                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4922



UNITED STATES OF AMERICA,

                    Plaintiff - Appellant,

          v.

DARIUS LAMONT GALLOWAY,

                    Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00036-F)


Argued:   March 18, 2008                    Decided:   April 17, 2008


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, WILLIAMS, Chief
Judge, and HAMILTON, Senior Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Anne Margaret Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellant.   Debra Carroll Graves, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: George
E. B. Holding, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant.       Thomas P.
McNamara, Federal Public Defender, Stephen C. Gordon, Assistant
Federal Public Defender, Eric J. Brignac, Research and Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

     The government appeals the district court’s order suppressing

several inculpatory statements made by defendant Darius Lamont

Galloway (Defendant) following his warrantless arrest on various

drug and gun charges. Pursuant to Defendant’s motion, the district

court suppressed the post-arrest inculpatory statements based upon

its legal conclusion that the police officers lacked probable cause

to   arrest    Defendant,   and   therefore,   Defendant’s      post-arrest

inculpatory statements were suppressible as fruits of the poisonous

tree.

     Because    we   conclude   probable   cause   supported    Defendant’s

arrest, we hold Defendant’s post-arrest inculpatory statements were

not suppressible as fruits of the poisonous tree.        Accordingly, we

vacate the district court’s suppression order and remand for

further proceedings consistent with this opinion.



                                    I.

     The following facts are largely derived from the district

court’s suppression order, none of which we find clearly erroneous.

In January 2006, Detective Heath Little of the Columbus County,

North Carolina Sheriff’s Department (Detective Little) received a

telephone call from a man named Brent Best (Best).             At the time,

Detective Little had known Best for five to six years, and Best had

proven to be a reliable informant to law enforcement in the past


                                   - 3 -
regarding illegal drug trafficking activity in the area.            During

the call, Best informed Detective Little that Defendant had been

selling illegal drugs from his (Best’s) home, located at 578 Spring

Hill Drive, Whiteville, North Carolina.         In addition to Best’s tip

concerning   Defendant’s     illegal     drug   trafficking,    a   second

informant,   this   one   confidential    and   unidentified,   contacted

Detective Little and confirmed that Defendant had been selling

illegal drugs at Best’s residence.1

     Although Detective Little promptly passed on this information

regarding Defendant to his immediate supervisor, Sergeant Steve

Worthington (Sergeant Worthington), Detective Little did not act

upon it until the early afternoon of February 2, 2006, when he and

Sergeant Worthington paid a visit to Best’s residence.          The visit

was prompted by Detective Little witnessing Defendant earlier that

same morning driving a Honda Accord following directly behind Best,

who was driving a white Toyota truck.

     Upon arriving at Best’s residence, a single wide mobile home

located in an open field, Detective Little and Sergeant Worthington

saw Best’s white Toyota truck and Defendant’s Honda Accord parked

in the backyard.     Defendant was seated in the passenger side of

Best’s truck with the door open, his right foot on the ground, and


     1
      Defendant was familiar to Detective Little, because Detective
Little had previously arrested Defendant in December 2004 on
charges undisclosed in the record. During a suppression hearing
concerning such charges, Defendant alleged that Detective Little
had used excessive force during the arrest.

                                 - 4 -
moving his hands near the floorboard of the truck.                   The officers

saw a third individual, John Ford, standing in the front yard of

Best’s    residence.     Detective       Little     exited     the   vehicle     and

approached Best, while Sergeant Worthington exited the vehicle and

approached Defendant.      Neither officer spoke with Ford.

     Best consented to a search of his residence and his white

Toyota    truck.      Detective    Little     and   Best     then    entered     the

residence,    where    Detective    Little     noticed     a    strong    odor    of

marijuana.    Detective Little asked Best whether there were any

illegal drugs in the residence or if marijuana had recently been

used.     Best responded in the negative to both questions.                    Upon

searching the residence, Detective Little found scales and a box of

plastic bags.

     When Sergeant Worthington approached Defendant, he explained

that the officers were there to conduct an investigation regarding

possible illegal drug trafficking.           Sergeant Worthington, who knew

Defendant from their high school days, walked toward the rear of

Best’s residence.       As they did so, Defendant explained that he

needed to set things straight and wanted to speak with Detective

Little.    At the same time, Defendant denied having any illegal

drugs on his person or in his Honda Accord.

     Sergeant      Worthington     and   Defendant     then     entered    Best’s

residence, where Detective Little and Best were still located. The

officers then asked Best to step outside, which he did.                  Sergeant


                                     - 5 -
Worthington also went outside to search Best’s white Toyota truck.

At this point, Defendant spontaneously told Detective Little that

he wanted to do the right thing and desired to work with law

enforcement officers to set someone up. Defendant appeared nervous

and was sweating.           A consensual search of Defendant’s vehicle

turned up no contraband.

       Meanwhile, Sergeant Worthington searched Best’s white Toyota

truck and found a paper bag containing marijuana on the dashboard

and a holstered handgun under the front passenger seat where

Defendant had been sitting and moving his hands around when the

officers pulled up at Best’s residence.                Armed with this newly

discovered contraband, Sergeant Worthington went back inside Best’s

residence, whereupon he showed the contraband to both Detective

Little and Defendant.          As soon as Defendant saw the paper bag

containing the marijuana and the holstered handgun, he shook his

head and reiterated that he wanted to make things right and

cooperate with law enforcement.

       At   this   point,    Sergeant   Worthington     placed   Defendant    in

handcuffs, but told him that he was not under arrest.                Sergeant

Worthington then went back outside to finish searching Best’s white

Toyota truck.      The search uncovered yet more evidence of illegal

drug    trafficking    activity     under     the   front   passenger   seat.

Specifically,      Sergeant     Worthington    found    a   Crown   Royal    bag

containing cocaine base (crack) and cocaine powder.


                                     - 6 -
       Thereafter, the officers arrested Defendant and Mirandized

him.       See Miranda v. Arizona, 384 U.S. 436 (1966).              After signing

a   written     waiver   of    rights   form,     Defendant    made    inculpatory

statements, including admissions that he purchased the illegal

drugs found during the search of Best’s white Toyota truck from an

individual named Big Mike in Robeson County and that he had a deal

with Big Mike on a weekly basis where he would buy “what they call

a big eight, which is four and a half ounces of cocaine.”                   (J.A.

37).

       At the time of the June 2007 suppression hearing in this case,

Detective Little had been employed by the Columbus County Sheriff’s

Office for seven years, and had been a narcotics detective for four

years.       Sergeant Worthington had been employed by the Columbus

County Sheriff’s Office for eight years and had been conducting

narcotics investigations for approximately six years.

       A    federal   grand    jury     charged    Defendant    by    superseding

indictment with possession of fifty grams or more of a mixture

containing       crack   and    unspecified       quantities   of     cocaine   and

marijuana with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1); possession of a firearm by a convicted felon, in

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

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

§ 924(c)(1)(A).




                                        - 7 -
      Defendant     moved    to    suppress      his    post-arrest    inculpatory

statements on the ground that such statements constituted the

tainted fruits of his unlawful arrest in violation of the Fourth

Amendment.     Following the filing of further motion papers and an

evidentiary hearing on the matter, the district court granted

Defendant’s     suppression        motion     and      denied    the   government’s

subsequent     motion   for       reconsideration.          The    district       court

concluded that Defendant’s arrest was not supported by probable

cause.   First, the district court concluded that the tips provided

to Detective Little by Best and the other confidential informant,

which tips the district court characterized as vague, were “not

substantially corroborated by the officers’ observations and did

not establish probable cause.”              (J.A. 83).          The district court

emphasized that the illegal drugs and holstered handgun were found

in Best’s white Toyota truck and concluded that “[i]t was not

reasonable     to   believe       that   [Defendant]       had    possessed       [the]

narcotics and [the] firearm.”               (J.A. 84).           Additionally, the

district court reasoned that Defendant’s “nervousness and comments

regarding his desire to ‘do the right thing’” could be explained by

his   “prior   interaction        with    Detective      Little.”         (J.A.    84).

Ultimately, the district court concluded:                 “Under the totality of

the   circumstances,        the   officers’      assumption       [that    Defendant

possessed the illegal drugs and the holstered firearm] did not




                                         - 8 -
amount to probable cause to arrest [Defendant] for actual or

constructive possession of the firearm and narcotics.”                Id.

     The government now appeals the district court’s order granting

Defendant’s      motion   to   suppress        his   post-arrest    inculpatory

statements, seeking vacature of such order and a remand for further

proceedings.



                                        II.

     The    Fourth     Amendment   to    the    United    States   Constitution

provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.”           U.S. Const. amend. IV.            Under well

settled case law, Defendant’s warrantless arrest at issue in this

appeal was permissible under the Fourth Amendment if probable cause

existed    for   the   officers    to   reasonably       believe   that   he   had

committed a felony. Maryland v. Pringle, 540 U.S. 366, 370 (2003);

Wong Sun v. United States, 371 U.S. 471, 479 (1963).

     Here, Defendant’s warrantless arrest was premised upon his

possession of the holstered handgun found under the passenger seat

of Best’s white Toyota truck in furtherance of a drug trafficking

crime, 18 U.S.C. § 924(c)(1)(A), his possession of the same firearm


                                    - 9 -
while in his status as a convicted felon, id. § 922(g)(1), and his

possession of the illegal drugs found under the passenger seat of

Best’s white Toyota truck, and in the paper bag on the dash board,

with the intent to distribute, 21 U.S.C. § 841(a)(1).           On appeal,

the government does not dispute that if probable cause to arrest

Defendant was lacking, his post-arrest inculpatory statements were

suppressible as tainted fruits of the poisonous tree.           See United

States v. McCraw, 920 F.2d 224, 227 (4th Cir. 1990) (admissibility

of post-arrest inculpatory statements by defendant are dependent

upon legality of defendant’s arrest). Thus, the sole issue in this

appeal is whether probable cause existed to arrest Defendant.            In

reviewing   a   district   court’s   decision   regarding   a   motion   to

suppress, we review legal conclusions de novo and factual findings

for clear error.    United States v. Brown, 401 F.3d 588, 592 (4th

Cir. 2005).

     At least with respect to the § 922(g)(1) offense and the 21

U.S.C. § 841(a)(1) offense, each can be proven under the theory of

constructive possession.2      United States v. Singleton, 441 F.3d

290, 295-96 (4th Cir. 2006) (possession under § 841(a)(1) can be

actual or constructive); United States v. Scott, 424 F.3d 431, 435

(4th Cir. 2005) (possession under § 922(g)(1) can be actual or

constructive).    A person has constructive possession of an item as


     2
      We have not yet decided in a published opinion whether a
constructive possession instruction can be given on a § 924(c)(1)
charge.

                                 - 10 -
opposed to actual possession of an item if he knows of its presence

and exercises or has the power to exercise dominion or control over

it.   Scott, 424 F.3d at 435.     Intent to distribute may be inferred

if the amount of illegal drugs found in the defendant’s possession

exceeds an amount normally associated with personal consumption.

United States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993).

      Whether probable cause existed for Defendant’s warrantless

arrest depends upon the totality of the circumstances surrounding

his arrest. Illinois v. Gates, 462 U.S. 213, 230-32 (1983); Taylor

v. Waters, 81 F.3d 429, 434 (4th Cir. 1996).           “‘[P]robable cause’

to justify an arrest means facts and circumstances within the

officer’s knowledge that are sufficient to warrant a prudent

person,   or   one   of   reasonable   caution,   in   believing,    in   the

circumstances shown, that the suspect has committed, is committing,

or is about to commit an offense.”         Michigan v. DeFillippo, 443

U.S. 31, 37 (1979); see also      United States v. Gray, 137 F.3d 765,

769 (4th Cir. 1998).       While probable cause is a higher standard

than reasonable suspicion, it is a lesser standard than the one

necessary to convict, i.e., beyond a reasonable doubt.              See Wong

Sun, 371 U.S. at 479.

      Determining whether the information surrounding an arrest is

sufficient to establish probable cause is an individualized and

fact-specific inquiry. Id. Additionally, law enforcement officers

are permitted “to draw on their own experience and specialized


                                  - 11 -
training    to   make   inferences      from   and   deductions    about     the

cumulative information available to them that might well elude an

untrained person.”       United States v. Arvizu, 534 U.S. 266, 273

(2002) (internal quotation marks omitted).              “[E]ven ‘seemingly

innocent activity’ when placed in the context of surrounding

circumstances,” can give rise to probable cause.             United States v.

Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (citation omitted).

This means that courts cannot engage “in the sort of ‘divide-and-

conquer    analysis’    that   treats   each   action   by   a   defendant    in

isolation, finds each of them to be possibly innocent, and thus

picks apart an officer’s reasonable assessments.” United States v.

Perkins, 363 F.3d 317, 327 (4th Cir. 2004).

     Moreover, despite the individualized and fact-specific nature

of the probable cause inquiry, we must be mindful that probable

cause is an objective standard, with the subjective intentions of

the arresting officer or officers being immaterial in determining

whether his or their actions were reasonable for Fourth Amendment

purposes.    See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“Our

cases make clear that an arresting officer’s state of mind (except

for the facts that he knows) is irrelevant to the existence of

probable cause.”).      The reason for this rule is that “evenhanded

law enforcement is best achieved by the application of objective

standards of conduct, rather than standards that depend upon the




                                   - 12 -
subjective state of mind of the officer.”                Horton v. California,

496 U.S. 128, 138 (1990).

     We hold the district court committed reversible error in

concluding that Defendant’s arrest was not supported by probable

cause.    The factual findings of the district court, when viewed

through the eyes of trained law enforcement officers and in the

totality of the circumstances, amount to probable cause that

Defendant had committed at least one felony crime, for example,

possession with intent to distribute cocaine:                (1) within the few

weeks    leading    up    to    Defendant’s   arrest   on    February   2,   2006,

Detective Little received a telephone tip from a known, reliable

informant (i.e., Best), whom Detective Little had known for five to

six years, that Defendant had been selling illegal drugs from                   his

(the reliable informant’s) residence at 578 Spring Hill Drive in

Whiteville,    North           Carolina;   (2)   after      Detective   Little’s

conversation       with   the     known,   reliable    informant,   but      before

Defendant’s arrest in this case, a second informant, this one

confidential and unidentified, also told Detective Little that

Defendant had been selling illegal drugs at the known, reliable

informant’s residence; (3) on the morning of February 2, 2006,

Detective Little witnessed Defendant driving a Honda Accord while

immediately following a white Toyota truck driven by the known,

reliable informant; (4) when, in the early afternoon of the same

day, Detective Little and Sergeant Worthington arrived at the


                                       - 13 -
residence of the known, reliable informant in an unmarked police

car, the officers saw both the white Toyota truck and the Honda

Accord parked in the backyard; (5) the officers also saw Defendant

seated in the passenger side of the white Toyota truck, with the

door open, his right foot on the ground, and moving his hands

around near the floorboard; (6) the known, reliable informant was

standing in the yard with another man (John Ford); (7) with the

permission of the known, reliable informant, Detective Little

entered Best’s residence and smelled a strong odor of marijuana,

thus   confirming        the   presence       of    illegal    drugs;     (8)       upon   a

consensual search of the reliable informant’s residence, Detective

Little found scales and a box of plastic bags, items commonly used

in packaging illegal drugs for retail distribution; (9) Sergeant

Worthington told Defendant that he and Detective Little were there

to conduct an investigation into possible drug trafficking; (10) a

short time later, Defendant told Detective Little that he wanted to

do the right thing and desired to set someone up; (11) although a

consensual search of Defendant’s vehicle turned up no evidence of

illegal    drug       trafficking,     a    consensual      search   of       the   known,

reliable       informant’s     white    Toyota      truck     revealed    a    holstered

handgun and a Crown Royal bag containing crack and powder cocaine

under the same front passenger seat in which Defendant had been

sitting when the officers arrived on the scene; (12) a consensual

search    of    the    white   Toyota      truck    also    revealed      a    paper   bag


                                           - 14 -
containing marijuana located on the dashboard; and (13) after

Defendant was shown the paper bag containing marijuana and the

holstered handgun, “he shook his head and reiterated that he wanted

to make things right and cooperate with law enforcement,” (J.A.

82).

       Without question, Supreme Court and Fourth Circuit precedent

support the legal conclusion that, at a minimum, probable cause to

arrest Defendant for illegal drug trafficking existed in this case.

Under the circumstances at the time of Defendant’s arrest, a

reasonable law enforcement officer in the position of Detective

Little would consider the initial tip from Best that Defendant was

engaging in illegal drug trafficking at 578 Spring Hill Drive in

Whiteville, North Carolina reasonably trustworthy.               Hunter v.

Bryant, 502 U.S. 224, 228 (1991) (probable cause to arrest is

measured at the moment the arrest occurs).               Best was known to

Detective Little, thus Best’s reputation could be assessed, and

Best could be held responsible for false allegations.           Florida v.

J.L., 529 U.S. 266, 270 (2000) (known informant’s reputation can be

assessed and can be held responsible if allegations turn out to be

fabricated).   Moreover, Best had proven to be a reliable source of

information about illegal drug trafficking activity in the past.

Id.; United States v. Bynum, 293 F.3d 192, 197 (4th Cir. 2002)

(“The Supreme Court has repeatedly recognized that a proven,

reliable   informant   is   entitled   to   far   more   credence   than   an


                                 - 15 -
unknown, anonymous tipster.”).         And finally, because Best was

reporting that Defendant’s drug trafficking took place in his

(Best’s) own home, it was obvious to the arresting officers that

Best’s report of Defendant’s drug trafficking was based upon

personal knowledge, which is inherently more reliable than a report

based upon hearsay.     Cf. Perkins, 363 F.3d at 325 (need to focus on

predictive information in order to corroborate an anonymous tip

does not exist in case where anonymous tipster was clearly in a

position   to   know   about   reported     activity   that   gave   rise   to

officer’s reasonable suspicion).

     Moreover,    in    several   significant    respects,    the    officers

corroborated Best and the unidentified, confidential informant’s

tips regarding Defendant’s illegal drug trafficking activities at

Best’s residence.      Specifically, the officers:      (1) corroborated a

relationship connection between Defendant and Best based upon

Detective Little observing Defendant following Best’s white Toyota

truck on the morning of February 2, 2006, and then both officers

observing Defendant at Best’s residence in the early afternoon of

the same day; (2) corroborated Defendant’s connection to illegal

drug trafficking by discovering illegal drugs and a holstered

handgun, typically used in drug trafficking, under the passenger

seat of Best’s white Toyota truck when the officers had minutes

earlier observed Defendant sitting in the passenger seat of the

same truck with his right foot on the ground while moving his hands


                                   - 16 -
around in the floorboard; (3) corroborated Defendant’s connection

to illegal drug trafficking by discovering scales and plastic

baggies, tools of the illegal drug trafficking trade, in Best’s

residence, where Best and the unidentified confidential informant

reported that Defendant had been conducting his illegal drug

trafficking activities; and (4) corroborated Defendant’s connection

to illegal drug trafficking when Defendant told Detective Little

that he wanted to do the right thing and desired to set up someone.

      This last point of corroboration is extremely important in the

common sense analysis inherent in determining the existence of

probable cause.          Common sense dictates the fact that Defendant

voluntarily    stood-at-the-ready        to   conduct    an   undercover   sting

operation in order for law enforcement officers to catch others

involved in illegal drug trafficking in the surrounding area is

compelling evidence of Defendant’s connection to the same world.

Obviously, an offer to set up others in an undercover sting

operation shows consciousness of guilt. See United States v. Levy,

578   F.2d   896   (2d    Cir.   1978)   (testimony     concerning   offers   by

defendant, arrested on drug charges, to cooperate in the future

evidenced consciousness of guilt and was relevant to prove charge

against him); see also Illinois v. Hart, 828 N.E.2d 260, 269 (Ill.

2005) (citing Levy with approval).

      In our view, the district court went astray in two significant

respects. First, the district court essentially ignored the import


                                     - 17 -
of all the above listed evidence showing corroboration of the

informants’ tips.          Second, the district court engaged “in the sort

of ‘divide-and-conquer analysis’ that treats each action by a

defendant in isolation, finds each of them to be possibly innocent,

and   thus    picks       apart      an     officer’s       reasonable         assessments.”

Perkins,     363    F.3d       at   327.        For    example,     the    district    court

concluded that “given Galloway’s prior interaction with Detective

Little,      it    was    not       reasonable         to   believe       that    Galloway’s

nervousness and comments regarding his desire to ‘do the right

thing’    suggested        that      Galloway         had   possessed      a     firearm   and

narcotics at Best’s residence.”3                        (J.A. 84).         The conclusion

incorrectly ignores the fact that when Defendant told Detective

Little that he wanted to do the right thing he did so while also

informing Detective Little that he wanted to set up someone.                               The

district court obviously erroneously ignored the critical context

of Defendant’s desire to do the right thing, which context shows

Defendant’s        consciousness           of    guilt.       See     United      States    v.

Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (“[E]ven ‘seemingly

innocent activity’ when placed in the context of surrounding

circumstances,”          can    give      rise    to    probable      cause.)      (citation

omitted).     No other explanation makes sense.




      3
      The prior interaction reference refers to Defendant’s prior
allegation that Detective Little had used excessive force against
him.

                                            - 18 -
     Defendant makes two primary arguments in defense of the

district court’s granting of his suppression motion.                      First,

Defendant argues that probable cause to arrest him could not have

existed    because    the    officers      failed    to    conduct    further

investigation in order to determine whether the holstered handgun

and/or    the   illegal   drugs    found   in   Best’s   white   Toyota    truck

belonged to Best or Ford.         This argument is without merit, because

once probable cause to arrest a suspect is established, an officer

is not required to continue to investigate for exculpatory evidence

before arresting such suspect.         Cortez v. McCauley, 478 F.3d 1108,

1121 n.18 (10th Cir. 2007); McKinney v. Richland County Sheriff’s

Dept., 431 F.3d 415, 418-19 (4th Cir. 2005) (“The fact that [the

officer] did not conduct a more thorough investigation before

seeking the arrest warrant does not negate the probable cause

established by the victim’s identification.”); Curley v. Village of

Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“We observed that once a

police officer has a reasonable basis for believing there is

probable cause, he is not required to explore and eliminate every

theoretically plausible claim of innocence before making an arrest.

Although a better procedure may have been for the officers to

investigate plaintiff’s version of events more completely, the

arresting officer does not have to prove plaintiff’s version wrong

before arresting him.”) (internal alteration, internal citation and

internal quotation marks omitted)); Kelley v. Myler, 149 F.3d 641,


                                     - 19 -
647 (7th Cir. 1998) (“The inquiry is whether an officer has

reasonable grounds on which to act, not whether it was reasonable

to conduct further investigation.”).

       Defendant’s    other   primary      argument     is   that    the     Fourth

Circuit’s decision in United States v. Blue, 957 F.2d 106 (4th Cir.

1992), mandated the granting of his motion to suppress.                Defendant

is clearly wrong.         Blue, in fact, supports our holding that

probable cause to arrest Defendant existed in this case because

Blue   was   a   sufficiency-of-the-evidence          case   as   opposed     to   a

probable-cause case. In Blue, a police officer, who was conducting

nighttime    surveillance     of   a    house   for    possible     illegal    drug

activity, saw two men leave the house and enter a parked car on the

street.    Id. at 107.    As the car drove by, the officer noticed that

neither occupant was wearing a seatbelt, in violation of North

Carolina law.      Id.   The officer pulled over the car in a well lit

area, allegedly to investigate the seatbelt violation.                 Id.    As he

left his car, the officer saw the shoulder of the passenger,

defendant Herbert Blue, “dip as if the passenger were reaching

under the seat with his right hand.”             Id.     After the driver and

defendant Blue exited the car, the officer searched defendant Blue

for any weapons, “at which time he discovered a needle, a syringe,

and a small amount of heroin, and therefore placed Blue under

arrest.”     Id.   A consensual search of the car revealed a loaded

handgun under the passenger seat.               Id.     Both the driver and


                                       - 20 -
defendant Blue denied knowledge or ownership of the handgun.       Id.

The car did not belong to defendant Blue, and there was no evidence

that defendant Blue had ever before been in the car.    Id. at 108.

      Defendant Blue was charged with, inter alia, possession of a

firearm by a convicted felon, and the jury convicted him.    Id.    On

appeal, defendant Blue challenged the sufficiency of the evidence

to support his § 922(g)(1) conviction.    The government had relied

on two pieces of evidence to support its case:    (1) the officer’s

testimony that defendant Blue’s shoulder dipped as he approached

the vehicle, and (2) the discovery of the handgun under the

passenger seat.    Id.    The Fourth Circuit concluded that this

evidence was insufficient to support defendant Blue’s § 922(g)(1)

conviction:

           Beyond [the officer’s] claim that he saw Blue’s
      shoulder dip and the discovery of the pistol underneath
      the passenger seat, the government did not substantiate
      its case against Blue. It did not produce fingerprints
      or any other physical evidence which would link Blue with
      the gun.      The government introduced no evidence
      demonstrating that Blue owned the gun or testimony that
      Blue had been seen with the gun. The car in which the
      gun was found did not belong to Blue; in fact, no
      evidence indicated that Blue had ever been in that car
      before. Without more evidence than that proffered by the
      government, we cannot sustain Blue’s conviction.

Id.

      Of particular relevance in the present appeal, the Blue court

went on to declare that, while it remained convinced that Blue’s

shoulder dip alone did not transform Blue from a mere passenger in

the car to a possessor of whatever was discovered underneath the

                               - 21 -
seat in which he is sitting:           “In reaching this decision, we

emphasize that the facts of this case fall outside, but just

barely, the realm of the quantum of evidence necessary to support

a finding of constructive possession.”           Id. at 108.         (emphasis

added).    This statement by the Blue court is notable, because not

only was the burden of proof in Blue (i.e., beyond reasonable

doubt) far more onerous than the probable cause standard at issue

in   the   present   appeal,   additional     circumstances    pointing    to

Defendant’s    involvement     in    drug    trafficking,     such    as   the

information from the reliable, known informant and Defendant’s

multiple offers of cooperation with law enforcement, exist in the

present appeal, which did not exist in Blue.

      In sum, we:     (1) vacate the district court’s orders which,

when taken together, granted Defendant’s suppression motion; and

(2) remand this case for further proceedings consistent with this

opinion.

                                                    VACATED AND REMANDED




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