United States v. Garcia , 118 F. App'x 690 ( 2004 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4341
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant,
    versus
    DANIEL DAVID GARCIA; RAMON GARCIA, JR.,
    Defendants - Appellees.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham. Frank W. Bullock, Jr.,
    District Judge. (CR-04-86)
    Argued:   October 29, 2004             Decided:    December 16, 2004
    Before WIDENER and MOTZ, Circuit Judges, and Glen E. CONRAD, United
    States District Judge for the Western District of Virginia, sitting
    by designation.
    Reversed by unpublished per curiam opinion.
    ARGUED: Lawrence Patrick Auld, Assistant United States Attorney,
    Deputy Chief, Criminal Division, OFFICE OF THE UNITED STATES
    ATTORNEY, Greensboro, North Carolina, for Appellant. Steven Price
    Weaver, BROTHERTON, FORD, YEOMAN & WORLEY, P.L.L.C., Greensboro,
    North Carolina; Gregory Davis, Assistant Federal Public Defender,
    OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina,
    for Appellees.    ON BRIEF: Anna Mills Wagoner, United States
    Attorney, Robert A. J. Lang, Assistant United States Attorney,
    Greensboro, North Carolina, for Appellant. Louis C. Allen, III,
    Federal Public Defender, Greensboro, North Carolina, for Appellee
    Daniel David Garcia; Robert A. Ford, BROTHERTON, FORD, YEOMAN &
    WORLEY, P.L.L.C., Greensboro, North Carolina, for Appellee Ramon
    Garcia, Jr.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    -2-
    PER CURIAM:
    A federal grand jury charged Daniel David Garcia and Ramon
    Garcia, Jr. with a Hobbs Act robbery in violation of 
    18 U.S.C. § 1951
     (2000), carrying and using a firearm during the robbery in
    violation of 
    18 U.S.C. § 924
    (c)(1)(A)(2000), and possessing a
    firearm    as   convicted   felons        in   violation   of   
    18 U.S.C. § 922
    (g)(1)(2000).     Prior to trial, the district court granted
    defendants’ motion to suppress evidence seized from them when
    Corporal Mike J. Riazzi stopped their vehicle shortly after the
    robbery.   The Government appeals.        For the reasons that follow, we
    reverse.
    I.
    While on patrol at 4:25 a.m. October 2, 2003, Riazzi, a
    twelve-year police department veteran (with a decade of patrol
    experience), heard a police radio broadcast stating that a Quality
    Mart on Peace Haven Road in Winston-Salem, North Carolina, had just
    been robbed.    The broadcast described the suspect as an armed,
    white man wearing a black hooded sweatshirt last seen running north
    from the convenience store.      Riazzi, who was familiar with the
    upper-middle class neighborhood along Peace Haven Road, thought the
    robber might flee by car through the intersection of Robinhood Road
    and Peace Haven Road, so he drove there.
    -3-
    Peace Haven Road is a through street and numerous streets
    intersect it along the 3.7 miles between the Quality Mart and
    Robinhood Road.   But because of the early hour, very few cars were
    on the road.   Soon after arriving at the intersection,   Riazzi saw
    a red vehicle pass through it.   He followed the red car for eight
    blocks to see if the driver would commit a traffic violation.    When
    the driver did so, Riazzi turned on his blue lights and pulled up
    beside the car.    Based on the driver’s demeanor when told of the
    robbery and Riazzi’s calculation that the suspect could not have
    reached the intersection so quickly, Riazzi ruled the driver out as
    a suspect.
    Upon his return to the intersection, Riazzi observed a “beat-
    up” car -- occupied by the defendants -- drive north on Peace
    Haven, stop at a red light, and turn right onto Robinhood.      About
    four minutes had passed since the radio broadcast. Riazzi followed
    the car for eight miles but did not see the driver commit any
    traffic violations.   The car took an indirect route to a highway to
    Greensboro.    When the car entered a lighted area on the highway,
    Riazzi pulled alongside it and saw that it was occupied by two men
    with light complexions; he could not tell if they were white.     He
    noticed that the driver was wearing a black sweater.      The driver
    neither made eye contact with him nor looked at him, even though,
    as Riazzi remembers it, no other cars were on the road.       Riazzi
    pulled the defendants over and, after asking some questions,
    -4-
    frisked the defendants and the car, finding a pistol, a black
    hooded sweatshirt, and a mask similar to those used in the robbery.
    II.
    In ruling on the defendants’ motion to suppress this evidence,
    the district court carefully considered Riazzi’s testimony.                The
    court     noted   that   Riazzi   had    relied   on   several   factors   as
    justification for the stop: the car arrived at an intersection that
    someone escaping the robbery might pass through; the car was beat-
    up and, therefore, out of place in the well-to-do neighborhood; the
    driver took an indirect path to Route 421; the driver wore a black
    sweater; both occupants of the car had light complexions; and the
    driver did not look at or make eye contact with Riazzi when the
    officer pulled up alongside the car.
    The district court concluded that these factors did not
    provide “an articulable suspicion for the officer to pull the
    driver over for an investigatory stop.”           The court reasoned that
    because two dozen streets intersect Peace Haven in the 3.7 miles
    between the Quality Mart and Robinhood Road, the presence of the
    defendants’ car at the Robinhood/Peace Haven intersection did not
    mean it came from the Quality Mart.           The court further held that
    neither the condition of the car nor the circuitous route it took
    to the highway proved anything.          And the court noted that although
    the driver fit the description of the suspect in that he had a
    -5-
    light complexion and wore a black sweater, the police broadcast did
    not mention a second man or indicate that the suspect had a car --
    the suspect had last been seen on foot.                         The district court
    concluded that although this was a “close case,” the stop was not
    based on reasonable suspicion, but only a good hunch.
    III.
    We agree with the district court that this is a very close
    case.
    The    Supreme      Court    has    held    that    when    a   police     officer
    possesses    a   reasonable,          articulable       suspicion    that      criminal
    activity “may be afoot” the Fourth Amendment permits a brief
    investigative       stop     of   a     vehicle,    without     probable       cause   of
    criminal    activity.        Terry      v.   Ohio,   
    392 U.S. 1
    ,   30    (1968).
    Reviewing courts “must look at the ‘totality of the circumstances’
    of   each   case    to    see     whether     the    detaining       officer     has   a
    ‘particularized       and    objective        basis’      for    suspecting       legal
    wrongdoing.”       United States v. Arvizu, 
    534 U.S. 266
    , 273 (2002)
    (citation omitted).         This means that courts cannot engage “in the
    sort of ‘divide-and-conquer analysis’ that treats each action by a
    defendant in isolation, finds each of them to be possibly innocent,
    and thus picks apart an officer’s reasonable assessments.”                       United
    States v. Perkins, 
    363 F.3d 317
    , 327 (4th Cir. 2004) (citing
    Arvizu, 
    534 U.S. at 274-75
    ).
    -6-
    Given these generous standards of review and the district
    court’s failure to consider the effect of one critical fact in
    assessing the totality of the circumstances, we must reverse its
    grant of the suppression motion.
    The   district   court    examined   the     relevant   evidence   with
    commendable care except for its failure to give due weight to one
    important factor: the early morning hour.             See Wayne R. LaFave,
    Search and Seizure § 9.4(g) at 206-07 (3d ed. 1996).               While the
    high volume of cars on the road at 4:30 p.m.             render it somewhat
    unlikely that a car at the intersection originated at the Quality
    Mart, the few cars on the road at 4:30 a.m. significantly increase
    that probability.      Similarly, while it may not be unusual for a
    driver not to acknowledge a marked police car driving next to him
    on a highway at 4:30 p.m. during rush hour, it may seem highly
    unusual for a driver to fail to acknowledge a marked police car
    driving right next to him on a highway at 4:30 a.m. when few, if
    any, other cars are on the road, and particularly when, as here,
    the police car had followed the driver for some time.             See Arvizu,
    
    534 U.S. at 275-76
     (“We think it quite reasonable that a driver’s
    slowing down, stiffening of posture, and failure to acknowledge a
    sighted law enforcement officer might well be unremarkable in one
    instance (such as a busy San Francisco highway) while quite unusual
    in   another   (such   as   a   remote   portion    of   rural   southeastern
    Arizona).”).
    -7-
    No case is identical to that at hand.       But we, and other
    courts, have upheld the reasonableness of investigatory stops in
    similar circumstances. See, e.g., United States v. Hurst, 
    228 F.3d 751
    , 757 (6th Cir. 2000); United States v. Jones, 
    187 F.3d 210
    ,
    216-17 (1st Cir. 1999); United States v. Colclough, 
    549 F.2d 937
    ,
    940 (4th Cir. 1977).   We must conclude that the stop here was also
    reasonable, though an even closer case than some of those cited
    above, and withstands constitutional scrutiny.
    IV.
    For the reasons set forth above, the judgment of the district
    court is
    REVERSED.
    -8-
    

Document Info

Docket Number: 04-4341

Citation Numbers: 118 F. App'x 690

Judges: Widener, Motz, Conrad, Western, Virginia

Filed Date: 12/16/2004

Precedential Status: Non-Precedential

Modified Date: 11/5/2024