United States v. Pittman , 102 F. App'x 315 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4637
JIMMIE J. PITTMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-03-24)
Argued: May 5, 2004
Decided: June 29, 2004
Before WILKINSON and WILLIAMS, Circuit Judges, and
Bobby R. BALDOCK, Senior Circuit Judge of the
United States Court of Appeals for the Tenth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Robert James Wagner, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Rich-
mond, Virginia, for Appellant. Shannon Leigh Taylor, RICHMOND
METROPOLITAN MULTIJURISDICTIONAL GRAND JURY, City
of Richmond and Counties of Chesterfield, Hanover & Henrico, Rich-
2 UNITED STATES v. PITTMAN
mond, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr.,
Federal Public Defender, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In the early evening of October 13, 2002, a Richmond police offi-
cer, in the course of responding to a call of "shots fired," detained
Jimmie J. Pittman, conducted a pat-down of Pittman’s pants pockets,
and discovered a weapon. Pittman, a convicted felon, later was
charged with one count of being a felon in possession of a firearm,
in violation of 18 U.S.C.A. § 922(g)(1) (West 2000). After the district
court denied his motion to suppress the evidence, Pittman entered a
conditional plea of guilty, reserving the right to appeal the district
court’s ruling on his motion to suppress. On appeal, Pittman renews
his motion to suppress, arguing that the officer’s investigatory deten-
tion of him violated his Fourth Amendment right to be free from
unreasonable searches and seizures. Because we find that Pittman’s
detention was supported by a reasonable articulable suspicion that
criminal activity may have been afoot, and because the subsequent
pat-down was justified in the interest of officer safety, we affirm.
I.
The evidence adduced at Pittman’s suppression hearing showed the
following. At approximately 6:00 PM on October 13, 2002, Officers
Tricia A. Hamilton and Eugene J. Provost of the Richmond Police
Department, riding separately in their own patrol cars, responded to
a report of gunshots being fired in the vicinity of the 3700 block of
Moody Avenue in Richmond, Virginia. According to Officer Hamil-
ton, this block was in a "high crime area," and was a few blocks away
UNITED STATES v. PITTMAN 3
from Midlothian Village, an area with a particularly violent reputa-
tion. According to Officer Provost, the 3700 block of Moody Avenue
was part of a "residential neighborhood" that did not "have a high vol-
ume of crime," but was "across the street from . . . Midlothian Vil-
lage, where we have quite a few shootings and have had quite a few
homicides." (J.A. at 55.)
Upon her arrival, Officer Hamilton viewed a number of people sit-
ting or standing on a porch and noticed Pittman sitting in a blue car
at the curb. Hamilton approached Pittman, spoke briefly with him,
and then proceeded to the porch to speak with the people there.
Officer Provost arrived shortly thereafter and parked in front of
Pittman’s blue car. Pittman was sitting in the car with the door open
and his feet outside the vehicle. Provost’s attention was drawn to Pitt-
man because Pittman was "looking directly at [Hamilton] and watch-
ing her every movement." (J.A. at 52.) Provost also noticed that Pitt-
man was "reaching to the floorboard of the car making furtive move-
ments." (J.A. at 52.) Based on Pittman’s behavior, Provost "got a
sixth sense" about Pittman and decided to approach the man. (J.A. at
56.) As he approached, Provost saw a large amount of candy wrap-
pers and papers on the floorboard of the car and that Pittman was
stuffing those wrappers into his pocket. As soon as Pittman saw him,
Provost observed, "[he] looked like a deer in headlights. His eyes got
real big, became nervous." (J.A. at 53.) When Provost asked Pittman
if he had heard the gunshots in the area, Pittman became "even more
nervous and started stuffing more stuff in his pockets even quicker."
(J.A. at 53.) Provost then asked Pittman to keep his hands out of his
pockets, asked him if he had a gun, and simultaneously placed his
hand on Pittman’s pocket. At this point, Pittman told Provost that he
had a gun and that he was a convicted felon. Provost called Hamilton
over, the two placed Pittman in handcuffs, and removed the handgun,
a Derringer .22, from Pittman’s pocket. Provost unloaded the gun and
noted that it had been fired one time.
On January 23, 2003, a grand jury sitting in the Eastern District of
Virginia returned a one-count indictment against Pittman, charging
him with being a felon in possession of a firearm in violation of 18
U.S.C.A. § 922(g)(1). Pittman filed a motion to suppress the discov-
ery of the firearm, arguing that Officer Provost did not have sufficient
4 UNITED STATES v. PITTMAN
basis to stop him and pat down his pocket. After hearing the evidence
presented at the suppression hearing, the district court made the fol-
lowing findings on the record:
The court finds on the late afternoon of October 13th, 2002
Officers Hamilton and Provost responded to a call that
alerted them to a gunshot being fired in the neighborhood on
Moody Avenue. That Officer Hamilton had the primary
duty of responding, and her back-up was Officer Provost.
That after arriving at the area w[h]ere the notice indicated
the shooting occurred Officer Hamilton found a number of
people sitting or standing on a porch and the defendant sit-
ting in his blue car at the curb. That she spoke to the defen-
dant, and then decided that her primary assignment ought to
be to talk to the people on the porch.
She goes up on the porch and has a conversation with some
of the individuals there . . . .
In the interim, probably within a minute, Officer Provost
pulled up in the same area and parked his car in front of the
defendant Pittman, who by this time was sitting sideways in
the left front seat of the car with his feet on the ground. Was
engaged in some form of miscellaneous activity, either
cleaning out his car of candy wrappers and things, but he
appeared to be stuffing them in his pocket.
Now, whether, obviously, because of the notice of a shoot-
ing in the area these officers were apprehensive about their
safety, and whether it was just a hunch, a gut feeling or sixth
sense, Officer Provost parlayed it in to a belief that he may
be in danger. And he therefore told the defendant, Pittman,
to take his hands out of his pocket. And whether he either
did it or did not, the officer decided that that pocket was so
crammed full of debris and other things that he ought [t]o
slap his hand on it. And when he slapped his hand on it, he
discovered that there was a weapon of some sort that later
turned out to be a .22 caliber Derringer.
(J.A. at 71-72.)
UNITED STATES v. PITTMAN 5
Based on these factual findings, the district court denied Pittman’s
motion to suppress, explaining as follows:
I deny the defendant’s motion to suppress, and the basic
point that you will have to take to the Fourth Circuit is when
you are apprehensive after having been notified to go to an
area that is known to be a reasonably high crime area, and
you have been notified of a gunshot, can you parlay your
hunch, gut feeling or sixth sense into doing what was done
here? I am ruling that you can. So that will give you a per-
fect hand to take to the Fourth Circuit, because I did not
mince my findings. Whether you can parlay those three
human attributes, hunch, gut feeling, or sixth sense in to a
reasonably articulable suspicion is a neat question for the
Fourth Circuit to answer.
(J.A. at 73.)
Pittman then entered a conditional plea of guilty and later was sen-
tenced. Pittman now appeals, arguing that the district court erred in
denying the motion to suppress.
II.
A.
When considering on appeal a motion to suppress evidence, we
review a district court’s factual findings for clear error and its legal
determinations de novo. United States v. Perkins, 363 F.3d 317, 320
(4th Cir. 2004). "Because the district court denied the motion to sup-
press, we construe the evidence in the light most favorable to the gov-
ernment." Id. (emphasis added).
At oral argument, counsel for Pittman argued that our review of the
evidence is limited only to those historical facts explicitly found by
the district court. This assertion misapprehends our standard of review
in these cases. While it certainly is true that we are bound to the dis-
trict court’s non-clearly-erroneous findings of fact, we look not only
to those findings of fact, but also to the evidence adduced at the sup-
6 UNITED STATES v. PITTMAN
pression hearing. See Perkins, 363 F.3d at 320; cf. United States v.
Bethea, 598 F.2d 331, 333-34 (4th Cir. 1979) (explaining that, when
a district court fails to make express findings of fact on the record,
we will uphold its denial of a motion to suppress if the evidence,
viewed in the light most favorable to the Government, supports its
ruling). This standard of review is pragmatic, recognizing that district
courts frequently rule on motions to suppress from the bench and,
from time to time, may omit relevant factual findings from their
express findings of fact. While we certainly are not free, absent clear
error, to credit evidence that the district court explicitly or implicitly
discredited, our standard of review permits examination of the evi-
dence adduced below and requires us to view that evidence in the
light most favorable to the party prevailing below. Perkins, 363 F.3d
at 320.
B.
"The Fourth Amendment protects citizens from ‘unreasonable
searches and seizures’ by the government, and its protections extend
to brief investigatory stops . . . that fall short of traditional arrest."
United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v.
Ohio, 392 U.S. 1, 9 (1968)). In such situations, the Fourth Amend-
ment is satisfied if the officer’s action is supported by a reasonable
artibulable suspicion that criminal activity "‘may be afoot.’" United
States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at
30); United States v. Christmas, 222 F.3d 141, 143 (4th Cir. 2000).
While such a detention does not require probable cause, it requires
more than an "inchoate and unparticularized suspicion or ‘hunch.’"
Terry, 392 U.S. at 27. Stated differently, "[a]n investigatory stop must
be justified by some objective manifestation that the person stopped
is, or is about to be, engaged in criminal activity." United States v.
Cortez, 449 U.S. 411, 417 (1981). Once a stop is conducted, "if the
officer believes that the person being stopped ‘may be armed and
presently dangerous,’ the officer may frisk the person by patting his
outer clothing ‘in an attempt to discover weapons which might be
used to assault [the officer].’" United States v. Mayo, 361 F.3d 802,
805 (4th Cir. 2004) (quoting Terry, 392 U.S. at 30) (alteration in orig-
inal). But, there must be a constitutional basis to conduct a Terry stop
before such a frisk can be conducted. United States v. Burton, 228
F.3d 524, 527-28 (4th Cir. 2000) ("[A]n officer may not conduct this
UNITED STATES v. PITTMAN 7
protective search for purposes of safety until he has a reasonable sus-
picion that supports the investigatory stop.").
In assessing an officer’s justification in making an investigatory
stop, "we look at the ‘totality of the circumstances’" to see whether
the detaining officer had a "‘particularized and objective basis’ for
suspecting legal wrongdoing." Arvizu, 534 U.S. at 273. As we
recently have explained, "relevant to the totality of circumstances are
various individual factors traditionally relied upon by police officers,
such as whether the stop occurred in a high-crime area, or whether the
suspect engaged in evasive behavior or acted nervously." Mayo, 361
F.3d at 805-06 (citations omitted). Moreover, the inquiry is objective,
not subjective:
Whether a Fourth Amendment violation has occurred "turns
on an objective assessment of the officer’s actions in light
of the facts and circumstances confronting him at the time,"
and not on the officer’s actual state of mind at the time the
challenged action was taken.
Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (quoting Scott v.
United States, 436 U.S. 128, 136 (1978)).
Here, an objective assessment of the totality of the circumstances
reveals that Officer Provost’s detention and pat down of Pittman was
justified. First, as the district court found, the area in which the stop
was conducted was known to be a "reasonably high-crime area."*
*Pittman argues that this finding was clearly erroneous because Pro-
vost testified that the area was not a high-crime area. It is true that Offi-
cer Provost stated that the area where Pittman was detained did not have
"a high volume of crime." (J.A. at 55.) But, when this testimony is read
in context, this statement appears much more equivocal: "It is a residen-
tial neighborhood. This area, we don’t have a high volume of crime,
however, across the street from there is Midlothian Village where we
have quite a few shootings and have had quite a few homicides and also
a school in that area." (J.A. at 55.) Moreover, Officer Hamilton testified
at the suppression hearing that the area was a high crime area: "That is
primarily categorized as one of our high drug areas, high crime areas.
You have got areas of Moody, Lawson, Roanoke and Midlothian. Right
down the street from Midlothian, 4000 block you have a lot of shootings
within that whole area there, Midlothian Village." (J.A. at 32.) Based on
this testimony, the district court’s finding that the area was a "reasonably
high crime area" was not clearly erroneous.
8 UNITED STATES v. PITTMAN
(J.A. at 73.) As explained in Mayo, although this factor may not be
sufficient in and of itself to justify stopping an individual, "it is a fac-
tor that may be considered along with others to determine whether
police have a reasonable suspicion based on the totality of the circum-
stances." Mayo, 361 F.3d at 807 (citation omitted).
A second relevant factor was Pittman’s nervous demeanor. Officer
Provost testified that he saw Pittman eyeball Officer Hamilton in a
suspicious manner as she walked by him, and as he approached Pitt-
man, Provost noted that Pittman looked like "a deer in headlights,"
explaining further that "[h]is eyes got real big, became nervous." (J.A.
at 53.) This too is a factor that we have found may be considered as
informing an officer’s reasonable articulable suspicion. Mayo, 361
F.3d at 806, 807.
Third, Provost observed Pittman making furtive gestures. Accord-
ing to Provost, "[Pittman] was reaching to the floorboard of the car
making furtive movements. And he was picking something up, or
pushing something, I didn’t know if he was pushing something under
the seat or picking something up." (J.A. at 51, 53.) Provost also noted
that Pittman "started stuffing more [debris] in his pockets even
quicker" after being approached by Provost, which is highly unusual
behavior. (J.A. at 53.) These furtive gestures in the presence of police
officers also are relevant. Id. at 806.
Finally, Officers Hamilton and Provost were responding to a call
that shots had been fired in the area where the detention occurred. The
officers were thus on the look-out for an armed individual and had
some reason to suspect that any of the individuals in the area of 3700
Moody might be the person who fired the shot. Cf. Burton, 228 F.3d
at 528 (noting that officers conducting impermissible detention in that
case were in the area serving outstanding warrants and not responding
to a call of ongoing criminality).
In sum, the totality of the circumstances justified Provost’s investi-
gatory stop of Pittman. Provost was responding to a promiscuous
shooting call in a reasonably high-crime area. He observed the ner-
vous Pittman eyeballing Hamilton in a suspicious manner. When Pitt-
man saw Provost, his anxiety was visibly heightened, and he looked
like "a deer in headlights." (J.A. at 53.) In addition, Pittman was mak-
UNITED STATES v. PITTMAN 9
ing furtive movements in the floorboard of his car. These factors com-
bined to give Provost a reasonable articulable suspicion that Pittman
might be possessing a concealed weapon in violation of Virginia law.
See Va. Code Ann. § 18.2-308 (Michie 1996) (making it unlawful to
carry a concealed weapon without a permit). Because, based on the
totality of the circumstances, Provost had reason both to detain Pitt-
man and to believe that he was armed, Provost was justified in patting
Pittman down in the interest of personal safety. Mayo, 361 F.3d at
807.
Notwithstanding the objective factors apparent from the evidence
presented at the sentencing hearing, Pittman argues that, because the
district court held that an officer could "parlay [a] hunch, gut feeling
or sixth sense" into a basis for conducting a Terry stop, and because
Terry itself explains that a "hunch" is not enough to justify a stop, see
392 U.S. at 27, the district court must be reversed. Pittman is correct
in noting that a subjective "hunch" or "gut feeling" on the part of the
officer is not enough to support a Terry stop. Indeed, whether the offi-
cer developed a subjective sense about impending criminal activity is
completely irrelevant. Macon, 472 U.S. at 470-71. We are not con-
cerned with the officer’s subjective state of mind — only whether,
viewed objectively, the facts and circumstances confronting the offi-
cer were sufficient to give a reasonable officer a particularized suspi-
cion that criminality was afoot. Id. Thus, to the extent the district
court based its ruling solely on the subjective state of mind of Officer
Provost, it erred. Nevertheless, the historical facts found by the dis-
trict court, along with other evidence in the record consistent there-
with, show that the objectively-viewed circumstances confronting the
officers were sufficient to justify a stop-and-frisk detention.
III.
For the forgoing reasons, we affirm.
AFFIRMED