UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4365


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

SHANE TRENIER COHEN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:11-cr-00164-FL-1)


Argued:   September 19, 2014                 Decided:   December 5, 2014


Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.        Judge Davis wrote a
separate concurring opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.     Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Shane Trenier Cohen pled guilty to possession with intent

to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1),

and   to   possession      of    a     firearm         in    furtherance       of   a   drug

trafficking       crime,   in    violation         of       18    U.S.C.   §    924(c)(1),

reserving his right to appeal the district court’s denial of his

motion to suppress.        We affirm.

                                             I.

                                             A.

      On August 2, 2011, Detectives David Beckwith and Lacy Ray

Ward of the Warsaw, North Carolina, police department observed

Cohen, who was driving a Ford Explorer, make a right turn off of

Highway    117    and   into    an    area     known        for   drug-trafficking       and

other criminal activity.               When the officers turned in behind

Cohen, Cohen made a left turn, another left turn, and pulled

into a gas station.        The officers found Cohen’s route to be odd

because Cohen could have arrived at the gas station much quicker

if he had stayed on Highway 117.                  Cohen entered the gas station,

where he stayed for less than a minute.                          The officers continued

to follow him as he drove away.                        When the officers observed

Cohen come within ten feet of a small car ahead of him, they

stopped him for following too closely.

      Detective Beckwith walked up to the driver’s side of the

Explorer    and    introduced        himself      to    Cohen.       He    explained     the

                                             3
reason       for     the    traffic    stop    and    obtained         Cohen’s     driver’s

license.            Based    upon     his   experience       as    a    police     officer,

Detective       Beckwith      immediately         noticed   that       Cohen    was     acting

unusually nervous for a simple traffic stop.                           He “was breathing

rapidly, not making good eye contact, frequently taking sips of

his drink, was excessively talkative, strangely agreeable and

polite,       and     hesitated     when    answering        if    he     had    ever    been

arrested.”           J.A. 99.       Detective Ward, who had approached the

passenger side of the Explorer and conversed briefly with Cohen,

likewise perceived him to be unusually nervous.

       After briefly returning to the patrol car and verifying

that       Cohen’s    driver’s      license    was    active,      Detective       Beckwith

asked Cohen to step out of the vehicle.                     Cohen complied, but his

demeanor       noticeably      changed      “from    being    nervous       to    extremely

nervous to almost disagreeable.”                    J.A. 29.       Cohen began to ask

questions such as, “Why [are] you doing this,” and “Why [are]

you stopping me?”            J.A. 187 (internal quotation marks omitted).

When Detective Beckwith asked Cohen if he had a weapon on him,

Cohen “raised his hands and said ‘No.’”                           J.A. 29.        Detective

Beckwith then patted Cohen’s pockets and felt two “blunt cigar

wrap[s]”       in    his    left    pants     pocket.       J.A.       101. 1     Detective



       1
       Although Detective Beckwith at times referred to the
evidence as “blunt cigars,” it is clear from the record that the


                                              4
Beckwith testified that such blunt wraps are typically used to

roll marijuana, and he had never encountered anyone who carried

blunt wraps along with loose tobacco for the purpose of rolling

non-marijuana      cigars.      Detective      Beckwith        asked   Cohen     if    he

“smoked   weed,”     which    Cohen    denied.          J.A.    29.      Cohen       told

Detective Beckwith that he had the blunt wraps because he had

started smoking cigars, but he also referred to the papers as

blunt    wraps.      During     the    traffic      stop,      Cohen    admitted      to

Detective    Beckwith    that    he    had   been    previously        arrested       and

convicted for possession of marijuana.

     After    the    pat-down    search,       Detective        Beckwith      escorted

Cohen to the front passenger seat of his patrol car.                          Detective

Beckwith informed Cohen that he was only going to write him a

warning citation and that Cohen would not have to go to court or

pay a fine.         According to Detective Beckwith, “[n]ormally on

traffic   stops,     normal   people    when     they    realize       they    are    not

going to get cited or it is not going to cost them any money to

go to court, I notice that their nervousness usually goes down.”

J.A. 29-30.       Cohen’s nervousness, however, escalated. 2                  While he



evidence removed from Cohen’s pocket were blunt                          wraps       that
contained no tobacco or marijuana. J.A. 29, 158.
     2
       In the initial report, Detective Beckwith stated that he
told Cohen he “would not be issuing him a state citation for the
violation” before he returned to the patrol car to verify
Cohen’s license. J.A. 158. Detective Beckwith testified at the


                                         5
was   preparing          the     warning           citation,     Detective       Beckwith

additionally attempted to engage Cohen in small talk, inquiring

about such things as where Cohen went to school and whether he

played    ball.         Again,    Cohen’s          “nervousness    seemed     to   go   up

instead of down.”              J.A. 30.        “He continued breathing rapidly,

and was fidgeting with his cell phone, wiping his hands on his

legs, wrenching his hands, and continuously swallowing.”                            J.A.

99.       This    “continued       increased          nervousness      through     casual

conversation after learning that he was only receiving a warning

was atypical in Detective Beckwith’s experience.”                       J.A. 100.

      After completing the warning citation, Detective Beckwith

handed it to Cohen and told him to “‘[h]ave a nice day’ as he

stepped    out    of    the     [patrol]       vehicle.”        J.A.   30.    Detective

Beckwith    then       asked    Cohen     if    there    was    anything     illegal    in

Cohen’s    vehicle.        Cohen    said       that     there   was    not   and   denied

Detective Beckwith’s request to search the vehicle.

      At that point, Detective Beckwith informed Cohen that a K-9

unit would be brought to the scene to sniff the exterior of the

vehicle.     Approximately two minutes later, dispatch advised the


suppression hearing that he told Cohen that he “was just going
to write him a warning citation for the violation” when he had
Cohen in the patrol car.    J.A. 29.    Cohen may well have been
reassured on both occasions, but it does not matter for our
purposes   because  it   is  clear   that   Detective  Beckwith’s
reassurances during the traffic stop never resulted in the
expected diminishment of Cohen’s nervousness.



                                               6
officers      that      Cohen    had    an        outstanding     arrest   warrant.

Detective Ward also remembered that she had been present as an

undercover officer during a purchase of crack cocaine from Cohen

six years before.         Cohen was placed in custody and put back into

the patrol car. 3

       Minutes later, the K-9 unit arrived and the dog alerted to

the right passenger-side door of the vehicle.                      In the ensuing

search, the officers found approximately a half-pound to a pound

bag of marijuana, a set of digital scales, and a stolen .380

caliber      handgun.      The     dashboard        camera   in   the   patrol   car

captured Cohen making several incriminating statements on his

cellular phone.         And when the contents of Cohen’s cellular phone

were       later     downloaded,       the        officers   discovered     several

incriminating text messages pertaining to drug deals.

                                             B.

       On December 13, 2011, the grand jury returned an indictment

charging Cohen with possession with the intent to distribute a


       3
        According to Detective Ward’s testimony, the police
consult two databases when they run a driver’s license check.
The National Crime Information Center (“NCIC”) database is
consulted automatically to determine whether an individual is
wanted or a car is stolen, and its results come in quickly. The
NCAware database takes anywhere from one to five minutes to
return results.   NCIC did not return the warrant information,
but NCAware did. However, the warrant was not ultimately served
because it had no photograph and a different date of birth than
the one indicated on Cohen’s license.



                                             7
quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1)

(Count 1); possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count

2); and possession of a firearm after having been convicted of a

crime punishable by imprisonment for a term exceeding one year,

in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count 3).

     Cohen filed a motion to suppress the evidence found in the

vehicle     search,     his      incriminating      statements,          and    the

incriminating text messages from his cell phone.                    He argued that

the officers lacked reasonable suspicion of criminal activity

sufficient to detain him beyond the scope of the valid traffic

stop.     Detectives Beckwith and Ward testified at the suppression

hearing.       Cohen    did     not    testify.         The     magistrate     judge

recommended    that    the    motion   be    granted.         The   district   court

denied the motion.           Cohen thereafter pled guilty to the first

two counts of the indictment, preserving his right to appeal the

suppression ruling.          He was sentenced to seven months for the

marijuana conviction, and to a consecutive five-year term for

the firearm offense.         This appeal followed.

                                       II.

                                        A.

     When reviewing the district court’s denial of a motion to

suppress, we review its “factual findings for clear error and

its legal conclusions de novo.”               United States v. Green, 740

                                        

, 277 (4th Cir. 2014).                      “We construe the evidence in the

light most favorable to the government, as the prevailing party

below.”         

Amendment guarantees “[t]he right of the people

to    be    secure       in    their       persons,      houses,     papers,      and    effects,

against unreasonable searches and seizures.”                              U.S. Const. amend.

IV.        A    vehicle       stop    by    the   police        is   a   seizure    within       the

meaning of the Fourth Amendment.                             See Whren v. United States,

,    809-10       (1996).           “[T]he      decision      to     stop    an

automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred.”                                    

“Any ulterior motive a police officer may have for making the

traffic stop is irrelevant.”                      United States v. Digiovanni, 

, 506 (4th Cir. 2011).

       “A lawful traffic stop ‘begins when a vehicle is pulled

over for investigation of a traffic violation’ and ends ‘when

the police have no further need to control the scene, and inform

the driver and passengers they are free to leave.’”                                    

   (quoting       Arizona      v.       Johnson,    

,     333

(2009)).              “[O]nce    the       driver       has    demonstrated        that     he   is

entitled         to    operate       his    vehicle,         and   the   police    officer       has

issued          the    requisite       warning          or     ticket,    the      driver      must

[ordinarily] be allowed to proceed on his way.”                                   United States

v. Branch, 

, 336 (4th Cir. 2008) (internal quotation

                                                    9
marks omitted).              The police officer, however, may detain a

driver    beyond      the    scope       of    the      lawful      traffic         stop     if   the

officer “possess[es] a justification for doing so other than the

initial traffic violation that prompted the stop in the first

place.”    

         Such “a prolonged automobile stop requires

either the driver’s consent or a ‘reasonable suspicion’ that

illegal activity is afoot.”                    

suspicion

is     demonstrated         when    an        officer        points       to    specific          and

articulable facts which, taken together with rational inferences

from     those        facts,       evince          more      than     an        inchoate          and

unparticularized           suspicion          or     hunch    of     criminal         activity.”

United    States      v.    Mason,       

,     128    (4th       Cir.    2010)

(internal quotation marks and alteration omitted).

       When assessing whether a police officer has the requisite

reasonable suspicion, the court “must consider the totality of

the circumstances” known to the officers at the time, and “give

due    weight    to    common      sense       judgments       reached         by    officers      in

light     of    their       experience         and        training.”            

marks omitted).                     “[I]t is entirely appropriate for

courts    to    credit      ‘the     practical            experience       of       officers      who

observe    on    a    daily     basis         what      transpires        on    the    street.’”

(quoting United States v. Lender, 

, 154 (4th Cir. 1993)).                         Thus, “[c]ourts must look at

the cumulative information available to the officer and not find

                                                   10
a stop unjustified based merely on a piecemeal refutation of

each    individual         fact    and   inference.”           

     (internal

quotation marks and citation omitted).                     “It is the entire mosaic

that counts, not single tiles.”                    

marks

omitted).         Accordingly, “[a] set of factors, each of which [is]

individually          ‘quite      consistent      with    innocent         travel,’      c[an]

still,       ‘taken      together,’      produce    a    ‘reasonable         suspicion’        of

criminal activity.”               

States v. Sokolow, 

,    9    (1989)).        But   “[t]he     articulated        innocent        factors

collectively must serve to eliminate a substantial portion of

innocent          travelers       before     the      requirement          of      reasonable

suspicion         will    be   satisfied.”         

(internal quotation marks omitted).

                                             B.
       In this case, Cohen does not contest that the traffic stop

was justified at its inception and reasonable in its duration.

Moreover,         the    parties     agree     that      the    lawful       traffic         stop

concluded         when    Detective      Beckwith        handed      Cohen      the    warning

citation, told him to have a nice day, and was denied permission

to     search      Cohen’s        vehicle.         Cohen’s     motion        to       suppress,

therefore, was based upon his claim that the officers did not

develop the requisite reasonable suspicion during the traffic

stop to justify his detention after it concluded.




                                             11
                                           1.
       At    the    outset,    we    consider     Cohen’s    assertion     that   the

district court erred in finding that Detective Beckwith’s pat-

down search of Cohen’s clothing was consensual and, therefore,

that Cohen’s possession of blunt wraps was a pertinent factor in

the reasonable suspicion determination.                  We disagree.

        As noted by the district court, “voluntary citizen-police

encounters         do   not   implicate    the    Fourth    Amendment.”      United

States v. Black, 

, 364 (4th Cir. 2008).                        Moreover,

consent to a search need not be express, but “may be inferred

from actions as well as words.”                   United States v. Hylton, 

, 786 (4th Cir. 2003); see United States v. Wilson, 

, 170 (4th Cir. 1990) (per curiam).                      The determination

of whether a suspect has consented to a search is a subjective

one,    also    evaluated       in   light   of    the    “the   totality    of   the

circumstances.”           

(internal quotation

marks       omitted).         The    district      court     makes   the     factual

determination of whether there was consent to a search, and we

must uphold that finding unless it is clearly erroneous in light

of the evidence presented.                See 

United States v.

Lattimore, 

, 650-51 (4th Cir. 1996) (en banc).

       In Wilson, a Drug Enforcement Agent observed a suspicious

bulge in a defendant’s pants and asked for permission to search

him.    In response, the defendant “shrugg[ed] his shoulders and

                                           12
rais[ed] his 

.            Noting that the defendant

had “raised his arms in response to [the officer’s] request for

permission     to    pat    him    down,    a    request       made    without        threats,

force, or physical intimidation,” we held that “[i]t was not

‘clearly     erroneous’      for    the    district       court       to   find     that    the

search was consensual.”            

       In    this   case,     the    district       court       likewise          found    that

Detective Beckwith did not threaten or coerce Cohen in any way.

Nor    did    he    claim    legal    authority          to    search        Cohen.        When

Detective Beckwith asked Cohen if had a weapon, Cohen said “no,”

and    voluntarily      raised       his    arms,     which          Detective        Beckwith

reasonably interpreted as an implied consent to search.                                   Thus,

Cohen “did not merely consent to a search of his person,” as the

defendant did in Wilson.               J.A. 98.           Rather, Cohen’s “actions

were an affirmative invitation to” Detective Beckwith to search

him.    J.A. 98.

       On    appeal,       Cohen    argues       that,        even    if     he     impliedly

consented to the pat-down search, his actions only indicated a

consent to a pat-down search for weapons, and not a consent to

the officer’s removal of the blunt wraps from his pocket.                                  The

district      court’s      factual    findings,       however,          do    not     support

Cohen’s current claim that his consent was circumscribed in this

way.    Nor does the record.               As the district court additionally



                                            13
found, Cohen did not “lower his arms, protest, or move away” at

any point “before, during, or after the pat-down.”               J.A. 98.

     Accordingly,      we    hold   that   the    district     court   did   not

clearly err in finding that Cohen consented to the search that

resulted in discovery of the blunt wraps and, therefore, that

the blunt wraps were properly considered as a factor in the

officer’s reasonable suspicion determination. 4

                                      2.
     Viewing the evidence in the light most favorable to the

government,   we     likewise     cannot   say   that   the    district   court

clearly erred in finding that the totality of the circumstances

justified   Cohen’s     detention     beyond     the   scope   of   the   lawful

traffic stop and, consequently, in denying Cohen’s motion to

suppress.

     As an initial premise, we reject Cohen’s contention that

the district court erred in considering his nervousness as a

pertinent   factor    in    the   “reasonable    suspicion”     determination.

     4
       Actually, we see no indication that Cohen contested the
legality of the pat-down search of his person in his motion to
suppress, or argued before the magistrate judge that the search
violated the Fourth Amendment.    Rather, the magistrate judge
appears to have sua sponte recommended that the blunt-wrap
evidence be excluded from consideration because Detective
Beckwith did not have a reasonable suspicion that Cohen was
armed and dangerous. In any event, the only issue before us now
is whether the district court clearly erred in finding that the
pat-down search was consensual, and we do not consider the
question of whether the search would have been invalid absent
such consent.


                                      14
“‘It is common for most people to exhibit signs of nervousness

when confronted by a law enforcement officer whether or not the

person   is   currently    engaged      in    criminal     activity.’”       United

States v Massenburg, 

, 490 (4th Cir. 2011) (quoting

United States v. Salzano, 

, 1113 (10th Cir. 1998))

(alteration omitted).        But where a suspect exhibits “‘signs of

nervousness beyond the norm,’” it is a “highly relevant” factor

for consideration.        Id.; see also United States v. Mayo, 

, 805-06 (4th Cir. 2004); United States v. McFarley, 

, 1192-1193 (4th Cir. 1993).

     Here, the district court found that Cohen exhibited “the

kind of abnormal nervous behavior that can support reasonable

suspicion,”     J.A.      100,    and        our    precedent       supports    its

determination.      Detective      Beckwith        was   an    experienced   police

officer who had been involved in “hundreds” of traffic stops.

He immediately noticed that Cohen was exhibiting unusual nervous

indicators for a routine traffic stop, a practical judgment that

was entitled to the credit the district court gave it.                          See

; 

.                      Cohen “was

breathing     rapidly,    not    making      good    eye      contact,   frequently

taking sips of his drink, was excessively talkative, strangely

agreeable and polite, and hesitated when answering if he had

ever been arrested.”        J.A. 99.         Even so, Detective Beckwith did

not base the decision to detain Cohen solely upon these initial

                                        15
observations.         Cohen’s demeanor, which was initially apologetic

and     agreeable,      turned       to     disagreeable     and    defensive     when

Detective Beckwith asked him to get out of his vehicle.                              And

when Detective Beckwith had Cohen sit in the patrol vehicle to

write    the    warning   citation,          Cohen’s   nervousness       continued    to

escalate, despite Detective Beckwith’s reassurances that Cohen

would    only   be    given     a    warning      citation   and   his    attempts    to

diminish Cohen’s anxiety by engaging him in small talk.                           Cohen

“continued breathing rapidly, and was fidgeting with his cell

phone, wiping his hands on his legs, wrenching his hands, and

continuously swallowing.”                 J.A. 99.     Again, this behavior “was

atypical in Detective Beckwith’s experience.”                      J.A. 100.      Such

continued or prolonged nervousness, we have held, can lead to

reasonable suspicion because, as Detective Beckwith stated, an

innocent individual’s initial nervousness usually subsides.                          See

(relying, in part, upon the fact that the

suspect    “was      sweating       and   unusually    nervous     when    interacting

with [the officer], and [his] nervousness did not subside, as

occurs    normally,       but       became     more    pronounced     as    the   stop

continued”).

      In any event, Cohen’s abnormally nervous behavior did not

serve as the sole basis upon which Detective Beckwith based his

suspicion that Cohen’s vehicle contained illegal drugs.                              The

officers had just observed Cohen traveling through an area known

                                             16
for drug trafficking and other crimes, also a pertinent factor

for consideration.      See 

(noting that

while “mere presence in a high crime area is not by itself

enough   to   raise   reasonable   suspicion,   an   area’s   propensity

toward criminal activity is [also] something that an officer may

consider”).    During the course of his conversation with Cohen,

Detective Beckwith also learned that Cohen had a prior arrest

and conviction for felony possession of marijuana.            See United

States v. Sprinkle, 

, 617 (4th Cir. 1997) (noting

that while a suspect’s criminal history may be insufficient to

warrant reasonable suspicion that he is engaged in crime again,

“an officer can couple knowledge of prior criminal involvement

with more concrete factors in reaching a reasonable suspicion of

current criminal activity”).

     Finally, and importantly, Cohen was found in possession of

drug paraphernalia during the traffic stop.          Blunt wraps, which

were removed from Cohen’s person during the consent pat-down

search, are commonly associated with the use of drugs and, in

particular, with marijuana.        See United States v. Sakyi, 

, 169 (4th Cir. 1998) (holding that the officer “had a

reasonable suspicion, based on several hundred cases in which a

Phillies Blunt cigar box was associated with marijuana, that

drugs were present in the vehicle he stopped”).



                                   17
      In   sum,   the    totality         of    the    circumstances       supports       the

district court’s determination that the officers had reasonable

suspicion to detain Cohen beyond the lawful traffic stop.                                 As

succinctly summarized by the district court, Cohen was traveling

“in   a    high   drug    crime          area.         He   displayed      unusual     and

unsubsiding nervous behavior throughout the encounter, despite

being told he was only going to receive a warning.                              Officers

learned    that     he   had    a    prior          conviction    for     possession      of

marijuana,    and    found     what      is    commonly     known    to    be   marijuana

paraphernalia on his person.”                       J.A. 102.      Although “none of

these factors individually are incapable of having an innocent

explanation,” when considered collectively and in light of the

officers’    experience        and       training,       “the    combination     .    .    .

serve[d]     to     eliminate        a    substantial           portion    of   innocent

travelers.’”      J.A. 102.

                                           III.

      For the foregoing reasons, we affirm the district court’s

denial of Cohen’s motion to suppress. 5

                                                                                 AFFIRMED

      5
       Because the totality of the circumstances was sufficient
to establish a reasonable suspicion of criminal activity
justifying Cohen’s detention after the traffic stop concluded,
we need not address the government’s alternative argument that
the discovery of the outstanding warrant within two minutes of
the conclusion of the stop would have led to the inevitable
discovery of the evidence.



                                               18
DAVIS, Senior Circuit Judge, concurring:

       I am pleased to concur in the majority opinion. I offer

this short comment to highlight the importance of this case for

prosecutors     and     criminal    defense          counsel   handling      suppression

motions before United States Magistrate Judges in felony cases,

a phenomenon seemingly on the rise in some districts. Although

district judges conduct de novo review of magistrate judges’

reports and recommendations, magistrate judges are the first-

level factfinders, and, absent an evidentiary hearing “do-over”

by   the     district    judge,     the    exclusive        authority      on    demeanor

evidence and credibility assessments. See ante at 11-13 & n.4.

The lesson here is simply that, as always, counsel need to pay

heed    to    the     identity     of     the       factfinder      and   the    relative

competence, in the hierarchy of judicial review, of who has the

last   word     on    findings     regarding          the   “who,    what,      when,   and

where,” cf. United States v. Santiago, 

, 156 (2d

Cir.    2001)        (Sotomayor,        J.),        which   underlie      consequential

judicial determinations.




                                               19