                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4758


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

SIDNEY STEVONS MITCHELL, a/k/a Sidney Stephon Mitchell,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00024-TDS-1)


Submitted:   July 7, 2014                Decided:   September 24, 2014


Before KEENAN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant.      Ripley
Rand, United States Attorney, Kyle D. Pousson, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Sidney   Mitchell    pleaded    guilty     to   being    a    felon     in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

The district court sentenced him to 26 months’ imprisonment.

      Mitchell contends that the district court erred in denying

his motion to suppress a firearm that a police officer found in

the car that Mitchell was driving. 1      The district court concluded

that the officer had reasonable suspicion to make a traffic stop

and probable cause to search the car.          We affirm.



                                     I.

      “We review legal conclusions made pursuant to a district

court’s   suppression     determination   de     novo,   but       review    the

underlying factual findings for clear error.”            United States v.

Seidman, 156 F.3d 542, 547 (4th Cir. 1998).                   We recite the

relevant evidence in the light most favorable to the government.

Id.

                                     A.

      At approximately 5:00 p.m. on November 20, 2012, Officer

Douglas Welch of the Durham, North Carolina Police Department

observed a car turn north onto South Roxboro Road.                     Welch’s


      1
        Mitchell entered a conditional plea of guilty,                      thus
preserving his right to appeal the district court’s ruling.



                                     2
attention was drawn to “[t]he darkness of the [car’s] window

tint,” which he suspected violated North Carolina law.                           J.A. 29.

He followed it to view the windows from several different angles

and compare them to those of other nearby cars. 2                          Welch had done

this        “hundreds”   of    times       during    his    ten    years    as   a   police

officer.         J.A. 30.

        After following the car for about a mile, Welch stopped it.

As he sat in his patrol car, Welch saw the “silhouette of the

driver bent over as if to place something on the floor or in

that direction or pick something up from that direction.”                              J.A.

34.         Welch then approached the car, and saw Mitchell in the

driver's seat, an adult in the passenger seat, and two children

in the backseat.            When Welch asked Mitchell for identification,

Mitchell avoided eye contact and appeared nervous.

       Welch ran Mitchell's name through a police database and

learned         that   Mitchell      had    prior     drug    and      firearm   arrests.

Mitchell also had alerts for being armed and dangerous, fleeing,

being       a   validated     gang   member,        and    being   a   STARS 3   offender.

Welch called for assistance, and Officer Watt responded.


        2
       According to Welch, “[i]t was fairly light out [and he]
had no trouble seeing.” J.A. 28.
        3
       The parties’ briefs explain that STARS is an offender
notification program, which informs prior felons of the
consequences of continued violations of the law, including
possession of a firearm.


                                              3
     Before Watt arrived, Welch again approached the car to test

the window tint.      To perform the test, Welch placed part of the

testing device on the interior of the driver’s side window.                          As

he performed the test, Welch noticed that Mitchell was sweating.

Welch also smelled the odor of burnt marijuana coming from where

Mitchell was seated. 4

     Welch   asked    Mitchell      if    he    had    been   smoking      marijuana.

Mitchell denied it.         Welch then directed Mitchell to get out of

the car.     At that point, Welch asked Mitchell for consent to

search   him.      Mitchell      raised    his       hands,   said    he   knew   “the

routine,” and Welch frisked him.                J.A. 59.      A subsequent search

of the car uncovered a small “residue” amount of marijuana on

the driver's side floorboard, which was too little to collect or

photograph, and a firearm underneath the driver's seat.                           J.A.

46-47.

                                          B.

     Mitchell moved to suppress the firearm found in the car.

After a hearing, at which Officer Welch testified, the district

court denied the motion.           The court determined that Welch had

reasonable      suspicion   to    believe       that    the   car’s    window     tint

violated   North    Carolina      law.         The    court   found   Welch     to   be


     4
       The test revealed that the window tint did not violate
North Carolina law.



                                          4
credible and reasoned that Welch’s belief as to the window tint

violation was based on his extensive prior experience in such

matters, as well as Welch’s comparison of the windows with those

of nearby cars.     The court also concluded that the odor of burnt

marijuana emanating from the car gave Welch probable cause to

search it.

     On appeal, Mitchell does not contest the validity of the

traffic stop.       Instead, he focuses on the lawfulness of the

subsequent search of the car, to which we now turn.



                                   II.

     Before an officer may search a car, he must first have

probable   cause.     California    v.   Acevedo,   500   U.S.   565,   580

(1991).    Probable cause exists when, based on the totality of

the circumstances, “there is a fair probability that contraband

or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983).          We have held that

an odor of marijuana emanating from inside a car is sufficient

to establish probable cause.       United States v. Scheetz, 293 F.3d

175, 184 (4th Cir. 2002).

     Mitchell contends that Welch’s testimony “was contradictory

or insufficient to form a basis for probable cause and justify

the warrantless search.”     Appellant's Br. at 15.         According to

Mitchell, the district court should not have credited Welch's

                                    5
testimony about this particular traffic stop because "an officer

conducting       so    many    stops      [for     window     tint   violations]     is

unlikely to remember all the significant details from each of

them."     Id. at 16.            He also argues that the district court

should    have    viewed       Welch’s     testimony    regarding      what    he   saw

inside    the     car      “with     great        skepticism.”         Id.     at   19.

Specifically,         Mitchell     says    that    Welch     could   not     have   seen

Mitchell’s movements in the car because he was “looking through

heavily tinted auto glass after sunset” 5 and not during “a clear

day with sufficient light.”                 Id.      Finally, Mitchell contends

that Welch's testimony about smelling burnt marijuana is not

believable because Welch failed to notice the odor of marijuana

when he first approached the car.

     At        bottom,        Mitchell's         arguments      challenge      Welch’s

credibility.          But “this court is generally reluctant to overturn

factual findings of the trial court, [and] this is doubly so

where    the    question      goes   to    the     demeanor    and   credibility     of

witnesses at trial, since the district court is so much better

situated to evaluate these matters.”                  United States v. D'Anjou,

16 F.3d 604, 614 (4th Cir. 1994).                  We find no cause to overturn

the district court’s factual findings in this case.

     5
       Mitchell points out that sunset in Durham, North Carolina
on November 22, 2012 occurred at 5:05 p.m., at or near the time
of the traffic stop.



                                            6
      To begin with, Mitchell fails to provide support for his

argument that Welch’s substantial experience with window tint

violations prevented him from remembering the details of this

particular traffic stop.         As a result, the district court was

free to credit Welch’s testimony.

      Mitchell’s attack on Welch’s ability to observe the events

he described at the hearing also fails.                The district court

heard and apparently credited Welch’s testimony that he saw the

driver bending over “as if to place something on the floor.”

J.A. 34.       And while we appreciate Mitchell’s contention that

Welch’s testimony is suspect given that the events in question

occurred at or near sunset, he never made this argument before

the district court.       We are generally loath to allow a party to

supplement the record with facts not presented to the district

court.    See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239

(4th Cir. 1989).        But even if we were to accept Mitchell’s

proffer as fact, it does not necessarily discredit Welch.               As a

matter    of   common   understanding,      daytime   does   not   “begin   at

sunrise or end at sunset, but includes dawn at the one end and

twilight at the other.”         United States v. Gosser, 339 F.2d 102,

111 (6th Cir. 1964) (internal quotation marks omitted).                Thus,

it   is   entirely   feasible    that   there   was   sufficient    light   at

sunset for Welch to see what he described.



                                        7
      Mitchell next emphasizes that Welch smelled the odor of

burnt marijuana only when he returned to test the car’s window

tint.       According    to    Mitchell,       such   an   odor    would     have    been

strongest when Welch first approached the car.                      He also contends

that the district court should have rejected Welch’s version of

the events given that the police failed to recover any marijuana

in the car.

      As it was free to do, however, the district court credited

Welch’s testimony that he first smelled the odor of marijuana

when he placed a part of the window tint testing device inside

the car. 6     Once the court found Welch believable on that score,

it   then    correctly   concluded    that       this      fact   alone      gave   Welch

probable cause to search the car.               See Scheetz, 293 F.3d at 184.



                                      III.

      For the forgoing reasons, we affirm the district court's

judgment.      We dispense with oral argument because the facts and

legal     contentions    are    adequately       presented        in   the    materials

before    this   court   and    argument       would    not   aid      the   decisional

process.

                                                                               AFFIRMED

      6
       The district court also credited Welch’s testimony that he
saw residue of marijuana in the car, but that it was too small
to collect.



                                           8
