United States v. Furstonberg ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-40515
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
BERNARD J. FURSTONBERG, III,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(USDC No. 2:01-CR-18-1)
March 18, 2003
Before REAVLEY, JOLLY, and JONES, Circuit Judges.
PER CURIAM:*
The United States appeals a district court order suppressing
five rounds of ammunition that were seized from the pocket of
Defendant Bernard J. Furstonberg, III by Ore City, Texas Police
Chief Scott Sartain during a pat-down search for weapons conducted
as part of an admittedly lawful investigatory stop. Although
Furstonberg argues that the Government has not demonstrated that it
has obtained approval for this appeal, as required by 18 U.S.C.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
§ 3742(b), it is clear that the Government has demonstrated
compliance with § 3742(b)’s approval requirement. United States v.
Dadi, 235 F.3d 945, 955 (5th Cir. 2000). Therefore, the United
States’ appeal will not be dismissed.
In its March 4, 2002 order granting Furstonberg’s motion to
suppress, the district court determined that Sartain did not
immediately recognize the identity of the objects in Furstonberg’s
pocket when Sartain performed the pat-down search. After careful
consideration of the briefs, the oral arguments, and the record in
this case, we are unpersuaded that this factual determination was
clearly erroneous. United States v. Dortch, 199 F.3d 193, 197 (5th
Cir. 1999), op. corrected on denial of reh’g, 203 F.3d 883 (5th
Cir. 2000). Consequently, the order of the district court must be
affirmed. See Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993).
AFFIRMED.
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