United States v. Swain , 324 F. App'x 219 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4441
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN HENRY SWAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00160-01)
Argued: March 27, 2009 Decided: May 4, 2009
Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D.
SCHROEDER, United States District Judge for the Middle District
of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew A. Victor, VICTOR VICTOR & HELGOE LLP,
Charleston, West Virginia, for Appellant. John Lanier File,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee. ON BRIEF: Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Swain entered a conditional guilty plea to the
charge of being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He reserved the right
to appeal the district court’s denial of his motion to suppress
the firearm, which police discovered after conducting an
investigative stop and frisk. Swain argues that the stop and
frisk violated his Fourth Amendment rights because the police
lacked reasonable suspicion. We find Swain’s argument to be
without merit and affirm the district court’s determination.
I.
We recount the evidence in the light most favorable to
the government, which ultimately prevailed in the suppression
proceedings. United States v. Seidman, 156 F.3d 542, 547 (4th
Cir. 1998). On August 2, 2007, West Virginia State Police
Troopers Jason Davis and R. A. Daniel went to the Beaver Street
Apartment Complex (Beaver Apartments) in Beckley, West Virginia,
to execute an arrest warrant for an individual named Ricky
Toney. The troopers had information that Toney “had been
hanging out up at those apartments.” J.A. 62. The troopers
approached the apartment building in a marked police car by an
access road that led into a parking lot in the rear of the
building. Swain and a companion were seated on a concrete step
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of one of two rear entrances to the building. Initially, it did
not appear to Trooper Davis that the individuals “were doing
anything unlawful or were armed and dangerous.” J.A. 194. (The
record does not suggest that Trooper Davis mistook either Swain
or his companion for Toney.)
When the police cruiser entered the parking lot, Swain
and his companion “jump[ed] up” and attempted to enter the
apartment building through the rear door behind them. J.A. 64.
The rear door was locked, and although Swain and his companion
“rattled the door to get it open,” they could not gain entrance.
J.A. 149. Both troopers got out of the cruiser, and Trooper
Davis began walking toward Swain and his companion, who were
approximately forty feet away.
When Trooper Davis was approximately twenty to twenty-
five feet from Swain and his companion, he “hollered at the two
individuals, [and] asked them their names.” J.A. 65, 67. Swain
turned to face Davis, stuck his hands in his jacket pockets, and
asked, “What’s going on? What’s going on?” J.A. 65. Trooper
Davis asked Swain to remove his hands from his pockets, which
Swain did. But as Trooper Davis continued to approach, Swain
put his left hand back into his jacket pocket. Trooper Davis
said, “Hey, get your hands out of your pockets.” J.A. 66.
Trooper Davis then asked Swain and his companion whether they
knew Ricky Toney. Swain responded, “Why? What’s going on?
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What’s going on?” J.A. 66. Swain stuck his left hand into his
jacket pocket for a third time. Throughout this exchange,
Trooper Davis noticed that Swain was “real jittery, kind of
nervous,” and “shaking a little bit.” J.A. 66, 112.
At that point Trooper Davis says he suspected that
Swain was hiding something illegal. Davis removed his gun from
his holster and told Swain to take his hands out of his pockets
and to get up against the wall. Swain and his companion put
their hands on the building. Trooper Davis approached Swain
first and conducted a pat-down during which he felt a small
caliber pistol in the left pocket of Swain’s jacket. Trooper
Davis called for Trooper Daniel, who, until this point, had been
talking to the driver of a vehicle in the parking about Ricky
Toney’s possible whereabouts. Trooper Daniel approached and
took possession of the firearm. Trooper Davis then continued
the pat-down of Swain, while Trooper Daniel conducted a pat-down
of the other individual. The further pat-down of Swain yielded
a small black pouch containing a substance that appeared to be
cocaine. The substance later tested negative as a controlled
substance. A subsequent search of Swain incident to his arrest
yielded six rounds of ammunition.
Trooper Davis arrested Swain because he believed Swain
was in possession of cocaine, an illegal controlled substance;
that charge was dropped after forensic testing. Trooper Davis
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also contacted the dispatcher to check Swain’s criminal history.
Davis learned that Swain had a prior felony conviction and was
thus illegally in possession of the firearm. Swain was later
indicted on a felon in possession charge.
Swain filed a motion to suppress the gun that was
taken from him arguing that Trooper Davis did not conduct a
lawful stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968).
The magistrate judge recommended that the district judge grant
Swain’s motion. The district judge rejected that
recommendation, however, and denied the motion. Swain now
appeals the denial of the motion.
II.
A police officer may lawfully stop and briefly detain
an individual for investigative purposes if the officer has
“reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot.’” United States v. Perrin, 45
F.3d 869, 871-72 (4th Cir. 1995) (quoting United States v.
Sokolow, 490 U.S. 1, 7 (1989)). Moreover, if the officer has
reason to believe that he is dealing with an armed and dangerous
individual, the officer may lawfully frisk the individual in the
course of the stop. Terry v. Ohio, 392 U.S. 1, 27 (1968); see
also United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000)
(authorizing protective frisk only in context of lawful Terry
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stop). “Whether an officer has a reasonable suspicion
sufficient to warrant a Terry stop and frisk is subject to de
novo review, but factual findings will not be overturned unless
clearly erroneous.” Perrin, 45 F.3d at 871; see also United
States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
Swain contends that Trooper Davis did not have
“reasonable suspicion” that he was illegally in possession of a
concealed weapon or narcotics. J.A. 418. As the district
court found, the encounter between Trooper Davis and Swain
escalated to a Terry stop when Trooper Davis pulled his gun and
ordered Swain to move up against the wall. United States v.
Swain, No. 5:07-cr-00160, slip op. at 18 (S.D. W. Va. Dec. 3,
2007). We consider the totality of the circumstances “to see
whether the detaining officer has a particularized and objective
basis for suspecting legal wrongdoing” at that moment. United
States v. Mayo, 361 F.3d 802, 805 (4th Cir. 2004) (internal
quotations omitted).
The district court found that Swain’s behavior
provided Trooper Davis with reasonable, articulable suspicion
that Swain possessed a controlled substance or a concealed
weapon. Swain, slip op. at 24-25. To begin with, the district
court found that the Beaver Apartments were located in a
neighborhood disposed to criminal activity. It further found
that when the state troopers approached the apartment building,
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Swain and his companion engaged in evasive behavior; they stood
up quickly and attempted to enter the apartment building,
rattling the door in the process. Swain appeared nervous and
jittery throughout the encounter. His responses to Trooper
Davis’s questions -- “What’s going on? What’s going on?” --
further evidence Swain’s nervous demeanor. J.A. 65. Finally,
Swain repeatedly put his left hand in his left jacket pocket
despite Trooper Davis’s requests that he keep his hands out of
his pockets.
A.
Swain first argues that the district court erred in
finding that the Terry stop took place in an “area [that] has a
disposition to criminal activity.” See Swain, slip op. at 17.
We have held that a suspect’s presence in a high crime area is
something that a court may consider in reviewing the context in
which a police officer acted, although it is not enough by
itself to raise reasonable suspicion. United States v. Lender,
985 F.2d 151, 154 (4th Cir. 1993); see also Illinois v. Wardlow,
528 U.S. 119, 124 (2000); Perrin, 45 F.3d at 873. Reasonable
suspicion is a context-driven inquiry and the high-crime-area
factor, like most others, can be implicated to varying degrees.
For example, an open-air drug market location presents a
different situation than a parking lot where an occasional drug
deal might occur. In the present case the district court found
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that the Beaver Apartments parking lot is an area with a
disposition toward criminal activity, “even if [it] is not a
high crime area per se.” Swain, slip op. at 17.
The character of a Terry stop’s location is a factual
question, United States v. Wright, 485 F.3d 45, 53 (1st Cir.
2007), which we review for clear error. Perrin, 45 F.3d at 871.
In the present action, the district court considered evidence
that Trooper Davis had personally made drug buys within two
hundred yards of the Beaver Apartments and that other officers
had arranged for controlled buys either at the apartment
building or in the general area. Statistical data also
supported a finding that the area was disposed toward criminal
activity (it ranked fourteenth of seventy-five areas in the city
in terms of serious crimes). Moreover, Trooper Davis was in the
Beaver Apartments parking lot to execute an arrest warrant that
arose out of a drug transaction in that very lot. Based on the
evidence before it, the district court did not clearly err in
finding that the Beaver Apartments parking lot is located in a
neighborhood with a disposition toward criminal activity.
B.
Swain also challenges the district court’s
determination that Trooper Davis had a reasonable, articulable
suspicion that criminal activity was afoot. Reasonable
suspicion required Trooper Davis “to point to specific and
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articulable facts which, taken together with rational inferences
from those facts, reasonably warrant [the] intrusion.” United
States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (quoting
Terry, 392 U.S. at 21). “[I]n determining whether the officer
acted reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion or
‘hunch,’ but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.”
Terry v. Ohio, 392 U.S. 1, 27 (1968); see also Perrin, 45 F.3d
at 872 (“The level of suspicion required to justify a search
under [Terry v. Ohio], must be based on more than an inchoate
and unparticularized suspicion or ‘hunch.’”) (internal
quotations omitted).
Swain argues that United States v. Burton, 228 F.3d
524 (4th Cir. 2000), controls. In Burton we determined that
police officers lacked reasonable suspicion that criminal
activity was afoot when they approached an individual without
any suspicion that he was engaged in criminal activity, but the
individual refused to answer questions or to comply with
requests that he remove his hands from his coat pockets. Id. at
528. The government notes that Burton is not on all fours: the
defendant in Burton did not engage in evasive behavior or appear
nervous. Nor did the defendant repeatedly remove and then
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replace one hand into a particular pocket. Additionally, the
encounter in Burton did not take place in a high crime area.
The government argues that United States v. Mayo, 361
F.3d 802 (4th Cir. 2004), is controlling. In Mayo we concluded
that police officers had reasonable suspicion to stop and frisk
a suspect they encountered in a high crime area who attempted to
evade police. Id. at 808. Swain argues that his efforts to
enter the Beaver Apartments are more susceptible to innocent
explanation than the behavior of the suspect in Mayo, who upon
seeing the police “turned 180 degrees” and walked into a nearby
apartment complex and out the other side. Id. at 807. In any
event, the suspect in Mayo was moving quickly with his hand in
his pocket in a way “consistent with an individual’s effort to
maintain control of a weapon while moving,” and there appeared
to be something heavy in his pocket. Id. at 803, 807. The
suspect was shaking and reacted to the police “in a peculiar
manner.” Id. at 804. His “eyes were extremely wide, his mouth
was slightly agape, and it was almost like nothing registered
with him. It was almost as if he was in shock.” Id. As the
district court recognized, the facts in the present appeal do
not mirror the facts in either Burton or Mayo.
We conclude that, considered together, the articulable
facts discussed by the district court here establish reasonable
suspicion that Swain had narcotics or a firearm in his pocket.
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First, Swain and his companion engaged in evasive behavior.
Upon seeing the police cruiser, they “jump[ed] up” and attempted
to enter the apartment building behind them. J.A. 64. Second,
Swain did not respond directly to Trooper Davis’s questions, but
stuck his hands in his pockets and said, “What’s going on?
What’s going on?” J.A. 65. Third, throughout the exchange
Swain appeared “real jittery, kind of nervous” and was “shaking
a little bit.” J.A. 66, 112. Fourth, Swain removed his hands
from his jacket pockets when asked to by Trooper Davis, but he
replaced his left hand in his pocket directly thereafter.
Fifth, after removing his hand from his pocket to comply with
Trooper Davis’ second request, Swain again put his left hand
back into his left pocket. Sixth, the area was somewhat
disposed to drug activity and related crimes. These facts give
rise to more than unparticularized suspicion or a simple hunch
that Swain was hiding a firearm or narcotics in his pocket.
Taken in combination, they amount to reasonable suspicion that
Swain had a firearm or narcotics in his pocket. Trooper Davis
was thus permitted under the Fourth Amendment to conduct a Terry
stop and frisk of Swain.
The district court’s denial of Swain’s motion to
suppress is therefore
AFFIRMED.
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