United States v. Tremaine Stewart

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11166 ELEVENTH CIRCUIT
NOVEMBER 5, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00164-CR-1-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREMAINE STEWART,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 5, 2009)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
On December 9, 2008, Tremaine Stewart entered a conditional plea of
guilty1 to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(e)(1), and thus preserved his right to challenge on appeal the
district court’s denial of his motion to suppress statements he made to the police
prior to his arrest. Following the court’s imposition of sentence, he took this
appeal, claiming error in the district court’s ruling.
The district court referred Stewart’s motion to suppress to a magistrate
judge, who held an evidentiary hearing and recommended that the court deny the
motion. We recite the facts found by the magistrate judge since they accurately
reflect the circumstances surrounding the statements Stewart says should have been
suppressed.
On February 15, 2006, at approximately 6:15 p.m., Atlanta
Police Department officers Brandon Hamberger, Valle and Thongkoth
were on patrol in a marked police vehicle in the area near 1247
Simpson Road in Atlanta, . . . a high crime area. Officer Hamberger
was driving, Officer Valle was in the passenger seat, and Officer
Thongkoth was in the back seat. . . . [I]t was dark but there was a lot
of light from street lights. While driving, Officer Hamberger
observed [Stewart] running across the street. [Stewart] was not
engaged in any type of criminal activity. [He] was wearing a
dark-colored winter jacket that hung just below his waist. The jacket
was unzipped, with slotted pockets, and the right side of the jacket
hung approximately six inches lower than the left side of the jacket.
Officer Hamberger observed a bulge in [Stewart’s] right coat pocket
and it appeared to Officer Hamberger that something heavy was in
that pocket. As [Stewart] was running across the street, Officer
Hamberger observed him grab his right pocket and hold it against his
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Stewart entered the plea pursuant to pursuant to Fed. R. Crim. P. 11(a)(2),
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body to keep it from bouncing, while his left arm continued to move.
Officer Hamberger believed that the bulge and [Stewart’s]
movements were consistent with someone carrying a firearm. When
[Stewart] reached the other side of the street, Officer Hamberger
noticed him look at the officers’ patrol car and look away at least four
times. Officer Hamburger believed that [his] behavior indicated that
[he] was nervous about something. He suspected that [Stewart] was
carrying a concealed weapon. Officer Hamburger made a U-turn and
parked his patrol car in the opposite direction alongside the sidewalk
where . . . Stewart was walking. All three uniformed, armed officers
exited their patrol car. Officer Hamberger walked directly up to . . . .
Stewart. The other two officers stood guard on either side of the patrol
car. None of the officers had their weapons drawn. Officer
Hamberger did not block [his] path. [Stewart] made no attempt to run.
Officer Hamberger asked [him] whether he had a gun. [He] said,
“Yes, I’m dirty.” [He] told Officer Hamberger that he had found the
weapon on the ground. Officer Hamberger asked [him] if he had a
permit for the weapon. [He] said, “No.” Officer Hamberger then
placed [him] under arrest, and retrieved a .25 caliber pistol from the
[Stewart’s] right coat pocket. None of the officers frisked [Stewart]
before Officer Hamberger asked him if he was carrying a weapon.
Officer Hamberger did not tell [him] that he did not have to answer
his questions or that he was free to leave.
At the conclusion of the evidentiary hearing, Stewart argued that his
statements to Officer Hamberger—that he was “dirty” and did not have a permit
for the gun—should be suppressed because he made them after Hamberger seized
him without reasonable suspicion to believe that he was engaged in criminal
activity. The magistrate judge, and the district court in adopting her
recommendation, concluded that reasonable suspicion was present, and therefore
rejected Stewart’s argument. Stewart now asks us to hold that reasonable
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suspicion was lacking.
The Fourth Amendment protects individuals from unreasonable searches and
seizures. U.S. Const. Amend. IV. The Amendment, however, does not protect a
person from being approached by a police officer “in appropriate circumstances
and in an appropriate manner . . . for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest,” Terry v. Ohio,
392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). A police officer may
stop and seize a person for a brief, investigatory Terry stop where (1) the officer
has a reasonable suspicion that the person was involved in, or is about to be
involved in, criminal activity, and (2) the stop “was reasonably related in scope to
the circumstances which justified the interference in the first place.” Id. at 20, 88
S.Ct 1879; United States v. Acosta, 363 F.3d 1141, 1144-45 (11th Cir. 2004). A
person’s presence in a high-crime area, standing alone, is insufficient to establish
reasonable suspicion, but such presence, coupled with other behavior, can provide
an officer with reasonable suspicion. Lopez-Garcia, 565 F.3d at 1314.
Here, the magistrate judge had ample evidence before her on which to find
that the police had reasonable suspicion to believe that Stewart was unlawfully
carrying a gun or was otherwise about to engage in criminal activity. Hence, the
district court did not err in denying his motion to suppress.
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AFFIRMED.
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