US v. John Washington

Filing 920091013

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4108

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN D. WASHINGTON, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:08-cr-00042-IMK-JSK-1)

Submitted:

August 24, 2009

Decided:

October 13, 2009

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Katy J. Ratai, Assistant Federal Public Defender, Clarksburg, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Zelda E. Wesley, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: John D. Washington was indicted on one count of being felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). Subsequent to the district

court's denial of his motion to suppress evidence seized as the result of an investigative a stop by Officer plea, Aaron Dalton, the The

Washington

entered

conditional

guilty

preserving

right to appeal the district court's denial of his motion. district court sentenced Washington to thirty

months'

imprisonment. of

On appeal, Washington contends that the totality shows that Officer Dalton did not have

the circumstances

reasonable suspicion to effectuate a Terry * stop because: (1) the 911 call did not provide significant indicia of reliability; (2) Washington's behavior was not evasive; and (3) Fairmont Hills was not a high crime area. Finding no error, we affirm.

In reviewing a district court's ruling on a motion to suppress, we defer to the district court's factual findings, setting them aside only if clearly erroneous, and review its legal conclusions de novo. 690, 704 (4th Cir. 2006). United States v. Uzenski, 434 F.3d When the district court has denied a

motion to suppress, "the evidence must be construed in the light most favorable to the Government."
*

Id.

Terry v. Ohio, 392 U.S. 1 (1968).

2

Consistent with the Fourth Amendment, a police officer may conduct a brief investigatory stop, known as a Terry stop, "when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, In assessing whether

123 (2000) (citing Terry, 392 U.S. at 30).

a Terry stop was supported by reasonable, articulable suspicion, we must consider the "totality of the circumstances . . . to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." United States v.

Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks and citation omitted); see also United States v. Sokolow, 490 U.S. 1, 8 (1989). "Thus, factors which by themselves suggest only

innocent conduct may amount to reasonable suspicion when taken together." Cir. 2004). United States v. Perkins, 363 F.3d 317, 321 (4th While an officer's "hunch" will not justify a stop,

Terry, 392 U.S. at 27, we "give due weight to common sense judgments reached by officers in light of their experience and training." Perkins, 363 F.3d at 321. Washington detailed content tip we first and contends that the "In the tip basis 911 cases for call lacked an

reliability. part that of the

where

informant's suspicion,

supplies ensure

reasonable sufficient "Where the

must

possesses

indicia of reliability."

Perkins, 363 F.3d at 323.

informant is known . . . an officer can judge the credibility of 3

the

tipster

firsthand

and

thus

confirm

whether

the

tip Id.

is A

sufficiently reliable to support reasonable suspicion."

known informant's tip is generally more reliable than that of an unknown informant if because the known turn informant out to be "can be held

responsible

her

allegations

fabricated."

Florida v. J.L., 529 U.S. 266, 270 (2000). The informant in this case, Jewel Douglas, identified herself to the 911 dispatcher and, as the district court noted, the context of the call made it clear that Douglas was an

employee of the Fairmont Hills apartment complex and was in the office watching the suspicious activity. Douglas's activity knowledge supports was her apparent and her See Thus, the basis of proximity United to the v.

credibility.

States

Christmas, 222 F.3d 141, 144 (4th Cir. 2000) (stating that the informant's close proximity to the illegal activity supported her credibility). Moreover, the officers knew where to find

Douglas if they determined the tip was false. Further, "[w]here . . . an officer had objective

reason to believe that a tip had some particular indicia of reliability, decision (internal to the tip can rightfully support 363 an officer's at 325

investigate

further."

Perkins, and

F.3d

quotation

marks,

alteration,

citation

omitted).

When Douglas called 911, she indicated that she could see the "drug dealers" sitting under the pavilion and stated that they 4

rode around in a white car. Dalton to Fairmont on Hills, in or

The 911 dispatcher sent Officer him that there was "drug

telling around

activity

going

the

vehicle."

When

Officer

Dalton arrived, the only vehicle in the parking lot matching Douglas's description was the vehicle Washington occupied, which was parked in front of the pavilion. Therefore, we find that

the 911 call had sufficient indicia of reliability. Second, Washington contends that he was not acting in an evasive manner. headlong flight, "Evasive conduct, although stopping short of may inform an officer's appraisal of a

streetcorner encounter." 154 (4th Cir. 1993).

United States v. Lender, 985 F.2d 151,

Here, Washington got out of his vehicle as

soon as he saw Officer Dalton arriving in a marked police car, and quickly walked toward the back of his vehicle, looking back over his shoulder and holding his hand around the waistband of his pants. Officer Dalton testified that Washington's demeanor

suggested that Washington was leaving because of the officers' arrival. Thus, we find that Washington's behavior was evasive

and supported Officer Dalton's reasonable suspicion. Finally, Washington argues that Officer Dalton had no basis to consider Fairmont Hills a high crime area, because he had never made a drug-related arrest in the area. "[O]fficers

are not required to ignore the relevant characteristics of a location" when deciding if further investigation is warranted; 5

thus, an individual's presence in a high crime area is relevant in assessing reasonable suspicion. However, mere presence in a high Wardlow, 528 U.S. at 124. crime area alone does not

support reasonable suspicion.

Id.; see also Lender, 985 F.2d at

154 (stating that "[w]hile the defendant's mere presence in a high crime area is not by itself enough to raise reasonable suspicion, something officer's an that area's an propensity may toward criminal We activity credit is an the

officer

consider."). when assessing

practical

experience

whether

officer had reasonable suspicion.

Lender, 985 F.2d at 154.

Officer Dalton testified that he had been a City of Fairmont police officer for seven years and was assigned to

patrol the Fairmont Hills area.

He further testified that the

Fairmont Police Department received frequent calls from Fairmont Hills and he was there, on average, at least once a week.

Officer Dalton stated that he had, at times, made two to three arrests a week at Fairmont Hills, mainly for alcohol-related and domestic issues. Although Officer Dalton could not recall

personally making any drug arrests at Fairmont Hills, he was aware that there was a lot of drug activity there and knew drug arrests had been made there. Officer Dalton also testified that We

he was aware of Fairmont Hills's drug-related nicknames.

find that, based on his experience and knowledge, Officer Dalton

6

had a reasonable basis to believe Fairmont Hills was a high crime area. Viewing the evidence in the light most favorable to the Government, based on the totality of the circumstances, we conclude that Officer Dalton had reasonable, articulable

suspicion to effectuate the Terry stop.

The known informant's

tip had sufficient indicia of reliability, Washington's behavior was evasive, and Fairmont Hills was a high crime area. Taking

these facts together, it is clear that Officer Dalton had reason to believe Washington was involved in criminal activity.

Therefore, the Terry stop did not violate Washington's Fourth Amendment rights and to the district the court evidence properly obtained denied as a

Washington's

motion

suppress

result of the stop. judgment. legal before

Accordingly, we affirm the district court's

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

7