United States v. Washington , 346 F. App'x 950 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN D. WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:08-cr-00042-IMK-JSK-1)
Submitted: August 24, 2009 Decided: October 13, 2009
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katy J. Ratai, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Zelda E. Wesley, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John D. Washington was indicted on one count of being
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). Subsequent to the district
court’s denial of his motion to suppress evidence seized as the
result of an investigative stop by Officer Aaron Dalton,
Washington entered a conditional guilty plea, preserving the
right to appeal the district court’s denial of his motion. The
district court sentenced Washington to thirty months’
imprisonment. On appeal, Washington contends that the totality
of the circumstances shows that Officer Dalton did not have
reasonable suspicion to effectuate a Terry * stop because: (1) the
911 call did not provide significant indicia of reliability; (2)
Washington’s behavior was not evasive; and (3) Fairmont Hills
was not a high crime area. Finding no error, we affirm.
In reviewing a district court’s ruling on a motion to
suppress, we defer to the district court’s factual findings,
setting them aside only if clearly erroneous, and review its
legal conclusions de novo. United States v. Uzenski, 434 F.3d
690, 704 (4th Cir. 2006). When the district court has denied a
motion to suppress, “the evidence must be construed in the light
most favorable to the Government.” Id.*
Terry v. Ohio, 392 U.S. 1 (1968).
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Consistent with the Fourth Amendment, a police officer
may conduct a brief investigatory stop, known as a Terry stop,
“when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citing Terry, 392 U.S. at 30). In assessing whether
a Terry stop was supported by reasonable, articulable suspicion,
we must consider the “totality of the circumstances . . . to see
whether the detaining officer has a particularized and objective
basis for suspecting legal wrongdoing.” United States v.
Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks and
citation omitted); see also United States v. Sokolow, 490 U.S.
1, 8 (1989). “Thus, factors which by themselves suggest only
innocent conduct may amount to reasonable suspicion when taken
together.” United States v. Perkins, 363 F.3d 317, 321 (4th
Cir. 2004). While an officer’s “hunch” will not justify a stop,
Terry, 392 U.S. at 27, we “give due weight to common sense
judgments reached by officers in light of their experience and
training.” Perkins, 363 F.3d at 321.
Washington first contends that the 911 call lacked
detailed content and reliability. “In cases where an
informant’s tip supplies part of the basis for reasonable
suspicion, we must ensure that the tip possesses sufficient
indicia of reliability.” Perkins, 363 F.3d at 323. “Where the
informant is known . . . an officer can judge the credibility of
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the tipster firsthand and thus confirm whether the tip is
sufficiently reliable to support reasonable suspicion.” Id. A
known informant’s tip is generally more reliable than that of an
unknown informant because the known informant “can be held
responsible if her allegations turn out to be fabricated.”
Florida v. J.L., 529 U.S. 266, 270 (2000).
The informant in this case, Jewel Douglas, identified
herself to the 911 dispatcher and, as the district court noted,
the context of the call made it clear that Douglas was an
employee of the Fairmont Hills apartment complex and was in the
office watching the suspicious activity. Thus, the basis of
Douglas’s knowledge was apparent and her proximity to the
activity supports her credibility. See United States v.
Christmas, 222 F.3d 141, 144 (4th Cir. 2000) (stating that the
informant’s close proximity to the illegal activity supported
her credibility). Moreover, the officers knew where to find
Douglas if they determined the tip was false.
Further, “[w]here . . . an officer had objective
reason to believe that a tip had some particular indicia of
reliability, the tip can rightfully support an officer’s
decision to investigate further.” Perkins, 363 F.3d at 325(internal quotation marks, alteration, and citation omitted).
When Douglas called 911, she indicated that she could see the
“drug dealers” sitting under the pavilion and stated that they
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rode around in a white car. The 911 dispatcher sent Officer
Dalton to Fairmont Hills, telling him that there was “drug
activity going on in or around the vehicle.” When Officer
Dalton arrived, the only vehicle in the parking lot matching
Douglas’s description was the vehicle Washington occupied, which
was parked in front of the pavilion. Therefore, we find that
the 911 call had sufficient indicia of reliability.
Second, Washington contends that he was not acting in
an evasive manner. “Evasive conduct, although stopping short of
headlong flight, may inform an officer’s appraisal of a
streetcorner encounter.” United States v. Lender, 985 F.2d 151,
154 (4th Cir. 1993). Here, Washington got out of his vehicle as
soon as he saw Officer Dalton arriving in a marked police car,
and quickly walked toward the back of his vehicle, looking back
over his shoulder and holding his hand around the waistband of
his pants. Officer Dalton testified that Washington’s demeanor
suggested that Washington was leaving because of the officers’
arrival. Thus, we find that Washington’s behavior was evasive
and supported Officer Dalton’s reasonable suspicion.
Finally, Washington argues that Officer Dalton had no
basis to consider Fairmont Hills a high crime area, because he
had never made a drug-related arrest in the area. “[O]fficers
are not required to ignore the relevant characteristics of a
location” when deciding if further investigation is warranted;
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thus, an individual’s presence in a high crime area is relevant
in assessing reasonable suspicion. Wardlow, 528 U.S. at 124.
However, mere presence in a high crime area alone does not
support reasonable suspicion. Id.; see also Lender, 985 F.2d at
154 (stating that “[w]hile the defendant's mere presence in a
high crime area is not by itself enough to raise reasonable
suspicion, an area's propensity toward criminal activity is
something that an officer may consider.”). We credit an
officer’s practical experience when assessing whether the
officer had reasonable suspicion. Lender, 985 F.2d at 154.
Officer Dalton testified that he had been a City of
Fairmont police officer for seven years and was assigned to
patrol the Fairmont Hills area. He further testified that the
Fairmont Police Department received frequent calls from Fairmont
Hills and he was there, on average, at least once a week.
Officer Dalton stated that he had, at times, made two to three
arrests a week at Fairmont Hills, mainly for alcohol-related and
domestic issues. Although Officer Dalton could not recall
personally making any drug arrests at Fairmont Hills, he was
aware that there was a lot of drug activity there and knew drug
arrests had been made there. Officer Dalton also testified that
he was aware of Fairmont Hills’s drug-related nicknames. We
find that, based on his experience and knowledge, Officer Dalton
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had a reasonable basis to believe Fairmont Hills was a high
crime area.
Viewing the evidence in the light most favorable to
the Government, based on the totality of the circumstances, we
conclude that Officer Dalton had reasonable, articulable
suspicion to effectuate the Terry stop. The known informant’s
tip had sufficient indicia of reliability, Washington’s behavior
was evasive, and Fairmont Hills was a high crime area. Taking
these facts together, it is clear that Officer Dalton had reason
to believe Washington was involved in criminal activity.
Therefore, the Terry stop did not violate Washington’s Fourth
Amendment rights and the district court properly denied
Washington’s motion to suppress the evidence obtained as a
result of the stop. Accordingly, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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