United States v. Works , 338 F. App'x 295 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4228
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BARRY J. WORKS,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:07-cr-00050-1)
Argued: January 30, 2009 Decided: July 21, 2009
Before SHEDD and AGEE, Circuit Judges, and Arthur L. ALARCÓN,
Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Agee and Senior Judge Alarcón joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Erik S.
Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, George H. Lancaster, Jr., Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. Charles T. Miller,
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Barry Works was charged with one count of possession of
cocaine with the intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). After entering a conditional guilty plea, Works
was sentenced to 37 months with three years supervised release.
Works now appeals the denial of his suppression motion. For the
following reasons, we affirm.
I
In reviewing the denial of a suppression motion, we
construe the facts in the light most favorable to the
government. United States v. Murphy, 552 F.3d 405, 409 (4th
Cir. 2009). We review the district court’s factual findings for
clear error and its legal conclusions de novo. Id.In January 2006, Sergeant Combs of the Huntington, West
Virginia, Police Department received a report that a blue
Chrysler was regularly delivering drugs from out of state to
individuals at a local apartment occupied by Patrick Bryant.
Following up on the information, Combs went to Bryant’s
apartment complex on the evening of January 26, 2006. The
complex contained four units: two on the first floor and two,
including Bryant’s apartment, on the second floor.
Combs positioned himself in a concealed location and
observed a dark-colored Chrysler arrive at the apartment
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complex. The Chrysler’s occupants entered the building. Combs
knew that Bryant was on home incarceration for a drug-related
offense and thus was subject to search at any time. Therefore,
Combs contacted officers with the home incarceration unit and
requested that they search Bryant’s apartment. The home
incarceration unit arrived quickly and brought additional back-
up officers for assistance. Combs led a team of officers to
watch the back door of Bryant’s apartment while the home
incarceration unit approached the front entrance to conduct the
search.
Because Bryant’s apartment was on the second floor, the
officers had to ascend a narrow stairwell. As Combs entered the
bottom of the stairwell, he saw Works exiting Bryant’s apartment
through the back door. Works was carrying a plastic grocery
bag. When Combs shouted for Works to stop, Works tried to enter
an apartment across the hall. However, the door to that
apartment was locked. Combs continued to approach Works and
again instructed him to stop. Works then tried to reenter
Bryant’s apartment. Combs observed that Works looked nervous,
and he grabbed Works to keep him from reentering Bryant’s
apartment.
Works attempted to shield the plastic bag with his body and
clothes. When Combs asked what was in the bag, Works said that
it contained flour. Combs felt the outside of the bag to ensure
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that it did not contain a weapon and noted that it felt “mushy”
and not like flour. Because the hallway was narrow, Combs
passed Works down to the officers in the stairwell behind him.
Combs resumed watching the door to Bryant’s apartment. His
entire encounter with Works lasted approximately thirty seconds.
Officer Livingston took charge of Works at the bottom of
the stairs. Livingston noticed Works switch the bag from one
hand to the other, attempting to hide it under his armpit.
Livingston asked what was in the bag, and Works repeated that it
contained flour. Livingston felt the outside of the bag and
told Works that it did not feel like flour. Livingston thought
there was a good chance that the bag contained contraband (i.e.
drugs). Livingston handed the bag to Officer Bills while
Livingston frisked Works to ensure that he did not have a
weapon.
Bills, who overheard Works’ statement to Livingston
regarding the contents of the bag, knew Works from two previous
drug and gun cases. Bills was dubious of Works’ claim that the
bag contained flour. Bills looked into the bag; based on his
training and experience, he instantly recognized (and a field
test subsequently confirmed) that the bag contained cocaine. 1
1
The record does not establish whether the plastic bag was
closed. If it was not, the contents of the bag were likely
(Continued)
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After Works was arrested and advised of his Miranda rights, he
voluntarily admitted ownership of the cocaine.
II
Works was indicted and moved to suppress the cocaine,
contending that he was denied his Fourth Amendment right to be
free from unreasonable searches and seizures. The district
court denied the suppression motion, holding that the officers
had reasonable suspicion to justify the stop at its inception.
See Terry v. Ohio, 392 U.S. 1, 30 (1968). The court also found
that the scope of the search was objectively reasonable given
the totality of the circumstances. On appeal, Works contends
that there was no reasonable suspicion to perform a Terry stop
and that, even if the Terry stop was permissible, Officer Bills
acted unreasonably by looking into the bag. The government
advances three independent justifications for the officers’
actions: (a) Terry; (b) exigent circumstances; and (c) the
“plain feel” doctrine. 2
admissible under the “plain view” doctrine. See e.g. Horton v.
California, 496 U.S. 128 (1990).
2
Although the district court based its decision solely on
Terry, we may nevertheless affirm on alternative grounds. See
Covenant Media of SC, LLC v. City of North Charleston, 493 F.3d
421, 431 (4th Cir. 2007).
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A.
The Fourth Amendment guarantees the “right of . . . people
to be secure in their persons . . . against unreasonable
searches and seizures.” The Fourth Amendment “does not
proscribe all state-initiated searches and seizures; it merely
proscribes those which are unreasonable.” Florida v. Jimeno,
500 U.S. 248, 250 (1991). While warrantless searches are
presumptively unreasonable, United States v. Holmes, 376 F.3d
270, 274-275 (4th Cir. 2004), one important exception allows a
police officer to conduct a brief investigatory stop where the
“officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may
be afoot.” Terry, 392 U.S. at 30. Furthermore, the officer is
allowed to “take such steps as [are] reasonably necessary to
protect [his] personal safety” if he believes that the person
being stopped may be armed and presently dangerous. United
States v. Hensley, 469 U.S. 221, 235 (1985). The scope of the
search must be “reasonably designed to discover guns, knives,
clubs, or other hidden instruments for the assault of the police
officer.” Terry, 392 U.S. at 29.
To assess the validity of a Terry stop and frisk, we
consider the totality of the circumstances, giving due weight to
common sense judgments reached by officers in light of their
experience and training. United States v. Perkins, 363 F.3d
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317, 321 (4th Cir. 2004). We employ an objective standard to
determine whether “the facts available to the officer at the
moment of the seizure or the search warrant a man of reasonable
caution in the belief that the action taken was appropriate.”
Terry, 392 U.S. at 21-22 (internal citations omitted).
B.
We agree with the district court that the police had a
reasonable suspicion to justify the Terry stop and frisk.
Officer Combs was lawfully present at the apartment building to
investigate a tip concerning drugs in Bryant’s apartment. After
corroborating information received from the tip, Combs observed
Works exiting the apartment as the home confinement unit
executed a valid search for drugs.
Upon seeing the officers, Works attempted to conceal the
bag he was holding and quickly tried to enter another door so as
to avoid passing the officers in the hallway. Officer Combs
further observed that Works appeared nervous. Given the
totality of the circumstances – the tip which was at least
partially corroborated, the valid search for drugs, the lateness
of the hour, Works’ evasive conduct – and giving due weight to
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the officers’ experience, training, and judgment, 3 we find that
the Terry stop and frisk was justified.
C.
Works argues that even if the initial Terry stop was
justified, Officer Bills exceeded the bounds of Terry by looking
into the plastic bag and discovering the cocaine. Works
contends that because Combs and Livingston both patted down the
bag before it reached Bills and concluded that it did not feel
like it contained a weapon, there was no justification for Bills
to look into the bag. We disagree. Under the “plain feel”
doctrine set forth in Minnesota v. Dickerson, 508 U.S. 366(1993), an officer may seize contraband other than weapons
during a lawful Terry search if the officer “feels an object
whose contour or mass makes its identity immediately apparent.”
Dickerson, 508 U.S. at 375. Surrounding circumstances may
inform an officer in making this determination. See United
States v. Rogers, 129 F.3d 76, 79 (2nd Cir. 1997)(holding that
the officer’s “belief [that defendant’s pocket contained drugs],
combined with [defendant’s] evasive and suspicious conduct,”
allowed the officers to search defendant’s pockets for
3
The three officers involved in this case had 37 combined
years of field experience. All three had prior experience with
drug matters and Combs served as the Drug Unit Commander of the
Huntington Police Department.
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contraband). However, once an officer has determined that the
object is not a weapon and its shape or size does not indicate
its contraband nature, the search must stop. United States v.
Raymond, 152 F.3d 309, 312 (4th Cir. 1998).
This case is similar to United States v. Yamba, 506 F.3d
251 (3rd Cir. 2007). There, the Third Circuit affirmed the
denial of a suppression motion where an officer testified that
in the course of a lawful Terry patdown, he felt a plastic bag
in defendant’s pocket containing a “soft, spongy-like substance”
later revealed to be marijuana. Yamba, 506 F.3d at 260. The
court noted that the officer did not have to be “certain that
the object . . . was contraband.” Id. Instead, the officer’s
experience led him to “reasonably suspect” that the plastic bag
in the defendant’s pocket contained marijuana, and the “plain
feel” doctrine justified the seizure. Id.We have applied the “plain feel” doctrine to affirm the
denial of a suppression motion where the police conducted a
lawful Terry patdown and felt an object under the defendant’s
jacket which ultimately contained a crack cookie. Raymond, 152
F.3d at 311. The officer initially thought the item was a
weapon, but discovered after removing it from the defendant’s
waistband that it was a pie tin. We first held that Terry
authorized the officer to remove the object because he thought
it was a weapon. After the officer discovered that it was a pie
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tin (and even though there was no indication that the tin was
transparent), we found that the incriminating nature of the
object was immediately apparent because the officer knew from
his training that crack cocaine was often created in a pie tin.
Therefore, we found that the seizure fell within the “plain
feel” doctrine.
In this case, Officer Livingston testified that when he
felt the bag, he could tell that it “wasn’t as dense as flour.
It was a light, mushy kind of substance . . . a powdery
substance.” J.A. 50. 4 Indeed, he immediately surmised that the
bag contained contraband based on his training and experience,
and in the context of tactily verifying that the plain feel of
the substance was inconsistent with what Works represented it to
be. He made this observation as a valid search for drugs took
place in the apartment from which Works had just exited.
Further, Officer Bills recognized Works from two prior drug and
gun cases. Works attempted to evade the officers and, once
detained, repeatedly attempted to conceal the bag. In light of
these circumstances, we find that the seizure of the cocaine was
justified by the “plain feel” doctrine.
4
Under the “fellow officer rule,” knowledge possessed by
one officer is imputed to all officers on the scene. See Karr
v. Smith, 774 F.2d 1029, 1032 (10th Cir. 1985).
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III
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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