United States v. Stephen Walker, Jr. , 585 F. App'x 162 ( 2014 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4941
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    STEPHEN SYLVESTER WALKER, JR.,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.      James K. Bredar, District Judge.
    (1:11-cr-00290-JKB-1)
    Submitted:   October 30, 2014             Decided:   November 7, 2014
    Before KEENAN and THACKER, Circuit Judges, and DAVIS, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Steven H. Levin, Sarah F. Lacey, LEVIN & CURLETT LLC, Baltimore,
    Maryland, for Appellant.     Rod J. Rosenstein, United States
    Attorney, Michael C. Hanlon, Assistant United States Attorney,
    Baltimore, Maryland, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Stephen Sylvester Walker, Jr., was convicted by a jury
    of    possessing    a    firearm    and       ammunition     after    having       been
    convicted of a felony, 18 U.S.C. § 922(g) (2012), and sentenced
    to 293 months’ imprisonment.          He appeals, challenging the denial
    of his motion to suppress.
    Construing the facts in the light most favorable to
    the Government, United States v. Black, 
    707 F.3d 531
    , 534 (4th
    Cir. 2013), the evidence before the district court established
    the following.      At approximately 2:00 a.m. on January 30, 2011,
    Baltimore     County    Police    Sergeant      James    MacNeil     was    on   duty,
    monitoring the Cheers Bar and Grill as it closed for the night.
    According to MacNeil, the area had a history of violent crime,
    including     shootings.        MacNeil       received   a   call    from    the    911
    dispatcher for a “man with a gun at the Denny’s” -- a restaurant
    located in the same shopping center as the Cheers Bar and Grill.
    As    MacNeil   exited    his    vehicle,       he   encountered      two    men    who
    simultaneously pointed to Walker and said “That’s the guy with
    the   gun.”     MacNeil    then    approached        Walker,   drew    his   service
    weapon, and ordered Walker to the ground.                  Instead of complying,
    Walker attempted to move out of view, between two cars in the
    parking lot.       After other officers arrived on the scene, Walker
    eventually complied and a .45 caliber semi-automatic pistol was
    removed from the front of Walker’s pants waistband.
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    Walker moved to suppress, arguing that his arrest and
    the     seizure      of    his     property           were     made      without     reasonable
    suspicion      or    probable      cause.             After    a   hearing,     the    district
    court denied the motion, finding that both the initial stop and
    subsequent taking of the gun were lawful.
    We       review      the        district          court’s      factual     findings
    regarding      the    motion       to       suppress      for      clear     error,     and    the
    court’s    legal       conclusions           de   novo.            See     United     States    v.
    Burgess, 
    684 F.3d 445
    , 452 (4th Cir. 2012).                                 When, as here, a
    motion    to     suppress        has    been      denied,          this    court     views     the
    evidence       presented         in     the       light        most       favorable     to     the
    Government.         
    Black, 707 F.3d at 534
    .
    Consistent with the Fourth Amendment, a police officer
    may stop a person for investigative purposes when the officer
    has     reasonable        suspicion          based      on     articulable      facts        “that
    criminal    activity        ‘may       be    afoot’ . . . .”               United     States    v.
    Arvizu,    
    534 U.S. 266
    ,       273    (2002)         (quoting      United     States    v.
    Sokolow, 
    490 U.S. 1
    , 7 (1989)).                          Whether there is reasonable
    suspicion to justify the stop depends on the totality of the
    circumstances, including the information known to the officer
    and any reasonable inferences to be drawn at the time of the
    stop.     See 
    id. at 273-74;
    United States v. Foster, 
    634 F.3d 243
    ,
    246 (4th Cir. 2011).              The reasonable suspicion determination is
    a “commonsensical proposition,” and deference should be accorded
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    to    police    officers’      determinations        based     on     their    practical
    experience and training.               United States v. Foreman, 
    369 F.3d 776
    , 782 (4th Cir. 2004).
    Walker argues that the officers lacked a reasonable
    articulable suspicion because they only “received tips from two
    anonymous bystanders pointing in the direction of Mr. Walker and
    stating that he had a gun.”                      However, we have distinguished
    face-to-face encounters from anonymous tips in the context of
    the Fourth Amendment.              See United States v. Christmas, 
    222 F.3d 141
    , 144-45 (4th Cir. 2000) (noting that “unlike the anonymous
    tipster, a witness who directly approaches a police officer can
    also be held accountable for false statements”).                         We find that
    the   officers       here    had    ample    reasonable      articulable       suspicion
    that Walker was committing a crime based on the totality of the
    circumstances—an area known for violent criminal activity; a 911
    call that a man had a gun at Denny’s; two bystanders pointing to
    Walker   and     stating      that    he     was   the   one    with    the    gun;    and
    Walker’s       initial      evasive   behavior.          Therefore,      the   district
    court properly concluded that the initial stop was proper.
    The   court     also   properly       found     that    the    search    of
    Walker’s person was lawful.                 “[I]f the officer has a reasonable
    fear for his own and others’ safety based on an articulable
    suspicion that the suspect may be armed and presently dangerous,
    the officer may conduct a protective search of, i.e., frisk, the
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    outer layers of the suspect’s clothing for weapons.”      United
    States v. Holmes, 
    376 F.3d 270
    , 275 (4th Cir. 2004) (internal
    quotation marks omitted).
    Accordingly, we affirm the denial of Walker’s motion
    to suppress and affirm his conviction.     We dispense with oral
    argument because the facts and legal contentions are adequately
    addressed in the materials before and this court and argument
    would not aid in the decisional process.
    AFFIRMED
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