U.S. v. Mayo

• Decision Date: 23 March 2004
• Docket Number: No. 03-4529.,03-4529.
• Citation: 361 F.3d 802
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Irvin D. MAYO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 802

361 F.3d 802

UNITED STATES of America, Plaintiff-Appellant, v. Irvin D. MAYO, Defendant-Appellee.

No. 03-4529.

United States Court of Appeals, Fourth Circuit.

Argued: January 23, 2004.

Decided: March 23, 2004.

ARGUED: Michael James Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellant. Mary Elizabeth Maguire, Assistant Federal Public Defender Richmond, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellant. Frank W. Dunham, Jr., Federal Public Defender, Richmond, Virginia, for Appellee.

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.

Reversed and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Shedd and Judge Duncan joined.

OPINION

NIEMEYER, Circuit Judge:

City of Richmond police officers stopped and frisked Irvin Mayo while he was walking in a high-crime area of Richmond, Virginia. The officers had observed Mayo react to their presence by placing his hand in his left pocket and thereafter conduct himself in an evasive and suspicious manner, manifesting culpability to the officers. On stopping and frisking Mayo — under the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) — the officers recovered a handgun, leading to Mayo's indictment for possession of a firearm in furtherance of drug trafficking and other related charges. The district court, concluding that the circumstances were covered by our decision in United States v. Burton, 228 F.3d 524 (4th Cir.2000), felt compelled to grant Mayo's motion to suppress the evidence seized following the officer's stop and frisk.

Because Burton presented distinguishing facts — the officers in Burton conceded that they had "no indication that [the defendant] was at the time engaging in any illegal activity," whereas the officers in this case asserted that they had a reasonable suspicion supported by articulable facts that Mayo was possessing a concealed weapon — we conclude that this case is not controlled by Burton. On review of the facts found in this case, we conclude that the officers had authority to stop and frisk Mayo, and, therefore, we reverse and remand this case for further proceedings.

I

During the afternoon of February 14, 2003, City of Richmond Police Officers Kenneth Cornett and C.G. Johnson were driving in a marked patrol car through a "high-crime" neighborhood on the south side of Richmond. This neighborhood had recently been designated as a target area for the police department's "Wave Initiative," which was designed to respond to community problems and citizen complaints stemming from drug dealing. In addition, Officer Cornett knew the area to be a high-crime area. In the weeks preceding February 14, two shootings had occurred in the neighborhood, and Cornett himself had recovered firearms and drugs in connection with three separate incidents.

While traveling through the neighborhood on February 14, Officers Cornett and Johnson observed Mayo standing in the middle of the street, talking to another person who was on the side of the street. When Mayo observed the approaching police car, he reactively "put his left hand into his left hand jacket pocket, turned 180 degrees, walked out of the street and onto the [apartment] complex property that is posted no trespassing and through that property between two buildings." Officer Cornett observed that Mayo "either ... had something heavy in [his] pocket or he was pushing his hand down" into the pocket, a movement that Officer Cornett believed was consistent with an individual's effort to maintain control of a weapon while moving. The officers drove around the corner and waited to see if Mayo would emerge from the other side of the apartment complex. When Mayo did emerge and observe the officers again, he "immediately stopped, just froze in his tracks for a split second, then started walking along the side of the building."

At this point, Officer Cornett exited the patrol car and approached Mayo with his badge displayed. As Officer Cornett asked Mayo if he could speak with him, Officer Johnson requested that Mayo remove his left hand from his pocket, which Mayo did. When Officer Cornett asked Mayo whether he lived in the apartment complex, Mayo gave no answer but reacted in a peculiar manner. Officer Cornett observed that Mayo's "eyes were extremely wide, his mouth was slightly agape, and it was almost like nothing registered with him. It was almost as if he was in shock." The officer also observed that Mayo's shirt was "fluttering ... as though he was shaking." Officer Cornett asked Mayo if he had a weapon, at which point Mayo averted his eyes, looking downward, and said nothing. This reaction made Officer Cornett "nervous," prompting him to inform Mayo that he was going to pat Mayo down "for my safety." Mayo responded to this statement by raising his hands halfway up. When Officer Cornett frisked Mayo, he found a semiautomatic pistol in his left jacket pocket, the pocket into which Mayo had earlier inserted his hand when the officers first approached him in the patrol car.

The officers seized the pistol, arrested Mayo for carrying a concealed weapon without a permit, handcuffed him, and read him his Miranda rights, to which Mayo responded with a nod of acknowledgment. In response to Officer Cornett's questions whether Mayo had any drugs on him, Mayo again averted his eyes and said nothing. The officers then conducted a search incident to arrest, during which they recovered several rocks of crack cocaine and marijuana.

Mayo was indicted on three counts for drug violations and one count for possession of a firearm in furtherance of drug trafficking. Before trial, Mayo moved to suppress the evidence seized by Officer Cornett, contending that the stop by the officers violated his Fourth Amendment rights and was not justified by "a reasonable suspicion supported by articulable facts" as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court considered Officer Cornett's stop-and-frisk in light of our ruling in United States v. Burton, 228 F.3d 524 (4th Cir.2000) (concluding that police officers in circumstances presented there did not have a reasonable suspicion to frisk the defendant), and determined that Officer Cornett's search of Mayo fell "squarely within the holding of Burton." The court reached this conclusion notwithstanding its observation that "there is evidence that the defendant was carrying — that in the view of the officer, the defendant was acting in such a way as to — that was consistent with somebody who was carrying a weapon."

From the district court's order suppressing the evidence as the fruit of an improper stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the government prosecuted this appeal.

II

The government contends that Officer Cornett had a reasonable suspicion supported by articulable facts to believe that criminal activity may have been afoot; Mayo may have been carrying a concealed weapon without a permit, in violation of Virginia Code § 18.2-308. It argues that Officer Cornett's suspicion was "based on the defendant's furtive and evasive conduct in a high-crime area, the way he was holding his left hand in his jacket pocket, his physical response to the confrontation with police officers, and his response to questions regarding where he lived and whether he was carrying any weapons." The government argues that the district court erred in concluding that the circumstances here are controlled by United States v. Burton, 228 F.3d 524 (4th Cir.2000), because that case is distinguishable.

Mayo contends that not only are the circumstances here covered by Burton, the circumstances here are "more favorable" to Mayo in that "Mayo complied with the officer's request that he remove his hand from his jacket" — a fact that Mayo argues gives an indication that the officer no longer "had any further reason to believe that [Mayo] had a weapon."

In granting Mayo's motion to suppress, the district court credited Officer Cornett's version of the facts but concluded that they fell under the holding of Burton:

I find that the totality of the circumstances here puts this case squarely within the holding of Burton, notwithstanding that there is evidence that the defendant was carrying — that in the view of the officer, the defendant was acting in such a way as to — that was consistent with somebody who was carrying a weapon.

Although ultimately concluding that the officers did not have a reasonable articulable suspicion that Mayo "was engaged in criminal activity," in reaching this conclusion, the court appears to have focused on whether the Richmond police officers had a legitimate safety concern. Viewing Burton as a ruling focusing on the safety concern, the district court noted that in Burton the defendant refused to remove his hand when asked to. The court paraphrased the dissenting opinion in Burton, stating, "And Burton's nonresponse to the request that he remove his hand from the coat constituted, crediting the practical experience of the officers, an entirely reasonable safety concern." See Burton, 228 F.3d at 530 (King, J., dissenting). The district court apparently reasoned, because we held in Burton that the officers were not justified in frisking the defendant, a priori, this case fell well within Burton because Mayo indeed did remove his hand, presenting less of a risk to the officers. Therefore, the circumstances in this case fell within the district court's understanding of the holding of Burton, and it accordingly granted Mayo's motion to suppress.

The principles to be applied to this case are now well fixed. Although the Fourth Amendment prohibits unreasonable seizures of persons, a police officer may temporarily stop a citizen "where [the] police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that...