U.S. v. Lender, Nos. 92-5099

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore WILKINSON and NIEMEYER; WILKINSON
Citation985 F.2d 151
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Calvin Edwin LENDER, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Calvin Edwin LENDER, Defendant-Appellant.
Decision Date01 February 1993
Docket Number92-5103,Nos. 92-5099

Page 151

985 F.2d 151
UNITED STATES of America, Plaintiff-Appellant,
v.
Calvin Edwin LENDER, Defendant-Appellee.
UNITED STATES of America, Plaintiff-Appellee,
v.
Calvin Edwin LENDER, Defendant-Appellant.
Nos. 92-5099, 92-5103.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 2, 1992.
Decided Feb. 1, 1993.

Page 152

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.

Page 153

Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

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.

I.

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

Page 154

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.

II.

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...

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225 practice notes
  • U.S. v. Foreman, No. 03-4375.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 4, 2004
    ...in crediting 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 The determination of whether given facts amount to reasonable suspicion vel non is a legal one, which we review de novo. Ornelas, 51......
  • United States v. Harvey, Criminal Action No. 1:12CR29.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 25, 2012
    ...crediting the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151 (4th Cir.1993). Accord Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (permitting “officers to draw on their experience and specialized training to make ......
  • United States v. Titley, No. 13–6245.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 4, 2014
    ...a felony drug offense have become final.’ ” McKissick, 204 F.3d at 1300 (quoting 21 U.S.C. § 841(b)(1)(A)). 7. In United States v. Lender, 985 F.2d 151(4th Cir.1993), the Fourth Circuit rejected an equal protection challenge to the ACCA's 18 U.S.C. § 924(e)(2)(B), which defines “violent fel......
  • State v. Moats, No. E2010–02013–SC–R11–CD.
    • United States
    • Supreme Court of Tennessee
    • March 22, 2013
    ...that an officer may consider.... The lateness of the hour is another fact that may raise the level of suspicion.” United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993). However, the same court acknowledged and the Supreme Court has held that an individual's presence in a high crime area......
  • Request a trial to view additional results
225 cases
  • U.S. v. Foreman, No. 03-4375.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 4, 2004
    ...in crediting 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 The determination of whether given facts amount to reasonable suspicion vel non is a legal one, which we review de novo. Ornelas, 51......
  • United States v. Harvey, Criminal Action No. 1:12CR29.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 25, 2012
    ...crediting the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151 (4th Cir.1993). Accord Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (permitting “officers to draw on their experience and specialized training to make ......
  • United States v. Titley, No. 13–6245.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 4, 2014
    ...a felony drug offense have become final.’ ” McKissick, 204 F.3d at 1300 (quoting 21 U.S.C. § 841(b)(1)(A)). 7. In United States v. Lender, 985 F.2d 151(4th Cir.1993), the Fourth Circuit rejected an equal protection challenge to the ACCA's 18 U.S.C. § 924(e)(2)(B), which defines “violent fel......
  • State v. Moats, No. E2010–02013–SC–R11–CD.
    • United States
    • Supreme Court of Tennessee
    • March 22, 2013
    ...that an officer may consider.... The lateness of the hour is another fact that may raise the level of suspicion.” United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993). However, the same court acknowledged and the Supreme Court has held that an individual's presence in a high crime area......
  • Request a trial to view additional results

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