Filed: Jul. 12, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4921 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JODY EARL ELBERT, a/k/a Timmy Tyson, a/k/a John Doe, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:09-cr-00178-H-1) Submitted: June 29, 2012 Decided: July 12, 2012 Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Af
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4921 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JODY EARL ELBERT, a/k/a Timmy Tyson, a/k/a John Doe, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:09-cr-00178-H-1) Submitted: June 29, 2012 Decided: July 12, 2012 Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Aff..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4921
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JODY EARL ELBERT, a/k/a Timmy Tyson, a/k/a John Doe,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:09-cr-00178-H-1)
Submitted: June 29, 2012 Decided: July 12, 2012
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jody Earl Elbert was indicted for possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2006). Elbert moved to suppress all evidence
resulting from his arrest, which he contended was conducted in
violation of the Fourth Amendment. The district court adopted
the recommendation of the magistrate judge and denied the
motion. Following a jury trial, Elbert was convicted and
sentenced to thirty-six months in prison.
On appeal, Elbert asserts that the district court
erred in denying his motion to suppress. In considering the
denial of a motion to suppress, we “review the district court’s
legal determinations de novo and its factual determinations for
clear error,” construing the evidence “in the light most
favorable to the government.” United States v. Kelly, 592 F.3d
586, 589 (4th Cir. 2010).
Elbert first contends that when the police surrounded
him with guns drawn following an aborted controlled buy, they
arrested him, with no probable cause to support this arrest.
Therefore, Elbert argues, any evidence obtained as a result of
this arrest was obtained illegally. Alternatively, Elbert
contends that if police conduct amounted to an investigatory
stop as opposed to an arrest, the officers had no reasonable
suspicion of criminal activity to support the stop.
2
We must first decide whether the district court erred
in finding that Elbert’s initial detention constituted an
investigatory stop, and not an arrest. To determine “whether
an individual is in custody despite the lack of a formal
arrest,” a court assesses “whether, under the totality of the
circumstances, a suspect’s freedom of action is curtailed to a
degree associated with formal arrest.” United States v.
Hargrove, 625 F.3d 170, 178 (4th Cir. 2010) (internal quotation
marks omitted), cert. denied,
132 S. Ct. 292 (2011). A police
officer can make a warrantless arrest as long as he has probable
cause to do so; probable cause is present when “the facts and
circumstances within the officer’s knowledge” are enough to
justify a prudent person’s belief “that the suspect has
committed, is committing, or is about to commit an offense.”
United States v. Williams,
10 F.3d 1070, 1073 (4th Cir. 1993)
(internal quotation marks omitted). In contrast, under Terry v.
Ohio,
392 U.S. 1, 30 (1968), a “law enforcement officer may
initiate a brief investigatory stop if the officer has
reasonable suspicion to believe that ‘criminal activity may be
afoot.’” United States v. Griffin,
589 F.3d 148, 152 (4th Cir.
2009) (quoting
Terry, 392 U.S. at 30).
The perception that one is not free to leave does not
convert a brief investigatory stop, as permitted by Terry, into
an arrest, because “a brief but complete restriction of liberty
3
is valid under Terry.” United States v. Elston, 479 F.3d 314,
319 (4th Cir. 2007) (internal quotation marks omitted).
Moreover, the fact that officers have drawn their weapons “does
not necessarily elevate a lawful stop into a custodial arrest.”
Id. at 320.
After our thorough review of the testimony presented
at the suppression hearing, we conclude that the district court
did not err in determining that Elbert’s detention constituted
an investigatory stop, and not a custodial arrest, and therefore
need only have been supported by reasonable suspicion. Soon
after the stop occurred, police discovered drug evidence that
justified the ensuing arrest.
Elbert contends that the officers could not have had a
reasonable suspicion for the stop, however, because the source
of their information, Smith, was not reliable, and because
Elbert did not act evasively when the officers approached him.
However, evasive behavior is but one factor that may be
considered in assessing reasonable suspicion of criminal
activity; its presence is not essential. Here, as the
magistrate judge described, multiple factors contributed to the
officers’ suspicions that Elbert was engaged in criminal
behavior. Thus, we conclude that the district court did not err
in finding police had reasonable suspicion supporting an
investigatory stop of Elbert.
4
Accordingly, we deny Elbert’s motion to file a pro se
supplemental brief and 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 the court and argument would not aid the decisional
process.
AFFIRMED
5
