Filed: Mar. 09, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4572 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WALTER FAYALL, III, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion. Mic
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4572 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WALTER FAYALL, III, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion. Mich..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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before the court and argument would not aid the decisional
process.
AFFIRMED
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