                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1161
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Glen Lamar Bailey,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 17, 2004
                                Filed: August 8, 2005
                                 ___________

Before MURPHY, McMILLIAN and BENTON, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       A jury convicted Glen Lamar Bailey of being a felon in possession of a firearm,
possessing more than five grams of cocaine base with an intent to distribute, and
possessing a firearm in furtherance of a drug trafficking crime. The district court1
sentenced him to 360 months. Bailey appeals, arguing that the district court erred in
denying his motion to suppress physical evidence and statements obtained from him
as the result of an investigatory stop conducted without reasonable suspicion. We
affirm.

      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
       On May 29, 2003, uniformed St. Louis police officers Duane Wells and
Anthony Wozniak were patrolling in a marked squad car in the Walnut Park West
neighborhood. Officer Wells, who had worked in the area for eleven years, knew it
as a high crime neighborhood due to the prevalence of drug trafficking, robbery,
burglary, and assault. Three days before Wells had investigated an attempted armed
carjacking at an area Shell station, and he knew that the two carjacking suspects,
described by the victim as black males in their early to middle twenties, remained at
large. Earlier in the month, he had arrested a woman at the same station for using
crack cocaine.

        Around 1:00 a.m. officers noticed several individuals standing in the parking
lot of an open Phillips 66 station which was located across the street from the Shell
station where the carjacking had been attempted. They noticed that a young black
male later identified as Bailey appeared to be using a pay phone under a broken light
at the lot entrance. Officer Wells knew that for some three years the phone had been
disconnected between 9:00 p.m. and 7:00 a.m., but he was unaware that regular
service had recently been restored to it. He believed that the phone Bailey was
talking into was inoperable and that he was only pretending to be having a
conversation.

       The officers pulled into the parking lot to investigate. When Officer Wells got
out of the squad car, the individuals in the lot dispersed except for Bailey who
remained at the pay phone with the receiver to his ear. As Wells approached him,
Bailey turned toward the telephone, leaning against it and concealing the left side of
his body. Wells had previously seen individuals make similar movements to conceal
contraband or weapons from officers, and he suspected Bailey was trying to hide
something from him. Wells asked Bailey what he was doing, and Bailey answered
that he was using the telephone. Wells believed Bailey was lying and merely
pretending to use it while casing the area or waiting to deal drugs. Because he feared
for his safety and that of his partner, he patted Bailey down on the side he had

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concealed from view. The officer felt an object in Bailey's waistband and asked if it
was a handgun. When Bailey admitted that it was, Wells handcuffed him, placed him
under arrest, and removed the weapon. The semiautomatic pistol was fully loaded
with a bullet in the chamber.

      Officer Wells advised Bailey of his Miranda rights and Bailey said he
understood them. When asked why he was carrying the pistol, Bailey said that he had
previously been robbed and required the gun for his own protection. Wells then
conducted a search incident to Bailey's arrest and found more than 11 grams of crack
cocaine in his left pocket, separated into 23 baggies. Bailey was informed again of
his Miranda rights before being asked why he had the cocaine. He responded that it
was to "make ends meet." The officers took him to the police station where he
declined to make a written statement.

        On July 2, 2003, a federal grand jury returned a three count indictment
charging Bailey with being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1); possessing more than five grams of cocaine base with intent to
distribute, in violation of 21 U.S.C. § 841(a); and possessing a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Before trial, Bailey
moved to suppress the physical evidence and statements obtained as a result of the
frisk, arguing that Officer Wells had acted without reasonable suspicion. The motion
was referred to a magistrate judge2 who found after an evidentiary hearing that the
officer had reasonable suspicion to pat Bailey down; he recommended that the motion
to suppress be denied. Bailey filed objections to the report and recommendation
which the district court overruled. The district court found that reasonable suspicion
had been raised by the late hour, the frequency of crime in the neighborhood, the
officer's reasonable belief that Bailey was pretending to use an inoperable phone, and


      2
       The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri.

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Bailey's apparent attempt to conceal something from the police. The district court
denied the motion and admitted the evidence at trial over Bailey's renewed objections.
On October 15, 2003, a jury found Bailey guilty of all three counts charged in the
indictment. He was sentenced to 360 months imprisonment, five years supervised
release, and a $300 special assessment.

       Bailey appeals, contending that Officer Wells lacked reasonable suspicion to
justify a protective frisk. He points out that the Phillips 66 station was well lit and
open for business despite the lateness of the hour, the phone he was using had always
been capable of placing 911 calls even when otherwise inoperable, and his turning
away from the officer to lean his left side on the pay phone could have been wholly
innocent. Wells lacked reasonable suspicion to support the frisk Bailey argues, and
the district court should not only have suppressed evidence of the gun, but also the
crack and post arrest statements which were the fruits of the unlawful search.

       The government responds that Wells had reasonable suspicion based on the
time of night, his awareness of frequent crimes in the neighborhood, poor lighting in
the area of the pay phone, similarity in Bailey's appearance and the description of the
carjackers, the officer's reasonable belief that Bailey was pretending to speak into an
inoperable phone and was lying when he claimed to be using it, and Bailey's apparent
attempt to conceal the left side of his body when a uniformed officer approached.

       When reviewing a district court's denial of a motion to suppress, we examine
findings of fact for clear error, "giving 'due weight' to the inferences of the district
court and law enforcement officials." United States v. Replogle, 301 F.3d 937, 938
(8th Cir. 2002). We review the district court's application of law to the facts de novo.
United States v. Williams, 359 F.3d 1019, 1020 (8th Cir. 2004). "We must affirm an
order denying a motion to suppress unless the decision is unsupported by substantial
evidence, is based on an erroneous view of the applicable law, or in light of the entire



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record, we are left with a firm and definite conviction that a mistake has been made."
United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir. 2003).

       "The Fourth Amendment prohibits 'unreasonable searches and seizures' by the
Government, and its protections extend to brief investigatory stops of persons...that
fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002).
Such investigatory stops, permitting only a limited search of outer clothing aimed at
discovering weapons, are not subject to the probable cause requirement of the Fourth
Amendment. Terry v. Ohio, 392 U.S. 1, 20, 30 (1968). Instead, protective frisks are
constitutionally reasonable "when a police officer 'observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and presently
dangerous.'" United States v. Gray, 213 F.3d 998, 1000 (8th Cir. 2000) (quoting
Terry, 392 U.S. at 30).

       In determining whether an investigating officer had the requisite "reasonable
suspicion" for a protective frisk, we are not guided by a "neat set of legal rules."
Ornelas v. United States, 517 U.S. 690, 695-96 (1996) (internal quotations omitted).
Rather, we must examine the "totality of the circumstances" in every case to see if the
officer conducting the search had a "particularized and objective basis for suspecting
legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002). This analysis
looks at such facts as the "time of day or night, location of the suspect parties, and the
parties' behavior when they become aware of the officer's presence." United States
v. Dawdy, 46 F.3d 1427, 1429 (8th Cir. 1995). Also relevant are those inferences and
deductions made by officers under the particular circumstances, since law
enforcement officials are "trained to cull significance from behavior that would
appear innocent to the untrained observer." United States v. Poitier, 818 F.2d 679,
683 (8th Cir. 1987). While reasonable suspicion is a "less demanding standard than
probable cause and requires a showing considerably less than preponderance of the



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evidence," Illinois v. Wardlow, 528 U.S. 119, 123 (2000), an officer may not rest on
"inchoate and unparticularized suspicion or 'hunch,'" Terry, 392 U.S. at 123.

       Considering the observations of Officer Wells "as a whole, rather than as
discrete and disconnected occurrences," Poitier, 818 F.2d at 683, we cannot say that
he lacked reasonable suspicion justifying an investigative search of Bailey. The
encounter occurred in an neighborhood marked by frequent crimes involving
firearms. This was a relevant fact to consider, especially in light of the attempted
armed carjacking at an adjacent gas station a few days before. See United States v.
Sokolow, 490 U.S. 1, 9-10 (1999); United States v. Abokhai, 829 F.2d 666, 670 (8th
Cir. 1987) (officer's observations "heightened" due to armed robbery at another area
gas station several days before). Also relevant was that the encounter occurred at
1:00 a.m. in an area of the parking lot the officer described as poorly lit.

       Reasonable and particularized suspicion arose from these and other observed
facts. Although Wells was unaware that regular service had been restored to the
phone used by Bailey, a reasonable but mistaken belief may justify an investigative
stop. See United States v. Johnson, 326 F.3d 1018, 1022 (8th Cir. 2003) (officer's
reasonable if mistaken belief that the suspect was about to commit an assault); United
States v. Ornelas-Ledesma, 16 F.3d 714, 718 (7th Cir. 1994) ("A mistaken premise
can furnish grounds for a Terry stop, if the officers do not know that it is mistaken
and are reasonable in acting upon it."). Wells suspected that Bailey was only
pretending to make a call while preparing to commit a drug or theft crime. Bailey's
reaction to his approach reasonably heightened the experienced officer's suspicion,
for he turned in a manner that suggested he was attempting to conceal contraband.
Bailey also told Wells that he was speaking on the telephone, a statement the officer
reasonably believed was untrue based on his knowledge. Bailey's apparent attempt
to conceal something provided Wells additional reason to suspect criminal activity.
See Arvizu, 524 U.S. at 275-76 ("driver's slowing down, stiffening of posture, and
failure to acknowledge a sighted law enforcement officer" relevant in determining

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reasonable suspicion); Gordon, 231 F.3d at 756 ("nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion").

       In combination these factors left Officer Wells with a reasonable and
particularized suspicion that "criminal activity may be afoot" and that Bailey " may
be armed and presently dangerous.'" Terry, 392 U.S. at 30. We conclude that Wells'
protective frisk, narrowly limited to a search of Bailey's outer clothing for weapons,
satisfied the requirements of the Fourth Amendment.

       Bailey argues that Officer Wells' mistaken belief that the pay phone was
inoperable for all but 911 calls did not justify the search. He first observes that
feigning use of an inoperable pay phone is "hardly illegal and by itself does not
justify stopping an individual." Only a mistaken belief that a suspect is engaged in
undeniably criminal behavior can justify a protective frisk contends Bailey, citing
Johnson, 326 F.3d at 1022 (investigating officer mistakenly believed the suspect was
about to assault his companion), and United States v. Shareef, 100 F.3d 1491 (10th
Cir. 1996) (officer given incorrect information that the suspect had outstanding
federal warrants and was considered armed and dangerous). Bailey's argument fails
to recognize that a combination of innocent conduct can provide officers with
reasonable suspicion of criminal activity. See Sokolow, 490 U.S. at 9 (series of
actions consistent with innocent travel amounted to reasonable suspicion). Officer
Wells' belief that Bailey was pretending to use an inoperable phone was only one in
a series of observations that led him reasonably to suspect criminal activity.

       Bailey's reliance on United States v. Burton, 228 F.3d 524 (4th Cir. 2000) is
similarly misplaced. In that case officers were in an area to serve warrants during
daylight hours when they noticed the defendant standing by a pay phone in front of
a convenience store. They asked him to identify himself even though they had no
reason to suspect criminal activity at the time. Id. at 526, 528. After the defendant
failed to respond to their requests or to remove his hand from his pocket, an officer

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reached into the defendant's coat and found a handgun. Id. at 526. The Fourth
Circuit held that the officer lacked reasonable suspicion at the time of the frisk; the
defendant's presence at the telephone and his lack of cooperation were insufficient
basis for suspicion. Id. at 529. The facts in Burton are in contrast to those here,
where the search was conducted at night in a high crime area in which there had been
an attempted armed carjacking a few nights before, where it appeared that the suspect
was pretending to use an inoperable telephone, and where the suspect turned in an
apparent attempt to conceal part of his body from the officers.

       Bailey also suggests that it was unreasonable for Officer Wells to suspect that
he was lurking to commit a crime since the officer admitted that an inoperable phone
could be used to place a 911 call. The officer could reasonably have concluded that
Bailey was not using the phone to notify authorities of an emergency, however, either
because of the amount of time he was at the phone or because he turned away from
the officer instead of welcoming his assistance. Officer Wells' suspicion of criminal
activity was not unreasonable under all of the circumstances.

       Because Officer Wells acted with reasonable suspicion in conducting the
protective frisk, the district court did not err by admitting the immediate product of
his search or its subsequent fruits. Accordingly, the judgment of the district court is
affirmed.

McMILLIAN, Circuit Judge, dissenting.

       I respectfully dissent. I believe that the facts, considered together, are not
sufficiently significant to constitute reasonable suspicion of criminal activity. The
facts are either not particularized (time of day and character of the neighborhood,
partially matching description of suspects in recent crime), not especially suspicious
(pretending to use the pay telephone) or not supported by an articulated reason for
suspicion (turning movement).

                                         -8-
       For example, even though Bailey was present in a high-crime neighborhood at
1:00 a.m., he was not alone. The gas station was open and busy. In addition, the pay
telephone Bailey was using was located close to relatively bright overhead lights
above the gas pumps, as well as the lights of the gas station convenience store.
Although the government argues that Bailey matched the general description the
Shell station carjackers, who were described as black males in their twenties,
matching that description in the predominately African-American Walnut Park West
neighborhood is not meaningful. "Too many people fit this description for it to
justify a reasonable suspicion of criminal activity." United States v. Eustaquio, 198
F.3d 1068, 1071 (8th Cir. 1999). Even if Wells reasonably believed that Bailey was
pretending to use the pay telephone, such conduct is not criminal. As to Bailey's
turning away as Wells approached, Wells did not point to any facts supporting a
conclusion that Bailey's movement was furtive or evasive or suggestive of criminal
activity.

       In my view, Wells had a hunch that Bailey was engaged in criminal activity.
However, a stop cannot be validated by "'what it turns up.'" United States v. Yousif,
308 F.3d 820, 828 (8th Cir. 2002) (quoting Wong Sun v. United States, 371 U.S. 471,
484 (1963)). An "inchoate and unparticularized suspicion or 'hunch'" is not enough
for the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 27 (1968). Thus, I dissent.

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