     Case: 12-10339       Document: 00512105481         Page: 1     Date Filed: 01/08/2013




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

                                                                            FILED
                                                                          January 8, 2013
                                     No. 12-10339
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DEMARCUS SMITH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CR-111-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Demarcus Smith appeals from his conditional guilty plea conviction for
felony possession of a firearm, arguing that the district court erred by denying
his motion to suppress. We hold that, pursuant to a waiver contained in his plea
agreement, Smith has waived all arguments raised in his briefs other than those
relating to “his specific Fourth Amendment claim that the police officers’ initial
encounter with him was an unlawful detention.” See United States v. Melancon,
972 F.2d 566, 567-68 (5th Cir. 1992) (holding that a defendant may waive his

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-10339

statutory right to appeal as part of a valid plea agreement if the waiver is
knowing and voluntary).
      In reviewing the denial of a suppression motion, this court reviews the
district court’s factual findings for clear error and its legal conclusions de novo.
United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). “A factual
finding is not clearly erroneous as long as it is plausible in light of the record as
a whole.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). In
making its determination, this court may consider all of the evidence presented
with regard to the suppression motion in the light most favorable to the
prevailing party, which in this case is the Government. United States v. Zavala,
541 F.3d 562, 574 (5th Cir. 2008).        “Where a district court’s denial of a
suppression motion is based on live oral testimony, the clearly erroneous
standard is particularly strong because the judge had the opportunity to observe
the demeanor of the witnesses.” United States v. Santiago, 410 F.3d 193, 197
(5th Cir. 2005).
      The legality of a traffic stop is analyzed under the two-part test articulated
in Terry v. Ohio, 392 U.S. 1, 18-20 (1968). Lopez-Moreno, 420 F.3d at 430. The
court must evaluate (1) whether the officer’s action was “justified at its
inception,” and (2) whether the officer’s subsequent actions were “reasonably
related in scope to the circumstances which justified the interference in the first
place.” Id. (internal quotation marks and citation omitted).
      Smith fails to show that the district court clearly erred by crediting the
testimonies of Dallas Police Department Officers Darrell Womack and Jason
Kimpel stating that they had witnessed Smith commit two traffic violations prior
to the stop at issue. Id. at 429. As for Smith’s argument that the traffic stop
was merely pretextual, such arguments based upon the motivations of officers
are foreclosed. See Whren v. United States, 517 U.S. 806, 813 (1996); United
States v. Castro, 166 F.3d 728, 734 (5th Cir. 1999) (en banc). Because the officers



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                                  No. 12-10339

witnessed traffic violations committed by Smith, the traffic stop was justified at
its inception. See Lopez-Moreno, 420 F.3d at 430.
      Smith fails to show that the officers’ act of pulling their vehicle behind
Smith’s was not reasonably related to the traffic stop. See id. Even if the
officers had drawn their weapons, which they denied having done, “the mere act
of drawing or pointing a weapon during an investigatory detention does not
cause it to exceed the permissible bounds of a Terry stop or to become a de facto
arrest.” United States v. Sanders, 994 F.2d 200, 207 (5th Cir.1993). Although
Smith contends that certain questions posed by Officer Womack were improper,
the mere posing of these questions did not violate Smith’s Fourth Amendment
rights. See United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004) (en
banc). Moreover, Officer Kimpel’s running of a computer check on Smith’s
driver’s license, during which Kimpel discovered that the license was suspended,
was permissible as part of a valid traffic stop. See Brigham, 382 F.3d at 507-08.
Smith fails to show that the district court erred by holding that the traffic stop
at issue did not violate his Fourth Amendment rights. See Lopez-Moreno, 420
F.3d at 429-30.
      AFFIRMED.




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