United States v. Howard ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2009
No. 08-40644
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRIAN ONEAL HOWARD,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:06-CR-148-1
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Brian Oneal Howard appeals his conviction for possession with the intent
to distribute between 5 and 50 grams of crack cocaine. He argues that the
district court erred in denying his motion to suppress the evidence because the
investigatory stop was not justified by reasonable suspicion that criminal
activity was afoot, as required by Terry v. Ohio, 392 U.S. 1 (1968). Howard also
contends that his consent to search the vehicle was not valid because it was
tainted by the illegal detention.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-40644
We review the district court’s factual findings for clear error and the
legality of the investigatory stop de novo. See United States v. Outlaw, 319 F.3d
701, 704 (5th Cir. 2003); United States v. Vasquez, 298 F.3d 354, 356 (5th Cir.
2002). Police officers are permitted to stop and briefly detain individuals “if they
have reasonable suspicion that criminal activity is afoot.” Goodson v. City of
Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). Reasonable suspicion must
be based on “‘specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant [the] intrusion.’” United States
v. Webster, 162 F.3d 308, 332 (5th Cir. 1998) (quoting Terry, 392 U.S. at 21).
Based on the totality of the circumstances, we find that the officer’s
suspicion that criminal activity was afoot was reasonable. See United States v.
Grant, 349 F.3d 192, 197 (5th Cir. 2003). In the early morning hours when all
nearby businesses were closed, Detective Ainsworth observed Howard driving
slowly in circuitous routes near a closed theater that had recently been
burglarized. Howard appeared as though he was attempting to evade Detective
Ainsworth and committed traffic violations in his efforts. Additionally, the
events occurred in a narcotics trafficking area. These facts objectively provided
reasonable suspicion for the stop. See Illinois v. Wardlaw, 528 U.S. 119, 124
(2000); Goodson, 202 F.3d at 736.
Because the investigatory stop was constitutional, it is unnecessary to
address Howard’s challenge to the validity of the consent. His argument is
based solely on the alleged unconstitutionality of the detention. Accordingly, the
judgment of the district court is AFFIRMED.
2