                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-5078


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

LEONES LESANE,

                  Defendant - Appellant.



                              No. 11-5079


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

MARCUS GOODMAN,

                  Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.      Joseph F. Anderson, Jr.,
District Judge. (3:09-cr-00392-JFA-1; 3:09-cr-00392-JFA-2)


Submitted:   November 1, 2012               Decided:   November 15, 2012


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.


Cameron B. Littlejohn, Jr., Columbia, South Carolina; William W.
Watkins, Sr., Columbia, South Carolina, for Appellants. William
N. Nettles, United States Attorney, William K. Witherspoon,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Leones Lesane appeals from his conviction following a

guilty plea to conspiracy to possess with intent to distribute

cocaine base, in violation of 21 U.S.C. § 846 (2006).                    Lesane’s

codefendant,     Marcus    Goodman,       appeals     from   his        conviction

following a guilty plea to conspiracy to possess with intent to

distribute cocaine base, in violation of 21 U.S.C. § 846 (2006),

and   possession   with    intent   to      distribute    cocaine       base,    in

violation of 21 U.S.C. § 841(a)(1) (2006).                Their appeals were

consolidated.      Both Goodman and Lesane challenge the district

court’s denial of their motion to suppress evidence obtained

incident    to   their    arrests     and      the    qualification       of    the

Government’s agent as a potential expert witness.                  Goodman also

claims that the district court erred in finding him to be in

breach of his proffer agreement with the Government.

            Following     our   review    of    the    record,     we     directed

supplemental briefing on the validity of Goodman’s and Lesane’s

respective guilty pleas.         The parties have now submitted their

supplemental briefs, and the appeal is ripe for consideration.

For the following reasons, we affirm Lesane’s conviction and

sentence.     However, we vacate Goodman’s conviction and remand

for further proceedings consistent with this opinion.




                                      3
                                          I.

                                 Validity of pleas

            We first examine whether Goodman’s and Lesane’s guilty

pleas are valid and properly preserved the issues Appellants

seek to raise on appeal.



                                    A.    Goodman

            We conclude that Goodman’s plea failed to comply with

Rule 11(a)(2), which requires that a valid conditional guilty

plea   be    in     writing,      affirmatively          consented        to    by    the

Government, and approved by the district court.                          United States

v. Bundy, 392 F.3d 641, 645 (4th Cir. 2004).                             Although the

writing requirement may be excused when the record otherwise

clearly indicates the issues a defendant seeks to preserve, the

Government’s          and          the          court’s             approval          are

indispensable.        See id.       Further, in the absence of language

evincing Government consent in a written plea agreement, Rule

11(a)(2)    requires      an    affirmative       display      of    agreement       to   a

defendant’s conditional plea; assent should not be inferred from

the Government’s silence or inaction.               Id.

            Here,     although     the    district       court      clearly    approved

Goodman’s    conditional        plea     during    the    Rule      11   hearing,     the

Government     made    no      comment,    approving      or     otherwise.          Such

silence     from    the     Government,        despite      Government         counsel’s

                                           4
presence at Goodman’s Rule 11 hearing and lack of objection to

the conditional nature of the plea, is simply not sufficient to

satisfy Rule 11(a)(2), thus rendering Goodman’s conditional plea

invalid.      Consequently,       and    because       it    would     be   improper       to

consider     Goodman’s    failed    conditional         plea      as    a   knowing       and

voluntary     unconditional        plea,       we     vacate      his       judgment       of

conviction and remand to allow Goodman to reconsider whether, in

light of our decision, he desires to enter a plea of guilty or

proceed to trial.        See id. at 649.



                                   B.     Lesane

             Despite    initial    disagreement,            the   parties        now    agree

that Lesane’s plea properly preserved an appeal from the denial

of his motion to suppress.              Because both the Government and the

district court made express statements during Lesane’s Rule 11

hearing clearly indicating to him that he would be able to note

such an appeal, we conclude that Lesane may appeal from the

denial of his suppression motion.                    See United States v. Wood,

378   F.3d    342,   347-50   (4th       Cir.       2004)    (“[W]here       a    district

court’s mischaracterization of a material term is sufficiently

pervasive to alter a defendant’s understanding of the terms of

his   plea,    the     Government’s      affirmative          acquiescence         in    the

court’s explanation can serve to modify the terms of the plea

agreement.”); United States v. Martin, 25 F.3d 211, 217 (4th

                                           5
Cir.       1994).      Lesane     did       not,       however,   properly       preserve    an

appeal       from       the     district       court’s           qualification          of   the

Government’s agent as an expert, and therefore, he has waived

appellate review of the issue.                     See Bundy, 392 F.3d at 645.



                                               II.

                              Denial of motion to suppress

                  Turning to the denial of Lesane’s motion to suppress,

we review for clear error the factual findings underlying the

district court’s ruling and the court’s legal conclusions de

novo.        United States v. Foster, 634 F.3d 243, 246 (4th Cir.

2011).       We construe the evidence in the light most favorable to

the Government, the prevailing party below.                         Id.



                                  A.    Lesane’s seizure

                  Lesane first claims that his initial seizure, although

admittedly supported by a reasonable articulable suspicion of

criminal activity sufficient to justify a Terry 1 stop, went well

beyond a brief, investigatory detention, and amounted from the

outset       to    a   full    custodial       arrest,       unsupported         by   probable

cause.        See      Devenpeck       v.    Alford,       543    U.S.    146,    152    (2004)

(noting that warrantless arrest must be supported by probable

       1
           Terry v. Ohio, 392 U.S. 1, 22 (1968).



                                                   6
cause).       However,     Lesane    misinterprets       the   breadth      of   an

officer’s authority in conducting a lawful Terry stop.

          “Brief stops in order to determine the identity of a

suspicious    individual     or     to    maintain   the   status     quo    while

obtaining more information are permitted if reasonable in light

of the facts known to the officers at the time.”                 United States

v. Perate, 719 F.2d 706, 709 (4th Cir. 1983).                  During a Terry

stop, an officer may take actions that are reasonably necessary

to assure his safety and effectuate the investigatory purpose of

the   stop.      United     States       v.   Hensley,   469   U.S.   221,       235

(1985); United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir.

1995).                   Accordingly, we have repeatedly found that,

in situations in which officers are forced to approach a vehicle

in a high crime area that contains persons suspected of being

involved with the distribution of narcotics, it is certainly

reasonable for those officers to perceive a possible threat to

their safety, draw their weapons when approaching the vehicle,

order the occupants to exit, and perform a protective frisk of

those occupants, all without elevating the seizure to a full

custodial arrest.        See United States v. Rooks, 596 F.3d 204, 210

(4th Cir. 2010); United States v. Sakyi, 160 F.3d 164, 169 (4th

Cir. 1998); United States v. Stanfield, 109 F.3d 976, 984 (4th

Cir. 1997); Perate, 703 F.2d at 709.



                                          7
              Similarly,         the       fact       that        Lesane       was      immediately

handcuffed and was not free to leave did not convert his initial

seizure into a full arrest.                    See United States v. Elston, 479

F.3d   314,      319-20       (4th    Cir.     2007).             The    distinction        between

a Terry stop and an arrest is marked by the fact that a Terry

stop   must      last    no    longer       and       be   no     more       intrusive     than   is

necessary to confirm or dispel the seizing officer’s suspicions,

not by a suspect’s impression that he is unable to leave the

officer’s presence.             Id.        Accordingly, on the reasonable belief

that   a   suspect       may    be    dangerous,           as     justified        in    situations

involving narcotics, an officer may apply handcuffs to mitigate

that risk while effectuating a Terry stop.                              See United States v.

Newell, 596 F.3d 876, 879-80 (8th Cir. 2010) (approving use of

handcuffs in a Terry stop).

              Moreover,        as     to    the       duration          of    Lesane’s     initial

detention, the five-minute period during which he was handcuffed

before     his     attempted          flight      was        clearly         not     longer   than

necessary for the officers to confirm or dispel their suspicion

that     Lesane     might        be        involved          in     the       distribution        of

narcotics.              See United States v. Sharpe, 470 U.S. 675, 686

(1985).

              Here, Lesane does not contend that his seizure was

unreasonably delayed, and, considering circumstances analogous

to those at issue here, we have found periods of detention far

                                                  8
longer       than        five        minutes     to   be     constitutional.            See,

e.g., United States v. McFarley, 991 F.2d 1188, 1193-94 (4th

Cir. 1993) (upholding 38-minute detention).                            Accordingly, the

district         court    correctly       held    that     Lesane’s    seizure    did    not

ripen into a full custodial arrest until after he attempted to

flee the officers’ custody.



                                B.    Search of pickup truck

                 Lesane also argues that no exception to the warrant

requirement permitted the subsequent search of the pickup truck

that he and Goodman occupied immediately before their arrest.

We disagree with Lesane’s argument.

                 A police officer may make a warrantless arrest as long

as he has         probable cause to do so.                 United States v. Williams,

10 F.3d 1070, 1073 (4th Cir. 1993).                        Probable cause is present

when       the     “facts        and     circumstances        within    the      officer’s

knowledge” are enough to justify a prudent person’s belief “that

the suspect has committed, is committing, or is about to commit

an offense.” 2       Id. (internal quotation marks omitted).




       2
       The fact that Lesane was arrested for interfering with a
police investigation does not negate the fact that officers may
also have had probable cause to arrest him for a narcotics
offense.   See Devenpeck, 543 U.S. at 154-55; United States v.
McNeill, 484 F.3d 301, 311 (4th Cir. 2007).



                                                 9
                  Here, while officers were conducting a lawful Terry

stop,      Lesane     attempted      to    flee.     Even       disregarding      Lesane’s

subsequent          incriminating         statements,      we    conclude       that    such

circumstances            presented     probable     cause       to    support     Lesane’s

warrantless arrest on suspicion that he might be possessing or

distributing narcotics.               See United States v. Laville, 480 F.3d

187, 195 (3d Cir. 2007); United States v. Velazquez-Rivera, 366

F.3d 661, 664 (8th Cir. 2004); United States v. Dotson, 49 F.3d

227, 231 (6th Cir. 1995).

                 Incident     to      this    lawful       arrest,         officers     were

permitted to conduct a warrantless search of the vehicle from

which they seized Lesane so long as they had reason to believe

that       the     vehicle    might       contain    evidence         relevant    to     his

commission of a narcotics offense. 3                    See Arizona v. Gant, 556

U.S.       332,    351    (2009).         Because    the    circumstance         here   was

sufficient to support such a belief, the district court did not

err        in       so      finding        and      denying          the     motion       to

suppress.          See United States v. Vinton, 594 F.3d 14, 25 (D.C.

Cir. 2010).

                 Based on the foregoing, we affirm Lesane’s conviction

and sentence, but vacate Goodman’s judgment of conviction and

       3
       We assume without deciding that Lesane has standing to
challenge the search of the vehicle, a point that is not clear
from the district court’s record.



                                              10
remand his case for proceedings consistent with this opinion.

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 IN PART;
                                                          VACATED IN PART;
                                                              AND REMANDED




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