United States v. Harmon ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4713
ANDRE A. HARMON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-53)
Submitted: April 22, 1998
Decided: May 11, 1998
Before WIDENER and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Keith B. Marcus, PHILLIPS, WEBB & WALLERSTEIN, Richmond,
Virginia, for Appellant. Helen F. Fahey, United States Attorney,
N. George Metcalf, Assistant United States Attorney, Jeffrey T. Sel-
ser, Third-Year Law Intern, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Andre A. Harmon appeals from the district court's denial of his
suppression motion, and his resulting guilty plea and conviction for
use and carrying of a firearm during the commission of a drug trans-
action, in violation of 18 U.S.C. § 924(c) (1994), and possession of
heroin, in violation of 21 U.S.C. § 844(a) (1994). We uphold the dis-
trict court's denial of the motion to suppress, and affirm Harmon's
conviction.
Testimony at the suppression hearing revealed that on January 16,
1997, police officers Loperl and Robinson were conducting surveil-
lance of the Whitcomb Court housing complex from a second story
apartment window for possible drug transactions. Whitcomb Court
was known by police officers to be a high drug area. Officer Loperl
observed Harmon approach the apartment of a woman that had been
arrested earlier that morning on drug charges. Loperl recognized Har-
mon, whom he knew did not live at Whitcomb Court, from a prior
incident at Whitcomb Court when he warned Harmon about trespass-
ing there. Harmon carried a plate of food in one hand, and a lit ciga-
rette in the other. Harmon knocked on the door of the apartment, and
when no one answered, he turned to leave. Loperl, observing Harmon
through binoculars, saw him stop when he was approached by an
unidentified female. Harmon reached into his right pocket and pro-
duced a small folded piece of aluminum foil, which was about a third
the size of a postage stamp, and flat. Based on Loperl's experience
and training as a police officer, he suspected this object to be pack-
aged heroin. Harmon dropped the package to the ground, picked it up,
and handed it to the unidentified female. While they talked, she exam-
ined it and then handed it back to Harmon, who replaced the package
in his right front jeans watch pocket and began to walk away. Loperl
then radioed the take down team, comprised of Officers Rollston and
Shelton.
2
When he noticed the officers approaching, Harmon briskly walked
toward an apartment door, which was locked. Rollston told Harmon
to put down the plate and cigarette. Harmon failed to comply, or oth-
erwise respond. The officers bent Harmon over the railing. Rollston
repeated his command to Harmon to drop the plate and cigarette,
which he did. Officer Rollston then informed Harmon that he was
under investigative detention and patted Harmon's right front jeans
watch pocket, in search for drugs. Officer Rollston testified that he
felt what he believed to be three or four rocks of crack cocaine. The
objects turned out to be coins. Rollston then repeated to Harmon that
he was under investigative detention, that he was not under arrest, and
placed Harmon in handcuffs, telling Harmon that the handcuffs were
necessary for his safety and the safety of the officers. Rollston then
walked with Harmon toward the police cruiser. On the way, he asked
Harmon if he had any weapons on his person. Harmon admitted that
he did, and told Rollston the location of a firearm. After Rollston
retrieved the weapon, Rollston placed Harmon under arrest for carry-
ing a concealed weapon. Pursuant to this arrest, Rollston searched
Harmon's outer clothing and found a quantity of heroin in Harmon's
right front jeans watch pocket.
The district judge denied Harmon's motion to suppress the evi-
dence obtained on January 16, 1997, at Whitcomb Court on the
ground that the officers had probable cause for an arrest based on
what transpired between Harmon and the unidentified female to
whom he talked and to whom he handed what appeared to be a packet
of heroin. On appeal, Harmon claims that the police did not have a
reasonably articulable suspicion of criminal activity sufficient to jus-
tify stopping Harmon, and the illegal stop turned into an arrest with-
out probable cause at the time the handcuffs were placed on him such
that his subsequent admission and the seizure of the firearm and the
heroin should have been suppressed. We find that these issues need
not be considered as the surveilling officers had probable cause to
arrest Harmon based on the totality of the circumstances and the
events they witnessed which transpired between Harmon and the
female. Specifically, Whitcomb Court was personally known to the
officers involved be a high drug trafficking area. Harmon was known
to the surveilling officer as a person who did not live in Whitcomb
Court, and he had previously told Harmon not to trespass at Whit-
comb Court. Further, Harmon was observed handing a small, flat
3
piece of folded aluminum foil to the female, who observed it, had
some discussion with Harmon, and then returned the packet to Har-
mon. Aluminum foil such as that observed by the officer is known to
the officers as being a medium for carrying heroin. Finally, Harmon
exhibited evasive behavior when he saw the officers approaching.
Viewed by the totality of the circumstances,1 including the events
which transpired between Harmon and the unidentified female, as
well as Harmon's evasive behavior when he saw the take down team
approaching him, we find that the district court properly concluded
that the officers had probable cause to believe that Harmon had or
was committing an offense at that time, and therefore had probable
cause to arrest.2 Hence, we find that the district judge properly denied
Harmon's motion to suppress the evidence thereafter seized. Accord-
ingly, we affirm the district court's denial of Harmon's motion to sup-
press, and Harmon's guilty plea and 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 the decisional process.
AFFIRMED
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1 See Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v.
Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988).
2 See Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Williams,
10 F.3d 1070, 1073-74 (4th Cir. 1993).
4