US v. Walter Fayall, III

Filing 920090309

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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 Senior Circuit Judge.

TRAXLER,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Fayall pled guilty, preserving his right of the suppression motion, and was

evidentiary hearing. to appeal the

denial

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. contends that the ordinance is void for vagueness

He also 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. 400 F.3d 212, 216 (4th Cir. 2005). United States v. Grossman, When a suppression motion

has been denied, we construe the evidence in the light most favorable to the government. 542, 547 (4th Cir. 1998). 2 United States v. Seidman, 156 F.3d

An arresting officer may, without a warrant, search a person who is validly arrested based upon probable cause. When an

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

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). the probability, and not a prima facie showing, of "[O]nly 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." observation ordinance, of When officers arrest a suspect based upon that violates a presumptively cause, valid the

conduct to

sufficient

constitute

probable

and

ordinance has not been declared unconstitutional, a subsequent determination that the ordinance is unconstitutional does not 3

invalidate possible

the

arrest of

and a

any law

incident so

search, and

"with

the

exception

grossly

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 towaway zone. Upon him the questioning, could not Fayall any and valid another reason individual for their the

accompanying presence on

state

property.

Fayall

would

not

respond

to

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 that Fayall was Because violating the the Myrtle has not Beach been

probability trespassing

ordinance.

ordinance

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 judgment. legal motion to suppress, we affirm the district court's

We dispense with oral argument because the facts and are adequately 4 presented in the materials

contentions

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

5