United States v. Decarlos George

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DECARLOS GEORGE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00035-BO-1)
Argued: September 20, 2013 Decided: October 16, 2013
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Agee and Senior Judge Hamilton joined.
ARGUED: James Anthony Martin, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, North Carolina, for Appellant. Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P.
McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:
After Wilmington, North Carolina Police Officer Daniel
Roehrig stopped a vehicle in a high-crime area of Wilmington at
3:30 a.m. for giving chase to another vehicle and running a red
light, he observed suspicious conduct of Decarlos George, one of
the passengers, and asked George to exit the vehicle. Upon
frisking George, Officer Roehrig discovered a handgun and
arrested him. During George’s prosecution for possession of a
handgun by a felon, in violation of 18 U.S.C. § 922(g)(1),
George filed a motion to suppress evidence of the handgun, based
on his claim that the frisk violated his Fourth Amendment
rights. The district court denied George’s motion, and George
pleaded guilty to the charge.
Because the objective facts of record support the
reasonableness of Officer Roehrig’s suspicion that George was
armed and dangerous and thus his authority to conduct a frisk,
we affirm.
I
At 3:30 a.m. on Sunday, November 27, 2011, Officer Roehrig,
while patrolling Wilmington District Two, which he characterized
as “one of the highest crime areas in the city,” observed a
dark-colored station wagon closely and aggressively following
another vehicle -- within a car’s length -- as if in a chase.
2
As the two vehicles made a right turn, they ran a red light at
the “fairly high rate of speed” of approximately 20 to 25 miles
per hour such that their tires screeched. As Officer Roehrig
pulled behind the vehicles following the turn, the station
wagon, which had accelerated to approximately 45 miles per hour,
slowed to 25 miles per hour and broke off the chase, making a
left turn. Officer Roehrig followed the station wagon as it
made three more successive left turns, which Officer Roehrig
interpreted as an effort by the driver to determine whether he
was following the vehicle. When Officer Roehrig decided to stop
the vehicle for its aggressive driving and red light violation,
he called for backup, which was answered by K9 Officer Poelling.
With Officer Poelling nearby, Officer Roehrig then effected the
stop in a parking lot.
As Officer Roehrig approached the vehicle, he observed four
males in it, including Decarlos George, who was sitting behind
the driver’s seat. George was holding up his I.D. card with his
left hand, while turning his head away from the officer. His
right hand was on the seat next to his leg and was concealed
from view by his thigh. Roehrig instructed George to place both
of his hands on the headrest of the driver’s seat in front of
him, but George placed only his left hand on the headrest. This
caused Officer Roehrig concern, as he “didn’t know what [George]
had in his right hand, [but it] could easily have been a
3
weapon.” Officer Roehrig directed George again to place both
hands on the headrest. As Officer Roehrig testified, “I had to
give [George] several more requests to move his hand. Probably
I asked four or five times. It was actually getting to the
point that I was getting worried about what he had in his right
hand.” George ultimately complied, but he still never made eye
contact with Officer Roehrig.
Once Officer Roehrig observed that George did not have a
weapon in his right hand, he proceeded to speak with Weldon
Moore, the driver of the vehicle. Moore denied running the red
light and claimed he was not chasing anyone. When Officer
Roehrig informed Moore that he had observed Moore chasing the
other vehicle and going through a red light, Moore adjusted his
story, now saying that his girlfriend was in the front vehicle
and that he was following her home. Roehrig found this story
inconsistent with Moore’s aggressive chase of the other vehicle
and the abandonment of that chase when the police were spotted.
He found Moore’s driving to be more consistent with hostile
criminal activity, and he questioned the passengers in the car
about recent gang violence.
Officer Roehrig then consulted with Officer Poelling, and
the two decided to remove all four passengers from the car and
interview them separately. Because the officers were
outnumbered, they called for more backup. When backup officers
4
arrived, Officer Poelling removed the right rear passenger of
the vehicle and conducted a protective frisk. Officer Roehrig
then directed George to step out of the vehicle. As George was
doing so, he dropped his wallet and cell phone onto the ground.
As George bent over to pick the items up, Officer Roehrig
stopped him by holding onto George’s shirt, fearing that letting
George bend over to the ground would create an increased risk of
escape. Officer Roehrig turned George around, had him place his
hands on the car, and conducted a protective frisk. During the
pat down, Roehrig felt an object in George’s right front pocket
that he “immediately recognized as a handgun.” After announcing
the presence of the gun to the other officers, Roehrig pressed
George against the car and placed him in handcuffs, as a second
officer removed the handgun from George’s pocket.
After the gun was seized, Officer Roehrig secured George in
the back of his patrol car and issued Moore a written warning
for failing to stop at a red light. Upon checking George’s
criminal history, Officer Roehrig discovered that George was a
convicted felon and that the serial number on the gun indicated
that it had been stolen. George was charged and pleaded guilty
to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1).
Before pleading guilty, George filed a motion to suppress
the evidence of the gun on the ground that it resulted from an
5
unlawful frisk, in violation of his Fourth Amendment right to be
free from unreasonable searches and seizures.
At the suppression hearing, George claimed that Moore was
dropping him off at his home and that they had circled around
the block because they had driven past George’s house on the
first pass. George also contended that he had made direct eye
contact with Officer Roehrig during the stop and that he had put
both hands on the headrest following Officer Roehrig’s first
request for him to do so. George also gave an explanation as to
how he obtained the firearm, stating that he had found it on the
sidewalk when walking home from work. According to George, he
accidentally dropped his cell phone, activating the phone’s
light, which illuminated the gun as it was lying on the
sidewalk. George claimed that he picked the gun up “to get it
off the street.”
The district court, in denying George’s motion to suppress,
found George’s testimony inconsistent and implausible and
instead credited Officer Roehrig’s testimony on George’s
demeanor and actions. George then entered a conditional guilty
plea, reserving the right to appeal the denial of his
suppression motion. The district court sentenced George to time
served, which amounted to a little over one year.
George filed this appeal, challenging only the district
court’s denial of his motion to suppress.
6
II
George acknowledges that Officer Roehrig had the right to
stop the vehicle in which he was a passenger “[w]hen the driver
ran the red light.” He argues, however, that “[n]o objective
facts supporting reasonable suspicion that Mr. George was armed
or dangerous arose during the stop.” Stated otherwise, he
maintains that the facts of record, as found by the district
court, failed to provide Officer Roehrig with a legal basis to
frisk him and that the government and the court merely “cobbled
together a set of factual circumstances that fell far short of
supporting reasonable suspicion in this case.”
The facts of record show that Officer Roehrig legally
stopped Weldon Moore’s vehicle for running a red light, see
Whren v. United States, 517 U.S. 806, 810 (1996), and, after the
stop, legally ordered the passengers from the vehicle, see
Maryland v. Wilson, 519 U.S. 408, 415 (1997). The issue in this
case centers on whether, after asking George to exit the
vehicle, the facts as found by the district court show that
Officer Roehrig had a sufficient basis to frisk him. This is a
legal question that we review de novo. See United States v.
Black, 525 F.3d 359, 364 (4th Cir. 2008).
To conduct a lawful frisk of a passenger during a traffic
stop, “the police must harbor reasonable suspicion that the
person subjected to the frisk is armed and dangerous.” Arizona
7
v. Johnson, 555 U.S. 323, 327 (2009). “The officer need not be
absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger.” Terry v. Ohio, 392 U.S. 1, 27 (1968). The reasonable
suspicion standard is an objective one, and the officer’s
subjective state of mind is not considered. United States v.
Powell, 666 F.3d 180, 186 (4th Cir. 2011).
In determining whether such reasonable suspicion exists, we
examine the “totality of the circumstances” to determine if the
officer had a “particularized and objective basis” for believing
that the detained suspect might be armed and dangerous. United
States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981) (internal quotation
marks omitted)); see also United States v. Hernandez-Mendez, 626
F.3d 203, 211 (4th Cir. 2010) (“[C]ourts have relied on a
standard of objective reasonableness for assessing whether a
frisk is justified”); United States v. Mayo, 361 F.3d 802, 808
(4th Cir. 2004) (evaluating a frisk by the totality of the
circumstances).
A host of factors can contribute to a basis for reasonable
suspicion, including the context of the stop, the crime rate in
the area, and the nervous or evasive behavior of the suspect.
See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). A suspect’s
8
suspicious movements can also be taken to suggest that the
suspect may have a weapon. See, e.g., United States v. Raymond,
152 F.3d 309, 312 (4th Cir. 1998). And multiple factors may be
taken together to create a reasonable suspicion even where each
factor, taken alone, would be insufficient. See United States
v. Branch, 537 F.3d 328, 339 (4th Cir. 2008). Thus, we will not
find reasonable suspicion lacking “based merely on a ‘piecemeal
refutation of each individual’ fact and inference.” Id. at 337(quoting United States v. Whitehead, 849 F.2d 849, 858 (4th Cir.
1988)).
In this case, we conclude from the totality of the
circumstances that Officer Roehrig’s frisk of George was
supported by objective and particularized facts sufficient to
give rise to a reasonable suspicion that George was armed and
dangerous.
First, the stop occurred late at night (at 3:30 a.m.) in a
high-crime area. Officer Roehrig testified that he had
patrolled the area of the stop for his five-and-a-half year
tenure with the Wilmington Police Department and that, based on
his experience, it had one of the highest crime rates in the
city and was characterized by violence and narcotics. While
George argues that such conclusory testimony given by an officer
should not be given much weight, as the government could have
employed crime statistics to make the point, George himself
9
acknowledged in testimony that it was a “drug-related area.”
And although general evidence that a stop occurred in a high-
crime area, standing alone, may not be sufficiently
particularized to give rise to reasonable suspicion, it can be a
contributing factor. See Wardlow, 528 U.S. at 124; United
States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1996).
Likewise, that the stop occurred late at night may alert a
reasonable officer to the possibility of danger. See United
States v. Foster, 634 F.3d 243, 247 (4th Cir. 2011) (noting that
the encounter occurred “in the middle of the day” in explaining
why the officer lacked reasonable suspicion); United States v.
Clarkson, 551 F.3d 1196, 1202 (10th Cir. 2009) (“[T]ime of night
[is] a factor in determining the existence of reasonable
suspicion”).
Second, the circumstances of the stop suggested that the
vehicle’s occupants might well be dangerous. Officer Roehrig
observed the vehicle aggressively chasing the vehicle in front
of it, following by less than one car length. He also observed
the two vehicles turn right through a red light at 20 to 25
miles per hour, which was a speed sufficient to cause the
vehicles’ tires to screech. But when Officer Roehrig began to
follow the vehicles, the rear vehicle slowed down and ended its
pursuit of the vehicle in front of it. Officer Roehrig
concluded that the chase was consistent with the individuals in
10
the rear vehicle “engag[ing] in some type of crime against the
people in the first vehicle,” as it indicated hostility between
the two vehicles. This suspicion, which we conclude was
objectively reasonable in the circumstances, was reinforced when
the second vehicle disengaged from its pursuit of the first
vehicle upon seeing law enforcement.
Third, the vehicle that Officer Roehrig stopped was
occupied by four males, increasing the risk of making a traffic
stop at 3:30 a.m. in a high-crime area. “[The] danger from a
traffic stop is likely to be greater when there are passengers
in addition to the driver in the stopped car.” Wilson, 519 U.S.
at 414.
Fourth, George acted nervously when Officer Roehrig
approached the vehicle. Without request, George held up his
I.D. card while at the same time pointing his head away from
Officer Roehrig. Moreover, even after Officer Roehrig gave
George a direct order to put his hands on the headrest in front
of him, George failed to comply and continued not to make eye
contact with Officer Roehrig. Such conduct can contribute to
reasonable suspicion. See Wardlow, 528 U.S. at 124; Branch, 537
F.3d at 338; Mayo, 361 F.3d at 808. To be sure, while the
failure of a suspect to make eye contact, standing alone, is an
ambiguous indicator, see United States v. Massenburg, 654 F.3d
11480, 489 (4th Cir. 2011), the evidence may still contribute to a
finding of reasonable suspicion.
Fifth, the driver of the vehicle made arguably misleading
statements and presented Officer Roehrig with an implausible
explanation for his aggressive driving. He initially claimed
that he did not run the red light and that he was not chasing
anyone. After Officer Roehrig confronted him with the fact that
he had personally observed the chase and the red light
violation, the driver stated that he had been following his
girlfriend. But even that explanation was inconsistent with the
driver’s conduct in breaking off the chase. If the driver’s
girlfriend had been in the front car, it would not have been
logical for the vehicles to suddenly part ways when a marked
police car showed up. Such implausible and misleading
statements contribute to the establishment of reasonable
suspicion. See Powell, 666 F.3d at 188-89.
Sixth and most importantly, George’s movements indicated
that he may have been carrying a weapon. When Officer Roehrig
initially approached the stopped vehicle, George’s right hand
was on the seat next to his right leg and was concealed by his
thigh. When Officer Roehrig ordered George to put his hands on
the headrest, George placed his left hand on the headrest, but
not his right hand, which he kept next to his thigh. Officer
Roehrig had to repeat his order four or five times: “It
12
was . . . getting to the point that I was getting worried about
what he had in his right hand.” As Roehrig explained, he
“didn’t know what [George] had in his right hand, [but it] could
easily have been a weapon.” Although Officer Roehrig’s
subjective impressions are not dispositive, we conclude that his
concern in this instance was objectively reasonable.
Seventh and finally, after Officer Roehrig ordered George
to step out of the vehicle, George dropped his wallet and his
cell phone onto the ground as he got out of the car. When
George bent over to pick the items up, Officer Roehrig stopped
him. George’s actions could have created an opportunity for him
to reach for a weapon or to escape. Officers in such
circumstances are not required to “take unnecessary risks in the
performance of their duties.” Terry, 392 U.S. at 23.
Taking these facts together in their totality, we are
satisfied that Officer Roehrig had a “particularized and
objective basis” for believing that George might be armed and
dangerous. See Arvizu, 534 U.S. at 273. As such, he had a
right to frisk George for weapons to protect himself and his
fellow officers during the lawful stop. Adams v. Williams, 407
U.S. 143, 146 (1972).
George relies particularly on our decision in Powell to
argue that the facts here were insufficient to justify the
frisk. In Powell, the officers conducted a routine traffic stop
13
for a burned out headlight, 666 F.3d at 183, which was not in a
high-crime area, id. at 187. The stop began amicably, and the
officer told Powell he was free to leave if he wanted. Id.During the stop, however, the officer was alerted to the fact
that Powell had “priors” for armed robbery, and, with that
information, the officer frisked Powell. Id. at 184. We held
that those circumstances did not give rise to a reasonable
suspicion that Powell was armed and dangerous. Id. at 189. The
facts in Powell, however, are readily distinguishable from those
presented here. In this case, the stop occurred at 3:30 in the
morning in a high-crime area; the driver of the vehicle could
not explain his aggressive driving to the satisfaction of the
officers; George was palpably nervous; George failed to obey the
officer’s orders, maintaining his hand on his right thigh as if
to protect a weapon; and George exited the vehicle in a manner
that created a threat to the officers. We conclude that Powell
provides George with scant support for his argument and that the
officer’s actions here were supported by a reasonable suspicion
that George was armed and dangerous.
Accordingly, we affirm the district court’s order denying
George’s motion to suppress and the judgment of the court.
AFFIRMED
14