USCA4 Appeal: 23-4040 Doc: 63 Filed: 08/23/2024 Pg: 1 of 23

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4040

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RUDOLPH DANIEL MIFFIN, JR.,

Defendant - Appellant.

No. 23-4105

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAINE DARNELL JOHNSON, a/k/a Jermaine Darrell Johnson, a/k/a Buck Johnson, Defendant - Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:21-cr-00029-MHL-2; 3:21-cr-00029- MHL-1)

Argued: March 5, 2024 Decided: August 23, 2024

Before DIAZ, Chief Judge, and RICHARDSON and RUSHING, Circuit Judges. USCA4 Appeal: 23-4040 Doc: 63 Filed: 08/23/2024 Pg: 2 of 23

Affirmed by unpublished opinion. Chief Judge Diaz wrote the opinion, in which Judge Richardson and Judge Rushing joined.

ARGUED: I. Scott Pickus, LAW OFFICES OF I. SCOTT PICKUS, ESQUIRE, Glen Allen, Virginia; Timothy George McCormick, CHRISTIAN & BARTON LLP, Richmond, Virginia, for Appellants. Stephen Eugene Anthony, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Richmond, Virginia, Jacqueline Bechara, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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DIAZ, Chief Judge:

We consider on appeal the district court’s denial of Jermaine Darnell Johnson’s and

Rudolph Miffin, Jr.’s motions to suppress certain evidence the police seized during a traffic

stop.1 Johnson and Miffin contend that police officers impermissibly prolonged the stop,

in violation of the Fourth Amendment, by subjecting Johnson, the driver, to a pat down

and search of a bag on his person, in which they found a handgun and drug paraphernalia.

Johnson and Miffin also assert that the officers violated the Fourth Amendment by

prolonging the traffic stop to search the vehicle, Miffin’s person, and a similar bag on his

person. During those searches, the officers found another handgun, an empty extended

handgun magazine, drugs, and more drug paraphernalia.

After the district court denied their motions to suppress,2 Johnson and Miffin entered

conditional guilty pleas. Johnson pleaded guilty to being a felon in possession of a firearm,

and possession with intent to distribute a controlled substance. Miffin pleaded guilty to

possession with intent to distribute a controlled substance. Both, however, reserved the

right to appeal the claims that they raised in their suppression motions. The defendants

1 The district court also denied Miffin’s motion to suppress certain incriminating statements he made to federal agents while he was being transferred from the county jail, where he was detained following the traffic stop, as moot. United States v. Johnson, No. 3:21-cr-29,

, at *24–25 (E.D. Va. June 30, 2022). Miffin doesn’t appeal that decision. In addition, the district court granted in part Johnson’s motion to suppress certain statements he made to the officers after he was handcuffed and before he was read his Miranda warnings. Id. at *23. The government doesn’t appeal that decision. 2 Miffin moved to adopt Johnson’s motion to suppress, which the district court granted. Id. at *8.

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bring those appeals now, challenging the searches of Johnson’s and Miffin’s persons, their

bags, and the vehicle. Relying mainly on the search incident to arrest and automobile

exceptions to the Fourth Amendment, we affirm.

I.

Because, as relevant here, the district court denied Johnson’s and Miffin’s

suppression motions, we recount the facts in the light most favorable to the government,

the prevailing party below. United States v. Slocumb,

(4th Cir. 2015)

(cleaned up).

A.

Officer O.T. Broaddus encountered Johnson and Miffin during two stops in the early

morning hours of September 1, 2020. The first stop was generally routine: while patrolling

an area of Henrico County following a string of “vandalization[s] and burglaries,”

Broaddus “came across a vehicle that was parked [in a dark area] . . . that had [its] lights

on.” United States v. Johnson, No. 3:21-cr-29,

, at *2 (E.D. Va. June

30, 2022). The illuminated vehicle “stuck out to” Broaddus, prompting him to “conduct[]

a records check of the vehicle’s license plate.”

While the check revealed that the license plate was linked to a different color

vehicle, it didn’t indicate that any warrants were on file or contain any other information

of concern. Still, Broaddus left his police cruiser and approached the vehicle, where he

saw Miffin “sitting alone in the passenger seat with the door open.”

Broaddus and

Miffin talked about “criminal activity in the area” before Johnson “walked up to the car.”

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Broaddus then had a similar conversation with Johnson. Once the conversations ended,

Broaddus left Johnson and Miffin—who both struck Broaddus as “cooperative and

cordial”—and continued his patrol.

The second stop, occurring only a few minutes later, is the subject of this appeal.

There, Broaddus “saw a car pass him with an unlit light above its rear license plate.” Id.

at *3. “Because the unlit light constituted an equipment violation,” id., Broaddus pursued

the vehicle, activating his emergency blue lights once he caught up to it. The vehicle

traveled another block before “stopping near an access road adjacent to [a] major

intersection.” Id. “[G]iven the time of day, cars passed only intermittently, and the area

was dark.” Id.

Broaddus once more approached the vehicle alone and observed Johnson sitting in

the driver’s seat with Miffin in the passenger’s seat. He realized at this point “that this was

the same car” and occupants he had encountered during the initial stop. Id. Broaddus

acknowledged as much to Johnson before informing him of the traffic infraction. Johnson

noted that he was aware of the unlit tag light but “expressed concern” to Broaddus about

the stop because Johnson was “on federal papers, a euphemism for federal supervision.”

Id. (cleaned up). Broaddus assured Johnson “that he should not have much to be concerned

about.” Id. (cleaned up).

All the same, Broaddus asked Johnson and Miffin for identification, explaining,

“When I stop a car, I need to identify both occupants.” Id. Both men complied. Broaddus

also requested the vehicle’s registration, but “Johnson informed Officer Broaddus that he

could not find [it] because the car belonged to someone else.” Id. Instead, Johnson gave

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Broaddus a vehicle inspection report, which Broaddus accepted because it “reprinted the

car’s vehicle identification number.” Id.

With the paperwork in hand, Broaddus “returned to his police cruiser to check [the]

records.” Id. He confirmed that “Johnson was on federal supervision, although [the check]

did not specify the nature of the underlying offense or provide any detail about Johnson’s

criminal history.” Id. The check also instructed that Broaddus was “not to arrest [Johnson]

unless a crime ha[d] occurred.” Id. (cleaned up). As for Miffin, Broaddus “received an

alert classifying Miffin as a known member of the Crips Southwest Virginia gang,” which

Broaddus knew, “based on his training and experience, . . . had a reputation for violence.”

Id. at *4. But this alert qualified that “[s]tanding alone,” Miffin’s gang affiliation “d[id]

not furnish grounds for the search and seizure of any individual, vehicle, or dwelling.” Id.

About five minutes into the stop, and as Broaddus was conducting the records check,

Sergeant Patrick English “arrived on the scene.” Id. Though English wasn’t called to assist

Broaddus, it “was normal procedure” for one officer to “check on” another officer during

a traffic stop. Id. English, standing outside Broaddus’s police cruiser, asked Broaddus

about the stop. As Broaddus was responding, English “interrupted and stated, ‘There’s a

lot of movement going around [in the car],’” id., and began walking toward the vehicle.

Though English didn’t describe this movement any further, Broaddus “interpreted Sergeant

English’s reaction as ‘unusual and suspicious because when Sergeant English said there

was a lot of movement in that vehicle, and walked off, that meant that he observed

something that may have been an officer safety issue.’” Id. (cleaned up).

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English approached the passenger’s window, and Johnson leaned across Miffin to

“volunteer[] [to English] that he was putting on his ‘slides,’ or slip-on sandals.” Id. English

still noted “that there was reaching going on outside his view.” Id. (cleaned up).

Broaddus, meanwhile, “continued to conduct the records check,” id., learning that

the license plate on the vehicle was linked to a different vehicle. “This discovery gave

Officer Broaddus some concerns that [the] vehicle may have been stolen,” although he

“recognized that the issue with the license plates may have been due to DMV issues or

administrative issues related to the COVID-19 pandemic.” Id. (cleaned up). Broaddus

completed the records check and returned to the vehicle, “ask[ing] Johnson to exit the car

so that they could speak privately about the issue with the license plates.” Id. Though

Johnson initially “voiced his desire to wait inside the car until his wife arrived,” id., he

exited the car after Broaddus told Johnson that he could have the car towed if Johnson

didn’t comply.

Broaddus next asked Johnson if he had any weapons, and Johnson, after some back

and forth, “indicated that he did not possess any weapons.” Id. at *5. To confirm, Broaddus

asked if he could pat Johnson down. Though Johnson at first raised his arms as if to

comply, he quickly dropped them and stated, “‘C’mon, bro, don’t do me like that, bro.’”

Id. Johnson then “squared up,”3 id., and told Broaddus that he didn’t want Broaddus to

search him.

Broaddus testified that “it’s more or less a danger sign,” J.A. 133:21–22, to officers 3

when a suspect “squares up”—“a form of aggression” where “someone [is] getting ready to make an action that potentially is dangerous,” J.A. 134:4–7. Johnson and Miffin object

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Broaddus removed his hands from Johnson but noticed what he suspected was a

marijuana flake on Johnson’s shirt. Id. He asked Johnson what the flake was, and Johnson

replied, “That’s a problem.” Broaddus BWC 10:34.4 Though Broaddus told Johnson that

he wasn’t “under arrest,” he explained that he was “detaining” Johnson because he had

“marijuana on [him],” which is “illegal, okay?” Johnson,

, at *5. But

“[m]oments later,” Sergeant English handcuffed Johnson’s hands behind his back.

As

Broaddus then led Johnson away, he asked whether there was more marijuana on Johnson’s

person or in the car, and Johnson admitted that “the car’s center console contained a ‘blunt,’

or a marijuana cigar.”

After learning that the car contained more marijuana (about thirteen minutes into

the stop), Broaddus “asked Johnson for a second time whether Johnson possessed any

weapons because he was concerned that Johnson was armed and dangerous and that he

might have additional marijuana on his person.”

Before waiting for Johnson’s reply,

but “because of those concerns,” Broaddus “opened a zipped cross-body bag draped across

one of Johnson’s shoulders, resting flush against Johnson’s stomach.”

Broaddus shined

his flashlight inside the bag “and discovered a Glock 19” and “individually packaged

narcotics.”

to this description, but we defer to the district court’s factual determinations, United States v. Palmer,

(4th Cir. 2016) (cleaned up), which were based on both Broaddus’s testimony and his body worn camera footage. 4 Broaddus’s body worn camera footage was entered into evidence and reviewed during the suppression hearings.

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As the officers tried to remove the bag from Johnson’s shoulder and maneuver it

around his cuffed hands, J.A. 138:3–8, Johnson began calling out to Miffin, shouting,

“Hey, Juvie, they goddamn got the Glick out the bag, bro,”5 J.A. 138:18–23, 139:12–17;

Broaddus BWC 14:29–14:50. This outburst prompted several responses. First, Broaddus

cut the strap of the bag and walked away from Johnson to secure it in a police vehicle.

Broaddus BWC 15:00–15:20. Broaddus then returned to Johnson, read him his Miranda

warnings, and searched Johnson’s person, including his pockets, finding cash and other

drug paraphernalia.

Second, English instructed Officer Trevor Holmes, “who had arrived on the

scene . . . and had been talking with Miffin, to ‘detain’ Miffin.” Johnson,

, at *6. Following Holmes’s commands, Miffin exited the vehicle, and Holmes

told him that he “was ‘not under arrest,’” but “was simply ‘being detained right now.’”

Still, “Holmes handcuffed Miffin, patted him down, and . . . read him his Miranda rights.”

With Johnson also secured, Broaddus approached Miffin and informed him “that

they ‘found some stuff in the car,’”

(cleaned up), and asked him whether he had any

drugs on his person, Broaddus BWC 22:25–23:08. Miffin, on whom Holmes had done a

pat-down search, responded “that he did not have anything on his person, that he did not

5 The district court explained that a “‘Glick’ refers to a Glock loaded with an extended magazine.” Johnson,

, at *6 n.4.

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want to be searched, and that there was no reason to search him.” Johnson,

, at *6.

Without searching Miffin, Broaddus left him handcuffed with Holmes, and searched

the defendants’ vehicle with English. Broaddus found a Taurus 9mm pistol under Miffin’s

seat, while English “recovered the blunt from the car’s center console, which also contained

a digital scale and empty extended magazines for a handgun.”

And “[i]n the front seat

area, the officers discovered a large quantity of baking soda, a common cutting agent for

narcotics, and several bags in the backseat that appeared to contain narcotics.”

Broaddus then returned to Miffin, searching his person “and a cross-body bag strapped to

his person similar to the one strapped to Johnson’s.” Id. at *7. During these searches,

Broaddus found “additional individually packaged bags containing suspected narcotics.”

Id.

B.

Johnson and Miffin were each charged with a separate count of possession of a

firearm by a felon, in violation of

(g)(1), and with a combined count of

possession with intent to distribute heroin and cocaine, in violation of

(a)(1)

and (b)(1)(C). Johnson and Miffin moved to suppress evidence that they argued was

obtained as the result of unreasonable warrantless searches incident to unreasonable

warrantless seizures, in violation of the Fourth Amendment.

The district court held an evidentiary hearing on the defendants’ motions, in which

it heard testimony from Broaddus and English and reviewed several officers’ body worn

camera footage. The court then heard separate oral argument on the motions after a round

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of supplemental briefing. It also allowed the parties to file a second round of supplemental

briefing after the argument.

As relevant here, the district court denied Johnson’s and Miffin’s motions to

suppress the evidence obtained during the searches of Johnson’s crossbody bag and the

vehicle.

To begin, the court found that the traffic stop was “lawful at its inception because

Officer Broaddus witnessed a traffic violation, giving him probable cause to initiate the

traffic stop.” Id. at *8. And it held that Broaddus didn’t impermissibly prolong the traffic

stop given that he was “investigat[ing] the issues pertaining to the car’s registration and

license plates” and that “these actions did not extend the stop longer than reasonably

necessary for Officer Broaddus to complete his initial objectives.” Id. at *11. In so holding,

the district court rejected the defendants’ argument that Broaddus unreasonably extended

the stop beyond those initial objectives by conducting the pat-down frisk of Johnson and

by conducting the later searches because those were justified under several exceptions to

the Fourth Amendment.

The district court, for example, determined that Broaddus had reasonable suspicion

that Johnson was armed and dangerous, justifying his initial protective frisk under Terry v.

Ohio,

(1968). Then, as to the search of Johnson’s crossbody bag, the district

court found that it was justified as a search incident to Johnson’s arrest for the traffic

violation. Finally, as to the search of the vehicle, the district court found that the seized

evidence would have been inevitably discovered because the vehicle—lacking proper

license plates—was inoperable.

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After the district court’s decision, Johnson and Miffin waived indictment and

entered conditional guilty pleas, while reserving the right to appeal the issues raised in their

suppression motions. Johnson pleaded guilty to being a felon in possession of a firearm

and to possession with intent to distribute a controlled substance, and the district court

imposed a sentence of ninety-six months’ imprisonment followed by three years’

supervised release. Miffin pleaded guilty to possession with intent to distribute a controlled

substance, and the district court imposed a sentence of eighty-five months’ imprisonment,

also followed by three years’ supervised release.

This appeal followed.

II.

Before us, Johnson and Miffin bring two challenges. First, they argue that Broaddus

unreasonably extended the traffic stop by patting Johnson down and searching his

crossbody bag, so the district court erred by not suppressing the evidence seized during

that search. They next contend that the officers unreasonably extended the stop by

searching the defendants’ vehicle, so the district court again erred by not suppressing the

evidence seized during that search. We disagree on both fronts but will address each

argument in turn.6

Johnson and Miffin concede that Broaddus had probable cause to initiate the stop 6

and don’t challenge the length of the stop while Broaddus investigated the license plate issue.

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A.

We’ll begin with the defendants’ challenge to the pat down of Johnson’s person and

search of Johnson’s crossbody bag. In reviewing the district court’s denial of a suppression

motion, “we review legal conclusions de novo and factual findings for clear error.” United

States v. Pulley,

(4th Cir. 2021) (cleaned up). And we “evaluate[] the

evidence in the light most favorable to the government.” United States v. Perry,

(4th Cir. 2024) (cleaned up). We conclude that neither the pat down nor the search

violated the defendants’ Fourth Amendment rights because the former constituted a

protective Terry frisk, and the latter constituted a permissible search incident to arrest.

1.

The Fourth Amendment guides our analysis. It protects “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” United States v. Gist-Davis,

, 263 (4th Cir. 2022) (quoting U.S.

Const. amend. IV). And the right extends to investigatory stops and associated protective

frisks “that fail to comply with the criteria articulated in Terry v. Ohio.”

(citation

omitted).

An officer who has conducted a lawful traffic stop may conduct a protective frisk if

he “has a reasonable suspicion that one of the automobile’s occupants is armed” to ensure

“the officer’s protection and the safety of everyone on the scene.” United States v.

Robinson,

(4th Cir. 2017). Reasonable suspicion “is a less demanding

standard than probable cause,” and “considerably less [demanding] than a preponderance

of the evidence.” Gist-Davis, 41 F.4th at 264 (cleaned up).

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Still, reasonable suspicion isn’t toothless: It requires that an officer “be able to

articulate more than an inchoate and unparticularized suspicion or hunch” that an

individual is armed and dangerous. Id. (cleaned up). The officer may consider “a host of

factors” in doing so, United States v. George,

(4th Cir. 2013), and we

evaluate those factors under “the totality of the circumstances, giving due weight to

common sense judgments reached by [the] officer[] in light of [his] experience and

training,” Gist-Davis, 41 F.4th at 264 (cleaned up).

The district court summarized the “host of factors” that it considered in its

reasonable suspicion calculus and assigned weight to each. Johnson,

,

at *13 (citing factors and cases). It assigned, for example, “substantial weight” to “the

information [Broaddus] received from the records check,” as well as the movement English

“observed . . . within the car.” Id. at *15. The district court then assigned only “some

weight” to the fact that (1) the stop occurred “in a high-crime area,” id. at *14, (2) the stop

occurred “at 1:25 a.m. in a dark location,” id. at *15, and (3) Johnson was “unusual[ly]”

nervous and “evasive,” id. at *16. Viewing the facts in the light most favorable to the

government and deferring to the district court’s credibility determinations, we see no reason

to disturb the district court’s reasoning and agree that, taken in their totality, these

circumstances allowed Broaddus to reasonably suspect that Johnson was armed and

dangerous.

Turning first to the records check, Broaddus learned from the check that “Johnson

was on federal supervision and that Miffin was a reported member of the Crips,” a gang

with “a reputation for violence.” Id. at *15; see also United States v. Holmes,

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270, 278 (4th Cir. 2004) (crediting suspect’s criminal history and violent gang affiliation

as relevant factors in reasonable suspicion analysis). Broaddus, moreover, “reasonably

suspected he was dealing with a possible stolen vehicle considering that the records check

associated the license plates on [the d]efendants’ car with another vehicle.” Johnson,

, at *15 (cleaned up).

As for the movement in the vehicle, English not only “abruptly interrupt[ed]”

Broaddus to note the movement, but also “promptly approach[ed] the vehicle to get a better

view” of the movement.

The district court credited Broaddus’s testimony that

English’s behavior “possibly signal[ed] an officer safety issue,”

(cleaned up), given that

“[s]uspicious movements such as [Johnson’s] . . . ‘can be taken to suggest that the suspect

may have a weapon,’”

(quoting George,

) (cleaned up).

Finally, for the three other factors, the district court was right to acknowledge that,

alone, they were “minimally probative,” id. at *14; see also id. at*15–16, but that they

could still be considered within the reasonable suspicion framework. This court has

allowed the crime rate where the stop occurred, United States v. Mitchell,

(4th Cir. 2020), the early morning hours in which the stop occurred, and a suspect’s

demeanor to play some role within that framework, George, 732 F.3d at 299–300.

In this case, the stop occurred in a higher-crime area. Indeed, Broaddus was

patrolling there because of recent criminal activity in the vicinity. And the stop occurred

in the early hours of the morning, which “may alert a reasonable officer to the possibility

of danger.” Id. at 300. Then, Johnson became less compliant as Broaddus sought to clarify

the records check—declining to exit the vehicle to discuss the license plate issue with

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Broaddus, “squaring up” to Broaddus when he did exit the vehicle, and resisting

Broaddus’s questions about whether he possessed any weapons.7

Johnson and Miffin resist this conclusion, arguing that the officers and Johnson

“were laughing about the situation,” so “[c]learly,” they weren’t “in fear for [their] safety.”

Appellants’ Br. at 16. And they contend that “[t]he stop was for a traffic infraction,” during

which Broaddus “never voiced any concern for his safety or that of the other police officers

then present.” Id. at 18.

But that Broaddus had cordial interactions with Johnson doesn’t mean he didn’t

reasonably suspect that Johnson was armed. Nor does our standard require an outward

expression of that suspicion. See United States v. Branch,

(4th Cir.

2008) (explaining that “the lawfulness of a Terry stop turns not on the officer’s actual state

of mind at the time the challenged action was taken, but rather on an objective assessment

of the officer’s actions” (cleaned up)).

There’s no question that Broaddus (1) initiated the stop in the early morning hours

in a higher-crime area, (2) learned that Johnson was under federal supervision, that Miffin

was in a violent gang, that the vehicle had mismatched plates, and that there was movement

in the vehicle, and (3) observed Johnson become more agitated and less compliant as he

7 The district court rightly identified “the complex reality of citizen-police relationships in many cities,” including Richmond, Virginia, so that “Johnson’s hesitations” (or evasive behavior) merited less weight in its reasonable suspicion analysis. Johnson,

, at *16.

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tried to unravel the plate issue. Under our standard, we’re satisfied that reasonable

suspicion existed, justifying Broaddus’s protective frisk of Johnson.

2.

We address next Johnson and Miffin’s argument that Broaddus impermissibly

prolonged the stop by searching Johnson’s crossbody bag. The district court held that the

search was conducted as a valid search incident to arrest for the traffic infraction, even

though the search preceded the arrest. Johnson,

, at *17. We agree.

A search incident to arrest “is a traditional exception to the warrant requirement of

the Fourth Amendment,” in which “law enforcement officers [who] have probable cause

to make a lawful custodial arrest . . . may—incident to that arrest and without a warrant—

search the arrestee’s person and the area within his immediate control.” United States v.

Currence,

(4th Cir. 2006) (cleaned up). An officer may do so, even

before an official arrest is made, to “remove any weapons that [a suspect] might seek to

use in order to resist arrest or effect his escape,” and “to prevent the concealment or

destruction of evidence.”

But as with the reasonable suspicion standard, this exception

isn’t limitless.

The Supreme Court narrowed this exception in Arizona v. Gant by holding that, in

the vehicular context, police can “search a vehicle incident to a recent occupant’s arrest

only when the arrestee is unsecured and within reaching distance of the passenger

compartment at the time of the search.”

(2009) (emphasis added). This

court in United States v. Davis then extended that holding to reach “non-vehicular

containers that were not on the arrestee’s person.”

(4th Cir. 2021).

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Like this case, the “non-vehicular container[]” in Davis was a bag, so the main

question was whether the suspect “could have accessed the backpack at the time of the

search.”

(cleaned up). The answer there was no, where the suspect had dropped

his backpack and was laying on the ground with his handcuffed hands behind his back, and

where the officer had just had “his service weapon drawn.”

Under those circumstances,

“there [was] no doubt that Davis was secured and not within reaching distance of his

backpack,”

when the officer searched it.

Johnson and Miffin would apply Davis’s holding here. Though the defendants don’t

dispute that Broaddus had probable cause to arrest Johnson for the traffic infraction,8 see

Reply Br. at 8, they argue that Johnson, like Davis, “had been placed in handcuffs with his

hands behind him,” Appellants’ Br. at 20. They also repeat that “[a] threat to officers’

safety Johnson was not.”

But the defendants overlook critical differences between Davis and this case. To

begin, Broaddus had reasonably determined that Johnson was a threat to officer safety by

the time he searched Johnson’s crossbody bag. And Broaddus had also observed what he

suspected was marijuana on Johnson’s clothing after the initial pat down. Though

8 Johnson and Miffin don’t raise a temporal challenge to the search incident to arrest or otherwise argue that too much time elapsed between the traffic infraction and Broaddus’s search of Johnson’s crossbody bag. See Currence,

(“Temporally, searches incident to arrest must be substantially contemporaneous with the arrest, and although a search can occur before an arrest is made, a search may not precede an arrest and serve as part of its justification.” (cleaned up)).

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marijuana was decriminalized in Virginia at the time,9 that state policy did not dispel the

“indisputable nexus between drugs and guns,” United States v. Harris, No. 21-4657,

, at *1 (4th Cir. Aug. 11, 2023) (quoting United States v. Sakyi,

(4th Cir. 1998)), which “creates a reasonable suspicion of danger to the officer,” Sakyi,

.

Johnson and Miffin also gloss over that Johnson’s bag, at the time it was searched,

remained on his person and that Johnson himself, though handcuffed, “still could walk

around somewhat freely,” United States v. Ferebee,

(4th Cir. 2020).

And with the crossbody bag “resting flush against Johnson’s stomach,” Johnson,

, at *5, the officers could have “reasonably” believed that Johnson could access

its contents, Ferebee,

.

These facts contrast with those in Davis, where the arrestee was face-down on the

ground with his hands handcuffed behind his back and where the arrestee’s bag was no

longer under his control. In Davis, we also acknowledged that “an arrest scene may be

more fluid—and an arrestee less secure—when officers must not only maintain custody of

the arrestee, but also stay vigilant of . . . any efforts by confederates to interfere.”

. Here, Miffin—a known member of a violent gang—was also on the scene, so the

officers had to balance their awareness of him, and his access to the bag, as well.

Taking these circumstances together, we won’t disturb the district court’s

conclusion that the search of Johnson’s bag was a valid search incident to his arrest.

9

(A) (repealed effective July 1, 2021).

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B.

Johnson and Miffin’s final argument is that the officers unconstitutionally

prolonged the stop by conducting a warrantless search of the vehicle. Though the district

court found that the officers would have inevitably discovered the evidence during an

inventory search, we instead affirm because the officers could search the vehicle under the

automobile exception to the Fourth Amendment.10

1.

The automobile exception to the Fourth Amendment’s warrant requirement

provides that “if a car is readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment . . . permits police to search the vehicle without more.”

United States v. Kelly,

(4th Cir. 2010) (cleaned up).11 “[O]nce police

have [the requisite] probable cause, they may search every part of the vehicle and its

contents that may conceal the object of the search.”

(cleaned up). And we have

recognized that “[a]n officer’s detection of marijuana creates such probable cause.” United

States v. Alston,

(4th Cir. 2019) (cleaned up).

10 Though the district court admitted the evidence under a different theory, we may “affirm [the district court’s decision] on any ground supported by the record.” United States v. Perez,

(4th Cir. 2022) (cleaned up). 11 In Kelly, we explained that the automobile “exception applies as long as a car is ‘readily mobile’ in the sense that it is being used on the highways or is readily capable of such use.”

(cleaned up). Thus, it’s of no moment that Johnson and Miffin were handcuffed—and unable to drive the vehicle—at the time of the search because the vehicle itself could have been driven.

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Broaddus had probable cause to search the vehicle. Before he conducted the search,

Broaddus (1) saw a flake of marijuana on Johnson’s shirt, (2) learned from Johnson that

there was more marijuana in the vehicle, and (3) found a gun in Johnson’s crossbody bag.

What’s more, Broaddus heard Johnson call out to Miffin that they had found the “Glick”

in his bag, raising the possibility that there were other concealed firearms.

Johnson and Miffin challenge the application of the automobile exception on two

grounds. First, they repeat that marijuana was decriminalized then in Virginia, so it

couldn’t be “contraband” for purposes of the exception. And second, they argue that

because the district court suppressed some statements Johnson made to the police after he

was handcuffed but before he was given his Miranda warnings (that there was a “blunt” in

the vehicle’s center console), the evidence seized based on those comments should also be

suppressed as “fruit of the poisonous tree.” Reply Br. at 14 (cleaned up). We’re unmoved

by either argument.

On the defendants’ first point, they’ve provided no caselaw explaining why an

illegal substance (even a decriminalized one) like marijuana doesn’t still constitute

contraband. While Virginia may have made marijuana possession a civil offense, the drug

remains illegal under state law, and its possession is still a crime under federal law.12 See

12 We contrast the automobile exception with the search incident to arrest exception. The former requires only probable cause that the object of the search contain “contraband,” Kelly,

, while the latter requires a lawful arrest, which in turn must be supported by probable cause that an arrestee committed a “crime,” see Atwater v. City of Lago Vista,

(2001) (allowing for arrest if “an officer has probable cause to believe that an individual has committed even a very minor criminal offense” (emphasis added)). So, while marijuana—decriminalized then by the Virginia legislature—might not

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United States v. Castillo Palacio,

, 672 (D. Md. 2019) (recognizing

that “possession of marijuana in any amount remains illegal,” even after its

decriminalization in Maryland, such that marijuana constitutes contraband (quoting

Robinson v. State,

(Md. 2017))); People v. Looby,

, 698

(2018) (concluding that although decriminalized in the Virgin Islands, possession of

marijuana remains unlawful and is considered contraband). Because marijuana possession

is still illegal, even if subject to only a civil penalty in Virginia, it remains “contraband”

for purposes of the automobile exception.13 See Davis,

(allowing search

under automobile exception if probable cause exists that “contraband” or “evidence of a

crime will be found” (cleaned up)).

On the defendants’ second point, we’ve long recognized that physical or “derivative

evidence obtained as a result of an unwarned statement that was voluntary under the Fifth

Amendment is never fruit of the poisonous tree.” United States v. Sterling,

(4th Cir. 2002) (cleaned up). That principle applies here, where officers obtained a

be evidence of a crime, it could nonetheless qualify as contraband. See, e.g., United States v. Pascual,

, 78 n.3 (2d Cir. 2012) (explaining that “the ‘scope of the search authorized [by the automobile exception] is broader’ than that authorized in searches incident to arrest” (quoting Gant,

)). 13 The defendants’ citation to Commonwealth v. Branch, No. 0132-22-1,

, at *4 (Va. Ct. App. June 21, 2022), doesn’t change our minds. The court merely “[a]ssum[ed] without deciding that decriminalized, unlawful marijuana” was “considered ‘contraband’ for purposes of the Fourth Amendment” before holding that “the circumstances [there] did not provide the officers with probable cause that other contraband or evidence of a crime would be found in the vehicle.”

Such circumstances existed here, including evidence of additional marijuana.

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voluntary statement, though it was “in technical violation of Miranda.” Correll v.

Thompson,

(4th Cir. 1995).

Such a technical—unlike a constitutional—violation doesn’t inherently “taint,”

the physical evidence that law enforcement seized, so it needn’t be suppressed. And, in

any event, Broaddus had other indicia of contraband, such as the marijuana flake and the

unsuppressed statement about the gun, to justify searching the vehicle under the automobile

exception.14

III.

For these reasons, the district court’s judgment is

AFFIRMED.

14 Because we affirm the district court’s refusal to suppress the evidence seized in the vehicle under the automobile exception rather than the inevitable discovery doctrine, we don’t address the defendants’ argument that the doctrine wouldn’t support the admissibility of evidence found on Miffin’s person after the search of the vehicle. See, e.g., Reply Br. at 19. If Miffin had argued that the search of his person was not lawful even in light of evidence discovered under the automobile exception, it would have been unavailing. Law enforcement officers lawfully detained Miffin and lawfully conducted the preceding searches, so they “inevitably would have searched the car and found the gun,” Alston,

.

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