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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At
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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
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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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with
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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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