                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4572


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

WALTER FAYALL, III,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:06-cr-00765-TLW-1)


Submitted:    January 12, 2009                Decided:   March 9, 2009


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


Affirmed by unpublished per curiam opinion.


Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Rose Mary Parham, Carrie A. Fisher, Assistant United
States Attorneys, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Walter Fayall, III, was indicted for possession of a

firearm     by    a    convicted         felon,    in     violation   of     18     U.S.C.

§ 922(g)(1) (2006).            Fayall moved to suppress the evidence upon

which the indictment was based, arguing that he was arrested,

and his vehicle was searched, without reasonable suspicion or

probable cause.          The district court denied the motion after an

evidentiary hearing.            Fayall pled guilty, preserving his right

to     appeal    the    denial      of     the    suppression      motion,        and   was

sentenced to thirty-six months’ imprisonment.

            Fayall argues on appeal that the district court erred

in denying his motion to suppress because the officers did not

have    probable       cause   to    arrest       him    for    trespassing       under   a

municipal ordinance of Myrtle Beach, South Carolina.                              He also

contends    that       the   ordinance      is    void    for   vagueness     under     the

United States Constitution and facially invalid under the laws

and Constitution of South Carolina.

            We        review   the       district        court’s   factual        findings

underlying the denial of a motion to suppress for clear error

and its legal conclusions de novo.                      United States v. Grossman,

400 F.3d 212, 216 (4th Cir. 2005).                       When a suppression motion

has been denied, we construe the evidence in the light most

favorable to the government.                United States v. Seidman, 156 F.3d

542, 547 (4th Cir. 1998).

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             An arresting officer may, without a warrant, search a

person   who    is   validly     arrested       based    upon    probable    cause.

Michigan v. DeFillippo, 443 U.S. 31, 35-36 (1979).                          When an

occupant or recent occupant of a vehicle is lawfully arrested,

officers may also search the vehicle incident to the arrest.

Thornton v. United States, 541 U.S. 615, 623-24 (2004).                      “[O]nly

the   probability,    and   not   a     prima    facie      showing,   of   criminal

activity is the standard of probable cause.”                   Illinois v. Gates,

462 U.S. 213, 235 (1983) (internal quotation marks and citation

omitted).      In the context of an arrest, probable cause exists

“when ‘facts and circumstances within the officer’s knowledge

. . . 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.’”        Porterfield v. Lott, 156 F.3d 563, 569

(4th Cir. 1998) (quoting DeFillippo, 443 U.S. at 37).

             The Myrtle Beach city ordinance under which Fayall was

arrested provides that “no person shall enter upon the lands or

premises owned or occupied by another for any other reason than

a legitimate cause.”        When officers arrest a suspect based upon

observation     of   conduct     that    violates       a    presumptively    valid

ordinance,     sufficient   to    constitute       probable      cause,     and   the

ordinance has not been declared unconstitutional, a subsequent

determination that the ordinance is unconstitutional does not

                                         3
invalidate          the    arrest       and       any       incident       search,         “with       the

possible       exception          of        a     law       so     grossly          and    flagrantly

unconstitutional that any person of reasonable prudence would be

bound to see its flaws.”                 DeFillippo, 443 U.S. at 37-40.

               In this case, the district court properly found that

Fayall’s arrest was supported by probable cause.                                      The arresting

officers observed Fayall next to a vehicle parked in a parking

lot of a closed business, in an area that was marked as a tow-

away    zone.         Upon      questioning,              Fayall    and     another        individual

accompanying         him     could      not      state       any    valid      reason       for    their

presence       on    the    property.             Fayall         would    not       respond      to    the

request for information, and the other individual stated that

they    were    parking         there       in    order      to    “walk       along       the    strip”

nearby.     These were sufficient facts to demonstrate a reasonable

probability          that       Fayall          was        violating       the       Myrtle        Beach

trespassing         ordinance.              Because         the    ordinance         has    not       been

declared unconstitutional, and is not “grossly and flagrantly

unconstitutional”            on       its       face,      the     validity         of    the     search

incident to Fayall’s arrest is not affected by any arguments

that the ordinance should be declared unconstitutional.

               Finding no error in the district court’s denial of

Fayall’s       motion      to     suppress,           we    affirm       the    district         court’s

judgment.       We dispense with oral argument because the facts and

legal    contentions            are    adequately            presented         in    the    materials

                                                      4
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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