United States v. Black, 022613 FED4, 11-5084

Docket Nº:11-5084
Opinion Judge:GREGORY, Circuit Judge:
Party Name:UNITED STATES OF AMERICA Plaintiff - Appellee v. NATHANIEL BLACK Defendant-Appellant
Attorney:Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Richard Lee Edwards, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Henderson Hill, Executive Director, Elizabeth A. Blackwood, FEDERAL DEFENDERS OF WES...
Judge Panel:Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit Judges. TRAXLER, Chief Judge, concurring:
Case Date:February 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA Plaintiff - Appellee

v.

NATHANIEL BLACK Defendant-Appellant

No. 11-5084

United States Court of Appeals, Fourth Circuit

February 26, 2013

Argued: December 7, 2012

ORDER

The court amends its, as follows:

On the cover sheet, district court information section, the name of Judge "Max O. Coburn, Jr." is changed to read Judge "Frank D. Whitney."

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:10-cr-00206-MOC-1)

ARGUED:

Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

Richard Lee Edwards, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

ON BRIEF:

Henderson Hill, Executive Director, Elizabeth A. Blackwood, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit Judges.

OPINION

GREGORY, Circuit Judge:

In Terry v. Ohio, Chief Justice Earl Warren recognized that police officers need discretion to perform their investigative duties. 392 U.S. 1 (1968). Since Terry, this discretion has been judicially broadened, giving police wide latitude to fulfill their functions. In some circumstances, however, police abuse this discretion, and we must remind law enforcement that the Fourth Amendment protects against unreasonable searches and seizures. Because in this case, we find the police disregarded the basic tenets of the Fourth Amendment, we reverse.

I.

In reviewing the denial of a motion to suppress, we view the facts in the light most favorable to the Government, as the party prevailing below. United States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007). At approximately 10:00 p.m. on June 15, 2010, uniformed Officers Matthew Zastrow and Shane Strayer of the Charlotte-Mecklenburg Police Department were in a marked police vehicle, patrolling the Eastway Division of Charlotte, North Carolina. Certain apartment complexes in the Eastway Division are known for armed robberies and other violent crimes.

As the officers patrolled, they observed a vehicle parked at the pump of a gas station. Though neither officer saw the vehicle pull into the gas station, during the approximately three-minute observation, the officers observed that the driver and sole occupant of the vehicle did not leave the car, pump gas, or go into the convenience store. Officer Zastrow believed this type of behavior was "unusual" and indicative of drug transactions. On this basis, the officers ran the license tag of the vehicle, which retrieved no outstanding traffic violations, and followed the vehicle as it traveled to a nearby parking lot located in between two apartment complexes.

At the parking lot, the officers observed the driver of the vehicle, later identified as Dior Troupe, park his vehicle and walk toward a group of five men in a semi-circle who were speaking and laughing with each other. Four of the men were standing, and an African-American male, later identified as Appellant Nathaniel Black, was sitting at the left-end of the semi-circle. The six men saw the police vehicle but did not react. Neither officer observed the men engaging in any criminal activity.

Officer Zastrow drove out of view and contacted other police units for assistance because he and Officer Strayer wanted to make "voluntary contact" with the men, and the officers believed it was unwise to do so if they were outnumbered. Officers Butler and Lang were in the immediate area and joined Officers Zastrow and Strayer in an adjacent parking lot. The four officers returned in their marked police vehicles to the same parking lot where they saw the men in the semi-circle. Three other officers, Fusco, Conner, and Harris, were also nearby in another apartment complex responding to a different call and later joined the first four officers.

At about 10:15 p.m., the four uniformed officers exited their marked patrol vehicles and started walking towards the men. Officers Zastrow and Strayer recognized one of the men in the group as Charles Gates. They had spoken with Gates two weeks prior to this incident about his residence in one of the nearby apartments. Officer Zastrow was aware of Gates' prior felony drug arrests. Officer Strayer had previously arrested Gates for driving while intoxicated and drug offenses, and also knew Gates had been tased once by another officer. Neither officer knew whether Gates' prior arrests resulted in convictions.

As the officers approached the men, Troupe, who was closer to the officers, motioned to the officers with his hands indicating that he had a firearm in a holster on his hip, in plain view. Officer Strayer seized Troupe's firearm, obtained Troupe's driver's license, and secured the firearm in a patrol vehicle. Officer Strayer stated that although it is legal in North Carolina for a person to openly carry a firearm, in his years in the Eastway Division, he had never seen anyone do it.

Officer Zastrow testified he had been trained to operate on what he called the "Rule of Two," that is, if the police find one firearm, there will "most likely" be another firearm in the immediate area. Officer Strayer testified he had also been trained on what he referred to as the "one-plus" rule, that where there is one gun, there usually is another gun. Officer Strayer acknowledged that this "rule" was not always accurate as there are instances where a second gun is not always recovered.

After securing Troupe's gun in the police vehicle, Officer Strayer frisked Troupe, and proceeded to frisk the other men in the group. By this time, Officers Fusco and Conner had arrived at the scene, and a total of six officers were present.1Officers Fusco and Conner stood at a distance of about 10 to 15 feet from the men to ensure no other individuals walked up to the locale of the police encounter with the men.

While Officer Strayer was securing Troupe's gun, Officer Zastrow introduced himself to the men. He asked if any of the men lived in the apartments or if they were visiting. At that point, Appellant Black, who was still sitting, offered Officer Zastrow his North Carolina identification card. To Officer Zastrow, it was "unusual for someone to volunteer an ID" and the "remaining individuals in the group were argumentative and did not give any information, so it stood out that one volunteered an ID immediately." From his ID, Officer Zastrow believed that Black lived outside the Eastway Division. Black confirmed this belief by informing Officer Zastrow that he was visiting some friends in the area.

Officer Zastrow did not return Black's ID, instead, he pinned it to his uniform, and continued to obtain identification information from the other individuals. Officer Zastrow testified that the other individuals did not have physical identification so he wrote their names, addresses, and birthdates in a notebook.2 Officer Zastrow described Black's behavior during this encounter as "extremely cooperative."

By this time, Officer Strayer had frisked Troupe and proceeded to frisk Nicolas Moses, who was standing at the right-end of the semi-circle. While Officer Strayer was frisking Moses, Officer Zastrow noticed that Black became "fidgety," sat forward in his chair, and "began looking left and right." In Officer Zastrow's training and experience, looking left and right is a "cue" that the individual is looking to flee. To Officer Fusco, who also observed this behavior, it indicates that the individual seeks a path to escape.

Black stood up, said he was going home, and began walking towards the apartments. Officer Zastrow, who was approximately five feet from Black, walked in front of Black and told him that he was not free to leave and he should sit down. In response, Black said "I can't go home?" or "I can't leave?" and continued walking away.

Officer Zastrow then grabbed Black's left bicep with his left hand. According to Officer Zastrow, he could feel Black's "extremely fast" pulse through Black's t-shirt, which he believed was a sign of nervousness. Black pulled away from Officer Zastrow and began running towards an apartment building. Officers Zastrow and Fusco told Black to stop, and when he refused, they chased him. Officer Fusco grabbed Black from behind and tackled him to the ground. Officer Zastrow grabbed Black's wrist to try to handcuff him. As he did so, Officer Zastrow felt a metal object underneath Black's hand and clothing, which Officer Zastrow immediately recognized as a firearm. Officer Zastrow yelled "gun," and held on to Black's hand until the firearm fell to the ground. Officer Zastrow placed Black in handcuffs and arrested him.

Black was charged in a one-count indictment for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Black moved to suppress the firearm on the basis that it was the fruit of the unlawful seizure of his person. At a hearing on the motion to suppress, Black argued that he was unlawfully seized when he was told he could not leave, and the seizure was not supported by reasonable articulable suspicion. The Government relied on California v. Hodari D., 499 U.S. 621 (1991), to argue that until Black's bicep was grabbed, he was not seized for Fourth Amendment purposes, and his seizure was supported by reasonable suspicion. The district court agreed with the Government and denied the motion.

Subsequently, Black entered a conditional plea of guilty and reserved his right to appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2). At sentencing, the district court found that with a total offense level of 31, and a criminal history category of IV, Black's advisory guideline range was 151 to 188 months. However, because Black was subject to a...

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