[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-11166                ELEVENTH CIRCUIT
                                                            NOVEMBER 5, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                   D. C. Docket No. 08-00164-CR-1-JOF-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

TREMAINE STEWART,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (November 5, 2009)

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:

      On December 9, 2008, Tremaine Stewart entered a conditional plea of
guilty1 to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§

922(g)(1) and 924(e)(1), and thus preserved his right to challenge on appeal the

district court’s denial of his motion to suppress statements he made to the police

prior to his arrest. Following the court’s imposition of sentence, he took this

appeal, claiming error in the district court’s ruling.

      The district court referred Stewart’s motion to suppress to a magistrate

judge, who held an evidentiary hearing and recommended that the court deny the

motion. We recite the facts found by the magistrate judge since they accurately

reflect the circumstances surrounding the statements Stewart says should have been

suppressed.

             On February 15, 2006, at approximately 6:15 p.m., Atlanta
      Police Department officers Brandon Hamberger, Valle and Thongkoth
      were on patrol in a marked police vehicle in the area near 1247
      Simpson Road in Atlanta, . . . a high crime area. Officer Hamberger
      was driving, Officer Valle was in the passenger seat, and Officer
      Thongkoth was in the back seat. . . . [I]t was dark but there was a lot
      of light from street lights. While driving, Officer Hamberger
      observed [Stewart] running across the street. [Stewart] was not
      engaged in any type of criminal activity. [He] was wearing a
      dark-colored winter jacket that hung just below his waist. The jacket
      was unzipped, with slotted pockets, and the right side of the jacket
      hung approximately six inches lower than the left side of the jacket.
      Officer Hamberger observed a bulge in [Stewart’s] right coat pocket
      and it appeared to Officer Hamberger that something heavy was in
      that pocket. As [Stewart] was running across the street, Officer
      Hamberger observed him grab his right pocket and hold it against his

      1
          Stewart entered the plea pursuant to pursuant to Fed. R. Crim. P. 11(a)(2),

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      body to keep it from bouncing, while his left arm continued to move.
      Officer Hamberger believed that the bulge and [Stewart’s]
      movements were consistent with someone carrying a firearm. When
      [Stewart] reached the other side of the street, Officer Hamberger
      noticed him look at the officers’ patrol car and look away at least four
      times. Officer Hamburger believed that [his] behavior indicated that
      [he] was nervous about something. He suspected that [Stewart] was
      carrying a concealed weapon. Officer Hamburger made a U-turn and
      parked his patrol car in the opposite direction alongside the sidewalk
      where . . . Stewart was walking. All three uniformed, armed officers
      exited their patrol car. Officer Hamberger walked directly up to . . . .
      Stewart. The other two officers stood guard on either side of the patrol
      car. None of the officers had their weapons drawn. Officer
      Hamberger did not block [his] path. [Stewart] made no attempt to run.
      Officer Hamberger asked [him] whether he had a gun. [He] said,
      “Yes, I’m dirty.” [He] told Officer Hamberger that he had found the
      weapon on the ground. Officer Hamberger asked [him] if he had a
      permit for the weapon. [He] said, “No.” Officer Hamberger then
      placed [him] under arrest, and retrieved a .25 caliber pistol from the
      [Stewart’s] right coat pocket. None of the officers frisked [Stewart]
      before Officer Hamberger asked him if he was carrying a weapon.
      Officer Hamberger did not tell [him] that he did not have to answer
      his questions or that he was free to leave.

      At the conclusion of the evidentiary hearing, Stewart argued that his

statements to Officer Hamberger—that he was “dirty” and did not have a permit

for the gun—should be suppressed because he made them after Hamberger seized

him without reasonable suspicion to believe that he was engaged in criminal

activity. The magistrate judge, and the district court in adopting her

recommendation, concluded that reasonable suspicion was present, and therefore

rejected Stewart’s argument. Stewart now asks us to hold that reasonable



                                          3
suspicion was lacking.

      The Fourth Amendment protects individuals from unreasonable searches and

seizures. U.S. Const. Amend. IV. The Amendment, however, does not protect a

person from being approached by a police officer “in appropriate circumstances

and in an appropriate manner . . . for purposes of investigating possibly criminal

behavior even though there is no probable cause to make an arrest,” Terry v. Ohio,

, 22, 

, 1880, 

(1968). A police officer may

stop and seize a person for a brief, investigatory Terry stop where (1) the officer

has a reasonable suspicion that the person was involved in, or is about to be

involved in, criminal activity, and (2) the stop “was reasonably related in scope to

the circumstances which justified the interference in the first place.” 

88

S.Ct 1879; United States v. Acosta, 

, 1144-45 (11th Cir. 2004). A

person’s presence in a high-crime area, standing alone, is insufficient to establish

reasonable suspicion, but such presence, coupled with other behavior, can provide

an officer with reasonable suspicion. 

.

      Here, the magistrate judge had ample evidence before her on which to find

that the police had reasonable suspicion to believe that Stewart was unlawfully

carrying a gun or was otherwise about to engage in criminal activity. Hence, the

district court did not err in denying his motion to suppress.



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AFFIRMED.




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