UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                No. 97-4994

ANDREW LINWOOD WOODSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-74)

Submitted: August 18, 1998

Decided: September 22, 1998

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen T. Harper, Bradford F. Johnson, JOHNSON & WALKER,
P.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, Mark Healy Bonner, UNITED STATES DEPART-
MENT OF JUSTICE, Richmond, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Andrew Woodson entered a conditional plea of guilty to a charge
of violating 21 U.S.C. § 841 (1994). His plea reserved his right to
challenge on appeal the district court's denial of his motion to sup-
press evidence. The circumstances leading to the discovery of the
inculpatory evidence arose on the evening of November 16, 1996.
Richmond police officers Michael Musselwhite, John O'Conner and
John O'Kleasky were patrolling in their vehicle near Decatur Street,
known by police to be an open-air drug market. As they approached
1917 Decatur, they observed Woodson standing and conversing with
another individual next to a van parked in front of the residence. The
officers were familiar with Woodson, having arrested him approxi-
mately five months earlier and having had contact with him about
once a week since that time.

The officers noticed that when Woodson saw them, he abruptly
broke off his conversation and broke into a very fast walk or slow run
toward the porch of the residence. The officers pulled over and got
out of the car. Officer O'Connor yelled, "hey, how's it going?"
Woodson turned toward the police, who could then see marijuana cig-
arettes protruding from his closed fist. Officer O'Conner then said,
"hey, man, if that's all you got is a little weed, maybe we can give
you a break." The district court credited the officers' testimony that
Woodson then said, "all right," and dropped the cigarettes and the
keys to the van which he held in his other hand to the ground.

The officers then arrested Woodson and searched him. During the
search they found over $1200 in cash, a plastic bag containing a large
off-white chunk of material later determined to be crack cocaine,
together with a razor blade, marijuana, two packets of rolling papers,
and a pager. The cigarettes Woodson dropped to the ground proved
to contain marijuana.

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Following a hearing, the district court denied Woodson's suppres-
sion motion, which argued that all the incriminating evidence against
Woodson was the product of an illegal search and seizure. The district
court held that the officers did not need a reasonable articulable suspi-
cion to merely approach Woodson, and that once they saw the mari-
juana cigarettes in his hand, they had probable cause to arrest him. All
evidence discovered after that point was recovered pursuant to a
search that was incident to a lawful arrest.

On appeal, Woodson avers that when the officers approached and
surrounded him on his front porch, they effectively seized him, invok-
ing Fourth Amendment protections. He contends that at the time he
was seized, the officers lacked an objectively reasonable articulable
suspicion that any criminal activity was afoot. Hence, all evidence
acquired after this point was the fruit of the poisonous tree.

In reviewing the denial of a motion to suppress evidence, we
review the district court's factual findings for clear error, and its ulti-
mate suppression decision de novo. United States v. Gordon, 895 F.2d
932, 937 (4th Cir. 1990). A person is seized when, under all the sur-
rounding circumstances, a reasonable person would not feel free to
leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980). A per-
son is not seized within the meaning of the Fourth Amendment when
he is merely approached by law enforcement officers in public and
asked questions to which he is willing to listen. Florida v. Royer, 460
U.S. 491, 497 (1983). Examples of circumstances that might indicate
a seizure include the threatening presence of several officers, the dis-
play of a weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled. Id.

Woodson alleges that the officers in this case wore uniforms and
badges, and displayed their weapons. Coupled with the fact that the
officers regularly stopped to talk to him, Woodson argues that a rea-
sonable person in his position would not have felt free to leave. The
record does not support, however, Woodson's allegation in his brief
that the officers "displayed" their weapons. The assertion appears to
stem from an officer's affirmative response at the hearing to an
inquiry by counsel as to whether his gun could be"seen." There was
no indication that any officer ever took his gun out of its holster.

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Given the absence of any display of weaponry, the factors dis-
cussed in Mendenhall do not weigh in favor of a finding that the offi-
cers seized Woodson merely by approaching him. Although Woodson
testified that one of the officers held his left arm and asked him to
open his hands, the district court could properly discredit this testi-
mony and accept the officers' version of the events, particularly since
the district court found other parts of Woodson's testimony "inher-
ently incredible," such as his claim that the $1200 found on his person
came from washing cars. Moreover, Woodson articulates no compel-
ling reason why familiarity with the officers would make a reasonable
person feel that he was not free to leave.

Law enforcement officers may lawfully arrest an individual with-
out a warrant for any offense committed in their presence. See United
States v. Watson, 423 U.S. 411, 418 (1976). We therefore agree with
the district court that when the officers observed that Woodson pos-
sessed marijuana, they had the right to arrest him. Further, after mak-
ing a valid arrest, the officers had the right to search Woodson
incident to that arrest. See New York v. Belton , 453 U.S. 454, 461
(1981).

Woodson also asserts that his dropping the marijuana amounted to
a nonverbal confession, which was elicited without proper warnings
under United States v. Miranda, 384 U.S. 436 (1966). We agree with
the Government's position on appeal, however, that this conduct was
irrelevant because at the point it occurred the officers had already
seen the marijuana in Woodson's hand. Accordingly, the judgment
order of the district court is affirmed. 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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