23 F.3d 404 (4th Cir. 1994), 93-5154, U.S. v. Wolfe

• Citation: 23 F.3d 404
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Tyrone Deandre WOLFE, a/k/a James Lamont Caldwell, Defendant-Appellant.
• Case Date: April 04, 1994
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

Page 404

23 F.3d 404 (4th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Tyrone Deandre WOLFE, a/k/a James Lamont Caldwell, Defendant-Appellant.

No. 93-5154.

United States Court of Appeals, Fourth Circuit

April 4, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued Dec. 9, 1993.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson E. Legg, District Judge. (CR-92-285-L)

Denise Charlotte Barrett, Asst. Federal Public Defender, Baltimore, Md., for appellant.

Stuart A. Berman, Asst. U.S. Atty., Baltimore, Md., for appellee.

On Brief: James K. Bredar, Federal Public Defender, Baltimore, Md., for appellant.

Gary P. Jordan, U.S. Atty., Baltimore, Md., for appellee.

D.Md.

AFFIRMED.

Before HALL, PHILLIPS, and MURNAGHAN, Circuit Judges.

OPINION

PER CURIAM:

Tyrone Deandre Wolfe was arrested and convicted for 1) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) and 2) possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Wolfe pled guilty to both counts following the district court's denial of his motion to suppress evidence of the shotgun and ammunition seized from his person during the arrest. The district judge upheld the legality of Officer Randy Dull's stop and frisk of Wolfe and the ensuing arrest. Wolfe specifically reserved the right to appeal the denial of his suppression motion pursuant to Federal Rule of Criminal Procedure 11(a)(2). The court sentenced Wolfe to forty months imprisonment on each count to run concurrently, three years of supervised release, and a one hundred dollar assessment.

On appeal, Wolfe has challenged the legality of the stop and frisk conducted by Officer Dull. In addition, he has challenged the legality of Sentencing Guideline § 2K2.1, questioning the Commission's authority to set offense levels according to the defendant's criminal history where Congress has not explicitly authorized it to do so. We affirm the district court's decision in both respects.

On the evening of March 26, 1992, Officer Dull, a twelve-year veteran of the Baltimore City police force, was on uniformed foot patrol in an area that included the 2900 block of Spring Hill Avenue. Officer Tom Gause was also assigned to patrol the area in a marked police car. At the suppression hearing, Dull cited statistics identifying the neighborhood as a high crime area. ¹ Two locations in the area were suspected narcotics trafficking locations--the Spring Hill Market and the residence located at 2903 Spring Hill Avenue. ²

Dull watched the house at 2903 Spring Hill Avenue from a covert location. Over a period of twenty minutes he observed three or four transactions which he believed to be drug sales. Although it was raining steadily, Wolfe was pacing back and forth along the street between the alley just before the house at 2903 Spring Hill Avenue and the market on the corner--a distance of about 100 feet. He appeared to be watching the people coming to and from the house. Dull testified at trial that he suspected Wolfe was either preparing to rob someone or acting as a "gun man or enforcer" for the drug house. ³ Dull did not refer to either of those suspicions in the police report he wrote the night he arrested Wolfe. ⁴ In his report, Dull stated that he observed Wolfe just loitering despite a heavy downpour. Although there were eight to ten other people in the immediate vicinity, Wolfe did not interact with any of them directly.

Officer Gause drove into the Spring Hill Avenue area at approximately 7:00 p.m. Wolfe became "nervous" when he saw Gause's marked police car and "changed his direction walking into the corner store quickly." Four or five black males who had been standing on the corner as Gause approached also went into the store. Stopping briefly in front of the corner store, Gause observed Wolfe walk to the back of the store and stand with his back to the wall and his arms folded across his chest. He did not interact with others in the store. He did not buy anything, nor did he play the video games. Gause continued driving around the block after making those observations.

Dull contacted Gause by radio to tell him about a suspected buyer that Dull wanted to question. Gause drove back onto Spring Hill Avenue and stopped the individual that Dull had observed participating in what appeared to be a drug transaction. Dull came out of his covert location and joined Gause. While they were questioning the individual, Wolfe exited the corner store and began walking away from the officers very quickly. Gause saw Wolfe leaving and told Dull to stop him.

Wolfe was wearing a hooded sweatshirt which he had pulled over his head, and he had his hands in his pockets. Dull walked up on Wolfe's blind side, grabbed his hands, and said,"Police. Just be cool." He testified that he could feel a hard object that he knew was a gun immediately upon grabbing Wolfe's hands. Dull arrested Wolfe for violation of Maryland's gun laws, searched him, and located a sawed-off shotgun in his right inside coat pocket. One round of ammunition was in the gun. Dull found six additional shells in Wolfe's coat pockets. In his report, Dull said that he conducted the pat down of Wolfe's outer garments for his own safety due to the recent shootings, handguns recovered in the area, and Wolfe's apparent nervousness.

I. The Terry Stop and Frisk

A. The District Judge's Legal Conclusion

Although an appellate court must make an independent determination on the issue of the legality of an arrest, the district court's findings of fact will not be disturbed unless they are clearly erroneous.

United States v. McCraw, 920 F.2d 224, 227 (4th Cir.1990). Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985), provides the following elaboration of the clearly erroneous standard:

If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

The district judge credited the uncontradicted testimony of Officers Dull and Gause as to the events of March 26, 1992. Wolfe has challenged the district judge's legal conclusion that the facts presented by the officers provided an adequate basis for an investigative stop. Specifically, Wolfe has claimed that the officers did not have an individualized suspicion that Wolfe was armed and dangerous. Moreover, Wolfe has contended that the amount of force used in stopping Wolfe was unreasonable.

In Terry v. Ohio, 392 U.S. 1, 20-22 (1968), the Supreme Court held that a police officer can stop an individual for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. To justify the stop, an officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts," give rise to a suspicion or belief that criminal activity is taking place. Id. at 27. In addition, a police officer can conduct a reasonable search, or frisk, for weapons when the officer has reason to believe that he or she is dealing with an armed and dangerous individual, regardless of whether there is probable cause to arrest that individual for a crime. Id.

United States v. Cortez, 449 U.S. 411, 417-18 (1981), reiterated the requirement that, based upon "the whole picture," "officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." In United States v. Crittendon, 883 F.2d 326, 328 (4th Cir.1989), we held that "[t]he presence or absence of reasonable suspicion must be determined in light of the totality of the circumstances confronting a police officer including all information available to an officer and any reasonable inferences to be drawn at the time of the decision to stop a suspect." In Cortez, those circumstances were delineated as follows: "various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers." Cortez, 449 U.S. at 418.

The district judge found that the objective observations that Officers Dull and Gause had the opportunity to make as they were patrolling the 2900 block of Spring Hill Avenue supported their suspicion of Wolfe. The judge listened to the testimony of the officers and considered it in light of their knowledge of the recent crime wave in the immediate vicinity, their experience investigating similar drug operations, and their overall experience on the police force.

Wolfe has argued that the stop conducted by Dull was impermissible because the officers did not have an individualized suspicion that Wolfe was armed and dangerous. ⁵ Under Terry, however, the officers needed only a suspicion or belief that criminal activity was taking place based on specific and articulable facts. Dull testified that he believed, based on information from arrested informants and members of the Northwest Drug Unit as well as on his own observations on the night of March 26, 1992, that Wolfe may have been acting as a gun man for the drug operation suspected at 2903 Spring Hill Avenue. Wolfe's behavior also indicated to the officers that he was trying to avoid any contact with the police. Finally, the officers were patrolling an area with a demonstrated high rate of crime and significant drug activity.

Although not enough standing alone to raise a reasonable suspicion, " 'an area's disposition toward criminal activity is an articulable fact' " that may...