United States v. Andre Slocumb , 804 F.3d 677 ( 2015 )

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 Slocumb, a/k/a
Hakeem Jones, a/k/a Anthony Francis,
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.
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 cause, and
3) searching his car without valid consent. 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, and an infant near two cars, a
Cadillac and a Honda. 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. Chilton noticed that Slocumb appeared to
be hurrying Lewis. Slocumb told Chilton that Lewis’s car had
broken down and that he had come to pick her up. During their
conversation, which lasted for less than a 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, Chilton called Officer
Eric Grant for assistance. 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 some point, Grant 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. Slocumb also declined to give Grant consent to
search him. 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 a few additional questions, to which Slocumb
provided what the officers believed to be inconsistent
responses, including about any tattoos Slocumb 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 Lewis’s response, Grant immediately placed Slocumb under
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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 point, Officer Richard McKnight, who had also
participated in the execution of the search warrant, joined
Chilton and Grant in the parking lot. Chilton told McKnight
that Slocumb had given a false name and that Lewis had
identified him as “Hakeem Jones.” McKnight asked Lewis if she
knew whether Slocumb had ever been in the target house. Lewis
said that she did not. McKnight also asked if there was
anything illegal in the Cadillac or the Honda. Lewis 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. 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. The district
court requested further argument regarding 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. United States v.
Massenburg, 654 F.3d 480, 485 (4th Cir. 2011). We further
construe the evidence in the light most favorable to the
government—the prevailing party below. 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). A person is “seized” within the meaning of the
Fourth Amendment if, “‘in view of all the circumstances
surrounding the incident, a reasonable person 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.” Reid v. Georgia, 448 U.S. 438,
440 (1980). “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 suspicion of criminal
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activity. 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 203, 208 (4th Cir. 2010); factors “susceptible to
innocent explanation” individually may “suffice[] 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” with his explanation for his presence—do not
amount to reasonable suspicion under the totality of 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, 705 F.3d 168, 175 (4th Cir. 2013) (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). But these
objective factors “do[] little to support the claimed
particularized suspicion as to [Slocumb].” 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 person is committing a
crime.”).
The district court also took into account Slocumb’s
individual behavior in finding reasonable 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. The court reasoned that “most
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people with a disabled 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. We disagree.
Slocumb’s behavior—“the only substantial basis for
particularized suspicion,” Massenburg, 654 F.3d at 491—was
insufficient to support reasonable suspicion. 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). In Foreman, for
example, we pointed to Foreman’s “physical 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. McFarley, 991 F.2d 1188, 1192 (4th Cir. 1993)
(identifying the defendant’s behavior as “unusually 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 turned and avoiding eye contact, and giving low,
mumbled responses—did not give rise to reasonable suspicion.
There was no attempt to evade the officers, 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. Slocumb was simply
“going about [his] business.” 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 able to “articulate why a particular behavior is
suspicious or logically demonstrate, given the 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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