United States v. Romique Radcliffe ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4180
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROMIQUE R. RADCLIFFE, a/k/a Romique Rohan Radcliffe,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:17-cr-00139-HEH-1)
Submitted: August 14, 2018 Decided: December 21, 2018
Before DUNCAN and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Appellate Attorney,
Alexandria, Virginia, Mary E. Maguire, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. G. Zachary
Terwilliger, United States Attorney, Alexandria, Virginia, Stephen E. Anthony, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Romique Radcliffe seeks to suppress evidence that he was a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). The district court denied Radcliffe’s
motion. On appeal, Radcliffe contends that the Terry stop and frisk that led to the
discovery of his firearm was an unlawful search and seizure. For the reasons that follow,
we affirm the district court’s denial of Radcliffe’s motion to suppress.
I.
While conducting an unrelated investigation in a high-crime area of Richmond,
Virginia during the afternoon of August 30, 2017, Detective Elmer Fernandez observed
Radcliffe lift up his shirt and adjust an object in his waistband. Detective Fernandez
radioed this information and a description of Radcliffe to colleagues in a nearby car.
After receiving this information, two other detectives, including Detective Joseph
Milton, approached Radcliffe and requested identification. As Detective Milton was later
to testify at the suppression hearing, Radcliffe appeared very nervous; when Radcliffe
reached into his pocket to retrieve his identification, he accidentally spilled several other
items to the ground and was “visibly shaken.” J.A. 55. Radcliffe handed his
identification to Milton. At some point early on in the encounter, Detective Milton
detected a strong, localized odor of marijuana.
Detective Milton told Radcliffe that a surveillance team had observed him put
something into his waistband. Apparently in response, Radcliffe voluntarily raised his
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shirt. Detective Milton commented about the marijuana smell, and in response Radcliffe
admitted that he had been smoking marijuana and had some on his person. When
Radcliffe reached for the marijuana in his pocket, Detective Milton stopped him and
conducted a search. Meanwhile, another officer held onto his identification. The search
yielded a small amount of marijuana and a firearm.
II.
On October 17, 2017, Radcliffe was indicted by a grand jury in the Eastern
District of Virginia for being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Radcliffe then moved to suppress the firearm. Following a suppression
hearing, the district court denied the motion on two independent bases: first, the police
had a reasonable articulable suspicion to conduct a Terry stop of Radcliffe; and second,
after smelling marijuana on Radcliffe’s person, Detective Milton had probable cause to
arrest Radcliffe for possession of marijuana and search him incident to that arrest. This
appeal followed.
III.
We affirm the district court’s denial of the motion to suppress on the second
independent basis it announced: that the search of Radcliffe’s person during which the
gun was seized was a valid search incident to a probable cause arrest.
Although Radcliffe’s brief is not entirely clear, he does not appear to directly
challenge this rationale for denying his suppression motion. Rather, he argues that at the
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moment he was seized the officers did not have a reasonable articulable suspicion that he
was engaged in criminal activity, and they had not yet detected the smell of marijuana,
which provided the basis for the probable cause search. According to Radcliffe, he was
seized at the moment the officers approached him and “demanded” and retained his
identification--the smell of marijuana and the gun are therefore fruit of the poisonous tree
and cannot justify the search.
We disagree. We conclude that the district court did not err in holding that the
moment of Radcliffe’s seizure did not occur until after the officers smelled marijuana on
his person and that, considering the marijuana odor, the officers had probable cause to
arrest Radcliffe and to subsequently search him incident to the lawful arrest. Because we
affirm the district court’s denial of the suppression motion on the grounds that Detective
Milton conducted a search incident to a lawful arrest, we need not address Radcliffe’s
other argument that the officers lacked a reasonable articulable suspicion.
We first address whether the search was justified as a search incident to a probable
cause arrest, and then turn to Radcliffe’s argument about the timing of his seizure.
A.
In considering a denial of a motion to suppress, “we review the district court’s
legal conclusions de novo and its factual findings for clear error.” United States v.
Slocumb, 804 F.3d 677, 681 (4th Cir. 2015). We construe the evidence in the light most
favorable to the party that prevailed below, here the government. Id.
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Our inquiry begins with the Fourth Amendment, which provides for “[t]he right of
the people to be secure in their persons . . . and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. A search or seizure that is conducted without first
obtaining a warrant is “per se unreasonable . . . subject only to a few specifically
established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357
(1967). Among the exceptions to the warrant requirement is a search incident to a lawful
arrest. Arizona v. Grant, 556 U.S. 332, 338 (2009).
Under the Fourth Amendment, a police officer may lawfully arrest a defendant in
a public place absent a warrant when the officer possesses probable cause to believe that
a defendant committed an offense. Maryland v. Pringle, 540 U.S. 366, 370 (2003).
Probable cause exists where the “facts and circumstances within the officer’s knowledge
. . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing,
in the circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). Whether the
officer has probable cause is a fact-based inquiry that considers the totality of the
circumstances. United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004). Under
the search incident to arrest exception, a search may validly be incident to a probable
cause arrest even if it occurs prior to the arrest. See United States v. Han, 74 F.3d 537,
541 (4th Cir. 1996).
Detective Milton had probable cause to arrest Radcliffe and, incident to that arrest,
to search him. Possession of marijuana is a crime in Virginia, Va. Code Ann. § 18.2-
250.1 (2018), and we have held that the odor of marijuana localized to a person can
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provide probable cause to believe that the person has committed or is committing the
crime of possession of marijuana, see Humphries, 372 F.3d at 658–59 (holding that the
police had probable cause to search and seize a defendant who was by himself and
smelled strongly of marijuana). Here, Detective Milton had probable cause to believe
that Radcliffe was committing an offense. During their encounter, he smelled a localized
odor of marijuana originating from Radcliffe, and Radcliffe told Detective Milton that he
had recently smoked marijuana and had some on his person. In addition, Radcliffe was
unusually nervous, which strengthens the conclusion that Detective Milton had probable
cause to suspect culpability. See, e.g., United States v. Foreman, 369 F.3d 776, 785 (4th
Cir. 2004) (determining that “exceptional[]” or unusual nervousness is a basis for a
reasonable suspicion of wrongdoing). Based on these facts, the officers had probable
cause to arrest Radcliffe for possession of marijuana.
Because Detective Milton had probable cause to arrest Radcliffe, he could validly
search Radcliffe incident to that arrest. This search was incident to the arrest for the
purposes of the exception even though it preceded the formal arrest, see Han, 74 F.3d at
541, and accordingly the evidence procured from this search, the gun, is admissible.
B.
Radcliffe argues that he was unlawfully seized before the officers smelled
marijuana on his person, and that therefore they did not have a reasonable articulable
suspicion--and by extension probable cause--to believe that he was engaged in criminal
activity. Because the reasonableness of a stop “must be measured by what the officers
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knew before they conducted their search,” Florida v. J.L., 529 U.S. 266, 271 (2000),
Radcliffe argues that the marijuana odor and the gun should be suppressed as fruit of the
poisonous tree. We disagree.
A seizure occurs when “a reasonable person would [not] feel free to terminate the
encounter” with the police. United States v. Drayton, 536 U.S. 194, 201 (2002).
Radcliffe contends that he was not free to leave, and was therefore unlawfully seized, the
moment the officers approached him with tactical vests and holstered sidearms and
“demanded” and retained his identification. See United States v. Black, 707 F.3d 531,
537–38 (4th Cir. 2013) (explaining that in determining whether a reasonable person
would feel free to leave, courts may consider factors such as the number of police officers
involved in the stop, whether they were wearing uniforms, and whether they were
displaying their weapons). However, a seizure does not occur merely because officers
“approach[] individuals on the street . . . and put[] questions to them if they are willing to
listen.” Drayton, 536 U.S. at 201. Where, as here, two police officers with holstered
sidearms merely approached Radcliffe on a public street, their presence would not be so
intimidating that a reasonable person would have felt unable to leave. See, e.g., United
States v. Weaver, 282 F.3d 302, 311–12 (4th Cir. 2002) (concluding that a pedestrian
approached by an officer in a public parking lot in broad daylight could have walked
away from the encounter even though it may have created an awkward situation).
Further, we have held that a reasonable person would feel free to leave where the police
simply ask him for his identification and do not otherwise indicate that they will restrain
him. See Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 461–62 (4th Cir. 2013)
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(explaining that when an officer asks a pedestrian for her identification in a non-
threatening manner, such conduct generally does not transform a consensual encounter
into a seizure). Here, the district court found that Detective Milton simply asked for, and
did not demand, Radcliffe’s identification, and there is no evidence the officers prevented
Radcliffe from leaving.
Finally, Radcliffe was not prevented from leaving by virtue of an officer briefly
retaining his identification while he was searched. An officer’s brief retention of an
individual’s identification generally does not, without more, constitute a seizure. See
Weaver, 282 F.3d at 312–13 (explaining that the defendant was free to request that the
officers return his driver’s license to him so that he could terminate the encounter even
though the officers were in uniform and armed). Here, where the officers acted in a non-
threatening manner and Radcliffe voluntarily handed over his identification, he could
have, as in Weaver, asked for it to be returned or expressed his desire to leave, but did
not. Id. Moreover, the officers here did not retain Radcliffe’s identification for longer
than necessary to determine his identity. See Black, 707 F.3d at 538. 1 In light of these
facts, we conclude that Radcliffe’s encounter was consensual because a reasonable
1
Radcliffe relies on Black, 707 F.3d at 538, to support his argument that the
officers’ retention of his identification turned the police encounter into a seizure. This
reliance is misplaced. In Black, the court determined that the defendant was unlawfully
seized, in part because the police retained Black’s identification for some time while
talking to several other individuals. Id. at 537–38. In contrast, the officers here did not
retain Radcliffe’s identification for long enough to turn the encounter into an unlawful
seizure: at the moment the officers took Radcliffe’s identification, or shortly thereafter,
they smelled the marijuana odor on his person, at which point they had probable cause to
arrest him.
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person would have felt free to not cooperate with the officers and leave. See id. at 309
(finding that circumstances are consensual when a reasonable person “would feel free to
go, but stays and has a dialogue with the officer”).
Accordingly, we conclude that, contrary to Radcliffe’s contentions, he was not
seized at the moment the officers approached him and asked for his identification.
Instead, his formal seizure did not occur until sometime after the officers detected a
localized odor of marijuana; therefore, the marijuana odor validly provided the officers
with a basis to execute a probable cause arrest. Because the officers had probable cause
to arrest Radcliffe, the ensuing search was a valid search incident to arrest, and the
evidence, including the gun, procured therein is admissible.
IV.
We therefore affirm the district court’s denial of Radcliffe’s motion to suppress.
AFFIRMED
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