United States v. Swindell , 139 F. App'x 532 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4799
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY FRANKLIN SWINDELL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-98)
Submitted: June 24, 2005 Decided: July 19, 2005
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Lisa Blue Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Ricky Franklin Swindell
pled guilty to possession with intent to distribute cocaine base
and brandishing a firearm during a drug trafficking crime in
violation of 21 U.S.C. § 841(a)(1), (b)(1) (2000) and 18 U.S.C.
§ 924(c)(1)(A)(ii) (2000). Swindell was sentenced to the statutory
mandatory minimum for both offenses, which totalled 204 months’
imprisonment. Swindell’s plea agreement reserved the right to
appeal the court’s denial of his motion to suppress. Counsel has
filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), raising the suppression issue. Counsel concedes, however,
that the issue is not meritorious. Although notified of his right
to do so, Swindell has not submitted a pro se supplemental brief.
This Court reviews factual findings underlying a district
court’s suppression determination for clear error and the district
court’s legal conclusions de novo. United States v. Rusher, 966
F.2d 868, 873 (4th Cir. 1992). When a suppression motion has been
denied, this Court reviews the evidence in the light most favorable
to the Government. United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998).
“An officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry v. Ohio, 392
- 2 -
U.S. 1, 30 (1968). To conduct 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 assessing police conduct in a Terry stop, courts must
look to the totality of the circumstances. United States v.
Sokolow, 490 U.S. 1, 8 (1989).
Generally speaking, a "seizure" warranting protection of
the Fourth Amendment occurs when, in view of the totality
of the circumstances surrounding the "stop," a reasonable
person would not feel free to leave or otherwise
terminate the encounter. . . . In applying the totality
of the circumstances test, courts look to numerous
factors including the time, place and purpose of the
encounter, the words used by the officer, the officer's
tone of voice and general demeanor, the officer's
statements to others present during the encounter, the
threatening presence of several officers, the potential
display of a weapon by an officer, and the physical
touching by the police of the citizen.
United States v. Weaver, 282 F.3d 302, 309-10 (4th Cir. 2002)
(citations omitted).
Officers conducting a lawful Terry stop may take steps
reasonably necessary to protect their personal safety, check for
identification, and maintain the status quo. Hensley, 469 U.S. at
229, 235; see also United States v. Moore, 817 F.2d 1105, 1108 (4th
Cir. 1987) (brief but complete restriction of liberty is valid
under Terry). After reviewing all the evidence in the light most
- 3 -
favorable to the Government, we conclude the encounter did not
escalate into an unconstitutional seizure.
Even if we were to presume that the police officer
illegally detained Swindell, Swindell’s assault on the officer
constituted a new crime. The investigation into the new crime led
to the discovery of the evidence sought to be suppressed. This
court has held that “[i]f a suspect's response to an illegal stop
‘is itself a new, distinct crime, then the police constitutionally
may arrest the [suspect] for that crime.’" United States v.
Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997) (quoting United States
v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982)). “[B]ecause the
arrest for the new, distinct crime is lawful, evidence seized in a
search incident to that lawful arrest is admissible.” Id. Here,
the evidence in question was found after the assault. Therefore,
Swindell’s motion to suppress was properly denied.
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Swindell’s
convictions and sentence. This Court requires counsel inform his
client, in writing, of his right to petition the Supreme Court of
the United State for further review. If the client requests a
petition be filed, but counsel believes such a petition would be
frivolous, then counsel may move in this court for leave to
- 4 -
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client.
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
- 5 -