US v. Raymond Brown, No. 14-4009 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4009 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RAYMOND FRANK BROWN, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:13-cr-00154-RWT-1) Submitted: June 27, 2014 Before MOTZ and Circuit Judge. DUNCAN, Decided: Circuit Judges, and July 8, 2014 DAVIS, Senior Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defender, Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Nishant Kumar, PERKINS COIE LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Thomas P. Windom, Assistant United States Attorney, Gerald A. A. Collins, Special Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Raymond Frank Brown appeals from his conviction following his conditional guilty plea to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. ยง 922(g)(1) (2012). district seized court s pursuant Brown preserved the right to appeal the denial to a of his patdown motion to suppress conducted by a police evidence officer during a lawful traffic stop of a vehicle in which Brown was a passenger. On appeal, Brown argues that although the traffic stop was legal, the police officer lacked reasonable suspicion to perform the frisk of his person. For the reasons that follow, we affirm. We regarding review the motion the district to suppress court s legal conclusions de novo. court s for clear factual error, findings and the United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013), cert. denied, 134 S. Ct. 1572 (2014). we Where, as here, the motion to suppress has been denied, review the Government. evidence in the light most favorable to the United States v. Black, 707 F.3d 531, 534 (4th Cir. 2013). Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may conduct a protective frisk of a car s driver or passenger if he harbor[s] reasonable suspicion that the person subjected to the frisk is armed and dangerous. Arizona v. Johnson, 555 U.S. 2 323, 327 (2009) (internal quotation marks and citation omitted). Specifically, we have explained: 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. 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. The reasonable suspicion standard is an objective one, and the officer s subjective state of mind is not considered. 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. 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. A suspect s suspicious movements can also be taken to suggest that the suspect may have a weapon. And multiple factors may be taken together to create a reasonable suspicion even where each factor, taken alone, would be insufficient. United States v. George, 732 F.3d 296, 299-300 (4th Cir. 2013) (citations omitted). Here, under the above standards, Officer Watson, the officer who decided that both the vehicle s driver (Ferguson) and his passenger (Brown) should be frisked, had reasonable suspicion to believe the occupants of the vehicle were armed. Minutes before the traffic stop, at a nearby 7-11 convenience store, Officer Watson had observed Brown acting in what Officer 3 Watson, based on his training and experience, considered to be a suspicious manner. It was after midnight in a high crime area, and according to Officer Watson, Brown and Ferguson appeared to be loitering in the store, examining their surroundings, as if they were about to effect a robbery. When, after Officer Watson moved his patrol car into a position on the parking lot so that it could be seen from inside the store, Ferguson and Brown immediately left the store and drove away. Moreover, once the vehicle was stopped based on an expired license tag, Officer making furtive movements. Watson observed Furthermore, registration that as Watson both occupants As he approached the vehicle, Officer Ferguson, Ferguson documents, observed the handed Ferguson driver, appeared over his attempted to nervous. license block and Officer Watson s view of the interior of the vehicle by squaring up. Thereafter, visible, after both having Ferguson been and ordered Brown to made make their additional hands furtive movements in the vehicle, including one of them reaching for the glove box. Finally, one of Officer Watson s responding back-up officers testified that he smelled what he described as the [v]ery distinct and unforgettable odor of PCP emanating from the partially open window on the side of the truck where Brown was a passenger, a smell with which he was familiar both from 4 his recent police training and his involvement with at least one traffic stop involving PCP. Based upon the totality of the circumstances presented on this record, we hold that the frisk of Brown after he exited the vehicle was on a particularized and objective basis that he might be armed and therefore constitutionally sound. George, 732 F.3d at 301. Accordingly, we affirm the judgment. oral argument adequately See because presented in the the facts and materials We dispense with legal contentions are before this and court argument would not aid the decisional process. AFFIRMED 5
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