U. S. v. Black

• Decision Date: 14 May 2008
• Docket Number: No. 06-4986.,06-4986.
• Citation: 525 F.3d 359
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sean D. BLACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

525 F.3d 359

UNITED STATES of America, Plaintiff-Appellee, v. Sean D. BLACK, Defendant-Appellant.

No. 06-4986.

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2007.

Decided: May 14, 2008.

ARGUED: David Lassiter, Jr., Jefferson & Lassiter, Richmond, Virginia, for Appellant. Richard Daniel Cooke, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney, Matthew C. Ackley, Special Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.

Before NIEMEYER and GREGORY, Circuit Judges, and Henry F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge FLOYD joined. Judge GREGORY wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

During the course of a voluntary citizen-police encounter, City of Richmond (Virginia) police seized Sean Black, in a constitutional sense, patted him down, and, after discovering an illegal firearm, arrested him. Along with the firearm, heroin was then recovered from Black's person. Black was ultimately convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of heroin, in violation of 21 U.S.C. §§ 841 and 844. The district court sentenced Black to 360 months' imprisonment, which was based on a one-level upward departure under the district court's Sentencing Guidelines calculation.

On appeal, Black challenges the district court's denial of his motion to suppress, contending that the Richmond police did not have the reasonable suspicion necessary to seize him and thus violated his Fourth Amendment rights. He also challenges the reasonableness of the district court's sentence. For the reasons that follow, we affirm.

I

On the evening of December 17, 2005, City of Richmond Police Detective Sean Adams, Detective Daniel Minton, and Officer Perry Barber were driving in a marked patrol car through the Mosby Court area of Richmond, a "high-crime" neighborhood that had been designated as a target of the police department's violent crime reduction initiative, to increase police visibility in that area. Detective Adams knew the neighborhood to be a high-crime area, and he had made numerous arrests for drugs and trespassing in Mosby Court in his 12 years as a police officer.

Around 9:00 p.m., the officers pulled into a parking spot near 1336 Coalter Street, a building posted with "No Trespassing" signs, which the police department was authorized to enforce. A group of four or five people were gathered near a breezeway in front of the building, but when the officers arrived, they immediately dispersed in different directions. As the officers exited the vehicle, Sean Black, who was standing about thirty feet from the breezeway, started walking across the street past the passenger side of the police car. When Detective Adams asked Black, "Hey man, do you live out here?" Black stopped, turned to Adams, and said that he lived across the street at 1312 Coalter, which was the direction toward which he had been walking. After turning his flashlight on Black's midsection, Detective Adams noticed that Black's left hand was outside of his coat pocket, but his right hand was awkwardly inserted halfway in his right coat pocket and was "cupped," as if grasping an object. Adams, concerned about the possibility of a weapon in Black's pocket, asked Black, "Can you take your hand out of your pocket?" Black did not respond either verbally or by removing his hand from his pocket. When Adams repeated the request, Black took his hand out of his pocket. Adams then saw a bulge "6 to 8 inches long along the bottom of the pocket" and "1 to 1 ½ inches high" that "appeared to have a flat side." Adams suspected that the object was a firearm. Detective Minton, who was standing behind Black, also discerned a bulge in the pocket but did not see its shape as clearly.

The following exchange then occurred between Detective Adams and Black:

ADAMS: What's in your pocket?

BLACK: Huh?

ADAMS: What's in your pocket?

BLACK: Nothing.

ADAMS: What?

BLACK: My money and my ID.

Adams believed Black's answer to be flatly inconsistent with the shape of the object in Black's pocket, which appeared to be the slide of a semi-automatic handgun.

Black then put his hand back into his right coat pocket, and Detective Adams "became nervous." Adams placed his hand on his gun and said, "[T]ake your hand out of your pocket. I don't want to have to shoot you." Black removed his hand from his pocket, and Adams ordered Black to move to the police car where Adams patted him down. Adams immediately confirmed that the bulge in Black's right coat pocket was a firearm. Adams then handcuffed Black and removed a Ruger semi-automatic handgun from Black's pocket, which was loaded and had a round in its chamber. When Black acknowledged that he did not have a concealed-carry permit for a weapon and that he was a convicted felon, the officers placed Black under arrest. From the search that followed, the officers recovered from Black's person a razor blade and individually wrapped baggies of an off-white rock-like substance that was later determined to be heroin.

Before trial, Black filed a motion to suppress the evidence seized from him, contending that the seizure by the officers violated his Fourth Amendment rights and was not justified by a reasonable suspicion of criminal wrongdoing, as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Following a hearing on the motion, the district court found the facts stated above. It then concluded that the encounter between Detective Adams and Black was initially a voluntary citizen-police encounter, as described in Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), but that during the encounter Black was "seized" in a constitutional sense "when Officer Adams told Black to take his hand out of his pocket because he didn't want to have to shoot him." The court held, however, that the seizure was justified because at that point in time the officers had a reasonable, articulable suspicion that Black was illegally carrying a firearm. Accordingly, the court denied Black's motion to suppress.

After the jury convicted Black, the district court sentenced him to 360 months' imprisonment, which was based on a one-level upward departure under the Sentencing Guidelines. The government moved for an upward departure based on Black's criminal history. Because Black's criminal history was already at the maximum Category VI, the way to reflect an underrepresentation of this history was to increase the offense level. See U.S.S.G. § 4A1.3(a)(4)(B). The government observed:

The nature and sequence of the defendant's prior criminal record are significant here. In 1989, Sean Black, who was fifteen at the time, killed Everett Hubbard in Richmond, Virginia after Hubbard had taken a bag of narcotics from him. Black shot Hubbard twice in the back and once in the head. Black was convicted of voluntary manslaughter and served approximately two years in prison. Less than a year after his release, he committed new crimes, including receiving stolen property. Black was arrested for possession of cocaine on July 14, 1994, and gave a false name during the booking process. He also severely beat a man and was later convicted of malicious wounding. Black served approximately 10 years in prison, and was paroled on May 24, 2005. Within two weeks, he violated his parole by violently acting out at his treatment program. He was referred to an inpatient treatment program, and was released from that on August 17, 2005. He committed the instant offenses on December 17, 2005. Over the course of his years of incarceration, Black incurred 61 institutional infractions, including violent offenses.

The district court granted the government's motion to increase the Guidelines recommendation, explaining:

In my judgment the criminal history category ... significantly underrepresents the serious[ness] of the defendant's criminal history, even though it's the most serious of criminal histories, and it certainly underrepresents the likelihood that the defendant will commit further crimes.

He, in fact, has proved the likelihood of committing further crimes after the offense of conviction [in this case] by committing further crimes, two further crimes. One is to threaten someone with bodily harm. The other is to effectuate it with aggravated assault.

The court concluded under 18 U.S.C. § 3553(a) that the enhanced sentence best served the goals of federal sentencing and imposed a 360-month sentence.

From the district court's judgment, Black appeals, challenging the district court's denial of his motion to suppress and the reasonableness of his sentence.

II

The parties agree that the encounter between Black and Detective Adams on December 17, 2005, began as a consensual encounter. Black argues, however, that when he was seized during that encounter — when Adams ordered Black to take his hand out of his pocket because he did not want to have to shoot him — his Fourth Amendment rights were violated because the officers did not have a reasonable suspicion at that time that he had committed or was committing a crime. Black does not contend that the district court's factual findings were clearly erroneous. Rather, he argues that the facts leading up to his seizure were insufficient as a matter of law to support a Terry seizure.¹ Relying on United States v. Burton, 228 F.3d 524 (4th Cir.2000), Black asserts that the police had no right to pat him down merely because he exercised his clearly established "legal right to choose not to respond to the directive to remove his hand from his pocket" during a consensual encounter. As he summarizes the facts:

Black...