United States v. Gerald Swiger , 675 F. App'x 367 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD A. SWIGER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:15-cr-00044-IMK-MJA-1)
Submitted: January 18, 2017 Decided: February 3, 2017
Before MOTZ, KING, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katy J. Cimino, Assistant Federal Public Defender, Kristen M.
Leddy, Research and Writing Specialist, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, David J.
Perri, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald A. Swiger appeals his conviction of being a felon in
possession of a firearm. See 18 U.S.C. § 922(g) (2012).
Pursuant to a conditional guilty plea, Swiger challenges the
district court’s denial of his motion to suppress physical
evidence discovered as a result of a frisk. He argues that the
evidence did not justify the investigatory stop or the
subsequent frisk.
In considering the denial of a motion to suppress, we
review a district court’s findings of fact for clear error and
its legal determinations de novo. United States v. Elston, 479
F.3d 314, 317 (4th Cir. 2007). We view the facts in the light
most favorable to the prevailing party, here the Government.
United States v. Black, 707 F.3d 531, 534 (4th Cir. 2013).
After thoroughly reviewing the record, the parties’ briefs,
and the controlling legal authority, we conclude that the
district court did not err in denying Swiger’s suppression
motion. The court correctly determined that the investigatory
stop was proper because there was reasonable suspicion that
Swiger was engaging in criminal conduct, namely, trespassing.
The court also correctly determined that, given the totality of
the circumstances, there was reasonable suspicion that Swiger
was armed and dangerous, justifying a frisk of his person. We
note that our en banc decision in United States v. Robinson, No.
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14-4902, 2017 WL 280727 (4th Cir. Jan. 23, 2017) (en banc),
precludes Swiger’s reliance on the panel opinion in that case.
Accordingly, we affirm for the reasons stated by the
district court. See United States v. Swiger, No. 1:15-cr-00044-
IMK-MJA (N.D. W. Va. July 17, 2015). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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