United States v. Brice , 38 F. App'x 898 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4773
DAMION J. BRICE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-00-230-CCB)
Submitted: April 25, 2002
Decided: June 20, 2002
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Andrea Dennis Callaman,
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Thomas M. DiBiagio, United States Attorney, Angela R. White,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BRICE
OPINION
PER CURIAM:
Damion J. Brice pled guilty to possession of a firearm by a con-
victed felon, in violation of 18 U.S.C.A. § 922(g)(1) (West Supp.
2001), conditioned upon his right to appeal the district court’s denial
of his pre-trial motions. He was sentenced to 77 months imprison-
ment. On appeal, Brice argues that the district court erred in denying
his motion to suppress the firearm and his motion to dismiss the
indictment based on a violation of his Sixth Amendment right to a
speedy trial. We affirm.
On appeal, Brice first claims that his encounter with the police con-
stituted a seizure for purposes of the Fourth Amendment that was
unsupported by reasonable suspicion. He thus claims that the gun
found in his possession should have been suppressed. This Court
reviews the factual findings underlying a motion to suppress for clear
error, while reviewing the legal determinations de novo. United States
v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). When a suppression
motion has been denied, review of the evidence is made in the light
most favorable to the government. United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998).
Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop when
the officer has a reasonable, articulable suspicion that criminal activ-
ity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To con-
duct a Terry stop, there must be at least a minimal level of objective
justification for making the stop. Id. 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. Id.;
see also United States v. Hensley, 469 U.S. 221, 232 (1985). In evalu-
ating police conduct in a Terry stop, courts must consider the totality
of the circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989)
(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). A sus-
pect’s presence in an area known for criminal activity is not, by itself,
enough to support a Terry stop. However, presence in such an area
is among the relevant contextual considerations in a Terry analysis.
Wardlow, 528 U.S. at 124. Other factors include flight upon noticing
UNITED STATES v. BRICE 3
the police and nervous, evasive behavior. Id. Based on the totality of
the circumstances in this case, we find that the district court did not
err in denying Brice’s motion to suppress.
Brice also complains that the district court erred in denying his
motion to dismiss the indictment on the ground that his Sixth Amend-
ment right to a speedy trial had been violated. This Court reviews the
district court’s factual findings for clear error and its legal conclusions
de novo. United States v. Ward, 171 F.3d 188, 193 (4th Cir. 1999);
see also Doggett v. United States, 505 U.S. 647, 651-58 (1992) (con-
ducting de novo review of Sixth Amendment speedy trial claim).
Although Brice was indicted on May 3, 2000, he was not arraigned
until May 25, 2001, over a year later. In determining whether a pre-
trial delay violates a defendant’s Sixth Amendment right to a speedy
trial, a court must balance four considerations: (1) the length of the
delay, (2) the reason for the delay, (3) the defendant’s assertion of his
right to a speedy trial, and (4) the extent of prejudice to the defendant.
See Barker v. Wingo, 407 U.S. 514, 530 (1972). The Supreme Court
has explained that the first factor actually involves two inquiries. The
first question is whether the delay is sufficient to trigger a speedy trial
inquiry. The Court has answered this question affirmatively where the
delay between indictment and arrest approaches one year. See Dog-
gett, 505 U.S. at 651-52. Second, courts must consider, together with
other relevant factors, "the extent to which the delay stretches beyond
the bare minimum needed to trigger judicial examination of the
claim." Id. at 652. The presumption of prejudice intensifies over time.
See id. "Presumptive prejudice does not necessarily indicate a statisti-
cal probability of prejudice; it simply marks the point at which courts
deem the delay unreasonable enough to trigger the Barker enquiry."
Id. at n.1. The burden of establishing prejudice rests with the defen-
dant. See Ricon v. Garrison, 517 F.2d 628, 634 (4th Cir. 1975). A
Barker analysis in such a case should be made even where the defen-
dant cannot establish any instance of actual prejudice resulting from
the delay. See United States v. Thomas, 55 F.3d 144, 149 (4th Cir.
1995). We have reviewed the facts in this case within the framework
of the factors set out in Barker, 407 U.S. at 530, and find no violation
of Brice’s Sixth Amendment right to a speedy trial. We therefore con-
clude that the district court did not err in denying Brice’s motion to
dismiss the indictment.
4 UNITED STATES v. BRICE
Accordingly, we affirm Brice’s conviction and sentence. We dis-
pense 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