United States v. Phillips ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4680
KEVIN LAMONT PHILLIPS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Henry C. Morgan, Jr., District Judge.
(CR-96-52)
Submitted: January 26, 1999
Decided: March 23, 1999
Before MURNAGHAN and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William P. Robinson, Jr., Norfolk, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, William D. Muhr, Special Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kevin Lamont Phillips was convicted of possession with intent to
distribute crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1), (b)
(West 1981 & Supp. 1998) and using and carrying a firearm during
and in relation to a drug crime, in violation of 18 U.S.C.A. § 924(c)
(West Supp. 1998). On July 5, 1995, the Hampton, Virginia, police
received a report of a shooting at Applebee's Restaurant. Several offi-
cers proceeded to the scene, where they found two victims, one suf-
fering from a gunshot wound, and shell casings and blood in the
parking lot. The victim who was not injured, Adams, explained the
incident to police and walked them through the scene. As they were
standing near the door of the restaurant, Adams pointed to three males
and a female getting into a car about forty yards away and said, "That
looks like them."
Officers Younginer, McNair and Bailey approached these individu-
als, one of whom was Phillips, and said they needed to speak to them
about a shooting. Younginer asked if any member of the group had
any weapons, which they all denied. He then asked if he could check
for weapons, and Phillips shook his head. Younginer asked him, "Do
you mind if I search you for weapons?" and Phillips shook his head,
which Younginer took to mean, no, he did not mind. Officer McNair,
who patted down Phillips, testified at the suppression hearing that he
asked Phillips whether the latter minded if McNair patted him down
for the officer's own safety, to which Phillips answered, "No."
McNair took that to mean he could pat Phillips down. When he did
so, he felt a weapon at Phillips's waistline.
Upon finding a .44 caliber pistol, McNair arrested Phillips for con-
cealment of a weapon. McNair completed searching Phillips, and
found a quantity of a substance he suspected to be crack cocaine, a
bag of marijuana, a pager, and over $1500 in cash. The gun was not
loaded.
The district court ruled that this was a proper Terry stop as the offi-
cers had a reasonable basis to investigate the individuals, who had
been identified by a victim as participants in a shooting that had just
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occurred. See Terry v. Ohio, 392 U.S. 1, 30 (1968). On appeal, Phil-
lips alleges that the stop was not proper under Terry and that he did
not consent to the patdown which revealed the weapon.
A police officer may stop and briefly detain an individual for
investigative purposes if the officer has a reasonable suspicion, based
on articulable facts, that criminal activity is afoot. See id. at 30. The
existence of reasonable suspicion is evaluated in light of all the cir-
cumstances confronting the officer, including all information avail-
able and any reasonable inferences to be drawn at the time of the stop.
United States v. Crittendon, 883 F.2d 326, 328 (4th Cir. 1989). Rea-
sonable suspicion is more than a hunch but less than probable cause.
See Terry, 392 U.S. at 27. Police may conduct a patdown search of
one stopped in a Terry situation if the officer has a reasonable suspi-
cion that the individual is armed. United States v. Raymond, 152 F.3d
309, 312 (4th Cir. 1998). The standard justifying such a patdown is
not an onerous one. United States v. Swann, 149 F.3d 271, 274 (4th
Cir. 1998). We review de novo the district court's ultimate determina-
tion of a justifying suspicion; we review only for clear error the
court's underlying findings of historical fact. See Ornelas v. United
States, 517 U.S. 690, 699 (1996).
Here, a shooting had been committed a short time before the stop,
and at the same location. One of the victims of the incident had been
injured and taken to the hospital. The other target spontaneously iden-
tified a group of people who had just left Applebee's as the perpetra-
tors of the shooting. Therefore, it was entirely reasonable for the
officers to believe that Phillips, or any other member of the small
group, had been involved in a dangerous crime and was possibly still
armed. The fact that there were now three men in the group, while
only two men had been involved in the shooting, does not make the
stop and patdown of all three men unreasonable under the circum-
stances. The officers certainly had a reasonable suspicion that crimi-
nal activity was afoot and that at least one member of the group was
armed and dangerous. A brief patdown of the outside of Phillips's
clothing disclosed the presence of a large handgun. Therefore, the
Terry stop and patdown was entirely reasonable and appropriate
under the standard set forth above.
Because the stop and frisk were proper under Terry, it is unneces-
sary to consider whether Phillips consented to the search which led
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to discovery of the weapon. We affirm Phillips's conviction. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and oral argu-
ment would not aid the decisional process.
AFFIRMED
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