                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4478


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TONY MITCHELL MARTIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00406-WO-1)


Submitted:   January 22, 2015             Decided:   February 3, 2015


Before WILKINSON, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN,
Greensboro, North Carolina, for Appellant.    Ripley Rand, United
States Attorney, Terry M. Meinecke, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Tony Mitchell Martin appeals his conviction following

his guilty plea to possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1) (2012).               On appeal, Martin

argues that the district court erred in denying his motion to

suppress   evidence     found    subsequent    to    an   allegedly   illegal

seizure.   Finding no error, we affirm.

           Detectives     Larry      Leonard   and   Jerry    Hodge   of     the

Lexington Police Department were investigating a complaint that

prescription drugs were being used or sold in room 58 of the

extended   stay   portion       of   the   Economy    Inn    Motel.        While

interviewing the occupants of rooms 56 and 58, the detectives

observed a white vehicle pulled up in front of room 58.                     The

detectives were familiar with Kendra Presnell, the driver, based

on her prior history of selling cocaine.              The detectives spoke

with Presnell and obtained consent to search her car.

           While conducting the search of Presnell’s vehicle, a

gray Kia pulled into the parking lot and parked a few spaces

down from room 58.      Martin, the passenger of the Kia, got out of

the vehicle, looked over at Detective Leonard and asked, “what

are you looking at?”        He then proceeded to root around in the

vehicle as if looking for something.           Leonard walked around the

Kia to the passenger side to talk with Martin.                 Leonard asked

Martin a series of questions to establish if he was staying at

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the motel or visiting someone at the motel, and what he was

doing there.         Martin responded to the questions, stated that he

was   trying    to    find    the   charger     for   his   cell    phone,    and   he

continued to look in various places within the vehicle.                       Leonard

could see a cell phone charger between the console on the front

seats, and he asked Martin why he drove all the way to the back

of the motel, rather than pull into the front parking lot to

look for the charger.

             Leonard asked Martin if he had any identification on

him, to which Martin responded that he did not, and informed

Leonard that he was on probation and that he had no outstanding

warrants.      Leonard obtained Martin’s consent to pat him down for

weapons, and did so, not locating any weapons or contraband.

Leonard   informed      Martin      that   he   was   going    to   call     Martin’s

probation officer.

             After Leonard completed his phone call with Martin’s

probation officer and informed Martin that his probation officer

was on the way, the driver of the Kia, Erica Anderson, got out

of the car and walked toward the motel.                   Leonard testified that

she appeared to be holding onto something in her left pocket.

Leonard requested that she remove her left hand from her pocket;

she pulled out her right hand instead.                      Leonard then pulled

Anderson’s left hand from her pocket and patted her down.                           He

discovered     a     baggie    containing       several     Oxymorphone      tablets.

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Anderson stated that the pills belonged to the occupant of room

58.

            The officers then arrested Anderson, placed Martin in

handcuffs for their safety, and searched the vehicle.                                Martin

requested to use a telephone and was allowed to do so.                                     An

officer overheard Martin telling the person with whom he was

speaking    on   the   phone      to     “get     rid   of     something”      and   to    do

whatever    he   needed      to    get    inside        Martin’s      house,    including

breaking in, if necessary.               Upon being advised of the overheard

portions of Martin’s telephone conversation, Martin’s probation

officer decided to conduct a search of Martin’s residence, as is

permitted    under     the    terms      of       his   supervision.         During       the

search,    the   officers         discovered        a   .45     caliber     Bersa    semi-

automatic handgun with an obliterated serial number.

            The district court denied Martin’s motion to suppress

finding that his encounter with the officers was consensual.

Specifically, the court found Detective Leonard’s testimony to

be    credible   and   Martin’s          incredible       to    the    extent    that      it

differed from Leonard’s.               The court noted that, up until the

time the officer found drugs in Anderson’s possession, Martin

had not been told to remain at the scene and he did not ask to

leave.     Once Martin was informed that his probation officer was

on his way to the motel, he reasonably believed that he was not

free to leave, but the time between being informed that the

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probation officer was on the way and the arrest of Anderson was

“no more than a couple of minutes.” The court noted that the

officers    never   physically      restrained     Martin   until     after   the

discovery of drugs on Anderson.

            Following the denial of his motion to suppress, Martin

pled guilty to possession of a firearm by a person previously

convicted of a felony.           On appeal, Martin contends that the

district court erred by determining that the encounter with the

police was voluntary and not a seizure within the meaning of the

Fourth Amendment.       When considering the denial of a motion to

suppress, we review the district court’s legal determinations de

novo and its factual determinations for clear error.                      United

States v. Black, 707 F.3d 531, 537 (4th Cir. 2013).                   “[B]ecause

the district court denied [the defendant’s] motion to suppress,

we construe the evidence in the light most favorable to the

Government on appeal.”          United States v. Bumpers, 705 F.3d 168,

175 (4th Cir.) (internal quotation marks omitted), cert. denied,

134 S. Ct. 218 (2013).

            “[P]olice    may    approach      an   individual    on   a   public

street     and    ask   questions        without   implicating      the   Fourth

Amendment’s      protections.       An    unconstitutional      seizure   occurs

when a police “officer, by means of physical force or show of

authority, terminates or restrains [an individual’s] freedom of

movement.”       Brendlin v. California, 551 U.S. 249, 254 (2007)

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(internal quotation marks omitted).                Such a seizure occurs “only

if,   in   view     of    all    of   the       circumstances    surrounding    the

incident, a reasonable person would have believed that he was

not free to leave.”            United States v. Mendenhall, 446 U.S. 544,

554 (1980).       We consider the totality of the circumstances and

look to the specific following factors:

      (i) the number of police officers present at the
      scene; (ii) whether the police officers were in
      uniform; (iii) whether the police officers displayed
      their weapons; (iv) whether they touched the defendant
      or made any attempt to physically block his departure
      or restrain his movement; (v) the use of language or
      tone of voice indicating that compliance with the
      officer’s request might be compelled; (vi) whether the
      officers informed the defendant that they suspected
      him of illegal activity rather than treating the
      encounter as routine in nature; and (vii) whether, if
      the officer requested from the defendant . . . some
      form of official identification, the officer promptly
      returned it.

Black, 707 F.3d at 537-38 (internal quotation marks omitted).

            In considering the totality of the circumstances, we

conclude that, for purposes of the Fourth Amendment, Martin was

not seized by Detective Leonard as he was questioned in the

motel parking lot.             First, only one officer was engaged with

Martin.     The officers were not in uniform and did not display

their weapons.           Additionally, Detective Leonard did not touch

Martin     except    for       patting   him      down   after   requesting    and

receiving consent, and did not block his departure or restrain

his   movement.          The    district    court     specifically    found    that


                                            6
“Detective       Leonard           did   not         raise      his    voice     or    threaten

[Martin].”       And, the fact that Martin continued to move around

the    vehicle    and        search      in    various       places     in     the    car   while

Leonard posed questions factors against any claim that Martin

felt intimidated by Leonard’s presence.

               Martin        also    was       not      informed       that    the     detective

suspected him of illegal activity.                        Further, the type and degree

of questions posed did not, as the district court found, “rise

above    a   level      of    routine         questioning        in    light   of     [Martin’s]

comment and circumstances.”                        Based on a consideration of the

totality of the circumstances, as directed by the factors listed

in Mendenhall, we conclude that the encounter between Martin and

Leonard was not a seizure, but rather a consensual encounter

that     did    not      “trigger          Fourth        Amendment       scrutiny.”          See

Florida v. Bostick, 501 U.S. 429, 439 (1991) (“[A] seizure does

not     occur    simply        because         a       police    officer       approaches     an

individual and asks a few questions.”).

               Martin contends that his encounter with the officer is

similar to that in United States v. Jones, 678 F.3d 293, 295-99

(4th Cir. 2012), in which we determined that a seizure occurred

based on the fact that uniformed officers in a police vehicle

followed       Jones’        car    on   the       streets       and    into    an    apartment

complex, blocked Jones’ vehicle from leaving, and immediately

asked Jones and his companion to lift their shirts to show that

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they were unarmed, provide identification and grant permission

for a pat down search.           Jones, 678 F.3d at 295-99.               We disagree.

Here, unlike in Jones, Martin was not aware of the officers’

presence until after the vehicle he was riding in had stopped at

the motel.      His means of exit was not blocked by the officers.

Additionally, Detective Leonard’s inquiries of Martin concerning

why he was in the parking lot and why he pulled all the way to

the back parking lot, were not as confrontational and accusatory

as the officers’ initial requests in Jones that the defendant

lift his shirt to show whether he possessed a weapon.

            Martin also contends that an unlawful seizure occurred

when    Detective     Martin     informed      him   that    he     called     Martin’s

probation officer and that the probation officer was on his way

to the motel.        As the district court found, this occurred almost

simultaneously        with   the    discovery        that        Anderson,     Martin’s

companion, was in possession of the illegal pills.                         We find no

seizure and no violation of the Fourth Amendment.

            Accordingly, we affirm the district court’s denial of

the    motion   to    suppress     and    affirm     Martin’s      conviction.        We

dispense     with     oral     argument     because        the    facts      and   legal

contentions     are    adequately        presented    in    the    materials       before

this court and argument would not aid the decisional process.


                                                                               AFFIRMED


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