United States v. Ross ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4784
JEROME M. ROSS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-01-25)
Submitted: February 13, 2003
Decided: March 13, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Paul T. Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ROSS
OPINION
PER CURIAM:
Jerome M. Ross was convicted of possession of a firearm by a con-
victed felon, 18 U.S.C. § 922(d)(1) (2000), and possession of a fire-
arm after conviction for a misdemeanor crime of domestic violence,
18 U.S.C. § 922(d)(9) (2000). He appeals the district court’s denial,
on the recommendation of the magistrate judge, of his motion to sup-
press evidence acquired in a warrantless search of his vehicle. Finding
no error, we affirm.
While driving his car in Wheeling Park, within the City of Whee-
ling, West Virginia, Ross was stopped by Frank D. Kuca and Michael
Zinn, patrol officers with the Wheeling, West Virginia, Police Depart-
ment. The stop was precipitated by a dispatch call at 11:23 A.M.
reporting that the occupant of a white car with a blue top pulled a gun
on a park employee and followed her to work. An investigation
revealed no car matching the description of the vehicle at the park.
Another report from an anonymous caller reported the car had
returned to the park at 3:38 P.M.; the caller providing a vehicle
license number. The officers returned, located the car, and motioned
the driver to stop. Kuca informed Ross, the driver, that they were
investigating a report of a person pointing a gun at a park employee.
Ross responded he had not been to the park earlier. Kuca asked if
Ross had a gun on his person, and Ross stated he did not. Kuca then
inquired if there was a gun in the car. Ross informed Kuca there was
a gun in the pouch behind the passenger seat. A gun was found at the
location described by Ross; he was thereupon arrested.
Ross filed a motion to suppress the gun as illegally seized because
there was no criminal activity afoot at the time of the stop, and that
insufficient evidence therefore existed for a stop pursuant to Terry v.
Ohio, 392 U.S. 1 (1968). Ross further alleged that even if there was
sufficient evidence for a Terry stop, the first report of brandishing a
firearm was stale by the time he was stopped three hours later. The
magistrate judge conducted a hearing. He recommended denying the
motion because the officers were told a firearm had been brandished,
and the officers would have been derelict in their duty if they did not
stop the car bearing the reported license plate and matching the
UNITED STATES v. ROSS 3
description of a car from which someone had reportedly brandished
a firearm. The magistrate judge also concluded that the specific infor-
mation possessed by the officers three hours after the initial complaint
was not stale.
The district court conducted de novo review of the magistrate
judge’s report, the objections filed by Ross, and the Government’s
reply. The court adopted the magistrate judge’s report and denied the
suppression motion. After Ross was found guilty by a jury, he filed
a Fed. R. Crim. P. 33 motion seeking a new trial claiming the sup-
pression motion had been improperly denied. That motion was
denied.
Ross asserts on appeal that the suppression motion was improperly
denied because the officers had no reasonable suspicion to stop Ross’
car and the officers lacked authority to make the stop. This Court
reviews the factual findings underlying the denial of a motion to sup-
press 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, the evidence is reviewed
in the light most favorable to the government. United States v. Seid-
man, 156 F.3d 542, 547 (4th Cir. 1998).
The district court’s factual determinations are not clearly errone-
ous. Given the facts known to the officers at the time of the stop, rea-
sonable suspicion existed that a crime had been committed and the
officers properly stopped the car to investigate. See United States v.
Hensley, 469 U.S. 221, 226 (1985). Likewise, the district court did
not clearly err in finding the criminal activity occurred within the City
of Wheeling. The officers did not exceed their authority by stopping
Ross’ car to investigate a past criminal act. Hensley, 469 U.S. at 226.
Accordingly, the district court properly denied the motion to suppress
and the motion for new trial.
We affirm Ross’ conviction. 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 in the deci-
sional process.
AFFIRMED