United States v. Jordan , 432 F. App'x 206 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4648
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAWRENCE A. JORDAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cr-00409-CMH-1)
Submitted: April 29, 2011 Decided: May 3, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Aamra S. Ahmad,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Thomas J. Krepp,
Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence A. Jordan appeals his conviction for being a
felon in possession of a firearm and ammunition, in violation of
18 U.S.C. § 922(g)(1) (2006). On appeal, he challenges the
district court’s denial of his motion to suppress evidence
seized from his person and, pursuant to an inventory search, the
vehicle he was driving. He also challenges the district court’s
denial of his motion to substitute counsel. Finding no error,
we affirm.
On December 18, 2007, Jordan visited the Farrish
Automobile dealership in Manassas Park, Virginia. Jordan
completed a credit application for the purchase of a vehicle.
Jordan presented a District of Columbia identification card
displaying his photo, name, and address. The dealership manager
noted various inconsistencies between the credit report and
credit application and the photo identification provided. Based
on the inconsistent information, the manager called the Manassas
Park police because he believed Jordan was providing false
information. At the time the police arrived, Jordan was out on
a test drive in one of the dealership’s cars with one the
dealership employees. When Jordan returned from the test drive,
Officer Sproule ordered him to exit the vehicle. However,
Jordan avoided contact with the officer, and instead manipulated
the CD player, rearview mirror, and gear shifter. Jordan exited
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the vehicle after being requested to do so four times and being
threatened with a taser. Officer Sproule conducted a pat down
search and found a firearm in Jordan’s jacket pocket. Pursuant
to an inventory search, the police searched the car Jordan drove
to the dealership and found ammunition.
The district court denied Jordan’s motion to suppress
the evidence, finding that “[t]here was reasonable suspicion
that a crime had been committed. It was justified, the
detention and the pat-down search . . . .” Jordan argues that
the district court erred in denying the motion to suppress
because the officer lacked probable cause to arrest him, and
even if he had a reasonable suspicion to conduct an
investigatory stop, there was no indication that he was armed
and dangerous; therefore, a pat down search was illegal. The
Government responds that the officer had probable cause to
arrest Jordan and merely conducted the search immediately before
arrest; that the officer had reasonable suspicion that criminal
activity was afoot; and that there was reason to believe that
Jordan was armed and dangerous.
We review factual findings underlying the district
court’s denial of a motion to suppress for clear error and legal
conclusions de novo. United States v. Blake, 571 F.3d 331, 338
(4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010). A
factual finding is clearly erroneous if this court “on the
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entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. Harvey,
532 F.3d 326, 337 (4th Cir. 2008) (internal quotation marks
omitted). When a motion to suppress has been denied by the
district court, this court construes the evidence in the light
most favorable to the government. United States v. Farrior, 535
F.3d 210, 217 (4th Cir. 2008).
An officer may stop and briefly detain a person for
investigative purposes when there is reasonable suspicion based
on articulable facts that criminal activity is afoot.
Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000); United
States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S.
1, 30 (1968). Moreover, in connection with such a seizure or
stop, if presented with a reasonable belief that the person may
be armed and presently dangerous, an officer may conduct a
protective frisk. Adams v. Williams, 407 U.S. 143, 146 (1972);
United States v. Black, 525 F.3d 359, 364 (4th Cir. 2008);
United States v. Mayo, 361 F.3d 802, 806-07 (4th Cir. 2004).
Whether there is reasonable suspicion to justify the
stop depends on the totality of the circumstances, including the
information known to the officer and any reasonable inferences
to be drawn at the time of the stop. Sokolow, 490 U.S. at 8;
Black, 525 F.3d at 364-65. Reasonable suspicion may exist even
if “each individual factor ‘alone is susceptible of innocent
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explanation.’” Black, 525 F.3d at 365 (quoting United States v.
Arvizu, 534 U.S. 266, 277 (2002)). Evasive behavior and alarmed
reaction further support reasonable suspicion of criminal
activity. United States v. Smith, 396 F.3d 579, 584 (4th Cir.
2005); United States v. Humphries, 372 F.3d 653, 657 (4th Cir.
2004); United States v. Lender, 985 F.2d 151, 154 (4th Cir.
1993).
The district court did not clearly err in determining
that the officer had reasonable suspicion that criminal activity
was afoot. It specifically made a finding of reasonable
suspicion. Based on the inconsistencies in the credit
application and photo identification provided and examining the
totality of the circumstances, it was reasonable for Officer
Sproule to believe that Jordan was attempting to engage in
forgery or a stolen identification offense. There was testimony
and argument regarding whether Sproule and the other officers
had reason to believe that Jordan was armed and dangerous, thus
permitting a pat down incident to the Terry stop. Although
Jordan was in the process of evaluating a vehicle that he was
unfamiliar with, this should not have impeded him from directing
his attention to the officer and responding to him. The car’s
radio was not audible, the passenger-side door was open, and the
employee had been escorted from the car. Officer Sproule was
standing directly outside the driver’s door and Jordan would not
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acknowledge the officers until Officer Johnson stated that
Jordan would be tased if he did not exit the vehicle. We have
affirmed district court determinations that an officer had
reason to believe that a defendant was armed and dangerous based
on the defendant’s evasive behavior. See Smith, 396 F.3d at
584; Humphries, 372 F.3d at 657; Lender, 985 F.2d at 154.
Reviewing the evidence in the light most favorable to the
Government, we conclude there was no error in denying the motion
to suppress.
Next, Jordan contends that the district court erred in
denying his request to substitute counsel. On the day trial was
scheduled to begin, Jordan made remarks to the district court
that caused it to order that Jordan undergo psychiatric testing
to determine his mental competency to stand trial. After the
evaluation was ordered, Jordan requested new counsel and stated
that he wished to file for “ineffective assistance of counsel,”
and stated that he and his counsel were not communicating. The
district court told Jordan that his attorneys were competent and
experienced and that he would need to talk with his attorneys.
The court then denied the motion. There were no further
challenges to counsel in the remainder of the proceedings.
While a criminal defendant has a right to counsel of
his own choosing, that right is “not absolute” but is limited so
as not to “deprive courts of the exercise of their inherent
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power to control the administration of justice.” United
States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). Thus, a
defendant’s right to substitute counsel after the court’s
initial appointment is restricted, and he must show good cause
as to why he should receive substitute counsel. Id. In
general, good cause exists when denying the request for
substitute counsel would deny the defendant a constitutionally
adequate defense. United States v. Johnson, 114 F.3d 435, 443
(4th Cir. 1997) (“A total lack of communication [between counsel
and the defendant] is not required. Rather[,] an examination of
whether the extent of the breakdown prevents the ability to
conduct an adequate defense is the necessary inquiry.”).
This court reviews for abuse of discretion the
district court’s ruling on a motion for substitution of counsel.
United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).
When considering the district court’s decision on a motion for
substitution, we consider three factors: “(1) the “timeliness of
[the motion]; (2) the adequacy of the court’s inquiry into [the
defendant’s] complaint about counsel; and (3) whether [the
defendant and defense counsel] experienced a total lack of
communication preventing an adequate defense.” Id.Here, Jordan’s motion was not timely, as it was made
the day trial was scheduled to begin. With respect to the
second factor, the district court’s inquiry could have been more
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complete. However, viewing the evidence in the record, there
was not an evident and significant breakdown in communication
between Jordan and his attorneys. There simply was no evidence
of a total lack of communication between Jordan and his
attorneys such that counsels’ ability to adequately defend
Jordan was imperiled. This conclusion is bolstered by the
context in which Jordan made the request. He requested
substitute counsel after he made statements that led the court
to order a mental competency examination. On balance,
therefore, we conclude that the three factors weighed against
granting the motion for substitute counsel and that the district
court did not abuse its discretion in denying Jordan’s motion.
We therefore affirm the judgment. 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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