UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                           No. 99-4013
RAY WALLACE METTETAL, JR., a/k/a
Steven Ray Maupin,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-96-34)

Argued: December 3, 1999

Decided: May 3, 2000

Before WILKINS and MICHAEL, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Vacated by unpublished per curiam opinion. Judge Michael wrote the
opinion, in which Judge Wilkins and Judge Seymour joined.

_________________________________________________________________

COUNSEL

ARGUED: Frederick Theodore Heblich, Jr., PARKER, MCELWAIN
& JACOBS, P.C., Charlottesville, Virginia, for Appellant. Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Vir-
ginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Ray Wallace Mettetal, Jr. appeals his convictions for possession of
a toxin in violation in 18 U.S.C. § 175 and for possession of false
identification documents in violation of 18 U.S.C.§ 1028(a)(3).
Because the police lacked probable cause to arrest Mettetal and the
evidence used to convict him was the fruit of that unlawful arrest, we
vacate his convictions.

I.

Mettetal was arrested while walking along a sidewalk on the cam-
pus of Vanderbilt University on August 22, 1995. It appears that Met-
tetal's presence on the campus that day had something to do with a
man against whom he held a longstanding grudge. That man was Dr.
George Allen, Chairman of the Neurosurgery Department at the Van-
derbilt University Medical Center. Almost a dozen years earlier, Met-
tetal, who is a physician, started a residency in neurosurgery at
Vanderbilt under the direction of Dr. Allen. When Dr. Allen sug-
gested that Mettetal's progress at the end of his first year was not
quite up to par, Mettetal abruptly resigned from the program.
Although Mettetal eventually finished a residency in neurology at
Vanderbilt, he blamed Dr. Allen for denying him a career as a neuro-
surgeon. For years Mettetal kept track of Dr. Allen's whereabouts and
activities, and it could be inferred that Mettetal was making plans to
exact revenge. However, when the Vanderbilt campus police arrested
Mettetal, they knew nothing of his grudge against Dr. Allen. Instead,
what they knew about Mettetal was gleaned from a complaint and a
forty-minute encounter with him.

At around 9:50 a.m. on August 22, 1995, Christy Wilson, a medical
center employee, saw Mettetal on the second floor of the institution's
parking garage. Wilson became suspicious because Mettetal was

                    2
"looking around at cars" and was wearing a fake beard, a wig, and a
dark suit on what was a hot, 90-degree morning. Wilson called the
Vanderbilt campus police, and Sergeant James Campbell, Officer Jen-
nifer West, and several other officers responded. The officers were
advised by the dispatcher that "there was a male subject wearing a
beard and he had been going through the garage parking lot." Officer
West was instructed to go to the scene (the second floor of the
garage), and Sergeant Campbell drove around the outside of the
garage in his patrol car. As Officer West neared the garage, Sergeant
Campbell radioed, saying that he was already talking with the man on
Garland Avenue, a street that fronted the garage.

Sergeant Campbell had spotted Mettetal from his patrol car at
about 10:00 a.m. Campbell noticed that Mettetal"had a dark wig on,
a beard, and he was wearing a three piece suit" and carrying a black
nylon bag. (Another officer said that Mettetal, who is white, "had an
obvious fake Afro wig and a fake beard that looked like Abraham
Lincoln.") Sergeant Campbell stopped his car a few feet behind Met-
tetal, got out, and called for Mettetal to stop. Mettetal complied.
Campbell then instructed Mettetal to put down his bag, and asked
Mettetal "his business." Mettetal put down his bag and responded to
Campbell's question by saying that "he had a girlfriend that he was
trying to -- he [thought] she was seeing someone else and he was
watching her." After accusing Mettetal of stalking, the officer asked
him the woman's name. Mettetal replied that he would rather not give
her name.

At about this time Officer West and several other officers arrived
and positioned themselves around Mettetal. Sergeant Campbell and at
least one other officer continued to question Mettetal, who repeatedly
declined to provide any information. Mettetal did ask to speak with
a lawyer, but this request was ignored. When Campbell asked Met-
tetal for identification, Mettetal at first said he had none. Campbell
continued to press Mettetal for identification, finally saying, "sir, if
you can't produce any identification, I'm going to have to take you
down for trespassing." At that point, Mettetal gave Sergeant Campbell
"British West Indies" identification ("ID") in the name of Steven Ray
Maupin. The officers suspected that the ID was a fake. This suspicion
was based on the fact that the ID's covering had rough edges, indicat-
ing that it had been laminated quite recently. For about the next thirty

                    3
minutes the officers had their dispatcher run computer checks on the
name Steven Ray Maupin. In the meantime, Mettetal was perspiring
heavily in the hot sun, and his fake beard and moustache had begun
to peel off. Still, he was calm and polite throughout the encounter.

After the computer checks produced no information, Mettetal was
arrested for criminal trespass. Mettetal was on Vanderbilt University
property when he was first spotted and later stopped and arrested.
Vanderbilt is a private university, but its campus, including Garland
Avenue (where Mettetal was stopped), is open to the public. The area
around Garland Avenue includes many of the school's medical facili-
ties, and people who are not students or staff come and go freely
through this area of the campus. The University makes an effort to
make the public feel welcome on its campus, although there are some
perimeter signs saying that visitors are "subject to a security check."
The vehicle entrance to the garage where Mettetal was first spotted
is marked with a sign that reads, "Caution, Autos Only, No Motorcy-
cles, Bicycles or Pedestrians." The second floor of the parking garage,
where Wilson saw Mettetal, is reserved (by sign) for medical school
faculty and staff parking. Pedestrians are not barred from the garage,
however. A street entrance to the garage is marked with a large sign
that says "Pedestrian Entrance."

After Mettetal was placed under arrest, his bag and person were
searched. In the bag, the police found, among other things, sketches
and information about an automobile, fake tattoos, and a large hypo-
dermic syringe filled with a clear liquid.1 On him, they found more
identification in the name of Steven Ray Maupin. Once Mettetal was
taken into custody, he refused to answer questions or to disclose his
true identity. The next day, the Nashville police learned from the FBI
that he was Ray Wallace Mettetal, Jr., a medical doctor from Harri-
sonburg, Virginia.

On August 25, 1995, three days after Mettetal's arrest, Virginia
police obtained warrants to search his home and office. The informa-
tion used to support these warrants came directly from the circum-
stances surrounding Mettetal's arrest, the search incident to his arrest,
and discussions with his children and former wife. (The police
_________________________________________________________________
1 The liquid was later determined to be a saline solution.

                    4
learned from Mettetal's family that he hated Dr. Allen and that he
owned several high-powered firearms.) The search of Mettetal's
office produced nothing of consequence. But in Mettetal's home the
police found bogus identification documents in the name of Steven
Ray Maupin, fake hair, moustaches, makeup, a hospital uniform from
the Vanderbilt medical center, and a book on disguise techniques that
contained notes describing the home, cars, and personal history of Dr.
Allen. The Maupin identification materials had Mettetal's photo on
them.

Within a day or two of Mettetal's arrest, a story about it (and his
use of the Maupin alias) appeared in a local Virginia newspaper. An
employee at a Harrisonburg mini-storage unit facility saw the story
and reported to the police that he had rented a unit in December 1994
to someone purporting to be Steven Ray Maupin. Using the informa-
tion discovered as a result of Mettetal's arrest, including that gleaned
from the search of his home, the police obtained a warrant for the
search of the storage unit.2 The search of the unit turned up a large
jar of ricin, a deadly toxin.

Mettetal was indicted on two counts in the Western District of Vir-
ginia. Count I charged him with possession of a toxin (ricin) for use
as a weapon, in violation of 18 U.S.C. § 175; Count II charged him
with possession with intent to use unlawfully five or more false iden-
tification documents (that is, the documents found in the search of his
home or the storage unit), in violation of 18 U.S.C.§ 1028(a)(3).

Mettetal moved to suppress the evidence against him, including the
false identification found at his home (or in the storage unit) and the
ricin found in the storage unit, on the ground that it was all gathered
as the fruit of his unlawful arrest in Nashville. The district court held
a suppression hearing and considered the evidence (recounted above)
about the events leading up to Mettetal's arrest on a public street at
_________________________________________________________________
2 In each one of the three search warrant applications submitted in Vir-
ginia, the officer's affidavit placed special emphasis on the large hypo-
dermic needle found during the search incident to Mettetal's arrest in
Tennessee. The officer said, among other things, that the "syringe [could
be] a deadly weapon in the hands of a trained medical doctor such as
Mettetal."

                    5
the Vanderbilt campus. The court emphasized the following facts: that
the police received a report "to the effect that there was a suspicious
character" in the parking garage; that the man was wearing an Afro
wig and a false beard and moustache; that he refused to cooperate;
that he gave the police an identification they suspected was false; and
that he was trying to check on a female friend. From this, the district
court concluded that the Vanderbilt campus police had probable cause
to arrest Mettetal for any one of three Tennessee crimes: criminal
trespass, stalking, or violation of the Tennessee mask statute (civil
rights intimidation). Because the court concluded that the arrest was
lawful, the motion to suppress was denied.

Mettetal's main defense at trial was that he lacked criminal intent.
He contended that he did not intend to use the ricin as a weapon, nor
did he intend to use the false identification cards for unlawful pur-
poses. In support of this defense, Mettetal offered a psychiatrist as an
expert. The psychiatrist testified that Mettetal was suffering from a
mental disease -- an adjustment disorder with depressive mood.3
Mettetal was convicted on the federal charges and sentenced to ten
years in prison.

Mettetal was also indicted in Tennessee for attempted murder. The
trial court there, however, concluded that there was no probable cause
for his arrest by the Vanderbilt campus police. As a result, it sup-
pressed all evidence seized in the search incident to his arrest and fur-
ther suppressed all evidence seized as a result of the search warrants
issued in Virginia. See Tennessee v. Mettetal , No. 95-D-2507 (5th
Cir., Davidson County, Tenn. Oct. 8, 1999).

Mettetal appeals his federal convictions on several grounds. His
first argument is that the district court erred in denying his suppres-
sion motion, a ruling that was based on the court's conclusion that
Mettetal's warrantless arrest was legal.
_________________________________________________________________

3 Mettetal argues that the district court erred in not allowing his expert
to testify fully about Mettetal's symptoms or about the disorder's effects
on his behavior.

                     6
II.

We turn to the question whether the Vanderbilt campus police had
probable cause to arrest Mettetal. The facts and circumstances sur-
rounding the telephone complaint about Mettetal's presence in the
parking garage and about his stop and subsequent arrest are undis-
puted. The specific question for us is whether these undisputed facts
and circumstances gave rise, as a matter of law, to probable cause.
Our review is de novo. See Ornelas v. United States, 517 U.S. 690,
696-99 (1996).

The Supreme Court reaffirmed the classic definition of probable
cause in Brinegar v. United States, 338 U.S. 160, 175-76 (1949):

           The substance of all of the definitions of probable cause
          is a reasonable ground for belief of guilt. And this means
          less than evidence which would justify condemnation or
          conviction . . ., [but] it has come to mean more than bare
          suspicion: Probable cause exists where the facts and circum-
          stances within their [the officers'] knowledge and of which
          they had reasonably trustworthy information [are] sufficient
          in themselves to warrant a man of reasonable caution in the
          belief that an offense has been or is being committed.

(Citations and quotation marks omitted; third and fourth alterations in
original.) The Supreme Court emphasized that "[i]n dealing with
probable cause . . . as the very name implies, we deal with probabili-
ties. These are not technical; they are the factual and practical consid-
erations of everyday life on which reasonable and prudent men, not
legal technicians, act." Brinegar, 338 U.S. at 175. Any other
approach, the Court said, "would unduly hamper law enforcement."
Id. at 176.

With Brinegar's standard and its note of caution in mind, we turn
to whether the undisputed facts and circumstances known to the Van-
derbilt campus police gave them probable cause to arrest Mettetal for
criminal trespass, stalking, or violation of the Tennessee mask statute.
As we will explain, probable cause was lacking.

                     7
A.

Mettetal was arrested for criminal trespass on the Vanderbilt cam-
pus. A person commits criminal trespass in Tennessee when he enters
or remains on property (or a portion thereof), knowing that he "does
not have the owner's effective consent" to be there. Tenn. Code Ann.
§ 39-14-405(a) (1997). Knowledge that the owner's consent is lacking
"may be inferred" when there is (1) "[p]ersonal communication to the
person" that he should not enter or remain on the property, (2)
"[f]encing or other enclosure obviously designed to exclude intrud-
ers," or (3) "[p]osting reasonably likely to come to the attention of
intruders." Id. § 39-14-405(a)(1)-(3).4

Mettetal was not verbally warned or advised by anyone to stay off
_________________________________________________________________
4 The Tennessee criminal trespass statute provides:

          39-14-405. Criminal trespass.--(a) A person commits crimi-
         nal trespass who, knowing the person does not have the owner's
         effective consent to do so, enters or remains on property, or a
         portion thereof. Knowledge that the person did not have the
         owner's effective consent may be inferred where notice against
         entering or remaining is given by:

          (1) Personal communication to the person by the owner or by
         someone with apparent authority to act for the owner;

          (2) Fencing or other enclosure obviously designed to exclude
         intruders; or

          (3) Posting reasonably likely to come to the attention of
         intruders.

          (b) It is a defense to prosecution under this section that:

          (1) the property was open to the public when the person
         entered and remained;

          (2) The person's conduct did not substantially interfere with
         the owner's use of the property; and

          (3) The person immediately left the premises upon request.

          (c) For purposes of this section, "enter" means intrusion of the
         entire body.

          ....

                    8
Vanderbilt property. Nor was the campus fenced or otherwise
enclosed. The only question is whether there were adequate signs
posted to warn Mettetal that he would be a trespasser if he entered.
The facts and circumstances reveal that the campus was not posted
against trespassing. In fact, the opposite was the case: the campus was
open to the public. There were some perimeter signs warning visitors
that they were "subject to a security check." These signs, however,
did not warn potential visitors to keep out. The sidewalk where Met-
tetal was stopped and arrested is open to the public. Indeed, as one
of the officers who arrested Mettetal confirmed,"[t]he whole campus
is open to the public." Moreover, pedestrians were not barred from the
parking garage where Mettetal was first spotted. A few feet from the
vehicular entrance to the garage, which was limited to automobiles,
there was another garage entrance, marked by a large blue sign with
white lettering that said, "Pedestrian Entrance."

We recognize, as did the district court, that Mettetal looked suspi-
cious with his wig and fake beard, that he gave the police few
answers, and that the police suspected that he had given them a fake
identification. These facts and circumstances, however, did not war-
rant the police to conclude that there was reasonable ground to
believe Mettetal had committed criminal trespass. He simply had not
been notified to stay off Vanderbilt property, which by all appear-
ances was open to the public. Accordingly, there was no probable
cause to arrest him for trespass.5
_________________________________________________________________
5 The Tennessee trial court also determined that probable cause was
lacking for criminal trespass. Although we are not bound by the Tennes-
see court's determination, see United States v. Ricks, 882 F.2d 885, 889-
90 (4th Cir. 1989), we note its conclusion and reasoning:

          The Court finds no probable cause to arrest for criminal trespass.
          The Vanderbilt University campus is open to the public. A per-
          son would have no knowledge that he did not have Vanderbilt's
          consent to enter unless he was told to leave. The facts in this case
          show that incongruously the defendant was never told to leave
          but was detained. None of the conditions of exclusion set forth
          in the statute are applicable. The only expression of any limita-
          tion on the campus is the sign that says, "visitors are subject to
          a security check." This is not notice of exclusion. If a visitor was
          stopped and a security officer had some question about the per-

                    9
B.

The district court also concluded that the Vanderbilt police could
have arrested Mettetal for the crime of stalking. This conclusion was
based on Mettetal's comment to the police that he was "watching" a
girlfriend whom he thought was seeing someone else. A person com-
mits the crime of stalking in Tennessee when he"intentionally and
repeatedly follows or harasses another person in such a manner as
would cause that person to be in reasonable fear of being assaulted,
suffering bodily injury or death." Tenn. Code Ann. § 39-17-315(a)(1)
(1997). The "follow[ing] or harass[ment]" must occur on "two (2) or
more separate occasions" before it gives rise to a crime. Id. § 39-17-
315(a)(2)(C).6
_________________________________________________________________
           son's business on the campus, the security officer could then ask
           the individual to leave. Only then, if the person failed to leave,
           would there be a violation of the criminal trespass statute.

Tennessee v. Mettetal, No. 95-D-2507, mem. and order at 8-9 (5th Cir.,
Davidson County, Tenn. Oct. 8, 1999).
6 The Tennessee stalking statute provides:

          39-17-315. Stalking.--(a)(1) a person commits the offense of
         stalking who intentionally and repeatedly follows or harasses
         another person in such a manner as would cause that person to
         be in reasonable fear of being assaulted, suffering bodily injury
         or death.

          (2) As used in this subsection:

         (A) "Follows" means maintaining a visual or physical
         proximity over a period of time to a specific person in such
         a manner as would cause a reasonable person to have a fear
         of an assault, bodily injury or death;

         (B) "Harasses" means a course of conduct directed at a
         specific person which would cause a reasonable person to
         fear an assault, bodily injury, or death, including, but not
         limited to, verbal threats, written threats, vandalism, or
         unconsented-to physical contact; and

         (C) "Repeatedly" means two (2) or more separate occa-
         sions.

         ....

                   10
The police lacked probable cause to arrest Mettetal for stalking for
either of two reasons. First, there was no information that he had fol-
lowed or harassed any unfaithful girlfriend on two or more occasions.
Second, the statute requires that the following or harassment be car-
ried out "in such a manner as would cause [the victim]" to be placed
in reasonable fear of harm. Here, Mettetal simply told the police that
he was "watching" a girlfriend. He was not acting in a threatening
manner, either in the garage or on the street. His demeanor should not
have caused anyone to be in reasonable fear of assault, bodily harm,
or death at his hands. The police did not have probable cause to arrest
Mettetal for stalking.

C.

The district court finally concluded that the police could have
arrested Mettetal for violating Tennessee's civil rights intimidation
(or mask) statute. That statute is violated when a person intimidates
a victim "from exercising civil rights," specifically, through injury,
threat to injure, or coercion in an effort to discourage or prevent the
victim from exercising or enjoying rights guaranteed by either Ten-
nessee or federal law. See Tenn. Code Ann.§ 39-17-309(a), (b)(1)-(2)
(1997). It is a separate offense "to wear a mask or disguise" while
engaging in civil rights intimidation. Id.§ 39-17-309(c).7
_________________________________________________________________
7 The Tennessee civil rights intimidation statute provides:

           § 39-17-309. Civil rights intimidation.--(a) The general
          assembly finds and declares that it is the right of every person
          regardless of race, color, ancestry, religion or national origin, to
          be secure and protected from fear, intimidation, harassment and
          bodily injury caused by the activities of groups and individuals.
          It is not the intent of this section to interfere with the exercise of
          rights protected by the constitution of the United States. The
          general assembly recognizes the constitutional right of every citi-
          zen to harbor and express beliefs on any subject whatsoever and
          to associate with others who share similar beliefs. The general
          assembly further finds that the advocacy of unlawful acts by
          groups or individuals against other persons or groups for the pur-
          pose of inciting and provoking damage to property and bodily
          injury or death to persons is not constitutionally protected, poses
          a threat to public order and safety, and should be subject to crim-
          inal sanctions.

                    11
Mettetal was in a disguise of sorts because he was wearing an Afro
wig and a false beard and moustache. Still, there was no suggestion
that he was targeting any civil right or attempting to inhibit or intimi-
date -- by injury, threat of injury, or coercion-- anyone from exer-
cising his or her civil rights. In short, there were no facts or
circumstances to indicate that Mettetal was engaged in civil rights
intimidation. There was no probable cause to arrest him for that crime.8

III.

We conclude as a matter of law that the police did not have proba-
ble cause to arrest Mettetal. The evidence used to convict Mettetal in
district court -- that is, the ricin found in the storage unit and the false
identification documents and other evidence found in his home (or in
the storage unit) -- was discovered as a result of information obtained
_________________________________________________________________

           (b) A person commits the offense of intimidating others from
          exercising civil rights who:

           (1) Injures or threatens to injure or coerces another person
          with the intent to unlawfully intimidate another from the free
          exercise or enjoyment of any right or privilege secured by the
          constitution or laws of the state of Tennessee;

           (2) Injures or threatens to injure or coerces another person
          with the intent to unlawfully intimidate another because that
          other exercised any right or privilege secured by the constitution
          or laws of the United States or the constitution or laws of the
          state of Tennessee;

          ....

          (c) It is an offense for a person to wear a mask or disguise
          with the intent to violate subsection (b);

          ....

8 The Tennessee trial court summarily brushed aside the state's sugges-
tion that Mettetal could have been arrested under either the stalking or
mask statute: "Neither the explanation of the defendant that he was spy-
ing on his girlfriend nor the fact that he was wearing a false beard and
wig come close to a violation of either one of those statutes." Tennessee
v. Mettetal, No. 95-D-2507, mem. and order at 9 (5th Cir., Davidson
County, Tenn. Oct. 8, 1999).

                    12
from his unlawful arrest and the search incident to that arrest. This
evidence should have been excluded as the fruit of the unlawful
arrest. See United States v. Seidman, 156 F.3d 542, 548 (4th Cir.
1998). Mettetal's convictions are therefore vacated. 9

VACATED
_________________________________________________________________
9 This disposition makes it unnecessary for us to consider Mettetal's
other arguments.

                    13
