United States v. Cureton, 022610 FED4, 08-5235

Docket Nº:08-5235
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAYMOND LAVONNE CURETON, Defendant-Appellant.
Attorney:Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Mark Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Claire J. Rauscher, Executive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF WESTE...
Judge Panel:Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and John Preston BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.
Case Date:February 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RAYMOND LAVONNE CURETON, Defendant-Appellant.

No. 08-5235

United States Court of Appeals, Fourth Circuit

February 26, 2010

UNPUBLISHED

Argued: December 3, 2009

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3: 07-cr-00037-RJC-1)

ARGUED:

Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

Mark Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and John Preston BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Raymond Lavonne Cureton pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(g) (1), preserving the right to appeal the district court's denial of his motion to suppress. We affirm.

I.

The following evidence was developed during the suppression hearing. On August 10, 2006, around 4:30 p.m., Charlotte police dispatch received a 911 call from Syd Neely of the Charlotte Sanitation Department; Syd identified himself by his first name and provided a phone number. Syd stated that he was Cureton's supervisor and that Cureton's co-workers reported that Cureton was carrying a .357 handgun while on his garbage route. Moreover, Syd provided Cureton's date of birth, full name, assigned truck number and his approximate location. Finally, Syd asserted his belief that Cureton was a convicted felon.

Officer Nesbitt received the call from dispatch relaying the information supplied by Syd's phone call. Officer Nesbitt already knew Cureton, who had been working for local law enforcement as a confidential informant. Officer Nesbitt knew that Cureton was a convicted felon and that his criminal history included "several gun charges." J.A. 29. Using the number supplied by Syd, Officer Nesbitt called and requested Cureton's current location. Syd subsequently notified Officer Nesbitt that Cureton's truck had returned from its route and was parked at the Sanitation Department.

After Officer Nesbitt arrived at the Sanitation Department and began looking for Cureton's assigned truck, he noticed Cureton in the distance wearing an orange work shirt. A roadblock, however, prevented Officer Nesbitt from approaching Cureton and thus he issued a radio call for any officers near the intersection where he saw Cureton. Officer George Nickerson, who heard the original dispatch regarding a suspect carrying a concealed weapon, responded to the call. Officer Nesbitt described Cureton and Cureton's criminal history to Officer Nickerson and informed him that Cureton was last seen walking in Nickerson's direction.

Officer Nickerson parked his patrol vehicle in a parking lot and waited for Cureton to approach on the sidewalk. As Cureton passed, Officer Nickerson asked him "to step over to the car." J.A. 44. Cureton refused, saying that he had done nothing wrong. When Officer Nickerson again asked him to stop for brief questioning, Cureton began running. Officer Nickerson pursued him on foot, yelling for him to stop. During the pursuit, Officer Nickerson saw Cureton reach into the waistband of his pants and grip an object as if he was "gripping the handle of a pistol" and then try to pull the object out of his pants. J.A. 45. When he saw Cureton do this, Officer Nickerson drew his service weapon and continued to follow Cureton around the corner of a Salvation Army building. Eventually, Officer Nickerson chased Cureton across a parking lot in front of a NAPA auto parts store and toward a fenced-in lot behind the NAPA store. Officer Nickerson found Cureton hiding under a truck parked on the side of the NAPA store and ordered him to come out from under the vehicle. Cureton obeyed, but he did not have the purported handgun.

Officer Nesbitt arrived at the NAPA store as Officer Nickerson was arresting Cureton and asked about the gun. Officer Nickerson then...

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