United States v. Graves

• Decision Date: 13 December 2017
• Docket Number: No. 16-3995,16-3995
• Parties: UNITED STATES of America v. Shaun L. GRAVES, Appellant
• Court: U.S. Court of Appeals — Third Circuit

877 F.3d 494

UNITED STATES of America

v.Shaun L. GRAVES, Appellant

No. 16-3995

United States Court of Appeals, Third Circuit.

Argued on May 24, 2017

Opinion filed: December 13, 2017

Ronald A. Krauss, Esq. (ARGUED), Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant

Stephen R. Cerutti, II, Esq. (ARGUED), Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Counsel for Appellee

Before: HARDIMAN, ROTH and FISHER, Circuit Judges

OPINION

ROTH, Circuit Judge

Shaun Graves appeals his conviction and sentence for unlawful possession of a firearm, arguing that his suppression motion was wrongfully denied and that he was improperly sentenced as a career offender. For the reasons set forth below, we will affirm both the conviction and the sentence.

I. FACTS

On the evening of October 16, 2014, Officer Dennis Simmons of the Harrisburg Police Department was conducting an undercover surveillance operation in a high-crime area of the city while dressed in plainclothes and sitting in an unmarked car. While in his car, Officer Simmons heard a radio dispatch about possible gunshots in an unspecified area east of his location. The dispatch went on to describe two potential suspects walking away from the location of the gunshots: Both men wore dark-colored hooded sweatshirts and were described as calmly walking west, away from the gunshots. Less than five minutes later, Officer Simmons observed two men—including Graves—in dark-colored hooded sweatshirts walking west towards Simmons' vehicle. Officer Simmons then drove around the block to the next street in order to intercept the two men. At this point, he noticed Graves walking with a "pronounced, labored" gait suggesting that "he may have concealed something heavy in his waistband or pocket on [his right] side."¹ Officer Simmons also testified that Graves held his arms in a tense manner, further suggesting that he was armed.

As Graves and the other individual passed Officer Simmons' vehicle, Officer Simmons made eye contact with Graves; Graves raised his hands over his head in the shape of a Y, and Officer Simmons nodded. Officer Simmons testified at the suppression hearing that Graves' behavior "was consistent with a drug dealer or someone who sells something illegal in the street."² Officer Simmons admitted, however, that "it could be more like a challenge, more or less someone saying what are you looking at, why are you looking at me that way."³ Officer Simmons then proceeded to drive one block south and wait. Graves left his companion and turned south, walking directly towards Officer Simmons' car at a quickened pace. As Graves neared the vehicle, Officer Simmons displayed his badge, yelled "Police," and handcuffed Graves.

Believing that there was a possibility that Graves was armed, Officer Simmons conducted a pat-down search of Graves' clothing. During this pat-down, Officer Simmons felt "multiple small hard objects" in both of Graves' front pockets. The feel of these objects was consistent with that of crack cocaine.⁴ Officer Simmons proceeded to remove the objects from Graves' pockets. They turned out to be multiple packets of the antidepressant Depakote⁵ and one live .22 caliber bullet. At this point, other officers arrived. After being read his rights, Graves told Officer Simmons that he carried the bullet as a tribute to his brother, who had been killed by a .22 caliber weapon. Graves did not answer Officer Simmons' questions about whether he had a gun for the bullet. Officer Simmons then placed Graves in another officer's vehicle, and Graves was taken approximately two blocks south. Upon further questioning, Graves admitted that he had a loaded .380 pistol in his boot, where it had fallen from his waistband during his arrest. Graves maintained, however, that he was holding the gun only temporarily for his companion.

Graves was subsequently charged with one count of possession of a firearm with an obliterated serial number in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) and one count of unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). He filed a motion to suppress all physical evidence and statements obtained at the time of his arrest.

At the suppression hearing before the District Court, Officer Simmons testified to the above facts, as well as about his nine years of experience as a police officer, during which he had made hundreds of arrests for drug offenses and violent crimes. After crediting Officer Simmons' testimony in its entirety, the District Court denied Graves' motion to suppress.

Graves then entered a guilty plea to one count of unlawful possession of a firearm.⁶ At sentencing, the District Court treated Graves as a career offender over Graves' objection, finding that his two prior convictions for North Carolina common law robbery were the categorical equivalent of the enumerated crime of robbery in § 2K2.1 of the U.S. Sentencing Guidelines. Applying this enhancement, the District Court sentenced Graves to a term of imprisonment of 100 months—the bottom of the Guidelines range.

Graves appealed.

II. DISCUSSION⁷

Graves raises two issues on appeal. First, he appeals the denial of his motion to suppress, arguing that Officer Simmons lacked reasonable suspicion to stop and frisk him or, in the alternative, that Officer Simmons exceeded the scope of a valid frisk by focusing on more than just potential weapons on his person. Second, he appeals the District Court's decision to treat North Carolina common law robbery as the categorical equivalent of generic robbery and the resultant enhancement of his sentence. We treat each issue in turn. Because the facts underlying both issues are not in dispute, we need only determine their legal significance; our review of such legal questions is plenary.⁸

A. The Search

Graves advances two theories why Officer Simmons' behavior ran afoul of the Fourth Amendment. First, he argues that Officer Simmons lacked reasonable suspicion to justify stopping and frisking him.⁹ Second, he argues that Officer Simmons exceeded the proper scope of an investigatory search by searching him for drugs, rather than weapons. Each argument is addressed separately.

Although the Fourth Amendment generally requires that a seizure be effectuated pursuant to a warrant supported by probable cause, an officer may constitutionally conduct a "brief, investigatory stop [and frisk]" without a warrant if he has "a reasonable, articulable suspicion that criminal activity is afoot."¹⁰ This "reasonable suspicion" standard is lower than probable cause; rather, an officer need only "a minimal level of objective justification"¹¹ that is "specific to the person who is detained."¹² We review the totality of the circumstances leading up to the moment of the defendant's seizure.¹³ In doing so, however, we "give considerable deference to police officers' determinations of reasonable suspicion" given "their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ "¹⁴ Thus, a trained officer may find reasonable suspicion "based on acts capable of innocent explanation."¹⁵

Although Officer Simmons acted on limited information in stopping Graves, we nonetheless believe that the totality of the circumstances gave rise to reasonable suspicion. First, Officer Simmons explained that he was parked in a high crime area.¹⁶ Second, Graves and his companion were leaving the scene of the gunshots dressed in similar garb to the suspects described in the police broadcast. Third, Officer Simmons observed Graves walking in a manner indicating, in Officer Simmons' experience, that Graves was armed.

While these factors standing in isolation may not have been sufficient,¹⁷ together they satisfied the low threshold of reasonable suspicion—particularly in light of the close temporal proximity between the gunshots and Officer Simmons' encounter with Graves. Further, Officer Simmons' suspicions were increased when he observed Graves raise his arms over his head in a manner consistent with that of an individual seeking to sell drugs, or, in the alternative, looking at Officer Simmons in a challenging manner. Graves then departed from his companion to approach Officer Simmons' vehicle, quickening his pace. This combination of events gave rise to the reasonable inference by Officer Simmons that Graves was armed and engaged in potentially unlawful conduct.¹⁸ On appeal, Graves advances innocent explanations for all his conduct and points to other evidence undercutting the likelihood that he was engaged in criminal activity. However, the mere possibility of such an innocent explanation does not undermine Officer Simmons' determination at the time.

Accordingly, we find that Officer Simmons had reasonable suspicion that criminal activity was underway when he stopped and frisked Graves.

However, when an officer exceeds the proper bounds of a search, an individual subject to a valid investigatory stop and frisk may nonetheless assert constitutional error. An officer may only "search ... the outer clothing of [seized] persons in an attempt to discover weapons which might be used to assault him."¹⁹ While "[t]he purpose of this limited search is not to discover evidence of crime," the Supreme Court has held that an officer "may seize contraband detected during the lawful execution of [such a] search" under the plain feel doctrine.²⁰ Once the validity of a protective frisk is established, "the dispositive question ... is whether the officer who conducted the search was acting within ... lawful bounds ... at the time he gained probable cause to believe that the lump in [the defendant's pocket] was contraband."²¹ We must focus on "whether the officer had probable cause to believe an object was contraband before he knew it not...