                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4221


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DAVID LAMONT HENSON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:07-cr-00053-LHT-1)


Submitted:    November 2, 2009              Decided:   November 13, 2009


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 David    Lamont     Henson         appeals      his        convictions      and

concurrent         sentences        of        fifty-seven        months’        imprisonment

following        his     guilty    plea   to     two    counts        of    possession      of    a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006).                                      On

appeal, Henson argues that the checkpoint stop leading to the

seizure of evidence against him was unconstitutional. *                                 Finding

no reversible error, we affirm.

                 On September 12, 2006, officers working in the central

patrol district in Asheville, North Carolina, decided to conduct

a license checkpoint at a five-way intersection in a primarily

commercial area that had generated significant complaints and

traffic violations.               The checkpoint was approved by supervisors

and conducted pursuant to a Special Operations Plan (“SOP”) that

gave       the   officers    authority         to     direct    patrols       in     designated

challenge         areas    defined       by    traffic      violations         or    community

complaints.            Approximately          seven    marked     police       cruisers      and

officers         wearing      reflective            vests      were        present     at    the

checkpoint.         All vehicles passing through the intersection were

stopped to verify license and vehicle registration information.




       *
       Henson’s plea agreement reserved his right to appeal the
denial of his motion to suppress.



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                In accordance with the SOP of stopping each vehicle

that passed through the intersection, Traffic Safety Officer Don

Eberhardt stopped a van driven by Monica Davis.                      Upon inquiring

for a driver’s license from Davis, the officer noticed an open

container of beer in the center console.                 Davis did not produce

a driver’s license, for which she later received a citation.

When       Officer    Eberhardt       questioned      Davis,    the     front      seat

passenger, Henson, repeatedly interfered with the conversation,

attempting to answer questions posed to Davis.

                Officer Eberhardt instructed Davis to accompany him to

the rear of the van and ordered Henson to place and keep his

hands      on   the   dash.      As   Officer    Eberhardt     was    speaking     with

Davis, he observed Henson furtively place an unknown item under

the    front     passenger      seat.      Concerned   about    the    presence      of

contraband or a weapon, Officer Eberhardt ordered Henson to exit

the van.         A pat-down search of Henson revealed 167 tablets of

methadone       and   a   .22    caliber    pistol.      A   search     of   the    van

revealed a modified shotgun under the front passenger seat.                          A

subsequent search of Henson’s house executed pursuant to a pre-

trial release warrant uncovered additional firearms.

                Henson filed a motion to suppress all of the evidence

seized during the checkpoint stop and subsequent search of his

home, contending the checkpoint was unconstitutional.                        Pursuant

to    28    U.S.C.    § 636     (2006),    the   district    court    referred     the

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suppression      matter        to     a     magistrate          judge.           Following       a

suppression      hearing,      the    magistrate             judge   recommended      denying

the   motion.       After       considering             Henson’s     objections       to     the

magistrate judge’s report and recommendation, the district court

adopted    the   magistrate         judge’s        recommendation          and    denied     the

motion to suppress.

            On appeal, Henson contends the vehicle checkpoint stop

was   a   violation       of    his       Fourth        Amendment     right       against       an

unreasonable search and seizure.                       We review the factual findings

underlying the denial of a motion to suppress for clear error

and the legal conclusions de novo.                           United States v. Johnson,

400 F.3d 187, 193 (4th Cir. 2005).                          We construe the evidence in

the light most favorable to the Government, the prevailing party

below.     United States v. Seidman, 156 F.3d 542, 547 (4th Cir.

1998).

            Stopping       a    vehicle       at        a    checkpoint     constitutes          a

seizure of a person within the meaning of the Fourth Amendment.

Michigan    Dep’t   of     State          Police       v.    Sitz,   496   U.S.     444,     450

(1990).    “A search or seizure is ordinarily unreasonable in the

absence of individualized suspicion of wrongdoing.”                                  City of

Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).                                  However, the

Supreme Court has recognized “limited circumstances in which the

usual rule does not apply.”                  Id.         With respect to roadblocks,

the   Supreme     Court    has       upheld        a    suspicionless       seizure        at   a

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checkpoint      aimed    at   intercepting         illegal    immigrants,      United

States v. Martinez-Fuerte, 428 U.S. 543, 566-67 (1976), and a

sobriety checkpoint aimed at combating drunk driving, Sitz, 496

U.S. at 455.          In addition, the Supreme Court has suggested in

dicta    that    a    roadblock     to   question      all   oncoming   traffic     to

verify    drivers’       licenses    and    vehicle      registration     with    the

interest of serving highway safety would be permissible under

the Fourth Amendment.            See Delaware v. Prouse, 440 U.S. 648, 663

(1979).         However,      checkpoints        set    up   for   general       crime

prevention,          including      drug       interdiction,       do    not      pass

constitutional muster under the Fourth Amendment.                       Edmond, 531

U.S. at 41-42; see also United States v. Morales-Zamora, 974

F.2d 149, 151-53 (10th Cir. 1992) (holding that stop at drivers’

license checkpoint was invalid because it was a pretext to check

for drugs).

               This court has noted with approval a traffic safety

stop      in     which     police        checked       drivers’     licenses      and

registrations.         See United States v. Brugal, 209 F.3d 353, 357

(4th Cir. 2000) (observing that “courts have concluded that a

brief stop at a checkpoint for the limited purpose of verifying

a driver’s license, vehicle registration, and proof of insurance

is a reasonable intrusion into the lives of motorists and their

passengers even in the absence of reasonable suspicion that a

motorist or passenger is engaged in illegal activity”).                          Other

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courts    have    upheld      similar   checkpoints.         United     States     v.

Fraire, 575 F.3d 929, 932-35 (9th Cir. 2009); United States v.

Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir. 1998); United

States v. McFayden, 865 F.2d 1306, 1310-13 (D.C. Cir. 1989),

abrogated in part by United States v. Davis, 270 F.3d 977, 981

(D.C. Cir. 2001).

            In determining the constitutionality of a checkpoint,

the court must inquire into both the primary purpose and the

reasonableness of the checkpoint.              If the primary purpose of the

checkpoint       was   to     advance   “the    general     interest    in    crime

control,” Edmond, 531 U.S. at 48, it is per se invalid under the

Fourth Amendment.           United States v. Faulkner, 450 F.3d 466, 469-

70 (9th Cir. 2006); Mills v. Dist. of Columbia, 571 F.3d 1304,

1312 (D.C. Cir. 2009).            If the primary purpose was valid, the

court must then judge the checkpoint’s reasonableness on the

basis of individual circumstances.                Illinois v. Lidster, 540

U.S. 419, 426 (2004).           This requires balancing “‘the gravity of

the public concerns served by the seizure, the degree to which

the seizure advances the public interest, and the severity of

the interference with individual liberty.’”                   Id. at 420, 427

(quoting Brown v. Texas, 443 U.S. 47, 51 (1979)).                      Factors to

weigh    intrusiveness        include   whether   the     checkpoint:        (1)   is

clearly visible; (2) is part of some systematic procedure that

strictly limits the discretionary authority of police officers;

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and (3) detains drivers no longer than is reasonably necessary

to   accomplish         the      purpose     of      checking          a     license        and

registration,         unless     other    facts     come    to    light          creating    a

reasonable suspicion of criminal activity.                        McFayden, 865 F.2d

at 1311-12 (citing Prouse, 440 U.S. at 662; Martinez-Fuerte, 428

U.S. at 558-59; Brown, 443 U.S. at 51).

             With      this     framework    in     mind,      after       reviewing      the

parties’     briefs      and     the     materials      submitted          in    the     joint

appendix, we find the district court did not err in accepting

the recommendation of the magistrate judge and in concluding

that the primary purpose of the checkpoint was not general crime

control, but rather to promote traffic safety by allowing police

to   check      drivers’       licenses    and     vehicle      registration.             The

court’s      reasonableness         determination          with    respect          to      the

checkpoint       is    also      sufficiently       supported       by       the       record.

Therefore, the district court properly denied Henson’s motion to

suppress on the ground that the checkpoint stop did not violate

Henson’s Fourth Amendment rights.

             Accordingly,         we      affirm     Henson’s       convictions             and

sentence.       We dispense with oral argument because the facts and

legal    contentions       are    adequately       presented      in       the     materials

before    the    court     and    argument      would    not     aid       the   decisional

process.

                                                                                    AFFIRMED

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