363 F.3d 317 (4th Cir. 2004), 03-4008, United States v. Perkins

Docket Nº:03-4008.
Citation:363 F.3d 317
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Michael PERKINS, Defendant-Appellant.
Case Date:April 07, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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363 F.3d 317 (4th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Michael PERKINS, Defendant-Appellant.

No. 03-4008.

United States Court of Appeals, Fourth Circuit

April 7, 2004

Argued: Oct. 29, 2003.

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[Copyrighted Material Omitted]

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ARGUED:

Jonathan David Byrne, Legal Research and Writing Specialist, Charleston, West Virginia, for Appellant.

Karen B. George, Office of the United States Attorney, Charleston, West Virginia, for Appellee.

ON BRIEF:

Mary Lou Newberger, Federal Public Defender, George H. Lancaster, Jr., Assistant Federal Public Defender, Charleston, West Virginia, for Appellant.

Kasey Warner, United States Attorney, Joshua C. Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a dissenting opinion.

OPINION

WILKINSON, Circuit Judge:

Appellant John Michael Perkins was stopped in his vehicle by police officers in St. Albans, West Virginia on May 5, 2002. As they approached the vehicle, one of the officers observed a rifle lying in the back seat of Perkins' car. After Perkins volunteered that he had a prior felony, the officer arrested Perkins and found knives, drug paraphernalia, and two other guns in the car. Perkins was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000). Following the district court's denial of Perkins' pretrial motion to suppress the evidence, Perkins entered a conditional plea of guilty. On appeal, Perkins renews his motion to suppress, arguing that the investigative stop of his vehicle violated his Fourth Amendment right to be free from unreasonable searches and seizures. Because we find that the officers had reasonable suspicion to stop Perkins' car in view of the totality of the circumstances, we affirm.

I.

In the evening hours of May 5, 2002, an unidentified woman called the St. Albans, West Virginia police department and reported that there were two white males in the front yard of a duplex at 2740 Knox Avenue who were pointing and displaying rifles in various directions. She further reported that the men had arrived in a red car bearing a silver or white stripe. The dispatcher relayed all of this information to officers in the area.

Officer Mark Burdette and Sergeant T.A. Kemper were patrolling the area in separate units, and they responded to the call. Officer Burdette had been with the St. Albans police department for seven years and was familiar with the Knox Avenue area. He knew that Knox Avenue, a residential street where young children are commonly present, was a notorious high crime and drug trafficking area. Officer Burdette previously had participated with the police department's drug unit in four or five drug investigations on Knox Avenue and more in the surrounding area. In fact, Officer Burdette knew that 2740 Knox Avenue--the very unit where the caller had reported the disturbance--was one unit in a two-unit duplex, and that the other unit, 2738 Knox Avenue, was a known drug house and was presently under

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investigation for drug activity. Officer Burdette had personally arrested both of the female residents of 2738 Knox Avenue on several occasions for drug-related offenses. When Officer Burdette received the information from the dispatcher, he surmised that it was a "drug deal gone bad."

Although the caller did not identify herself, Officer Burdette believed that she was Mrs. Hayes, a woman who lived across the street from the duplex at 2738 and 2740 Knox Avenue. Officer Burdette stated that this belief was based on the detailed nature of the caller's description of the individuals and their conduct, which revealed that she was in "close proximity" to them. Officer Burdette knew that Mrs. Hayes lived "directly across the street" from the duplex. Moreover, he knew that she "normally is the one who calls in and complains and gives reliable information." Indeed, Officer Burdette testified, just in the instances in which he was involved, Mrs. Hayes had called and provided reliable information of drug or other illegal activity on Knox Avenue on at least six to ten prior occasions. Officers later confirmed that Mrs. Hayes was in fact the caller.

Officers Burdette and Kemper arrived at the duplex and found two vehicles parked in front of it. Officer Burdette pulled up behind them and identified the vehicle described by the caller, a small red car with a silver or white stripe. He saw two men in the car and found that they met the caller's description. He further recognized the passenger in the car as Mark Freeman, a "known drug taker" who lived on Knox Avenue. Moments later, the red car described by the caller pulled out from in front of the duplex and began driving off. Officer Burdette advised Sergeant Kemper that the red car was the vehicle that was described to them, and the officers initiated a traffic stop of the vehicle.

As the officers approached the car, Officer Burdette saw a loaded, high-powered rifle lying in plain view in an open gun case on the back seat. Perkins explained that he was trying to sell guns for his wife and openly volunteered that he had a felony conviction. Upon confirming with a dispatcher that Perkins had several prior felonies, Officer Burdette placed Perkins under arrest. Perkins consented to a search of his vehicle, and the officers discovered two more loaded guns, knives, and a variety of drug paraphernalia.

A grand jury indicted Perkins on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000). Perkins filed a pre-trial motion to suppress the evidence seized during the investigative traffic stop. After an evidentiary hearing, the district court denied the motion. Perkins subsequently entered a conditional plea of guilty, and the district court sentenced Perkins to forty-one months in prison followed by a three-year term of supervised release. Perkins now appeals, claiming that the district court erred in denying his suppression motion.

II.

When considering on appeal a motion to suppress evidence, we review a district court's factual findings for clear error and its legal determinations de novo. United States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997). Because the district court denied the motion to suppress, we construe the evidence in the light most favorable to the government. See United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

We hold that the totality of the circumstances here justified Officer Burdette's

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decision to stop Perkins' vehicle. We first detail our basis for finding that reasonable suspicion existed, and then we address Perkins' specific objections.

III.

Under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer may conduct a brief investigatory stop where the officer has reasonable suspicion that criminal activity may be afoot. See Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); United States v. Crittendon, 883 F.2d 326, 328 (4th Cir. 1989). A Terry stop must be based on "at least a minimal level of objective justification," but the standard for reasonable suspicion is less demanding than for probable cause. Wardlow, 528 U.S. at 123, 120 S.Ct. 673.

In assessing a Terry stop's validity, we consider the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Crittendon, 883 F.2d at 328. Thus, factors which by themselves suggest only innocent conduct may amount to reasonable suspicion when taken together. United States v. Arvizu, 534 U.S. 266, 274-75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Sokolow, 490 U.S. at 9-10. Moreover, our determination of reasonable suspicion must give due weight to common sense judgments reached by officers in light of their experience and training. Wardlow, 528 U.S. at 125, 120 S.Ct. 673. While we require more than a mere "hunch" to justify a stop, we also credit the "practical experience of officers who observe on a daily basis what transpires on the street." United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993); see also Arvizu, 534 U.S. at 273-74, 122 S.Ct. 744.

At the time he stopped Perkins' vehicle, Officer Burdette knew the following facts: (1) Knox Avenue was a high-crime, drug-ridden neighborhood in which children were commonly present; (2) he had taken part in four or five drug investigations on Knox Avenue; (3) the duplex at 2740 Knox Avenue was a known drug house under investigation by the police's drug unit; (4) Officer Burdette had personally arrested the residents of one of the units in that duplex on several occasions; (5) an unnamed caller had reported observing two white males pointing rifles in various directions in the front yard of that duplex; (6) these men reportedly arrived in a red car with a silver or white stripe; (7) Mrs. Hayes, a resident who lived directly across the street from the duplex, normally reported this type of conduct to the police; (8) Mrs. Hayes had given reliable information about illegal activity in this area at least six to ten times before; (9) shortly after the phone call to the police, there were indeed two white males in a red car bearing a silver or white stripe, parked next to another car right outside the duplex at 2740 Knox Avenue; (10) the passenger in the car was Mark Freeman, a well-known drug purchaser who lived in the neighborhood; and (11) the red car pulled away when the officers arrived.

In view of these circumstances, we find that...

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