U.S. v. Lender
| Citation | 985 F.2d 151 |
| Decision Date | 01 February 1993 |
| Docket Number | 92-5103,Nos. 92-5099,s. 92-5099 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Calvin Edwin LENDER, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Calvin Edwin LENDER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
John S. Bowler, Office of U.S. Atty., Raleigh, NC, argued (Margaret Person Currin, U.S. Atty., Jane H. Jolly, Asst. U.S. Atty., on brief), for plaintiff-appellant.
George Alan DuBois, Jr., Asst. Federal Public Defender, Raleigh, NC, argued, for defendant-appellee.
Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.
We address herein two issues relating to Calvin Edwin Lender's conviction and sentence for possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Lender challenges the denial of his motion to suppress the firearm, and the government has appealed the district court's refusal to sentence Lender as an armed career criminal under 18 U.S.C. § 924(e). We uphold the district court's denial of the motion to suppress, because the police officers had a reasonable suspicion to stop Lender after they observed him in what they believed to be a drug transaction. We hold, however, that defendant should have been sentenced as an armed career criminal, even though one of his three predicate convictions was handed down when he was seventeen, because North Carolina tried the defendant as an adult.
At approximately 12:50 a.m. on August 11, 1990, Officer Christopher Hill of the Kinston Police Department and Officer Richard Thornell of the North Carolina Alcohol Law Enforcement Division were patrolling an area in Kinston, North Carolina. The officers knew the area to be one where heavy drug traffic occurred. As they crossed an intersection, the officers observed a group of four or five men, including the defendant, huddled on a corner. The defendant had his hand stuck out with his palm up, and the other men were looking down toward his palm.
Suspecting a drug transaction, the officers stopped their car, got out, and approached the men. Although the officers wore plain clothes and drove an unmarked car, they were readily identifiable as police officers because of their firearms and badges worn at belt-level. As the officers approached, the group began to disperse, and the defendant walked away from the officers with his back to them. Officer Hill called out for the defendant to stop, but the defendant refused. As he walked, the defendant turned and told Hill, "You don't want me; you don't want me."
While Lender continued to walk away, both officers observed him bring his hands to the front of his waist as though reaching for or fumbling with something in that area. Officer Hill again called for the defendant to stop. At this point, the defendant stopped, and a loaded semi-automatic pistol fell from his waist to the ground. Both Lender and Officer Hill reached for the gun, but Officer Thornell immediately subdued the defendant, preventing him from grabbing the weapon. Officer Hill then placed the defendant under arrest for carrying a concealed weapon. Because Lender had a history of prior felony convictions, he eventually was indicted on one count of possessing a firearm after having been convicted of a crime punishable by a term exceeding one year, a violation of 18 U.S.C. § 922(g)(1).
Prior to trial, the defendant moved to suppress the gun on the grounds that it had been discovered only after the officers had unlawfully seized him. Lender argued both that the officers had no reasonable suspicion to justify stopping him, and that he was seized from the moment he came to a stop after Officer Hill's second call for him to do so. The district court denied defendant's motion, finding that although the officers had no reasonable suspicion to stop defendant, he had not been seized at the time the gun fell into plain view.
On October 21, 1991, a jury convicted Lender on the sole count of the indictment. Prior to trial, the government had filed notice that it would seek the fifteen-year mandatory minimum sentence provided in the Armed Career Criminal Act (the "Act"), 18 U.S.C. § 924(e)(1). The government maintained that the defendant qualified for the enhancement because he previously had been convicted of three violent felonies as defined by the Act: breaking and entering in 1982, breaking, entering, and larceny in 1985, and common-law robbery in 1988.
The district court declined to sentence Lender as an armed career criminal. The court focused upon the defendant's 1982 breaking and entering conviction, handed down when he was seventeen. According to the district court, section 924(e) left it unclear whether convictions of persons meeting the federal definition of juvenile, a "person who has not attained his eighteenth birthday" under 18 U.S.C. § 5031, should be counted as predicate offenses under the Act. Because of this supposed lack of clarity, the district court invoked the rule of lenity, did not count the 1982 conviction as a predicate offense, and did not sentence the defendant to the fifteen-year minimum. Instead the court sentenced him to thirty-three months, at the high end of his Sentencing Guidelines range.
The government appealed Lender's sentence; Lender then filed a cross-appeal on the denial of his suppression motion. We will first address the denial of the motion to suppress, and then the sentencing issue.
In appealing the denial of his suppression motion, Lender argues that Officers Hill and Thornell had no reasonable suspicion to stop him early in the morning of August 11. At most, the defendant maintains, the officers saw a man talking with friends on a street corner in a poor section of town, and the man happened to have his hand out. According to the defendant, these facts did not provide a "particularized and objective basis" for suspecting him of criminal conduct, which Officer Hill needed to order him to stop. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981).
We disagree. Reasonable suspicion is a commonsensical proposition. Courts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street. Here, the officers personally knew that the area they were patrolling had a large amount of drug traffic. While the defendant's mere presence in a high crime area is not by itself enough to raise reasonable suspicion, an area's propensity toward criminal activity is something that an officer may consider. United States v. Moore, 817 F.2d 1105, 1107 (4th Cir.1987); United States v. Constantine, 567 F.2d 266, 267 (4th Cir.1977). The officers also observed the defendant in this known drug area at nearly 1:00 a.m. The lateness of the hour is another fact that may raise the level of suspicion. See United States v. Knox, 950 F.2d 516, 519 (8th Cir.1991).
Additionally, the officers observed the defendant engaged in behavior that they suspected to be a drug transaction. In this neighborhood at this late time of night, a group of men was gathered around Lender looking down into his open palm. We cannot say that a reasonable police officer was required to regard such conduct as innocuous. Even though the officers acknowledged that from their passing patrol car they could not see drugs or other contraband in the defendant's hand, the officers were not required in the absence of probable cause simply to "shrug [their] shoulders and allow a crime to occur." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Because they suspected illegal activity, Officers Hill and Thornell responded precisely as the law provides: they attempted to investigate further. Id. at 145-46, 92 S.Ct. at 1923; Terry v. Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 1880-81, 20 L.Ed.2d 889 (1968); Moore, 817 F.2d at 1107.
The defendant's conduct after the officers left their car but before Officer Hill called "Stop" did nothing to allay the officers' earlier suspicions. When the officers tried to approach Lender, he attempted to evade them by turning his back and walking away. Evasive conduct, although stopping short of headlong flight, may inform an officer's appraisal of a streetcorner encounter. See United States v. Sharpe, 470 U.S. 675, 683 n. 3, 105 S.Ct. 1568, 1573 n. 3, 84 L.Ed.2d 605 (1985); United States v. Espinosa, 827 F.2d 604, 608 (9th Cir.1987). Given the factors present here, we think Officer Hill had reasonable suspicion to stop the defendant.
Further, we agree with the district court that the defendant had not been seized when the firearm on his person fell into plain view. Officer Hill's show of authority in calling for the defendant to stop is not a seizure when the defendant does not yield to that authority. California v Hodari D., --- U.S. ----, ----, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991). Lender argues, however, that he submitted to Officer Hill's second order to stop by coming to a complete halt, and that the gun fell to the ground only after he stopped. Therefore, according to the defendant, the gun fell into plain view after he had been seized.
We do not believe, however, that Lender's momentary halt on the sidewalk with his back to the officers constituted a yielding to their authority. Between Officer Hill's first and second commands for the defendant to stop, both officers heard the defendant say, "You don't want me; you don't want me." They also observed him fumbling with his hands in the area of his waist as if reaching for or adjusting a weapon. Defendant asks us to characterize as capitulation conduct that is fully consistent with preparation to whirl and shoot the officers.
The defendant's actions after he dropped the pistol indicate further that he had not yielded. Lender had stopped for at most an instant...
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