                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4823



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


EUGENE ROSS COUSINS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00008-gec)


Submitted:   May 30, 2008                     Decided:   July 7, 2008


Before NIEMEYER and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,
Jr., Assistant Federal Public Defender, Christine Madeleine
Spurell, Research and Writing Attorney, Charlottesville, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Pursuant to a written plea agreement, Eugene Ross Cousins

entered a conditional guilty plea to two counts of distribution of

methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(c)

(West 1999 & Supp. 2008); two counts of possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A) (2000); and two counts of a drug user in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2)

(2000).   We have reviewed the record and find no reversible error.

           On November 19, 2004, Cousins was driving his car in

Waynesboro, Virginia.    Police Officer Kevin Miller heard a loud

noise coming from Cousins’ exhaust system and continued to hear it

even when the vehicle drove seventy feet away from Miller.        Miller

initiated a traffic stop because he suspected the exhaust system

violated Virginia law and Waynesboro city noise ordinances.        After

Miller approached the car, he saw a plainly visible firearm next to

the front console and initiated a search of the vehicle.         Cousins

was arrested after the search revealed a concealed firearm and drug

residue on a digital scale.       Cousins filed a pretrial motion to

suppress this evidence as well as statements made during the

vehicle stop, asserting that the stop was unconstitutional.        After

the   district   court   denied   the     motion,   Cousins   entered   a

conditional guilty plea reserving the right to challenge on appeal




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the district court’s denial of the motion to suppress the evidence

seized following the traffic stop.

              On appeal, Cousins renews his challenge to the traffic

stop, but also claims his arrest and the search of his car were

unconstitutional.       Because Cousins did not raise these claims in

the motion to suppress below, we find that they are not preserved

for appeal, Fed. R. Evid. 11(A)(2), and are otherwise waived. Fed.

R. Crim. P. 12(b)(3), (e); United States v. Ricco, 52 F.3d 58, 62

(4th Cir. 1995); see United States v. Lockett, 406 F.3d 207, 212

(3d Cir. 2005) (“[I]n the context of a motion to suppress, a

defendant must have advanced substantially the same theories of

suppression in the district court as he . . . seeks to rely upon in

this Court.”).     Therefore, we review only the constitutionality of

the initial stop.

              “[A]n officer may, consistent with the Fourth Amendment,

conduct   a    brief,   investigatory   stop   when   the   officer   has   a

reasonable, articulable suspicion that criminal activity is afoot.”

Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry v. Ohio, 392

U.S. 1, 30-31 (1968).*      To conduct a Terry stop, there must be “at

least a minimal level of objective justification for making the

stop.”    Wardlow, 528 U.S. at 123.       Reasonable suspicion requires


     *
      “Because an ordinary traffic stop is analogous to an
investigative detention, it has been historically reviewed under
the investigatory detention framework first articulated in Terry
. . . .” United States v. Delfin-Colina, 464 F.3d 392, 396 (3rd
Cir. 2006).

                                  - 3 -
more than a hunch but less than probable cause, and it may be based

on the collective knowledge of the police officers.        Id.   In

assessing police conduct in a Terry stop, courts must look to the

totality of the circumstances.    United States v. Sokolow, 490 U.S.

1, 8 (1989).

          All vehicles operated in Virginia must be equipped with

an exhaust system that “prevent[s] excessive or unusual levels of

noise.”   Va. Code Ann. § 46.2-1049 (2005 & 2007 Supp.).     Miller

testified the exhaust noise from Cousins’ car was unusual and

excessive in comparison to similar vehicles.     The district court

did not err when it found that this excessive and unusual noise

supported a reasonable and articulable suspicion of a violation of

§ 46.2-1049.

          Miller suspected Cousins altered the factory muffler to

produce more noise.   Cousins argues he did not alter his exhaust

system and therefore Miller erroneously conducted the traffic stop.

However, Miller could not see the exhaust system and decided to

investigate the possibility of a modified exhaust system due to the

excessive noise.   Any mistake by Miller in guessing the cause of

the exhaust noise did not eliminate his reasonable and articulable

suspicion that the exhaust system violated § 46.2-1049. See United

States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003)

(holding officer’s reasonable mistake of fact may provide the

objective grounds for reasonable suspicion).


                                 - 4 -
            Miller believed the exhaust system noise also violated

City of Waynesboro ordinances prohibiting loud noises coming from

a vehicle audible for over fifty feet.             The city ordinances do not

impose a distance requirement related to vehicle or exhaust noise,

but do categorize “loud and disturbing noises” from vehicles and

exhaust    discharge    as    a    public       nuisance    at    any     distance.

Waynesboro, Va., Code § 38.12(7)(d), (f) (2004).                 Miller’s mistake

as   to   the   specifics    of   the    ordinance    did   not     undercut   his

reasonable and articulable suspicion of a violation of a city

ordinance required to justify the traffic stop.

            Accordingly, we affirm Cousins’ conviction.                    We deny

Cousins’ motion to file a pro se supplemental brief.                    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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