United States v. Jerry Edwards , 666 F. App'x 253 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY LEE EDWARDS, a/k/a Magic,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00034-MOC-DSC-1)
Submitted: October 31, 2016 Decided: November 21, 2016
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey W. Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North
Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Jerry Lee Edwards for
possession with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a) (2012); possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a);
possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (2012); and
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2012). Edwards moved to suppress the evidence
seized during his arrest and the district court denied the
motion. Edwards then waived his right to a jury trial, and
stipulated to facts sufficient to demonstrate his guilt of the
offenses, to preserve his right to appeal the denial of his
suppression motion. The district court found Edwards guilty and
sentenced him to 130 months of imprisonment. Edwards appeals,
challenging the district court’s order denying his suppression
motion and his sentence. For the reasons that follow, we
affirm.
Edwards first argues that the district court erred in
determining that officers had reasonable suspicion to stop him.
“We review the factual findings underlying a motion to suppress
for clear error and the district court's legal determinations de
novo.” United States v. Davis, 690 F.3d 226, 233 (4th Cir.
2012). When the district court has denied a defendant’s
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suppression motion, we construe the evidence in the light most
favorable to the government. Id.“The Fourth Amendment permits an officer to make an
investigative detention or stop only if supported by a
reasonable and articulable suspicion that the person seized is
engaged in criminal activity.” United States v. Foster, 634
F.3d 243, 246 (4th Cir. 2011) (internal quotation marks
omitted). The officer must have “at least a minimal level of
objective justification” and “must be able to articulate more
than an inchoate and unparticularized suspicion or hunch of
criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-24
(2000) (internal quotation marks omitted). Courts assess
whether an officer has articulated reasonable suspicion for a
stop under the totality of the circumstances, giving “due weight
to common sense judgments reached by officers in light of their
experience and training.” United States v. Perkins, 363 F.3d
317, 321 (4th Cir. 2004).
The analysis of reasonable suspicion must take into account
all the factors known to the officer at the time. See United
States v. Branch, 537 F.3d 328, 339-40 (4th Cir. 2008). “The
reasonable suspicion inquiry is fact-intensive, but individual
facts and observations cannot be evaluated in isolation from
each other.” United States v. Hernandez-Mendez, 626 F.3d 203,
208 (4th Cir. 2010). Moreover, “factors consistent with
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innocent travel can, when taken together, give rise to
reasonable suspicion.” United States v. Foreman, 369 F.3d 776,
781 (4th Cir. 2004) (emphasis omitted). It is not enough,
however, for an officer to articulate factors that are not
probative of behavior in which few innocent people would engage;
“[t]he articulated factors together must serve to eliminate a
substantial portion of innocent travelers before the requirement
of reasonable suspicion will be satisfied.” Foreman, 369 F.3d
at 781.
We have thoroughly reviewed the record and the relevant
legal authorities and conclude that the officers here had
reasonable suspicion for the stop of Edwards in a motel parking
lot based on the factors identified by the district court.
These factors include: 1) that the officers stopped Edwards in
a parking lot of a motel known for drugs and prostitution; 2)
that this motel was in a generally high-crime area; 3) that
instead of moving from his parked car to the motel, Edwards
remained in his car, which did not have any lights on; and 4)
that the car parked across two spaces in the motel parking lot.
The fact that parking outside the lines of a parking spot
violates a city ordinance only bolstered the officers’
reasonable suspicion to stop Edwards. Branch, 537 F.3d at 335(“Observing a traffic violation provides sufficient
justification for a police officer to detain the offending
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vehicle for as long as it takes to perform the traditional
incidents of a routine traffic stop.”); see also United States
v. Wilson, 2 F.3d 226, 231 (7th Cir. 1993) (violation of
ordinance against exiting a moving vehicle justifies
investigatory stop).
The district court concluded that the vehicle was parked
between two parking spaces and Edwards does not challenge that
factual finding. Based on the officers’ observations, there was
reasonable suspicion to investigate, even if the violation of
the ordinance, for example, was a pretext for the stop. See
Whren v. United States, 517 U.S. 806, 813 (1996). Once officers
approached the vehicle and witnessed Edwards in possession of
marijuana, they had probable cause for his arrest. Therefore,
the district court’s denial of Edwards’ suppression motion does
not constitute reversible error.
Edwards also challenges the district court’s attribution of
an extra criminal history point to his North Carolina common law
robbery convictions, arguing that those convictions were not for
crimes of violence and that since they were consolidated for
sentencing, the extra criminal history point was incorrectly
applied under U.S. Sentencing Guidelines Manual § 4A1.1(e)
(2015). However, as the Government correctly argues, Edwards
waived appellate review of this issue. “A waiver is the
intentional relinquishment or abandonment of a known right.”
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United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(internal quotation marks omitted). A waiver is distinguishable
from a forfeiture, which involves the failure to timely assert a
right. Id. Where courts may review a forfeited claim for plain
error, a claim that has been waived is not reviewable on appeal,
even for plain error. Id. Here, Edwards filed an objection on
this basis to the initial presentence report, but explicitly
stated at the sentencing hearing that he had no outstanding
objections to the revised PSR and agreed with the Guidelines
calculations. This waived Edwards’ claim. See id. (“A party
who identifies an issue, and then explicitly withdraws it, has
waived the issue.”) (internal quotation marks omitted).
Accordingly, we affirm the judgment of the district court.
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 in the decisional process.
AFFIRMED
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