UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4002

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT WILLIAM MOATS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:20-cr-00008-1)

Submitted: September 28, 2021 Decided: October 19, 2021

Before WILKINSON, FLOYD, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John J. Balenovich, JOHN J. BALENOVICH LAW OFFICES, LC, Charleston, West Virginia, for Appellant. Lisa G. Johnston, Acting United States Attorney, Courtney L. Cremeans, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert William Moats appeals his conviction pursuant to a conditional guilty plea

to being a felon in possession of a firearm in violation of

(g)(1), 924(a)(2),

and possession of a firearm with the serial number removed in violation of

(k), 924(a)(1)(B). In his plea agreement, Moats reserved the right to appeal the

denial of his motion to suppress. Because we find that the district court properly denied

Moats’ motion to suppress evidence, we affirm.

The facts presented are as follows. Officers went to a residence to arrest a woman

for whom there was an outstanding warrant for a probation violation. After receiving

consent to search the home, they found the woman in the basement. She and Moats were

asleep, side-by-side, in an oversized chair. The officers attempted to awaken both persons.

Moats woke first. The officers asked him to stand and move to the other side of the room.

When he stood up, the officers observed the handle of a gun sticking out of his front pants

pocket. Although mere possession of a firearm was not unlawful in West Virginia, an

officer took possession of the gun for safety reasons and placed it inside his coat. Another

officer escorted Moats out of the residence.

The officer then woke the woman and arrested her. After taking her outside and

handing her over to a patrol unit to transport to the police station, the officer told Moats

that he was going to run the serial number on the gun to make sure it was not stolen and

that he would return the gun after he made sure Moats was not a prohibited person or had

an active domestic violence petition against him.

2 When the officer removed the gun from inside his coat and looked for the serial

number, he noticed that the serial number had been removed. He then told Moats that the

gun would not be returned to him and Moats said, “What gun?” and was allowed to walk

away. Moats was later charged with being a felon in possession of a firearm and possessing

a firearm with an obliterated serial number.

Moats moved to suppress evidence of the firearm, contending that the officers

unlawfully seized him by waking him and directing him to stand up and move to another

location and that the seizure of the firearm was unlawful. He also contended that the gun

and its incriminating nature were not in plain view of the officers. He argued that, rather

than waking him, the officers should have moved the sleeping woman, then awakened and

arrested her. The district court denied the motion to suppress, finding that the officers acted

reasonably by waking both Moats and the woman and by temporarily seizing the firearm

in the interest of safety of the officers and others in the residence.

On appeal, Moats contends that he was unlawfully seized when the officers

awakened him and required him to stand. He argues that the officers should have picked

up the sleeping woman, moved her to another location in the basement, then awakened and

arrested her. He also contends that the seizure of the gun was unlawful because it is legal

to openly carry a firearm in West Virginia. Additionally, Moats contends that that he was

unlawfully detained outside the house and that the gun was not lawfully seized under the

plain view exception to the Fourth Amendment’s warrant requirement.

“When reviewing a district court’s ruling on a motion to suppress, this [c]ourt

reviews conclusions of law de novo and underlying factual findings for clear error.” United

3 States v. Fall,

(4th Cir.), cert. denied,

(2020)

(alterations and internal quotation marks omitted). “If, as here, the district court denied the

motion to suppress, this [c]ourt construes the evidence in the light most favorable to the

government.”

(alterations and internal quotation marks omitted). “When reviewing

factual findings for clear error, [this court] particularly defer[s] to a district court’s

credibility determinations, for it is the role of the district court to observe witnesses and

weigh their credibility during a pre-trial motion to suppress.” United States v. Palmer,

(4th Cir. 2016) (internal quotation marks omitted). Reversal is not warranted

unless this court is “left with the definite and firm conviction that a mistake has been

committed.” United States v. Crawford,

(4th Cir. 2013) (internal

quotation marks omitted).

When conducting a lawful search, law enforcement officers are authorized to

temporarily detain individuals on the premises. Michigan v. Summers,

(1981). This temporary detention is justified by the need for officers to conduct

the search, to prevent flight, and minimize the risk of harm to themselves and others.

. We discern no clear error by the district court in finding that the temporary

detention of Moats was reasonable in the interest of officer safety. Although the officer

testified that it might have been possible to move the woman without waking Moats, he

also testified that, in the interest of officer safety, he did not do so in order to avoid startling

either the woman or Moats.

We further discern no clear error by the district court in finding that the officer acted

reasonably by separating Moats from the woman in order to “gain control of the area” and

4 “for fundamental officer safety.” We therefore conclude that the temporary seizure of

Moats, which occurred when the officer awakened him and instructed him to stand and

move to a different area, was reasonable under the circumstances. See Summers,

.

When Moats stood up in response to the officer’s direction, the handle of the gun

was visible in Moats’ pocket. The district court found that the officer acted prudently by

seizing the weapon in the interest of officer safety. We agree. See United States v.

Malachesen,

(8th Cir. 1979) (officer’s temporary seizure, unloading,

and retention of a handgun whose incriminating nature was not immediately apparent was

a “reasonable precaution to assure the safety of all persons on the premises during search”);

see also United States v. Roberts,

(5th Cir. 2010) (holding that

officers who were conducting a protective sweep of an apartment acted reasonably in

seizing firearms for safety reasons even though officers did not know at the time whether

possession of the firearms was unlawful).

Moats next argues that he was unlawfully detained outside the residence because

the officer had no reasonable, articulable suspicion that he was involved in criminal

activity. We find no evidence that Moats was detained, questioned, or prevented from

leaving the area. Rather, he was merely escorted out of the house while the officers arrested

the woman and, upon being informed that the officer would not return the firearm, Moats

walked away. No unlawful seizure occurred. See United States v. Gray,

(4th Cir. 1989) (noting variety of factors courts consider to determine whether a

police-citizen encounter constitutes a seizure).

5 Lastly, Moats contends that the gun was not in plain view and that the incriminating

nature of the gun—the obliterated serial number—was not immediately apparent. He

therefore contends that the plain view doctrine does not apply.

The Fourth Amendment authorizes warrantless seizures of evidence when the

officer is lawfully in the place from which the object may be plainly viewed, the officer

has a lawful right of access to the object seized, and the object’s incriminating character is

immediately apparent. United States v. Jackson,

(4th Cir. 1997)

(citing Horton v. California,

(1990)). Here, the officer was lawfully

in the home and had consent from the resident to search the home. Because the firearm

was discovered in plain view while the officer was acting within the scope of that consent,

the officer had lawful access to the firearm—and lawfully seized it in the interest of officer

safety during the arrest of the woman. We conclude that the officer did not violate the

Fourth Amendment by seizing the firearm. See Malachesen,

. And,

having lawfully seized the firearm and upon observing the obliterated serial number, the

officer became immediately aware of the incriminating nature of the firearm. Thus, the

seizure of the firearm falls within the plain view doctrine. See Jackson,

;

United States v. Legg,

(4th Cir. 1994) (upholding warrantless seizure of

pistol with obliterated serial number found during search for other objects, finding that

incriminating nature was immediately apparent). We discern no error in the district court’s

conclusion that Moats’ Fourth Amendment rights were not violated and, on that basis,

denying Moats’ motion to suppress.

6 Accordingly, we affirm the district court’s judgment. 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

7