U.S. v. McCoy

• Decision Date: 25 January 2008
• Docket Number: No. 06-4850.,06-4850.
• Citation: 513 F.3d 405
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Stanaus McCOY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

513 F.3d 405

UNITED STATES of America, Plaintiff-Appellant, v. Stanaus McCOY, Defendant-Appellee.

No. 06-4850.

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2007.

Decided: January 25, 2008.

ARGUED: Jonathan Leo Fahey, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellant. Todd M. Richman, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellee. Chuck Rosenberg, United States Attorney, Paul Ahern, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellant. Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria, Virginia, for Appellee.

Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and SAMUEL G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Chief Judge WILLIAMS wrote the majority opinion, in which Judge WILSON joined. Judge WILSON wrote a separate concurring opinion. Judge GREGORY wrote a separate dissenting opinion.

OPINION

WILLIAMS, Chief Judge:

The Government in this pending criminal case appeals the district court's order granting Stanaus McCoy's motion to suppress evidence obtained by Loudoun County Virginia police officers as a result of Officer Paul Loconti's detention `and search of McCoy in a grocery store parking lot in Leesburg, Virginia. The district court suppressed the evidence as the fruit of an unlawful seizure, concluding that, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Officer Loconti lacked reasonable suspicion to stop and frisk McCoy and thus violated his Fourth Amendment rights in doing so.

We reverse. Considering the totality of the circumstances, as we must, we believe that Officer Loconti possessed a reasonable, articulable suspicion that McCoy was engaged in serious criminality when Loconti stopped and frisked him. As such, no Fourth Amendment violation occurred.

I.

Because McCoy prevailed on his suppression motion, we view the facts in the light most favorable to him. United States v. Kimbrough, 477 F.3d 144, 147 (4th Cir. 2007).

A.

According to evidence presented in this case, a good number of illegal drug transactions in Loudoun County occur in grocery store parking lots. In fact, according to some Loudoun County police officers, nearly half of all the drug deals in Loudoun County occur in public parking lots of grocery stores and other retail stores.

Although these parking-lot drug deals do not all "go down" in identical fashion, they consistently share some common characteristics. Two people usually meet at a prearranged location in a public parking lot; one person gets into the vehicle of the other; the cash-for-drugs transaction occurs; and the individuals go their separate ways. From beginning to end, the typical parking-lot drug deal only takes about one or two minutes.

Drug dealers in the area know that police officers in the area know that public parking lots often are the locale of choice for drug deals, so they employ counter-surveillance techniques in an effort to avoid detection by law enforcement. A common counter-surveillance technique is for the parties to change the location of the drug transaction at the last minute. Parties often agree to meet at a certain location, decide at the last moment to move to a different location for the completion of the transaction, and then meet at the different location to complete the drug deal.

Officer Loconti is well versed in the practices of drug dealers in Loudoun County. A vice narcotics investigator with the Loudoun County Sheriff's Office and an over ten-year veteran of the police force, Loconti has participated in over 100 investigations in which he worked undercover and completed controlled drug purchases, including purchases of crack, powder cocaine, marijuana, LSD, and ecstasy. In addition to his extensive street experience with drug investigations, Loconti has also received formal training in drug surveillance, drug recognition, and the use of drug informants.

Loconti was thus in a familiar setting when, on July 28, 2005, he was staked out in a Safeway grocery-store parking lot in Leesburg, Virginia. At the time, he was conducting surveillance for a controlled drug purchase unrelated to this appeal. Loconti was in plain clothes and in an unmarked patrol vehicle. He had previously been involved in other controlled drug purchases in the very same Safeway parking lot.

Around 6:20 pm, while it was still daylight, Loconti observed a man drive through the Safeway parking lot and park a white Mitsubishi Eclipse in a parking space next to his patrol vehicle. The driver McCoy, was accompanied by his girlfriend, Christina Thurman. Ms. Thurman was the owner of the Eclipse.

Neither McCoy nor Ms. Thurman exited the vehicle after it was parked. After two or three minutes had passed, a tow truck pulled in front of Loconti's vehicle, in a position close enough to the Eclipse so that the tow-truck driver could communicate with McCoy and/or Ms. Thurman. Loconti heard the tow-truck driver ask McCoy "where he wanted—where they wanted to meet," but he could not hear McCoy's answer. Loconti did, however, observe McCoy respond to the question by pointing in a southerly direction. (J.A. at 77.) In response to McCoy's gesture, the tow truck exited the parking lot and began heading south on King Street, with the Eclipse following closely behind. Loconti found this exchange unusual, and, as the vehicles left the Safeway parking lot, Loconti radioed the other units involved in the controlled drug purchase to let them know that "there may be a drug deal getting ready to happen" and that he "was going to follow these two vehicles to see . . . if anything unfolded." (J.A. at 78.)

Loconti followed the tow truck and Eclipse into a Food Lion parking lot located roughly a quarter mile south of the Safeway parking lot. As with the Safeway parking lot, Loconti had been involved in previous drug busts in the Food Lion parking lot. McCoy and the tow-truck driver parked their vehicles in the right corner of the lot, approximately five to eight parking spaces apart. The parking lot was around half full, and there were numerous available spaces between the store and the places where McCoy and the tow-truck driver decided to park their vehicles. Loconti parked two rows behind the tow truck; from this vantage point, he was able to see the tow-truck driver's head through the truck's back window.

Loconti watched as McCoy got out of the Eclipse and entered the passenger side of the tow truck. Although he could not see much of what was transpiring in the truck, it appeared to Loconti that McCoy and the tow-truck driver were talking. After about a minute, McCoy got out of the truck and began walking back toward the Eclipse. The tow-truck driver began to drive away, exiting the parking lot onto an adjacent service street. At this point, it was clear to Loconti that the tow-truck driver had not visited the parking lots for the purpose of performing towing services. Loconti's suspicion was particularly aroused because the vehicles "had been to two grocery stores within a quarter mile of each other and no one had gone into a grocery store." (J.A. at 81.)

Loconti believed that "a drug deal had just occurred." (J.A. at 80-81.) He radioed the patrol units back at the Safeway parking lot and exited his vehicle. He began to approach McCoy and, as he was walking toward McCoy, asked to speak with him. McCoy acknowledged Loconti. Loconti then whistled at the tow-truck driver, who at this point had pulled the truck onto the nearby service street, and told him to park the truck. The driver "responded by driving away at a high rate of speed." (J.A. at 314.)

Once Loconti made his way to McCoy, he informed McCoy that he was a police officer and told him to put his hands on the Eclipse so he could frisk McCoy. When McCoy asked Loconti why he wanted to frisk him, Loconti informed McCoy that he believed that McCoy had just completed a drug deal in the tow truck. McCoy put his hands on the trunk of the Eclipse, but after he pulled them away a few times and turned around to speak to Loconti, Loconti placed McCoy in handcuffs and told him that he was being detained. Loconti patted down McCoy and found a pocketknife after which Loconti directed McCoy to sit down on the curb.

With McCoy handcuffed and seated on the curb, Loconti approached the Eclipse and questioned Ms. Thurman, who had remained in the car through the entire encounter. Thurman stated that she believed McCoy had just engaged in a drug deal. She then consented to a search of the Eclipse and exited the car. Loconti searched the car and found marijuana and cash.

Loconti read McCoy his Miranda rights and began to question him. McCoy admitted that he had just completed a drug transaction; that the cash in the glove compartment belonged to him; that the cash constituted drug proceeds; and that he had about $200 worth of crack cocaine concealed in his buttocks. Suffice it to say that, at that point, Loconti recovered the crack cocaine.¹ The whole encounter— from the time Loconti approached McCoy to the recovery of the crack cocaine— lasted less than 30 minutes.

Based on the evidence obtained by Officer Loconti, and acting pursuant to a search warrant, officers searched McCoy's home on September 16, 2005. McCoy, who was at home at the time, was placed in handcuffs. During the search, the officers discovered other evidence of drug trafficking and firearms. McCoy also made certain inculpatory statements during the search.

B.

On May U, 2006, a federal grand jury returned a five-count indictment charging McCoy with two counts of possession with intent to distribute crack cocaine and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (Wes...