United States v. General , 237 F. App'x 808 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAURICE TERRELL GENERAL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:05-cr-00125-D-ALL)
Submitted: May 16, 2007 Decided: July 10, 2007
Before WILLIAMS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. George
E.B. Holding, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice T. General appeals the district court’s order
denying his motion to suppress. Finding no error, we affirm.
At 5:30 in the morning on September 25, 2004, Officer
James Walker of the Fayetteville North Carolina Police Department
met Officer John Fette at 116 Scott Avenue. The one story house at
116 Scott Avenue was known to both officers as it had been the site
of numerous complaints of narcotics activity. Officer Walker
testified that on his shift alone during the previous five or six
months the police received over a dozen phone calls complaining of
narcotics activity at the location. Moreover, the officers were
aware of a prior narcotics arrest and a prior arrest related to a
stolen vehicle at the address. Finally, the police had received
several calls that shots had been fired all within a one-half mile
radius of 116 Scott Avenue.
When the officers arrived, there were three or four cars
parked in the grass area of the residence. Walker believed that
one of the cars might be stolen or that drug activity might be
occurring. Walker observed what appeared to be two unconscious
black males in one of the vehicles. With Fette standing at the
passenger side door, Walker knocked on the driver’s side window,
waking the driver. Walker then asked General, who was in the
driver’s seat, to step out of the car. Walker asked General if he
was “okay.” General stated he was fine. General then put his
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right hand on his right thigh. Walker then became concerned
General might have a weapon where he had placed his hand. Walker
instructed General to place his hands on the car and attempted to
pat him down. As Walker neared General’s right thigh, General
again took his right hand off the car and placed it next to his
right thigh. Walker instructed General to place his hands back on
the car; instead, General ran down Scott Avenue.
Walker and Fette pursued and captured General. While
searching General, Walker discovered a loaded .38 caliber revolver
and four individually wrapped rocks of crack cocaine in his right
pocket. Fette also found five bullets in a black cap in his left
pocket.
In the court below, General moved to suppress the gun,
drugs and ammunition. After the district court denied General’s
suppression motion, he pled guilty to possession with intent to
distribute cocaine base and carrying a firearm in relation to a
drug trafficking crime and possessing it in furtherance of a drug
trafficking crime, but reserved his right to challenge the denial
of his suppression motion. This appeal followed.
We find that Walker’s initial encounter with General was
a consensual encounter. A consensual encounter between a police
officer and an individual requires no reasonable articulable
suspicion that a crime is occurring. Florida v. Bostick, 501 U.S.
429, 434 (1991). Whether an encounter is consensual is determined
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by the totality of the surrounding circumstances. Id., 501 U.S. at
437. Factors relevant to this inquiry are “the time, place, and
purpose of the encounter, the words used by the officer, the
officer’s tone of voice and general demeanor, the officer’s
statements to others present during the encounter, the threatening
presence of several officers, the potential display of a weapon by
an officer, and the physical touching by the police of the
citizen.” United States v. Weaver, 282 F.3d 302, 310 (4th Cir.
2002).
Officer Walker’s purpose in knocking on the car window
was to determine whether the two unconscious men were “okay.”
Moreover, the words Walker used in directing General out of the
car, his tone of voice, and his general demeanor, all support the
district court’s ruling. Although two officers were present, the
mere fact that more than one officer was present does not eliminate
the consensual nature of an encounter. See Bostick, 501 U.S. at
437-38. Also, there is no evidence that either of the officers
compelled General to exit his vehicle by drawing their weapons or
physically touching General. Finally, there is no evidence that
the officers activated their blue lights or parked their cars so as
to prevent General from driving off.
We determine that a reasonable, innocent person in
General’s position would have felt free to decline the officers’
request to exit the vehicle. General’s initial encounter with
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Walker was a consensual one. Walker’s request that General exit
the vehicle was simply an extension of his knock on the window, and
Walker did not seize General for Fourth Amendment purposes by
virtue of his request.
In any event, at the time Walker asked General to step
out of the vehicle, he possessed reasonable articulable suspicion
of criminal activity. “An officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer has
a reasonable, articulable suspicion that criminal activity is
afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To
establish reasonable articulable suspicion, an officer must be able
to articulate something more than an inchoate and unparticularized
suspicion or hunch. United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry v. Ohio, 392 U.S. at 27) (internal quotations
omitted)).
Here, the officers were at an address for which they had
received no less than one dozen phone calls complaining of
narcotics activity. One of the two officers had recently arrested
an individual at the address for narcotics. Both officers were
aware that another individual had recently been arrested at the
address because of a stolen vehicle parked in the yard area. The
officers had received prior complaints of gun fire in the immediate
vicinity of the address. Also, based on prior experience with the
address, Walker knew that the number of cars parked in the yard was
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unusual. Finally, the officers observed two unconscious men in a
car in front of a suspected narcotics house at 5:30 in the morning.
These facts provided reasonable suspicion to ask General to exit
the vehicle. See Wardlow, 528 U.S. at 125 (stating that the
determination of reasonable suspicion must be based on common sense
judgments and inferences about human behavior). Accordingly, even
if General’s Fourth Amendment rights were implicated by the
circumstances of the encounter, there were sufficient grounds for
an investigatory stop.
We therefore affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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