United States v. Diggs , 267 F. App'x 225 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4719
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHUN J. DIGGS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00015-FDW)
Submitted: January 11, 2008 Decided: January 23, 2008
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Peter Adolf, Ann L. Hester,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shun J. Diggs pled guilty to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000),
and was sentenced to 59 months’ imprisonment. Diggs appeals his
conviction and sentence. Finding no reversible error, we affirm.
Diggs argues the district court erred in denying his
motion to suppress evidence seized after officers stopped, frisked
and searched him. This court reviews the district court’s factual
findings underlying a motion to suppress for clear error, and the
district court’s legal determinations de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d
868, 873 (4th Cir. 1992). The evidence is construed in the light
most favorable to the prevailing party below. United States v.
Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
Diggs first alleges the officers lacked reasonable
suspicion to stop and frisk him. Under Terry v. Ohio, 392 U.S. 1,
21-22, 27 (1968), an officer may seize a person if the officer can
articulate reasonable suspicion that the person has just committed
or is about to commit a crime, and the officer may pat-down the
person’s outer clothing for weapons if the officer reasonably
believes that the person may be armed. Reasonable suspicion
requires more than a hunch but less than probable cause and may be
based on the collective knowledge of officers involved in an
investigation. See United States v. Hensley, 469 U.S. 221, 232
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(1985). In assessing whether an officer possesses more than a mere
hunch to justify a stop, a reviewing court must credit the
“practical experience of officers who observe on a daily basis what
transpires on the street.” United States v. Lender, 985 F.2d 151,
154 (4th Cir. 1993). Factors which by themselves suggest only
innocent conduct may amount to reasonable suspicion when taken
together. United States v. Arvizu, 534 U.S. 266, 274-75 (2002);
United States v. Sokolow, 490 U.S. 1, 9-10 (1989).
When reviewing the totality of the circumstances,
relevant behavior includes whether the stop occurred in a
high-crime area, and whether the suspect seemed nervous or evasive.
United States v. Mayo, 361 F.3d 802, 805-06 (4th Cir. 2004). In
Mayo, this court found sufficient reasonable suspicion that
criminal activity was afoot based on the following facts: (1) the
encounter occurred in a high-crime area; (2) after seeing the
officers, the defendant put his hand in his pocket and appeared to
be supporting something heavy; (3) the defendant turned away from
the officers and headed in another direction; and (4) the defendant
displayed nervous behavior. Id. at 807-08.
Here, Agent Andrew Cheramie of the Bureau of Alcohol,
Tobacco, Firearms and Explosives was conducting surveillance of a
high crime area and noticed Diggs and two other individuals
loitering around different areas over a period of time without an
obvious purpose. Agent Cheramie then contacted uniformed Charlotte
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Mecklenburg police officers Christopher Miller and Anthony Hall,
who were working with him on a robbery prevention task force, and
advised them to follow-up with the individuals. When the officers
arrived to the area, Diggs and the other two individuals split up
to go separate directions, which based on Officer Miller’s
experience, was done in an attempt to elude police or gain a
tactical advantage over officers. When Officer Miller asked Diggs
where he was going, he stated he was going home but pointed in the
opposite direction than he had been walking.
Officer Miller noticed a bulge in Diggs’ pocket.
Although Diggs initially stated he had identification, when Officer
Miller asked to see it, Diggs reached into that pocket and
immediately withdrew his hand, stating he did not have
identification. Officer Miller was thus lead to believe Diggs was
hiding something. Officer Miller also testified Diggs’ eye
movements and body language suggested he was looking for a way to
run and that “wasn’t just a hunch or suspicion . . . I was pretty
certain that I was dealing with somebody who was engaged in
criminal activity.”
We find, construing the evidence in the light most
favorable to the Government, that the district court did not err in
finding that the officers had reasonable suspicion to stop and
frisk Diggs based on the totality of the circumstances.
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Diggs next contends that his raising his arms up when
Officer Miller asked if he could search him did not amount to
consent to the search of his person. Whether a defendant consents
to a search is a factual question determined under the totality of
the circumstances and reviewed under the clearly erroneous
standard. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49
(1973); United States v. Jones, 356 F.3d 529, 533 n.* (4th Cir.
2004). The Government has the burden of proving that consent was
freely and voluntarily given. Schneckloth, 412 U.S. at 222.
This court has previously recognized that consent can be
inferred from the physical actions of a suspect. See United States
v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990). In Wilson, the
suspect had been stopped by a Drug Enforcement Agent in one of the
Washington, D.C., area airports. Id. The agent was searching
Wilson’s bag when he noticed a suspicious bulge in Wilson’s pants.
Id. He then asked Wilson if he could search his person. Wilson
responded by “shrugg[ing] his shoulders and extend[ing] his arms.”
Id. We found this conduct sufficient to convey consent.
Similarly, here, Officer Miller noticed a bulge in Diggs’
pocket and asked Diggs if he had any weapons. Diggs stated he did
not have any weapons. Officer Miller then asked, “[d]o you mind if
I search?” Diggs made no verbal response but raised his arms up.
We find that based on the absence of evidence of threats, force, or
physical intimidation, which Diggs has not alleged, Diggs’ raising
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of his arms constituted a voluntary consent to search his person.
See Wilson, 895 F.2d at 170. Accordingly, the district court did
not clearly err in finding Diggs consented to the search and
therefore denying the motion to suppress.
Finally, Diggs contends the district court erred by
enhancing his sentence for possessing a stolen firearm based on
hearsay evidence. However, Diggs’ claims fails, because hearsay
evidence is admissible at sentencing. See United States v. Love,
134 F.3d 595, 607 (4th Cir. 1998).
Accordingly, we affirm the district court’s judgment. 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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