US v. Gerald Swiger

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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