US v. John Swain

Filing 920090504

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4441

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN HENRY SWAIN, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cr-00160-01)

Argued:

March 27, 2009

Decided:

May 4, 2009

Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D. SCHROEDER, United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Matthew A. Victor, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. John Lanier File, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: John Swain entered a conditional guilty plea to the charge of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He reserved the right

to appeal the district court's denial of his motion to suppress the firearm, which police discovered after conducting an

investigative stop and frisk.

Swain argues that the stop and

frisk violated his Fourth Amendment rights because the police lacked reasonable suspicion. We find Swain's argument to be

without merit and affirm the district court's determination.

I. We recount the evidence in the light most favorable to the government, which ultimately prevailed in the suppression proceedings. Cir. 1998). United States v. Seidman, 156 F.3d 542, 547 (4th On August 2, 2007, West Virginia State Police

Troopers Jason Davis and R. A. Daniel went to the Beaver Street Apartment Complex (Beaver Apartments) in Beckley, West Virginia, to execute an arrest troopers warrant had for an individual that named "had Ricky been

Toney.

The

information

Toney

hanging out up at those apartments."

J.A. 62.

The troopers

approached the apartment building in a marked police car by an access road that led into a parking lot in the rear of the building. Swain and a companion were seated on a concrete step 2

of one of two rear entrances to the building.

Initially, it did

not appear to Trooper Davis that the individuals "were doing anything unlawful or were armed and dangerous." J.A. 194. (The

record does not suggest that Trooper Davis mistook either Swain or his companion for Toney.) When the police cruiser entered the parking lot, Swain and his companion "jump[ed] up" and attempted to enter the

apartment building through the rear door behind them.

J.A. 64.

The rear door was locked, and although Swain and his companion "rattled the door to get it open," they could not gain entrance. J.A. 149. Both troopers got out of the cruiser, and Trooper

Davis began walking toward Swain and his companion, who were approximately forty feet away. When Trooper Davis was approximately twenty to twentyfive feet from Swain and his companion, he "hollered at the two individuals, [and] asked them their names." J.A. 65, 67. Swain

turned to face Davis, stuck his hands in his jacket pockets, and asked, "What's going on? What's going on?" J.A. 65. Trooper

Davis asked Swain to remove his hands from his pockets, which Swain did. But as Trooper Davis continued to approach, Swain Trooper Davis J.A. 66.

put his left hand back into his jacket pocket.

said, "Hey, get your hands out of your pockets."

Trooper Davis then asked Swain and his companion whether they knew Ricky Toney. Swain responded, 3 "Why? What's going on?

What's going on?" jacket Trooper pocket Davis for

J.A. 66. a third that

Swain stuck his left hand into his time. Swain Throughout was "real this exchange, kind of

noticed

jittery,

nervous," and "shaking a little bit."

J.A. 66, 112.

At that point Trooper Davis says he suspected that Swain was hiding something illegal. Davis removed his gun from

his holster and told Swain to take his hands out of his pockets and to get up against the wall. their hands on the building. Swain and his companion put

Trooper Davis approached Swain

first and conducted a pat-down during which he felt a small caliber pistol in the left pocket of Swain's jacket. Trooper

Davis called for Trooper Daniel, who, until this point, had been talking to the driver of a vehicle in the parking about Ricky Toney's possible whereabouts. Trooper Daniel approached and

took possession of the firearm.

Trooper Davis then continued

the pat-down of Swain, while Trooper Daniel conducted a pat-down of the other individual. The further pat-down of Swain yielded

a small black pouch containing a substance that appeared to be cocaine. substance. The substance later tested negative as a controlled A subsequent search of Swain incident to his arrest

yielded six rounds of ammunition. Trooper Davis arrested Swain because he believed Swain was in possession of cocaine, an illegal controlled substance; that charge was dropped after forensic testing. 4 Trooper Davis

also contacted the dispatcher to check Swain's criminal history. Davis learned that Swain had a prior felony conviction and was thus illegally in possession of the firearm. indicted on a felon in possession charge. Swain filed a motion to suppress the gun that was Swain was later

taken from him arguing that Trooper Davis did not conduct a lawful stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968). The magistrate judge recommended that the district judge grant Swain's motion. The and district denied judge the rejected Swain that now

recommendation,

however,

motion.

appeals the denial of the motion.

II. A police officer may lawfully stop and briefly detain an individual for investigative supported purposes by if the officer facts has that

"reasonable

suspicion

articulable

criminal activity `may be afoot.'" F.3d 869, 871-72 (4th Cir. 1995)

United States v. Perrin, 45 (quoting United States v.

Sokolow, 490 U.S. 1, 7 (1989)).

Moreover, if the officer has

reason to believe that he is dealing with an armed and dangerous individual, the officer may lawfully frisk the individual in the course of the stop. Terry v. Ohio, 392 U.S. 1, 27 (1968); see

also United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000) (authorizing protective frisk only in context of lawful Terry 5

stop).

"Whether

an

officer

has

a

reasonable

suspicion

sufficient to warrant a Terry stop and frisk is subject to de novo review, but factual findings will not be overturned unless clearly erroneous." Perrin, 45 F.3d at 871; see also United

States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004). Swain contends that Trooper Davis did not have

"reasonable suspicion" that he was illegally in possession of a concealed weapon or narcotics. court found, the encounter J.A. 418. Trooper As the district Davis and Swain

between

escalated to a Terry stop when Trooper Davis pulled his gun and ordered Swain to move up against the wall. United States v.

Swain, No. 5:07-cr-00160, slip op. at 18 (S.D. W. Va. Dec. 3, 2007). We consider the totality of the circumstances "to see

whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing" at that moment. United

States v. Mayo, 361 F.3d 802, 805 (4th Cir. 2004) (internal quotations omitted). The provided that district Davis a court with found that Swain's behavior suspicion concealed

Trooper

reasonable,

articulable or a

Swain

possessed

controlled

substance

weapon. court

Swain, slip op. at 24-25. found that the Beaver

To begin with, the district were located in a

Apartments

neighborhood disposed to criminal activity.

It further found

that when the state troopers approached the apartment building, 6

Swain and his companion engaged in evasive behavior; they stood up quickly and attempted to enter the apartment building,

rattling the door in the process. jittery Davis's throughout questions the -encounter. going

Swain appeared nervous and His on? responses What's to Trooper on?" --

"What's

going

further evidence Swain's nervous demeanor.

J.A. 65.

Finally,

Swain repeatedly put his left hand in his left jacket pocket despite Trooper Davis's requests that he keep his hands out of his pockets. A. Swain first argues that the district court erred in finding that the Terry stop took place in an "area [that] has a disposition to criminal activity." See Swain, slip op. at 17.

We have held that a suspect's presence in a high crime area is something that a court may consider in reviewing the context in which a police officer acted, although it is not enough by

itself to raise reasonable suspicion.

United States v. Lender,

985 F.2d 151, 154 (4th Cir. 1993); see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Perrin, 45 F.3d at 873. Reasonable

suspicion is a context-driven inquiry and the high-crime-area factor, like most others, can be implicated to varying degrees. For example, an open-air drug market location presents a

different situation than a parking lot where an occasional drug deal might occur. In the present case the district court found 7

that

the

Beaver

Apartments

parking

lot

is

an

area

with

a

disposition toward criminal activity, "even if [it] is not a high crime area per se." Swain, slip op. at 17.

The character of a Terry stop's location is a factual question, United States v. Wright, 485 F.3d 45, 53 (1st Cir. 2007), which we review for clear error. Perrin, 45 F.3d at 871.

In the present action, the district court considered evidence that Trooper Davis had personally made drug buys within two

hundred yards of the Beaver Apartments and that other officers had arranged or for in controlled the general buys area. either at the apartment data also

building

Statistical

supported a finding that the area was disposed toward criminal activity (it ranked fourteenth of seventy-five areas in the city in terms of serious crimes). Moreover, Trooper Davis was in the

Beaver Apartments parking lot to execute an arrest warrant that arose out of a drug transaction in that very lot. Based on the

evidence before it, the district court did not clearly err in finding that the Beaver Apartments parking lot is located in a neighborhood with a disposition toward criminal activity. B. Swain also challenges the district court's

determination that Trooper Davis had a reasonable, articulable suspicion suspicion that criminal Trooper activity Davis 8 was "to afoot. to Reasonable specific and

required

point

articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." United

States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (quoting Terry, 392 U.S. at 21). acted reasonably in such "[I]n determining whether the officer circumstances, due weight must be

given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry v. Ohio, 392 U.S. 1, 27 (1968); see also Perrin, 45 F.3d at 872 ("The level of suspicion required to justify a search under [Terry v. Ohio], must be based on more than an inchoate and unparticularized suspicion or `hunch.'") (internal

quotations omitted). Swain argues that United States v. Burton, 228 F.3d 524 (4th Cir. 2000), controls. police officers lacked In Burton we determined that suspicion that criminal

reasonable

activity was afoot when they approached an individual without any suspicion that he was engaged in criminal activity, but the individual refused to answer questions or to comply with Id. at

requests that he remove his hands from his coat pockets. 528.

The government notes that Burton is not on all fours: the

defendant in Burton did not engage in evasive behavior or appear nervous. Nor did the defendant repeatedly remove and then

9

replace one hand into a particular pocket.

Additionally, the

encounter in Burton did not take place in a high crime area. The government argues that United States v. Mayo, 361 F.3d 802 (4th Cir. 2004), is controlling. In Mayo we concluded

that police officers had reasonable suspicion to stop and frisk a suspect they encountered in a high crime area who attempted to evade police. Id. at 808. Swain argues that his efforts to

enter the Beaver Apartments are more susceptible to innocent explanation than the behavior of the suspect in Mayo, who upon seeing the police "turned 180 degrees" and walked into a nearby apartment complex and out the other side. Id. at 807. In any

event, the suspect in Mayo was moving quickly with his hand in his pocket in a way "consistent with an individual's effort to maintain control of a weapon while moving," and there appeared to be something heavy in his pocket. Id. at 803, 807. The

suspect was shaking and reacted to the police "in a peculiar manner." Id. at 804. His "eyes were extremely wide, his mouth

was slightly agape, and it was almost like nothing registered with him. It was almost as if he was in shock." Id. As the

district court recognized, the facts in the present appeal do not mirror the facts in either Burton or Mayo. We conclude that, considered together, the articulable facts discussed by the district court here establish reasonable suspicion that Swain had narcotics or a firearm in his pocket. 10

First,

Swain

and

his

companion

engaged

in

evasive

behavior.

Upon seeing the police cruiser, they "jump[ed] up" and attempted to enter the apartment building behind them. J.A. 64. Second,

Swain did not respond directly to Trooper Davis's questions, but stuck his hands in his pockets and said, "What's going on?

What's going on?"

J.A. 65.

Third, throughout the exchange

Swain appeared "real jittery, kind of nervous" and was "shaking a little bit." J.A. 66, 112. Fourth, Swain removed his hands

from his jacket pockets when asked to by Trooper Davis, but he replaced his left hand in his pocket directly thereafter.

Fifth, after removing his hand from his pocket to comply with Trooper Davis' second request, Swain again put his left hand back into his left pocket. Sixth, the area was somewhat

disposed to drug activity and related crimes.

These facts give

rise to more than unparticularized suspicion or a simple hunch that Swain was hiding a firearm or narcotics in his pocket. Taken in combination, they amount to reasonable suspicion that Swain had a firearm or narcotics in his pocket. Trooper Davis

was thus permitted under the Fourth Amendment to conduct a Terry stop and frisk of Swain. The district court's denial of Swain's motion to

suppress is therefore AFFIRMED.

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