US v. Gerald Swiger


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00044-IMK-MJA-1. Copies to all parties and the district court. [1000016449].. [16-4015]

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Appeal: 16-4015 Doc: 38 Filed: 02/03/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4015 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD A. SWIGER, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:15-cr-00044-IMK-MJA-1) Submitted: January 18, 2017 Decided: February 3, 2017 Before MOTZ, KING, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Katy J. Cimino, Assistant Federal Public Defender, Kristen M. Leddy, Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, David J. Perri, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4015 Doc: 38 Filed: 02/03/2017 Pg: 2 of 3 PER CURIAM: Gerald A. Swiger appeals his conviction of being a felon in possession of a firearm. See 18 U.S.C. § 922(g) (2012). Pursuant to a conditional guilty plea, Swiger challenges the district court’s denial of his motion to evidence discovered as a result of a frisk. evidence did not justify the suppress physical He argues that the investigatory stop or the subsequent frisk. In considering the denial of a motion to suppress, we review a district court’s findings of fact for clear error and its legal determinations de novo. F.3d 314, 317 (4th Cir. 2007). United States v. Elston, 479 We view the facts in the light most favorable to the prevailing party, here the Government. United States v. Black, 707 F.3d 531, 534 (4th Cir. 2013). After thoroughly reviewing the record, the parties’ briefs, and the controlling there denying was Swiger’s that the The court correctly determined that the investigatory because in conclude motion. proper err we court was not authority, district stop did legal reasonable suppression suspicion that Swiger was engaging in criminal conduct, namely, trespassing. The court also correctly determined that, given the totality of the circumstances, there was reasonable suspicion that Swiger was armed and dangerous, justifying a frisk of his person. We note that our en banc decision in United States v. Robinson, No. 2 Appeal: 16-4015 Doc: 38 Filed: 02/03/2017 Pg: 3 of 3 14-4902, 2017 WL 280727 (4th Cir. Jan. 23, 2017) (en banc), precludes Swiger’s reliance on the panel opinion in that case. Accordingly, district court. we affirm for the reasons stated by the See United States v. Swiger, No. 1:15-cr-00044- IMK-MJA (N.D. W. Va. July 17, 2015). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3

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