United States v. Hinton , 27 F. App'x 252 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4080
GREGORY HINTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CR-00-180)
Submitted: October 31, 2001
Decided: December 28, 2001
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John Kenneth Zwerling, ZWERLING & KEMLER, P.C., Alexandria,
Virginia, for Appellant. Kenneth E. Melson, United States Attorney,
Dabney Langhorne Friedrick, Assistant United States Attorney, Alex-
andria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HINTON
OPINION
PER CURIAM:
Gregory Hinton was convicted of bank robbery, see 18 U.S.C.A.
§ 2113 (West 2001), and use of a firearm in a crime of violence, see
18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2001). Hinton was sentenced to
life imprisonment on the bank robbery conviction and to a consecu-
tive term of eighty-four months on the conviction for use of a firearm.
Hinton raises several issues on appeal. We affirm the district court on
all issues.
The district court concluded that Hinton voluntarily consented to
a search of his van, and the court therefore denied Hinton’s motion
to suppress the evidence obtained during the search. Hinton contends
this was error. This court reviews the district court’s factual findings
on a denial of a motion to suppress for clear error and its legal conclu-
sions de novo. See United States v. Rusher, 966 F.2d 868, 873 (4th
Cir. 1992).
Whether consent to search was voluntarily given is a factual ques-
tion determined by considering the totality of the circumstances. See
United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en
banc). When making this determination, "it is appropriate to consider
the characteristics of the accused (such as age, maturity, education,
intelligence, and experience) as well as the conditions under which
the consent to search was given (such as the officer’s conduct; the
number of officers present; and the duration, location, and time of the
encounter)." Id. A review of the district court’s factual findings
reveals no clear error. The district court properly found Hinton did not
display any characteristics that would render him incapable of volun-
tarily consenting or withholding consent to the search of the van.
Likewise, the district court properly found no coercion in the circum-
stances surrounding the procurement of Hinton’s consent to search
the van.
Hinton also contends that the evidence should be suppressed
because he was illegally seized by the federal agents when they haled
him from their car and then approached him on foot to question him
about the robbery. Because Hinton did not raise this issue below, we
UNITED STATES v. HINTON 3
review the claim for plain error. See United States v. Olano, 507 U.S.
725, 731-32 (1993). While a person may not be seized without a rea-
sonable suspicion of criminal activity, the Fourth Amendment is not
triggered by a consensual encounter between a police officer and a
private citizen. See Florida v. Bostick, 501 U.S. 429, 434 (1991);
United States v. Burton, 228 F.3d 524, 527 (4th Cir. 2000). An
encounter remains consensual as long as the citizen voluntarily coop-
erates with the police. See United States v. Wilson, 953 F.2d 116, 121
(4th Cir. 1991). After considering all of the circumstances surround-
ing the encounter, we conclude that until the search of the van
revealed incriminating evidence, the encounter between Hinton and
the agents was consensual. See United States v. Gray, 883 F.2d 320,
322 (4th Cir. 1989). Because the encounter between Hinton and the
agents was consensual, there was no illegal seizure and no error, plain
or otherwise.
And because we conclude that, until the van was searched, the
encounter was consensual and thus not a seizure, we likewise reject
Hinton’s claim that the statements he made prior to the search of the
van should be suppressed because no Miranda warnings had been
given. See United States v. Sullivan, 138 F.3d 126, 130 (4th Cir.
1998) ("The procedural safeguards prescribed by Miranda apply only
where there has been such a restriction on a person’s freedom as to
render him in custody." (internal quotation marks omitted)); United
States v. Howard, 115 F.3d 1151, 1154 (4th Cir. 1997) ("An individ-
ual is in custody for Miranda purposes when, under the totality of the
circumstances, the suspect’s freedom of action is curtailed to a degree
associated with formal arrest." (internal quotation marks omitted)).
Finally, Hinton contends the district court should have declared a
mistrial because the government during rebuttal closing argument
improperly commented upon Hinton’s failure to testify. The "denial
of a defendant’s motion for a mistrial is within the sound discretion
of the district court and will be disturbed only under the most extraor-
dinary of circumstances." United States v. Dorlouis, 107 F.3d 248,
257 (4th Cir. 1997).
For an argument by the government to amount to an improper com-
ment on a defendant’s failure to testify, "the language used manifestly
[must have been] intended to be, or [must have been] of such charac-
4 UNITED STATES v. HINTON
ter that the jury would naturally and necessarily take it to be a com-
ment on the failure of the accused to testify." United States v.
Anderson, 481 F.2d 685, 701 (4th Cir. 1973) (internal quotation
marks omitted). After hearing the entirety of the government’s rebut-
tal argument, the district court concluded that the comment was not
of "such a character that the jury would naturally and necessarily take
it to be a comment on the failure of the accused to testify." (JA 650).
We find that the district court acted within its discretion and properly
applied this court’s standard for determining whether the Govern-
ment’s remarks, considered within the context of the entire argument,
were a comment on Hinton’s failure to testify.
We therefore affirm Hinton’s convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED