US v. Barry Works

Filing 920090721

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4228

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. BARRY J. WORKS, Defendant ­ Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:07-cr-00050-1)

Argued:

January 30, 2009

Decided:

July 21, 2009

Before SHEDD and AGEE, Circuit Judges, and Arthur L. ALARCÓN, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in which Judge Agee and Senior Judge Alarcón joined.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Erik S. Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, George H. Lancaster, Jr., Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

SHEDD, Circuit Judge: Barry Works was charged with one count of possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). After entering a conditional guilty plea, Works

was sentenced to 37 months with three years supervised release. Works now appeals the denial of his suppression motion. following reasons, we affirm. For the

I In construe reviewing the the in denial the of a suppression most motion, to we the

facts

light

favorable

government. Cir. 2009).

United States v. Murphy, 552 F.3d 405, 409 (4th We review the district court's factual findings for Id.

clear error and its legal conclusions de novo.

In January 2006, Sergeant Combs of the Huntington, West Virginia, Police Department received a report that a blue

Chrysler was regularly delivering drugs from out of state to individuals at a local apartment occupied by Patrick Bryant. Following apartment up on the on information, the evening of Combs went 26, to Bryant's The

complex

January

2006.

complex contained four units: two on the first floor and two, including Bryant's apartment, on the second floor. Combs observed a positioned himself in a concealed at location the and

dark-colored

Chrysler 3

arrive

apartment

complex.

The Chrysler's occupants entered the building.

Combs

knew that Bryant was on home incarceration for a drug-related offense and thus was subject to search at any time. Therefore,

Combs contacted officers with the home incarceration unit and requested that they search Bryant's apartment. The home

incarceration unit arrived quickly and brought additional backup officers for assistance. watch the back door of Combs led a team of officers to apartment while the home

Bryant's

incarceration unit approached the front entrance to conduct the search. Because Bryant's apartment was on the second floor, the officers had to ascend a narrow stairwell. As Combs entered the

bottom of the stairwell, he saw Works exiting Bryant's apartment through the back door. bag. an Works was carrying a plastic grocery

When Combs shouted for Works to stop, Works tried to enter across the hall. However, the door to that

apartment

apartment was locked. again instructed him to

Combs continued to approach Works and stop. Works then tried to reenter

Bryant's apartment. and he grabbed

Combs observed that Works looked nervous, to keep him from reentering Bryant's

Works

apartment. Works attempted to shield the plastic bag with his body and clothes. When Combs asked what was in the bag, Works said that Combs felt the outside of the bag to ensure 4

it contained flour.

that it did not contain a weapon and noted that it felt "mushy" and not like flour. Because the hallway was narrow, Combs

passed Works down to the officers in the stairwell behind him. Combs resumed watching the door to Bryant's apartment. His

entire encounter with Works lasted approximately thirty seconds. Officer Livingston took charge of Works at the bottom of the stairs. hand to the Livingston noticed Works switch the bag from one other, attempting to hide it under his armpit.

Livingston asked what was in the bag, and Works repeated that it contained flour. Livingston felt the outside of the bag and Livingston thought

told Works that it did not feel like flour.

there was a good chance that the bag contained contraband (i.e. drugs). Livingston weapon. Bills, who overheard Works' statement to Livingston Livingston frisked handed to the bag to that Officer he did Bills not while have a

Works

ensure

regarding the contents of the bag, knew Works from two previous drug and gun cases. bag contained flour. Bills was dubious of Works' claim that the Bills looked into the bag; based on his

training and experience, he instantly recognized (and a field test subsequently confirmed) that the bag contained cocaine. 1

The record does not establish whether the plastic bag was closed. If it was not, the contents of the bag were likely (Continued) 5

1

After Works was arrested and advised of his Miranda rights, he voluntarily admitted ownership of the cocaine.

II Works was indicted and moved to suppress the cocaine,

contending that he was denied his Fourth Amendment right to be free from unreasonable searches and seizures. The district

court denied the suppression motion, holding that the officers had reasonable suspicion to justify the stop at its inception. See Terry v. Ohio, 392 U.S. 1, 30 (1968). The court also found

that the scope of the search was objectively reasonable given the totality of the circumstances. On appeal, Works contends

that there was no reasonable suspicion to perform a Terry stop and that, even if the Terry stop was permissible, Officer Bills acted unreasonably three (a) by looking into the bag. for The the and government officers' (c) the

advances actions:

independent (b)

justifications

Terry;

exigent

circumstances;

"plain feel" doctrine. 2

admissible under the "plain view" doctrine. See e.g. Horton v. California, 496 U.S. 128 (1990). 2 Although the district court based its decision solely on Terry, we may nevertheless affirm on alternative grounds. See Covenant Media of SC, LLC v. City of North Charleston, 493 F.3d 421, 431 (4th Cir. 2007). 6

A. The Fourth Amendment guarantees the "right of . . . people to be secure and in their persons The . . . against Amendment unreasonable "does not

searches

seizures."

Fourth

proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." 500 U.S. 248, 250 (1991). While Florida v. Jimeno, searches are

warrantless

presumptively unreasonable, United States v. Holmes, 376 F.3d 270, 274-275 (4th Cir. 2004), one important exception allows a police officer to conduct a brief investigatory stop where the "officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry, 392 U.S. at 30. Furthermore, the officer is

allowed to "take such steps as [are] reasonably necessary to protect [his] personal safety" if he believes that the person being stopped may be armed and presently dangerous. United

States v. Hensley, 469 U.S. 221, 235 (1985).

The scope of the

search must be "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." To Terry, 392 U.S. at 29. the validity of a Terry stop and frisk, we

assess

consider the totality of the circumstances, giving due weight to common sense judgments reached by officers in light of their experience and training. United States v. Perkins, 363 F.3d 7

317, 321 (4th Cir. 2004).

We employ an objective standard to

determine whether "the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate." Terry, 392 U.S. at 21-22 (internal citations omitted).

B. We agree with the district court that the police had a reasonable suspicion to justify the Terry stop and frisk.

Officer Combs was lawfully present at the apartment building to investigate a tip concerning drugs in Bryant's apartment. After

corroborating information received from the tip, Combs observed Works exiting the apartment as the home confinement unit

executed a valid search for drugs. Upon seeing the officers, Works attempted to conceal the bag he was holding and quickly tried to enter another door so as to avoid passing the officers in the hallway. further totality observed of the that Works appeared ­ the nervous. which was Officer Combs Given at the least

circumstances

tip

partially corroborated, the valid search for drugs, the lateness of the hour, Works' evasive conduct ­ and giving due weight to

8

the officers' experience, training, and judgment, 3 we find that the Terry stop and frisk was justified.

C. Works argues that even if the initial Terry stop was

justified, Officer Bills exceeded the bounds of Terry by looking into the plastic bag and discovering the cocaine. Works

contends that because Combs and Livingston both patted down the bag before it reached Bills and concluded that it did not feel like it contained a weapon, there was no justification for Bills to look into the bag. doctrine (1993), set an forth in may We disagree. Minnesota seize v. Under the "plain feel" Dickerson, other 508 than U.S. 366

officer

contraband

weapons

during a lawful Terry search if the officer "feels an object whose contour or mass makes its identity immediately apparent." Dickerson, inform an 508 U.S. in at 375. Surrounding this circumstances See may

officer

making

determination.

United

States v. Rogers, 129 F.3d 76, 79 (2nd Cir. 1997)(holding that the officer's "belief [that defendant's pocket contained drugs], combined allowed
3

with the

[defendant's] officers to

evasive search

and

suspicious

conduct," for

defendant's

pockets

The three officers involved in this case had 37 combined years of field experience. All three had prior experience with drug matters and Combs served as the Drug Unit Commander of the Huntington Police Department. 9

contraband).

However, once an officer has determined that the

object is not a weapon and its shape or size does not indicate its contraband nature, the search must stop. Raymond, 152 F.3d 309, 312 (4th Cir. 1998). This case is similar to United States v. Yamba, 506 F.3d 251 (3rd Cir. 2007). There, the Third Circuit affirmed the United States v.

denial of a suppression motion where an officer testified that in the course of a lawful Terry patdown, he felt a plastic bag in defendant's pocket containing a "soft, spongy-like substance" later revealed to be marijuana. Yamba, 506 F.3d at 260. The

court noted that the officer did not have to be "certain that the object . . . was contraband." Id. Instead, the officer's

experience led him to "reasonably suspect" that the plastic bag in the defendant's pocket contained marijuana, and the "plain feel" doctrine justified the seizure. Id.

We have applied the "plain feel" doctrine to affirm the denial of a suppression motion where the police conducted a

lawful Terry patdown and felt an object under the defendant's jacket which ultimately contained a crack cookie. F.3d at 311. Raymond, 152

The officer initially thought the item was a

weapon, but discovered after removing it from the defendant's waistband that it was a pie tin. We first held that Terry

authorized the officer to remove the object because he thought it was a weapon. After the officer discovered that it was a pie 10

tin (and even though there was no indication that the tin was transparent), we found that the incriminating nature of the

object was immediately apparent because the officer knew from his training that crack cocaine was often created in a pie tin. Therefore, we found that the seizure fell within the "plain

feel" doctrine. In this case, Officer Livingston testified that when he

felt the bag, he could tell that it "wasn't as dense as flour. It was a light, mushy kind of substance . . . a powdery

substance."

J.A. 50. 4

Indeed, he immediately surmised that the

bag contained contraband based on his training and experience, and in the context of tactily verifying that the plain feel of the substance was inconsistent with what Works represented it to be. place He made this observation as a valid search for drugs took in the apartment from which Works had just exited.

Further, Officer Bills recognized Works from two prior drug and gun cases. Works attempted to evade the officers and, once In light of

detained, repeatedly attempted to conceal the bag.

these circumstances, we find that the seizure of the cocaine was justified by the "plain feel" doctrine.

Under the "fellow officer rule," knowledge possessed by one officer is imputed to all officers on the scene. See Karr v. Smith, 774 F.2d 1029, 1032 (10th Cir. 1985). 11

4

III For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED

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