                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4518


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

STEPHEN J. WASHINGTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cr-00068-TSE)


Submitted:    July 10, 2009                 Decided:   July 24, 2009


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert L. Jenkins, Jr., BYNUM & JENKINS, PLLC, Alexandria,
Virginia, for Appellant.        Chuck Rosenberg, United States
Attorney,   Dennis  M.   Fitzpatrick,  Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury convicted Stephen J. Washington of possession

with intent to distribute cocaine base, possession with intent

to   distribute        marijuana,         and        possession          of   firearms       in

furtherance      of    a   drug    trafficking         crime,       in    violation    of    18

U.S.C.     § 924(c)(1);       21    U.S.C.          § 841(a)(1)          (2006),     and    the

district court sentenced Washington to a total of 130 months’

imprisonment.         On appeal, Washington’s counsel contends that the

district court erred in denying the motion to suppress drugs and

firearms     seized        from    the     vehicle          Washington        was    driving.

Finding no error, we affirm.

            We review the factual findings underlying the denial

of a motion to suppress for clear error and the court’s legal

conclusions de novo.          United States v. Branch, 537 F.3d 328, 337

(4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009).                                       The

evidence    is    construed        in     the       light    most        favorable    to    the

prevailing party below.            United States v. Uzenski, 434 F.3d 690,

704 (4th Cir. 2006).

            Counsel        does    not     challenge          the    propriety        of    the

traffic stop initiated by law enforcement.                           Rather, he asserts

that the officer improperly extended the traffic stop into an

unauthorized Terry * stop.               Counsel concludes that the officer’s

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


                                                2
entry into Washington’s vehicle to retrieve a partially consumed

bottle       of    alcohol       violated          the       Fourth    Amendment            and    that

evidence resulting therefrom should be suppressed.

              “If a police officer wants to detain a driver beyond

the scope of a routine traffic stop, . . . he must possess a

justification           for    doing     so     other         than    the     initial         traffic

violation that prompted the stop in the first place.”                                         Branch,

537 F.3d at 336.              One such justification for extending a traffic

stop    is    to     investigate         a     reasonable           suspicion          of    criminal

activity, known as a Terry stop.                         Id.; see also United States v.

Sokolow,      490       U.S.    1,   7    (1989)         (“[T]he      police       can      stop     and

briefly      detain       a    person        for    investigative           purposes          if     the

officer      has    a     reasonable          suspicion           supported       by    articulable

facts that criminal activity ‘may be afoot,’ even if the officer

lacks probable cause.” (quoting Terry, 392 U.S. at 30)).                                              In

assessing         the    validity        of    a    Terry         stop,     “we    consider          the

totality      of    the       circumstances         .    .    .    giv[ing]       due       weight    to

common sense judgments reached by officers in light of their

experience and training.”                     United States v. Perkins, 363 F.3d

317, 321 (4th Cir. 2004).

              Upon initiating the traffic stop, officer Koenigsberg

observed      that      Washington        had      bloodshot,         watery       eyes      and     was

shaking.          The officer stated that, in his experience, this was

an     indication        of    intoxication.                 Moreover,      the        officer       was

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alerted to a partially consumed bottle of alcohol located on the

rear   passenger      side    floorboard.           Based      on    these     facts,   the

officer     had   a     reasonable          suspicion     of        criminal     activity,

violation    of   Va.    Code     Ann.       § 18.2-323.1       (2004)       (prescribing

rebuttable presumption that driver is drinking while operating a

motor vehicle when partially consumed container of alcohol is

located within passenger area and the behavior or the physical

characteristics of the driver is consistent with the consumption

of alcohol), that permitted the extension of the traffic stop.

             However, counsel asserts that Washington did not smell

of alcohol, was not slurring his speech, and was able to keep

his    balance.         Counsel      also        notes   that,        when     questioned,

Washington denied that he was intoxicated and denied ownership

of the bottle.        Koenigsberg likewise did not administer a field

sobriety test.        While Koenigsberg testified on cross-examination

that he did not believe Washington was drunk, he nevertheless

indicated     that,      in    his     experience,          Washington’s          physical

appearance    was     consistent       with       some   manner       of     intoxication.

Thus, construing the evidence in the light most favorable to the

Government, as we must, we conclude that Koenigsberg was not

unreasonable in his suspicion that Washington was intoxicated.

             Additionally, the officer was within the scope of the

automobile    exception       when     he    initiated       the     warrantless     entry

into    Washington’s         vehicle     to       retrieve      the        bottle.      See

                                             4
Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) (“If there is

probable    cause        to     believe    a       vehicle      contains         evidence     of

criminal activity, . . . a [warrantless] search of any area of

the     vehicle    in     which      the   evidence          might        be     found[]      [is

authorized].”); United States v. Ross, 456 U.S. 798, 825 (1982)

(stating automobile exception permits search that “is no broader

and no narrower” than that which could be authorized pursuant to

a warrant).        Therefore, the district court properly denied the

motion to suppress.

            Accordingly, we affirm the judgment of the district

court.      We    deny    Washington’s         motion      to      place       the   appeal   in

abeyance and deny his motion for leave to file a pro se reply

brief.     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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