US v. Andre Slocumb

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:13-cr-00017-GEC-1. [999683759]. [14-4733]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4733

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE
LAVAR
SLOCUMB,
a/k/a
Hakeem
Hakeem Jones, a/k/a Anthony Francis,

Slocumb,

a/k/a

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:13-cr-00017-GEC-1)

Argued:

September 16, 2015

Decided:

October 22, 2015

Before GREGORY, AGEE, and DIAZ, Circuit Judges.

Reversed, vacated, and remanded for proceedings consistent with
this opinion by published opinion.
Judge Gregory wrote the
opinion, in which Judge Agee and Judge Diaz joined.

ARGUED: Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant.
Jean
Barrett
Hudson,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Charlottesville, Virginia, for Appellee.
ON BRIEF: Larry W.
Shelton, Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.
Timothy J. Heaphy,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.

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GREGORY, Circuit Judge:
Andre Slocumb appeals the district court’s denial of his
motion to suppress.

Slocumb claims that the Culpeper, Virginia,

Police Department obtained evidence and statements in violation
of the Fourth Amendment by 1) detaining him without reasonable
suspicion,

2)

arresting

him

without

probable

3) searching his car without valid consent.

cause,

and

We conclude that

the police lacked reasonable suspicion to detain Slocumb, and we
therefore

reverse

the

district

court’s

denial

of

Slocumb’s

motion to suppress, vacate Slocumb’s conviction and sentence,
and remand for further proceedings.

I.
Around midnight on March 18, 2013, approximately ten armed
officers with the Culpeper Police Department went to execute a
search warrant on a house on Old Fredericksburg Road pursuant to
a drug investigation.

As a staging area, the officers used the

parking lot of Culpeper Salvage, located across the street from
the target house.

The salvage business had closed earlier in

the evening.
The officers knew the parking lot and the surrounding area
as a place for drug activity.

Lieutenant Timothy Chilton, who

was present that night, had previously been in contact with the

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owner of the salvage business about the parking lot being a
place where drugs were bought and sold.
When the officers arrived, they encountered Slocumb, his
girlfriend,

Sierra

Lewis,

Cadillac and a Honda.

and

an

infant

near

two

cars,

a

The officers saw that Slocumb and Lewis

were in the process of transferring a child car seat from the
Cadillac to the Honda.

As the other officers moved toward the

target house, Chilton approached Slocumb and Lewis to inquire
about their presence.
be hurrying Lewis.

Chilton noticed that Slocumb appeared to
Slocumb told Chilton that Lewis’s car had

broken down and that he had come to pick her up.
conversation,

which

lasted

for

less

than

a

During their

minute,

Chilton

believed Slocumb was acting evasively, as he did not make eye
contact and gave mumbled responses to Chilton’s questions.
In

response

to

this

information,

Eric Grant for assistance.

Chilton

called

Officer

Within earshot of Slocumb, Chilton

told Grant to stay with Slocumb and Lewis and that they were
“not allowed to leave.”

Chilton then went to assist with the

execution of the search warrant.
Slocumb told Grant his purpose for being there, consistent
with what he had told Chilton, and that he had borrowed his
landlord’s car, the Honda, to pick Lewis up.

Grant permitted

Lewis to sit in the Honda with the infant but told Slocumb that
he had to stay outside with him.
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some

point,

Grant

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asked

Slocumb

for

identification.

Slocumb said that he did not have any but that his name was
“Anthony Francis,” gave a birthdate, and said that he was from
Georgia.

Grant ran this information through dispatch, and it

came back valid for someone with that name who matched Slocumb’s
physical appearance.
Grant asked Slocumb if he was carrying anything illegal;
Slocumb said no.
search him.

Slocumb also declined to give Grant consent to

When Grant explained what the other officers were

doing and asked Slocumb about his knowledge of drugs at the
target house, Grant observed Slocumb act increasingly nervous
and not make eye contact.
Chilton sent Officer Ball to assist Grant before he himself
returned

to

the

parking

lot

about

ten

minutes

later.

When

Chilton returned, Grant told him that Slocumb had given the name
“Anthony Francis,” which information had checked out.

Chilton

asked

Slocumb

Slocumb

provided

what

responses,

a

few
the

including

additional
officers
about

questions,

believed

any

tattoos

to

to

which

be

Slocumb

inconsistent
had

and

any

history of arrests.
Grant then asked Lewis for Slocumb’s name.

Lewis said that

Slocumb’s name was “Hakeem,” which the officers recognized as
someone who was under investigation for drug trafficking.

Based

on

under

Lewis’s

response,

Grant

immediately
4

placed

Slocumb

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arrest for providing a false name.

In a search incident to

arrest, officers found close to $6,000 on his person.
In response to further questioning, Lewis told the officers
that she had been dating Slocumb for a month and that she was
pregnant with his child.

She also said that she had never heard

the name “Anthony Francis” and only knew him as “Hakeem Jones.”
At

that

participated

point,
in

the

Officer

Richard

execution

of

McKnight,

the

search

Chilton and Grant in the parking lot.
that

Slocumb

had

given

a

false

identified him as “Hakeem Jones.”

who

had

warrant,

joined

Chilton told McKnight

name

and

that

Lewis

that

anything

she

did

illegal

in

not.
the

McKnight
Cadillac

had

McKnight asked Lewis if she

knew whether Slocumb had ever been in the target house.
said

also

also

or

the

asked

if

Honda.

Lewis

there
Lewis

was
told

McKnight that there was nothing illegal in the Cadillac but that
she wasn’t sure about the Honda.

McKnight then asked Lewis

where Slocumb had been inside the Honda, and she responded that
he was in the passenger seat.

McKnight asked Lewis for consent

to search the Honda, and she agreed.
McKnight found methamphetamine, cocaine powder, and cocaine
base in a grocery bag under the passenger seat.

He also found a

purse in the trunk of the Honda that contained identification
belonging to Linda Ross, Slocumb’s landlord, and a small amount

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of marijuana.

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Slocumb claimed ownership of the drugs and said

that Lewis did not have anything to do with them.
Officers took Slocumb to the magistrate’s office, where he
gave his real name, and made incriminating statements.

Chilton

subsequently obtained a search warrant for Slocumb’s residence
and found marijuana smoking devices, a small amount of white
powder, and other various items.
Following a federal grand jury’s return of a three-count
indictment against him, Slocumb filed a motion to suppress the
physical

evidence

seized

and

statements

made.

The

district

court denied Slocumb’s motion in part, finding that his initial
detention was supported by reasonable suspicion and finding that
the officers had probable cause to arrest him.
court

requested

further

argument

regarding

The district

whether

Lewis

had

authority to consent to the search of the Honda.
The district court held a supplemental hearing on the issue
of consent.

Following the hearing, the court denied Slocumb’s

motion to suppress, finding that Lewis had apparent authority to
consent.

Slocumb pleaded guilty pursuant to a plea agreement

but retained the right to appeal the denial of his motion to
suppress.

He was sentenced to ninety-four months on each count,

to run concurrently.

Slocumb filed a timely notice of appeal.

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II.
In

considering

the

appeal

of

a

denial

of

a

motion

to

suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error.
Massenburg,
construe

654

the

F.3d

evidence

480,

485

(4th

Cir.

in

the

light

government—the prevailing party below.

United States v.

2011).

most

We

favorable

further
to

the

United States v. Foster,

634 F.3d 243, 246 (4th Cir. 2011).

III.
Slocumb appeals the district court’s denial of his motion
to suppress, arguing first that Chilton did not have reasonable
suspicion of criminal activity when he seized Slocumb.
The Fourth Amendment affords “[t]he right of the people to
be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures.”

U.S. Const. amend. IV.

A

law enforcement officer is permitted to seize a person for a
brief investigatory stop if he “observes unusual conduct which
leads him reasonably to conclude in light of his experience that
criminal activity may be afoot.”

Terry v. Ohio, 392 U.S. 1, 30

(1968); see also United States v. Black, 707 F.3d 531, 537 (4th
Cir. 2013).
Fourth

A person is “seized” within the meaning of the

Amendment

surrounding

the

if,

“‘in

incident,

view
a

of

all

reasonable
7

the
person

circumstances
would

have

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believed that he was not free to leave.’”

United States v.

Gray, 883 F.2d 320, 322 (4th Cir. 1989) (quoting United States
v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality opinion)).
Here, the parties do not dispute the district court’s finding
that Slocumb was seized by the time Grant arrived at the parking
lot at Chilton’s direction.
To justify a stop, the officer “must be able to point to
specific

and

articulable

facts

which,

taken

together

with

rational inferences from those facts, reasonably warrant that
intrusion.”

Terry, 392 U.S. at 21.

The officer must have

“reasonable and articulable suspicion that the person seized is
engaged in criminal activity.”
440 (1980).

Reid v. Georgia, 448 U.S. 438,

“The level of suspicion must be a ‘particularized

and objective basis for suspecting the particular person stopped
of criminal activity.’”

Black, 707 F.3d at 539 (quoting United

States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)); see also
Massenburg, 654 F.3d at 486 (“We emphasize that the Constitution
requires ‘a particularized and objective basis for suspecting
the particular person stopped of criminal activity.’” (quoting
Griffin, 589 F.3d at 154)).

That is, the officer must have more

than an “inchoate and unparticularized suspicion or ‘hunch.’”
Terry, 392 U.S. at 27.
We look to the totality of the circumstances in determining
whether

the

officer

had

reasonable
8

suspicion

of

criminal

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United States v. Arvizu, 534 U.S. 266, 273 (2002).

“[I]ndividual

facts

and

observations

cannot

be

evaluated

in

isolation from each other,” United States v. Hernandez-Mendez,
626

F.3d

innocent

203,

208

(4th

explanation”

Cir.

2010);

individually

factors

may

“susceptible

“suffice[]

to

to

form

a

particularized and objective basis” when taken together, Arvizu,
534 U.S. at 277.
Here,

the

factors

considered

by

the

district

court—1)

Chilton’s awareness of the high-crime nature of the area; 2) the
lateness of the hour; 3) Slocumb’s presence in the parking lot
of a commercial business that had been closed for several hours;
4) Slocumb’s conduct, including appearing to hurry Lewis, giving
low, mumbled responses to Chilton’s questioning, and avoiding
eye contact with Chilton; and 5) that Slocumb’s conduct seemed
“inconsistent”
amount

to

with

his

reasonable

explanation

suspicion

for

under

his
the

presence—do
totality

of

not
the

circumstances in this case.
The objective factors mentioned by the district court—the
high-crime area, the lateness of the hour, and the fact that the
business had been closed for many hours—are permissible factors
that can contribute to a finding of reasonable suspicion in the
totality-of-the-circumstances analysis.

E.g., United States v.

Bumpers,

2013)

705

F.3d

168,

175

(4th

Cir.

(considering

the

high-crime area as a factor); United States v. Glover, 662 F.3d
9

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694, 698 (4th Cir. 2011) (considering the high-crime area and
the lateness of the hour as factors); United States v. Lender,
985 F.2d 151, 154 (4th Cir. 1993) (same); see also United States
v. Hendricks, 319 F.3d 993, 1003 (7th Cir. 2003) (noting that
the

business

establishment

was

closed);

United

States

v.

Briggman, 931 F.2d 705, 709 (11th Cir. 1991) (considering the
fact that the “commercial establishments served by the lot were
closed for the night” in its totality analysis).
objective

factors

“do[]

little

to

support

particularized suspicion as to [Slocumb].”

But these
the

claimed

Massenburg, 654 F.3d

at 488; see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000)
(“An

individual’s

presence

in

an

area

of

expected

criminal

activity, standing alone, is not enough to support a reasonable,
particularized

suspicion

that

the

also

took

person

is

committing

a

crime.”).
The

district

individual

court

behavior

in

finding

into

account

reasonable

Slocumb’s
suspicion,

specifically the officers’ account of Slocumb’s evasive manner.
Slocumb appeared to be hurrying Lewis, and he gave low, mumbled
responses to Chilton’s questions and failed to make eye contact
with Chilton.

The district court determined that this conduct

was “seemingly inconsistent” with Slocumb’s explanation for his
presence in the parking lot—that is, that Lewis’s car had broken
down and he was picking her up.
10

The court reasoned that “most

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a

disabled

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vehicle,

particularly

at

such

a

late

hour, would have little reason to avoid speaking to or making
eye contact with a law enforcement officer who arrives on the
scene, and, in all likelihood, would have welcomed the officer’s
arrival.”

J.A. 149.

Slocumb’s
particularized

We disagree.

behavior—“the
suspicion,”

only

substantial

Massenburg,

654

basis

F.3d

insufficient to support reasonable suspicion.

at

for

491—was

Slocumb did not,

for example, walk away or attempt to leave, let alone take off
in

“[h]eadlong

flight.”

Wardlow,

528

U.S.

at

124.

And

Slocumb’s other conduct, including Chilton’s belief that Slocumb
was hurrying Lewis, falls short of that which we have recognized
in other cases as sufficient to support reasonable suspicion.
In Bumpers, for example, we found that Bumpers “attempt[ed] to
dodge the police” by “walking away ‘at a fast pace’” when he and
his companion noticed the patrol car.

705 F.3d at 175; see also

id. at 175–76 (contrasting the facts in Bumpers with those in
other

cases

where

the

defendants

did

not

try

to

leave

the

premises but instead “acknowledged and spoke with them”); United
States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004) (finding
reasonable suspicion where, in conjunction with other factors,
the defendant “walked away at a quick pace”).
Where a defendant did not try to flee or leave the area, we
have found reasonable suspicion on a showing of more “extreme”
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or unusual nervousness or acts of evasion.

E.g., United States

v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004).
example,

we

pointed

to

Foreman’s

“physical

In Foreman, for
signs

of

extreme

nervousness . . . (e.g., heavy breathing, heavy sweating, and
pulsating of the carotid artery).”

Id. at 784; see also United

States v. Branch, 537 F.3d 328, 338 (4th Cir. 2008) (finding
that, in addition to several other factors, including failing to
make eye contact, the defendant’s hands were shaking); United
States

v.

(identifying

McFarley,
the

991

F.2d

defendant’s

1188,

behavior

1192
as

(4th

Cir.

“unusually

1993)

nervous”

where his hands shook, he was breathing heavily, and he provided
inconsistent answers).
Meanwhile, in United States v. Sprinkle, 106 F.3d 613 (4th
Cir. 1997), we held that the officers did not have reasonable
suspicion, even where one of the actors “raised his hand to the
side of his face as if to conceal his identity” and subsequently
drove away “in a normal, unhurried manner.”

106 F.3d at 617–18.

While “[h]iding one’s face is an act that may be appraised with
others in deciding whether suspicion reaches the threshold of
reasonableness,” we found that “without some stronger indication
of criminal activity, this act cannot tip [a] case to reasonable
suspicion.”

Id. at 618.

We have cautioned that “it is important not to overplay a
suspect’s nervous behavior in situations where citizens would
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normally be expected to be upset.”

Glover, 662 F.3d at 699

(citing Massenburg, 654 F.3d at 490).

Here, Slocumb’s actions—

hurrying Lewis to finish the transfer of the car seat, keeping
his

head

mumbled
There

turned

and

responses—did

was

no

attempt

avoiding

eye

not

give

rise

to

evade

the

contact,
to

and

giving

reasonable

officers,

low,

suspicion.

instead

Slocumb

“acknowledged [them], was not noticeably nervous, and did not
hastily flee the area.”

Foster, 634 F.3d at 247.

Any suspicion

that Chilton might have had when he first approached Slocumb was
dispelled when Slocumb gave answers consistent with his actions.
At that point, there was no more reason to suspect that Slocumb
was engaged in criminal activity than there was to believe his
stated purpose and corresponding actions.
“going about [his] business.”

Slocumb was simply

Wardlow, 528 U.S. at 125.

As we have “warned against,” Massenburg, 654 F.3d at 491,
we will not “us[e] whatever facts are present, no matter how
innocent, as indicia of suspicious activity,” Foster, 634 F.3d
at

248.

The

government

“must

do

more

than

simply

label

a

behavior as ‘suspicious’ to make it so”; rather, the government
must

be

suspicious

able
or

to

“articulate

logically

why

a

demonstrate,

particular
given

the

behavior

is

surrounding

circumstances, that the behavior is likely to be indicative of
some more sinister activity than may appear at first glance.”
Massenburg, 654 F.3d at 491 (quoting Foster, 634 F.3d at 248).
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Here, Chilton did not articulate why Slocumb’s explanation for
his presence in the parking lot and the activity accompanying
it—both seemingly innocent acts—were “likely to be indicative of
some more sinister activity.”

Id.

Ultimately, this seizure had

“no connection with the individual seized, the activity [he was]
involved in, [his] mannerisms, or [his] suspiciousness; rather
the seizure [was] a mere happenstance of geography.”

Black, 707

F.3d at 541.

IV.
Viewed in their totality, the factors cited by the district
court do not amount to reasonable suspicion to justify Slocumb’s
seizure.

The district court thus erred in denying Slocumb’s

motion to suppress.

Therefore, we reverse the district court’s

ruling, vacate Slocumb’s conviction and sentence, and remand for
further proceedings consistent with this opinion.

REVERSED, VACATED, AND REMANDED
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION

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