Filed: Jul. 07, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4011 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PETER KENDALL SMITH, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:06-cr-00063-CCB-1) Argued: May 13, 2010 Decided: July 7, 2010 Before DUNCAN and KEENAN, Circuit Judges, and Arthur L. ALARCÓN, Senior United States Circuit Judge for the Ninth Circuit, sitting by des
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4011 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PETER KENDALL SMITH, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:06-cr-00063-CCB-1) Argued: May 13, 2010 Decided: July 7, 2010 Before DUNCAN and KEENAN, Circuit Judges, and Arthur L. ALARCÓN, Senior United States Circuit Judge for the Ninth Circuit, sitting by desi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PETER KENDALL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cr-00063-CCB-1)
Argued: May 13, 2010 Decided: July 7, 2010
Before DUNCAN and KEENAN, Circuit Judges, and Arthur L. ALARCÓN,
Senior United States Circuit Judge for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished opinion. Judge Alarcón wrote the
opinion in which Judge Duncan and Judge Keenan joined.
ARGUED: William A. Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA,
LLP, Greenbelt, Maryland, for Appellant. Michael Clayton
Hanlon, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Timothy J. Sullivan, Brett J.
Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
ALARCÓN, Senior Circuit Judge:
Peter Kendall Smith appeals from the order denying his
motion to suppress evidence recovered during a search incident
to his arrest on October 22, 2005. We affirm because we
conclude that the district court did not clearly err in denying
the suppression motion. The officers had reasonable suspicion
to stop and question Smith, and probable cause to arrest as well
as to search him when he assaulted the officers to prevent a
lawful detention.
I
A
On October 22, 2005, Officers Matthew Sammons and Corey
Hurst of the Salisbury Police Department were on patrol in the
Church Street area of Salisbury, Maryland.1 They were in uniform
and driving a marked police car. The officers were aware that
the Church Street area is known as a high crime area. The
police dispatcher announced over the police radio that an
anonymous 9-1-1 caller had reported a fight involving a handgun
near Church and Anne Streets.
1
The facts summarized here are taken from the testimony
provided by Officers Sammons and Hurst at the suppression
hearing.
2
Officers Sammons and Hurst were a few blocks away from the
reported location of the fight when they received the radio
dispatch. They observed an adult male and two juveniles running
toward the police vehicle. The three individuals slowed down to
a fast walk as they approached the police car. They looked
straight ahead without making eye contact with the police
officers.
The officers turned their car around and pulled up next to
the three individuals. They got out of the car and went to
question Smith and his two companions. Officer Sammons
approached Smith from the front. Officer Hurst walked around
the back of the car and approached the three males from the
side.
Officer Sammons told Smith that a fight, possibly involving
a handgun, had been reported in the area and he sought any
information Smith might have about it. Both officers observed
that one of the three individuals, Brandon Curtis, was shoeless.
Officer Hurst noticed that Brandon’s left eye was red and
beginning to swell.
Officer Sammons asked Smith if he was carrying anything
illegal. Officer Sammons testified at the suppression hearing
that he could not remember Smith’s response. Officer Hurst
asked Brandon what had happened to his shoes and his eye.
Brandon explained that he had been in a fight and had stepped
3
out of his shoes. Officer Sammons advised Smith that he was
going to pat him down and reached out toward him. Smith turned
and “shuffle-stepped” away. Both officers grabbed Smith to
prevent him from fleeing and a struggle ensued.
During the struggle, Smith struck both officers. Officer
Hurst told Brandon and Byron Curtis, the second juvenile who was
with Smith, to leave the area. Byron left the scene. Brandon
remained and yelled at the officers during their struggle with
Smith. Officer Sammons sprayed Smith with a strong pepper
spray. The officers brought Smith under control, handcuffed
him, and informed him that he was under arrest.
Officer Hurst searched Smith’s front pockets and found
several rocks of cocaine. Officer Sammons retrieved a handgun
from Smith’s back pocket.
B
Smith was indicted on February 15, 2006, for: felony
possession of a firearm pursuant to 18 U.S.C. § 922(g)(1);
possession of 5 grams or more of rock cocaine with intent to
distribute pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(B); and,
possession of a firearm in furtherance of a drug trafficking
crime pursuant to 18 U.S.C. § 924(c)(1).
On April 21, 2006, Smith filed a motion to suppress the
handgun and the cocaine recovered during the search incident to
his arrest. On August 24, 2006, the district court held an
4
evidentiary hearing on the motion to suppress. Officer Sammons
and Officer Hurst testified that they had reasonable suspicion
to perform a Terry stop based upon their collective knowledge:
the 9-1-1 call, the fact that the three individuals were
observed running away from the disturbance and slowed when they
saw the police car, they made no eye contact with the officers
as they passed, as well as the fact that Brandon was wearing
socks without shoes and had a swollen eye.
Brandon and Byron testified that they did not slow their
pace when they saw the officers and that the officers did not
try to ask any questions upon exiting their vehicle. Instead,
the officers immediately went for Smith, who resisted detention.
The district court credited the testimony of the officers over
that of Brandon and Byron and denied the motion to suppress.
On December 16, 2008, Smith pleaded guilty to felony
possession of a weapon. The Government dismissed the other two
counts in the indictment. His plea was conditioned upon the
outcome of his appeal from the district court’s denial of his
motion to suppress. Smith was sentenced to 120 months in
prison. He filed a timely appeal from the district court’s
order denying his motion to suppress the evidence obtained
during the search incident to his arrest. We have jurisdiction
under 28 U.S.C. § 1291.
5
II
A
In its dismissal of the motion to suppress, the district
court concluded that “the officer[s] had reasonable suspicion
for a Terry stop after Mr. Smith turned to flee, and the
officer’s physical contact with Mr. Smith did not elevate the
Terry stop to an arrest.” (District Court Order dated September
20, 2006) (internal citations omitted).
Smith argues that the district court erred in determining
that the officers had reasonable suspicion to stop him and his
companions. In reviewing the denial of a motion to suppress,
this Court reviews a district court’s findings for clear error
and its legal conclusions de novo. United States v. Perkins,
363 F.3d 317, 320 (4th Cir. 2004). The evidence is construed in
the light most favorable to the Government.
Id.
In Terry v. Ohio,
392 U.S. 1 (1968), the Supreme Court held
that
where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed
and presently dangerous, where in the course of
investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others’
safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an
attempt to discover weapons which might be used to
6
assault him. Such a search is a reasonable search
under the Fourth Amendment, and any weapons seized may
properly be introduced in evidence against the person
from whom they were taken.
Id. at 30-31.
An officer’s decision to detain a person must be based on
more than just an “inchoate and unparticularized hunch.” Id. at
27 (internal quotations omitted). The officer must be able to
offer “some minimal level of objective justification for making
the stop.” United States v. Sokolow,
490 U.S. 1, 7 (1989)
(internal quotation marks omitted). “An 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). Two elements
must be satisfied in evaluating whether reasonable
particularized suspicion exists to conduct a Terry stop: 1) “the
assessment must be based upon [a totality of] the
circumstances;” and 2) the circumstances together “raise a
suspicion that that particular individual being stopped is
engaged in wrongdoing.”
Id. at 418. The basis for an officer’s
reasonable suspicion “can rest upon the collective knowledge of
the police, rather than solely on that of the officer who
actually makes the [stop].” United States v. Pitt,
382 F.2d
322, 324 (4th Cir. 1967).
7
The Supreme Court has articulated the factors that may be
weighed in considering the totality of the circumstances to
determine whether reasonable suspicion exists. These factors
include: whether the area is a high crime area, Adams v.
Williams, 407 U.S. 143, 147 (1972); whether an individual
exhibits evasive behavior, United States v. Brignoni-Ponce,
422
U.S. 873, 885 (1975); and, whether there is unprovoked flight,2
Illinois v. Wardlow,
528 U.S. 119, 124-25 (2000). Any one of
these factors may not suffice to establish reasonable suspicion.
It is “the totality of the circumstances -- the whole picture --
[which] must be taken into account.”
Cortez, 449 U.S. at 417.
Smith contends that the elements considered by the district
court to support reasonable suspicion are insufficient. He
argues that an anonymous 9-1-1 tip cannot be relied upon. He
also asserts that there were no bulges in their clothing and
they did not behave in any way that might have indicated that
2
While an “individual has a right to ignore the police and
go about his business [and a] refusal to cooperate, without
more, does not furnish the minimal level of objective
justification needed for a detention or seizure, . . .
unprovoked flight is simply not a mere refusal to cooperate
. . . [and] is not going about one’s business; in fact, it is
just the opposite.” Wardlow, 528 U.S. at 125 (internal
quotation marks and citations omitted). See also United States
v. Haye,
825 F.2d 32, 34 (4th Cir. 1987) (Defendants, instead of
declining to answer questions and walking away, panicked and
fled, giving officers “reasonable suspicion for a brief,
involuntary, investigative stop.”)
8
they were carrying weapons. Smith further argues that “[a]
group of men walking at a fast pace in a high crime neighborhood
near the location of a reported fight, who slow their pace and
do not meet the gaze of the police upon seeing them is not
sufficient to justify a Terry stop.” Appellant’s Brief at 16.
Terry “precludes this sort of divide-and-conquer analysis.”
United States v. Arvizu, 534 U.S. 266, 274 (2002). Reasonable
articulable suspicion of “ongoing criminal activity” is measured
by a totality of the circumstances.
Sokolow, 490 U.S. at 8.
For example, in Florida v. J.L., 529 U.S. 266 (2000), the
Supreme Court held that the police did not have reasonable
suspicion based solely on an anonymous tip to the police.
Id.
at 268 (“[A]n anonymous tip that a person is carrying a gun[],
without more, [is in]sufficient to justify a police officer’s
stop and frisk of that person.”). Here, the officers based
their suspicions on the totality of the circumstances, including
the anonymous tip. Similarly, whether someone looks at an
officer or avoids looking at an officer may not be sufficient
alone, but when considered with other factors may establish
reasonable suspicion for a stop. See
Arvizu, 534 U.S. at 276 (A
driver’s avoidance of eye contact with an officer was one of
several factors that established reasonable suspicion to stop
the vehicle).
9
Here, in evaluating whether the totality of the
circumstances created reasonable suspicion, the district court
credited the testimony of the officers at the suppression
hearing. “When findings are based on determinations regarding
the credibility of witnesses, Rule 52(a) demands [great]
deference to the trial court’s findings.” Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). “[T]he reviewing court must
give due regard to the trial court's opportunity to judge the
witnesses' credibility.” Fed. R. Civ. P. 52(a)(6). The
district court did not clearly err in finding that the officers
had reasonable suspicion to detain Smith.
B
Smith also contends that the officers lacked probable cause
to arrest and search him after he tried to walk away from the
officers’ attempt to detain and frisk him. We disagree. As
discussed above, the officers had a right to detain him and pat
him down for weapons based on their reasonable suspicion.
When Smith resisted and struck both officers, they had
probable cause to arrest him for the crime of assault. Police
officers are entitled to use force in order to effectuate a
Terry stop. See Graham v. Connor, 490 U.S. 386, 396
(1989)(“[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
10
physical coercion or threat thereof to effect it.”); Adams, 407
U.S. at 146 (“So long as the officer is entitled to make a
forcible stop, and has reason to believe that the suspect is
armed and dangerous, he may conduct a weapons search limited in
scope to this protective purpose.”). Accordingly, we are
persuaded that the officers had probable cause to arrest and
search Smith.
Conclusion
Accordingly we AFFIRM the denial of Smith’s motion to
suppress the evidence obtained during the search incident to his
arrest.
AFFIRMED
11
