United States v. Cloud

• Citation: 994 F.3d 233
• Decision Date: 12 April 2021
• Docket Number: No. 20-4091,20-4091
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Timothy Lamont CLOUD, Defendant – Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

994 F.3d 233

UNITED STATES of America, Plaintiff – Appellee,

v.Timothy Lamont CLOUD, Defendant – Appellant.

No. 20-4091

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2021

Decided: April 12, 2021

ARGUED: Megan Coyle Hoffman, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WILKINSON, AGEE and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson and Judge Diaz joined.

AGEE, Circuit Judge:

A federal grand jury issued a one-count indictment against Timothy Cloud after officers with the Charlotte-Mecklenburg Police Department ("CMPD") arrested him and discovered a stolen firearm on his person. Cloud subsequently moved to suppress that firearm as evidence, arguing that it was the fruit of an unlawful seizure. The district court denied that motion and, for the reasons that follow, we affirm.

I.

A.

At about 10:30 p.m. on April 7, 2017, CMPD Officers Reginald Jenkins and Joshua Skipper were together in a marked police vehicle patrolling the parking lot of the Brookwood Inn in Charlotte, North Carolina, located just off of Interstate 85 between the Sugar Creek and Hidden Valley neighborhoods. As Cloud admits, this area "ha[s] the reputation as being ‘crime-ridden.’ " Opening Br. 29 (citation omitted). Indeed, both Officers Jenkins and Skipper testified that the area is known for a high volume of drug-and gun-related crimes, and that they had previously made arrests for those types of offenses at the Brookwood Inn. In fact, earlier that month, the officers were assigned to "Operation Anvil," a six-man CMPD unit aimed at reducing drug and gun offenses in "the Sugar Creek and I-85 corridor." J.A. 50, 87. Prior to Cloud's arrest, Operation Anvil had led to two other drug- and/or gun-related arrests at the Brookwood Inn stemming from "people loitering in cars." J.A. 88.

B.

That night, Officers Jenkins and Skipper observed a red, four-door Dodge Avenger (the "Dodge") parked head-first in a space about "12 to 15 feet away" from Room 110 at the Brookwood Inn, which is on the ground level. J.A. 57. While cars were parked on both sides of the Dodge, there was "ample space to get in and out" of the passenger doors. J.A. 139. The car was running, had its lights on, and had four occupants—one in the front passenger seat, and one in each of the three rear passenger seats. The driver's seat was unoccupied. When the occupants saw the patrol car drive by, they rolled up the car windows. The officers decided at that point to turn around and make contact with the car's occupants.

Officer Jenkins parked the marked police car eight to twelve feet behind (and perpendicular to) the tail end of the Dodge. He did not, however, leave a clear path for the car's driver to back out of the parking spot. The patrol car's front-end "partially blocked" the Dodge's back end, so there was not "enough space to easily [back] out and leave without skill on the part of the driver." Id. ; see also J.A. 71 (Officer Jenkins explaining that the driver "would have to work some magic to get out of" that parking spot). The police vehicle's emergency light equipment was not engaged.

Officer Jenkins then approached the driver's side of the Dodge, while Officer Skipper approached the passenger's side. Both officers were wearing standard issue CMPD uniforms, and their firearms remained holstered. While the parking lot was generally well-lit, both officers carried their flashlights in their hands.

Once Officer Jenkins arrived at the rear driver's side of the Dodge, he testified, "sitting in the back seat was a black male and I saw him holding what I believed to be the – a firearm and I could see the butt end of the firearm." J.A. 55. As Officer Jenkins got closer and shined his flashlight on the individual sitting in that seat, later identified as L.W., he began acting "really nervous" and "feverishly," "tr[ying] to conceal [the firearm] under the driver seat under the floor mat." J.A. 55–56. At that point, Officer Jenkins testified that he had a reasonable articulable suspicion that L.W. was unlawfully carrying a concealed weapon, which he believed established probable cause to search the vehicle for that weapon. See N.C. Gen. Stat. § 14-269(a1)(1)–(2), (c) (making it a Class 2 misdemeanor to carry a concealed weapon unless, as relevant here, the person is on their "own premises" or has a concealed carry permit).

During Officer Jenkins’ exchange with L.W., Officer Skipper began speaking with a female passenger sitting in the front passenger seat. Unaware of what Officer Jenkins had seen, Officer Skipper began explaining to her "why we were getting out with them"—that they were sitting inside a running vehicle without a driver in a high crime area—and asked if they were staying at the motel. J.A. 91–92. She stated that they were not.

About fifteen seconds after Officer Skipper began talking with the female occupant, and after Officer Jenkins saw L.W. with the alleged firearm, Cloud and his girlfriend exited Room 110. They stood on the wide, covered walkway between the room and the parking lot. Cloud then began to walk towards the driver's side of the Dodge. Officer Skipper asked if he had a room at the Brookwood Inn, to which Cloud responded, "[N]o," J.A. 58, and put his hand on the driver's door handle. Officer Jenkins then asked Cloud, "How's it going?" Id. Cloud responded, "Okay." Id. Officer Jenkins then began explaining why they had stopped to speak to the car's occupants, but Cloud interrupted to state that the female in the front passenger seat was his daughter, got into the driver's seat of the Dodge, and shut the door. He then "turned his head and acted like he wanted to back out. He looked over his right shoulder and then he looked out the [driver's side] window," but he did not attempt to back out of the space. J.A. 59–60.

With Cloud in the driver's seat, Officer Skipper prepared to walk back to the patrol car because "I didn't see anything, hear anything, and we were just doing a voluntary contact." J.A. 93. But then he heard Officer Jenkins ask the passenger behind the driver's seat what it was that he placed under the seat, so he returned to his original position next to the front passenger's door. L.W. partially rolled the window down and told Officer Jenkins that he had dropped a "Black & Mild" cigarillo on the floor. Officer Jenkins then "continually began asking questions to ask [L.W.], you know, ‘Are you sure you didn't put anything down there?’ " J.A. 61. Officer Jenkins asked Cloud through the driver's door window if there were any drugs or guns in the vehicle. Cloud responded, "Drugs or guns?" Id. Officer Jenkins repeated the question, and Cloud said there were none. While Officer Jenkins spoke with L.W. and Cloud, four more officers in full uniform arrived on the scene.

After telling Officer Jenkins that there were no drugs or guns in the car, Cloud exited the Dodge and walked to the front of it towards the motel room and began pacing up and down the sidewalk while placing a call to his mother. Officer Jenkins asked Cloud to "come back" and "hang out" with the officers, J.A. 290 (Jenkins Body Camera Video at 2:40–50), but Cloud "ignored" his request and continued walking up and down the covered portico of the motel, J.A. 144. Immediately afterwards, Officer Jenkins said "actually, no, he's good," J.A. 290 (Jenkins Body Camera Video at 2:40–50), but asked the Dodge's four occupants to exit the vehicle. As each of the four occupants exited the car, they were paired with an officer. Officer Jenkins realized that they all appeared to be juveniles, leaving Cloud as the only adult associated with the Dodge.

Officer Skipper attempted to explain to Cloud why he and Officer Jenkins were there, but Cloud "refused" to listen "and instead handed Skipper his phone and asked Skipper to talk to his mother." J.A. 140. Officer Skipper took the phone for a few moments, but only held it at his side, and never spoke with Cloud's mother. He then gave the phone back to Cloud, who began speaking on the phone again while pacing on the covered sidewalk without interference or restriction. He walked towards, and eventually past, Officer Skipper while talking on the phone.

Officer Jenkins then asked Cloud who owned the Dodge. Cloud responded that it belonged to his mother. Officer Jenkins asked for consent to search the vehicle, but Cloud immediately refused. Once again asking if there were drugs or guns in the car, Cloud responded, "I don't know what he got on him," and that Cloud was "just driving." J.A. 291 (Skipper Body Camera Video at 4:54–57). Officer Jenkins then told Cloud that he was going to "frisk" the car, but Cloud repeated that Officer Jenkins could not search it. J.A. 290 (Jenkins Body Camera Video at 4:35–51). Officer Jenkins then searched the floor area where L.W. had been sitting and under the driver's seat, where he retrieved the handgun he had seen earlier.

During Officer Jenkins’ search, Cloud resumed talking on the phone and walked away from Officer Skipper and the Dodge towards a breezeway that led away from the scene. Officer Skipper testified that initially "as [Cloud was] walking away, I'm kind of letting him ... because I still don't know [what Officer Jenkins has seen]," J.A. 97, meaning that, in Officer Skipper's eyes, Cloud was "free to leave," J.A. 105. But then Officer Jenkins radioed that he found a gun, and ordered that Cloud be detained. Officers attempted to do so, but Cloud resisted and tried to flee, leading to a struggle that required multiple officers...