant was

merely    a   passenger        in    a     car    stopped        by    police    for    traffic

infractions.           The     police       had        no    information         that      linked

                                                 22
Defendant to the alleged theft of the tags or that the vehicle

itself was even stolen.

     To    be    sure,     the      record       includes     Officer       Williams’s

testimony regarding Defendant’s “nervousness.”                     But the district

court   made    no   findings       with    respect    to     that     testimony,      or

concerning Officer Williams’s statement that he conducted the

patdown search of Defendant for “officer safety.”                        In short, the

district     court   made      no    findings       regarding      whether      Officer

Williams had a reasonable suspicion that Defendant was armed and

dangerous.       Indeed,       beyond      the    findings     about      the   traffic

infractions that justified the stop of the vehicle, the district

court made no reference whatsoever to Defendant or his conduct,

and certainly not that he was a “potential car thief” or even

specifically     that    the     suspected        criminal    activity      was      “auto

theft,” rather than the theft of a license plate.                    Ante p. 9.

     Under these circumstances, this Court should not seek to

create a particularized “justification . . . beyond the mere

justification for the traffic stop,” Sakyi, 160 F.3d at 169,

namely,    Defendant’s      “nervousness           about     the   arrival      of     the

police,” ante p. 6.            Making such findings on a cold appellate

record,    particularly        those       that     rest     on    the     credibility

determinations of witnesses, falls well outside the proper role

of this Court:

     Factfinders exist for definite purposes, one of which
     is to observe the demeanor of [witnesses] . . . .
                               23
       Appellate courts are well-positioned to determine
       whether a factual finding is without support in the
       evidence; we are much less able simply to overturn a
       factfinder on a question on which two views of the
       evidence are possible. . . .      Factfinders routinely
       resolve discrepancies between evidentiary sources, and
       by being able to observe testimony first-hand, they
       are in the best position to do so.

Harris v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of

Labor, 3 F.3d 103, 106-07 (4th Cir. 1993).            See also Anderson v.

City of Bessemer City, 470 U.S. 564, 573 (1985) (“In applying

the clearly erroneous standard to the findings of a district

court sitting without a jury, appellate courts must constantly

have in mind that their function is not to decide factual issues

de novo.” (quotation marks and citation omitted)).

       It is worthwhile to remember that we have long resisted

engaging in such fact-finding, even when it might be expedient

for reasons of judicial economy, and even when the evidence is

undisputed:

       We are unwilling to . . . substitute fact finding at
       the appellate level for fact-finding at the trial
       level.   The fact-finding responsibility has long been
       recognized as one for the trial court and sound
       practice suggests strict observance of this division
       of responsibility between trial and appellate courts
       except in the most exceptional circumstances.

Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985).                  See also

United States v. Stevenson, 396 F.3d 538, 543 (4th Cir. 2005)

(“If   appellate   courts   were   to   begin   the   practice   of   making

competitive findings with respect to undisputed or documentary

evidence, they would usurp the trial function . . . .”).
                                24
       Here, while there was “testimony about the license plates

that did not belong to the vehicle, heavily tinted windows on

the    car,    [Defendant’s]       nervousness    about    the    arrival      of   the

police, . . . and the nature of the area in which the stop

occurred,”      ante     p.   6   (emphasis    added),    there    are    no   actual

findings      by   the    district    court    about     these    critical     facts,

particularly with respect to Defendant’s failure to make eye

contact, or whether Officer Williams’s concerns for his safety

were       reasonable    or   particularized      to   Defendant. 1        Hindsight

cannot be the judge of such behavior.                     See United States v.

Martinez-Fuerte, 428 U.S. 543, 565 (1976) (noting that a purpose

of the Fourth Amendment is to “prevent hindsight from coloring

the evaluation of the reasonableness of a search or seizure”).

       On this record, it cannot be discerned why the district

court failed to make the necessary findings.                       It is entirely

possible       that     the   district    court    heard       Officer    Williams’s

testimony,      the     Government’s     reasoning,      and    defense   counsel’s

       1
       In fact, some of Officer Williams’s testimony suggests
that his safety concerns were generalized and not specific to
Defendant or his behavior. When he first heard the radio call,
before he had even seen Defendant or gotten to the location of
the traffic stop, he recalled that “four occupants in a vehicle
in that area, bad tags, and, based on working in that area for .
. . six years prior to that incident, that usually means some
criminal activity possibly involved.”    J.A. 17.    After noting
that Defendant seemed nervous during the stop, he testified that
he told Defendant, “‘Sir, I’ve got to pat you down for weapons
for safety,’ given the totality of the whole situation and my
dealings with bad tags and individuals in that area.” J.A. 19.


                                          25
arguments, and found the stated justifications for a suspicion

of   Defendant’s        being    armed      and    dangerous      did    not     meet    the

standard of reasonable suspicion.                     Perhaps the district court

instead only found it reasonable for Officer Williams to have

suspected Defendant was engaged in criminal activity.                                  Under

clear     Supreme   Court        precedent,        that     is    not     the    required

justification for a patdown search of a passenger in a vehicle

subjected to a Terry stop.

      Likewise,     I    can    find     no   support      in    the    record    for    the

majority opinion’s statement that, “Braxton then elbowed Officer

Williams in an attempt to escape, but he was subdued after a

struggle with Officer Williams and another assisting officer.”

Ante p. 3.     The transcript shows that Officer Williams recalled

that Defendant “attempted to elbow me to get me off of him.”

Transcript, at 56.         Nothing in the record indicates that Officer

Williams stated that Defendant made “an attempt to escape.”

      To the contrary, Officer Williams testified under cross-

examination that the police report was incorrect if it reflected

that Defendant “attempted to push [Officer Williams] back and

run” and that in fact Defendant complied with Officer Williams’s

request to get out of the vehicle and put his hands up, allowing

Officer    Williams      to     pat   him     down.       Transcript,      at    61.      He

further agreed that “any insinuation in the police report” that

Defendant did not comply was incorrect.                   Id. at 62.

                                              26
      Moreover,        because       Defendant’s    “nervousness”         is    the    sole

factor     particularized             to   him     and     not     related        to     the

justification for the Terry stop, that conduct is the linchpin

of whether the search in question was reasonable.                              See, e.g.,

Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s

presence    in    an    area     of    expected    criminal      activity,        standing

alone, is not enough to support a reasonable, particularized

suspicion that the person is committing a crime.”).                             See also

Terry v. Ohio, 392 U.S. 1, 21 n.18 (1968) (“This demand for

specificity      in    the     information       upon    which    police       action     is

predicated       is    the     central     teaching      of    this     Court’s      Fourth

Amendment jurisprudence.”).                As such, the appellate fact-finding

engaged    in     by     the     majority     on    this       point    is     especially

inappropriate.

      I note as well that we have previously recognized that mere

nervousness is not necessarily suspicious behavior.                            See United

States v. Massenburg, 654 F.3d 480, 489 (4th Cir. 2011) (“Given

the   complex     reality       of    citizen-police          relationships       in    many

cities, a young man’s keeping his eyes down during a police

encounter seems just as likely to be a show of respect and an

attempt    to    avoid       confrontation.”).           The    panel    in    Massenburg

further    quoted      the     following     persuasive        language       from     other

courts:

               [I]t is common for most people to exhibit
          signs of nervousness when confronted by a law
                                27
         enforcement officer whether or not the person is
         currently engaged in criminal activity.      Thus,
         absent signs of nervousness beyond the norm, we
         will discount the detaining officer’s reliance on
         the   detainee’s  nervousness  as  a   basis   for
         reasonable suspicion.

       [United States v. Salzano,] 158 F.3d 1107, 1113 (10th
       Cir. 1998) (internal quotation marks and citations
       omitted).    See also State v. Lee, 265 Neb. 663, 658
       N.W.2d 669, 678–79 (2003) (“[N]ervousness is of
       limited value” to reasonable suspicion analyses as “it
       is   common    knowledge  that  most   citizens   whether
       innocent    or   guilty,  when  confronted   by   a   law
       enforcement     officer  who   asks   them    potentially
       incriminating questions are likely to exhibit some
       signs of nervousness.”).

Massenburg, 654 F.3d at 490.           Even Officer Williams conceded

that “different people react different ways when the police show

up.”    Defendant’s supposed nervousness, or failure to make eye

contact, is hardly a definitive indicator of dangerousness.

       Had the front-seat passenger in this case been the driver’s

grandmother, whom the driver had perhaps just picked up to go

shopping, rather than Defendant, then her nervousness may well

have been deemed typical, rather than suspicious, behavior.                  And

yet, I can find no evidence in this record to suggest that this

particular    Defendant   had   any   more   knowledge   that   the    car    in

which    he   was   a   passenger     was    stolen   than   the      driver’s

grandmother might have.

       Nothing indicates that the vehicle to which the license

plate actually belonged was stolen just prior to the traffic

stop, or that the vehicle appeared to be attempting to flee the

                                      28
police, or that there was any information that more than one

individual was responsible for the theft.                   Moreover, the radio

call mentioned only that the tags did not match the vehicle, not

that       the   vehicle    itself     was    stolen.     See   United    States    v.

Foster, 634 F.3d 243, 248 (4th Cir. 2011) (“[A]n officer and the

Government        must     do   more    than     simply   label    a   behavior     as

‘suspicious’ to make it so.              The Government must also be able to

either articulate why a particular behavior is suspicious or

logically demonstrate, given the surrounding circumstances, that

the behavior is likely to be indicative of some more sinister

activity than may appear at first glance.”); United States v.

Powell, No. 08-4696, ___ F.3d ___, ___, 2011 U.S. App. LEXIS

22795 (4th Cir. Nov. 14, 2011) (holding that the district court

should have suppressed evidence seized during a patdown search

of a passenger during a traffic stop despite the passenger’s

prior       criminal     record   for    armed    robbery   and     his   “purported

deliberate        misrepresentation          concerning   the     validity   of    his

driver’s license”). 2           See also Terry, 392 U.S. at 21-22 (noting


       2
       Unlike the district court in this case, the district court
in Powell explicitly held that “the officers had reasonable
suspicion that [Defendant] was armed and dangerous and were thus
entitled to frisk him.”   ___ F.3d at ___, 2011 U.S. App. LEXIS
22795, *2. This Court’s analysis in Powell thus rightly focused
instead on the question of whether the evidence supported such a
conclusion.

     In so focusing, this Court also recognized the danger of
“cobbling together a set of facts that falls far short of
(Continued)
                              29
that police officers must have “specific and articulable facts”

to justify a search, as “[a]nything less would invite intrusions

upon constitutionally guaranteed rights based on nothing more

substantial than inarticulate hunches”).

       In sum, the district court’s error was not some harmless

conflation    of    the   two   standards    under    Terry.    Rather,    the

district    court   misstated     and   applied   the   wrong   standard   to

determine    the     constitutionality       of   a   search,    a   possible

violation of one of the rights we hold most dear.               The majority

nonetheless makes its own findings to uphold the search in this

matter on the basis that the reasonable suspicion that Defendant

may have been involved in the theft of a car is sufficient to

pass   constitutional      muster,   when    combined   with    an   appellate

court’s finding of “nervousness,” the sole factor particularized

to Defendant.       Such a conclusion, and the legal gymnastics it




establishing reasonable suspicion.” Id. at ___, 2011 U.S. App.
LEXIS 22795, at *3.     Quoting Foster, Massenburg, and United
States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011), as examples
of cases in which “the Government failed to meet its minimal
burden of articulating facts sufficient to support a finding of
reasonable suspicion,” this Court vacated the judgment against
Powell on the same grounds.    Id. at ___, 2011 U.S. App. LEXIS
22795, *2-*3.

     Thus, the most critical distinction from Powell is that in
this case it is this Court, rather than the district court, that
is “cobbling together a set of facts that falls far short of
establishing reasonable suspicion.” Id. at ___, 2011 U.S. App.
LEXIS 22795, *3.


                                        30
entails, is plainly contrary to the Supreme Court’s holdings in

Terry   and   Johnson,    as   well    as   our   own   Court’s   precedent

concerning     the       propriety     of     appellate      fact-finding.

Accordingly, I must respectfully dissent.




                                      31
