                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1428
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                Marquis Leval Cotton

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                           Submitted: November 12, 2014
                               Filed: April 6, 2015
                                  ____________

Before MURPHY, MELLOY, and BENTON, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       As Marquis Cotton was attempting to enter an apartment complex, two police
officers stopped him and searched him. They found a gun in Cotton's waistband and
arrested him for illegally possessing a firearm. Cotton filed a motion to suppress the
evidence, and the district court1 rejected it. Cotton pleaded guilty to illegally
possessing the firearm but reserved his right to appeal the suppression issue. Because
the officers conducted a constitutionally permissible seizure, the district court
correctly denied Cotton's motion to suppress. We affirm.

                                        I.

       On April 30, 2012, Minneapolis Police Officers Kocher and Suchta were
patrolling an area around an apartment complex in north Minneapolis. This was a
department-approved, off-duty assignment. Both officers, however, were wearing
police uniforms.2 Officer Suchta is an experienced police officer who has patrolled
the north Minneapolis area for over eight years. He described the location around the
complex as a very violent area that is "plagued with narcotic activity, robberies, [and]
shootings." Around 11 a.m., the officers saw an individual throw a set of keys off a
third floor balcony to two men, Cotton and an unidentified male, waiting on the
ground below.

       The property manager previously had instructed residents of the complex not
to throw their keys off their balconies to people waiting below. And in mid-April, the
property manager sent residents a letter stating "under no circumstances" should
residents throw their keys to someone waiting below. The company imposed the
restriction because throwing keys to individuals outside of the building compromised
the security of the building. Officer Suchta was aware of this security provision when
he saw the individual throw the keys from the balcony.



      1
         The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      2
        The management company of the apartment complex paid the police officers
to patrol the area surrounding the apartment complex. There is no dispute, however,
that the police officers acted as state actors for purposes of the Fourth Amendment.

                                         -2-
      Immediately after the keys hit the ground, Officer Kocher yelled to Cotton and
the unidentified male that they were not allowed to take the keys. The unidentified
male ignored the command, grabbed the keys, and walked quickly towards a back
door of the complex. As the unidentified male was unlocking the door, Officer Suchta
yelled "stop." The unidentified male did not stop. He finished unlocking the door,
entered the complex, and pulled the door shut.

       Cotton did not move during this interaction. Once the unidentified male was
inside the building, Officer Suchta walked quickly towards Cotton, who had a nervous
look on his face. According to Officer Suchta, Cotton then reached for his waistband.
Because Officer Suchta believed Cotton was reaching for a weapon, he grabbed
Cotton's arms and handcuffed him. Officer Kocher performed a pat-down and felt a
pistol in Cotton's waistband. Cotton was charged with being a felon in possession of
a firearm.

      Cotton filed a motion to suppress the evidence of the gun, arguing that the stop
was not supported by probable cause or reasonable suspicion. A magistrate judge
issued a report and recommendation (R&R), recommending that the district court
deny Cotton's motion to suppress. The magistrate judge concluded that Cotton was
subject to a Terry stop3 when Officer Suchta yelled, "stop," but the Terry stop was
supported by reasonable suspicion. The magistrate judge considered the totality of the
circumstances and concluded:

      (1) Defendant's presence in a high-crime area, (2) the throwing of keys
      from the third floor to persons outside the building contrary to the
      property owner's rules, and (3) the unidentified male companion picking
      up the keys, going quickly to the building, ignoring Officer Suchta's
      order to stop, opening the door with the keys, and pulling the door shut,
      there [were] sufficient facts to generate reasonable suspicion.


      3
          Terry v. Ohio, 392 U.S. 1 (1968).

                                         -3-
In addition, the magistrate judge found that the officers conducted a permissible Terry
frisk of Cotton after Cotton reached for his waistband.

      After both parties filed objections to the R&R, the district court agreed with the
magistrate judge's conclusion that the Terry stop was supported by reasonable
suspicion.4 In addition, the district court agreed with the magistrate judge that Officer
Suchta feared for his safety and suspected Cotton of being armed and dangerous when
Cotton moved for his waistband. Therefore, the district court concluded that the
evidence obtained from the Terry frisk was admissible.

       Cotton filed a motion to reconsider, arguing the district court erred when it
denied the motion to suppress and characterized the unidentified male and Cotton as
"companions." The district court denied the motion, finding that the record supported
the conclusion that Cotton and the other individual were in close proximity to one
another outside the rear door of the apartment building and were both awaiting the
resident's keys. The district court also concluded that although Officer Suchta
directed the unidentified male to stop, it is reasonable to assume Cotton thought the
command applied to him as well because he did not move.

      Cotton pleaded guilty to illegally possessing a firearm. He reserved his right
to appeal the denial of his motion to suppress, and he timely filed this appeal.




      4
        The R&R based its reasoning in part on the unidentified male's action after
Officer Suchta yelled stop. Because the seizure occurred at the moment Officer
Suchta yelled, "stop," however, the district court specifically did not consider the
unidentified male's actions after Officer Suchta yelled, "stop."

                                          -4-
                                        II.

      Cotton argues the officers lacked reasonable suspicion to justify the stop and
eventual frisk. He also contends the district court erred by denying the motion to
reconsider.

      The Government argues the initial stop did not implicate the Fourth
Amendment at all, and even if the initial stop implicated the Fourth Amendment, it
was supported by reasonable suspicion. The Government also asserts the district court
committed no error in denying the motion to reconsider.

             A. The Initial Stop and Subsequent Search

      This Court reviews the facts supporting a district court's denial of a motion to
suppress for clear error and reviews its legal conclusions de novo. United States v.
Clark, 409 F.3d 1039, 1044 (8th Cir. 2005).

                    i. The Terry stop was supported by reasonable suspicion

       Assuming, without deciding, that Cotton was subject to a Terry stop, we agree
with the district court that the officers had reasonable suspicion to support a Terry
stop. "The principal components of a determination of reasonable suspicion . . . will
be the events which occurred leading up to the stop or search, and then the decision
whether these . . . facts, viewed from the standpoint of an objectively reasonable
police officer, amount to reasonable suspicion." Ornelas v. United States, 517 U.S.
690, 696 (1996). Cotton's presence in an area known for violence and drugs; the
unidentified male's failure to comply with the command to not pick up the keys; that
man's evasive flight after grabbing the keys (but before Officer Suchta yelled stop);
Cotton's location in relation to the other man and the keys; and the violation of the
apartment's rules, together, provided reasonable suspicion to justify the Terry stop of
Cotton. See United States v. Barker, 437 F.3d 787, 790 (8th Cir. 2006) (finding that


                                         -5-
a series of innocent actions, when viewed together, can lead an officer to formulate
reasonable suspicion).

        Cotton argues that the unidentified male was not his companion. The relevant
inquiry is not whether Cotton and the unidentified male were actually companions;
rather, it is whether they appeared to be companions from the perspective of a
reasonable officer based on the totality of the circumstances. Further, assuming it was
a mistake for the officers to assume Cotton and the unidentified individual were
companions, an officer's reasonable mistake can still give rise to reasonable suspicion.
United States v. Johnson, 326 F.3d 1018, 1022 (8th Cir. 2003) (finding that a
reasonable but mistaken belief may justify an investigative stop). Cotton and the
unidentified male appeared to be the recipients of the thrown keys based on their
location below the balcony. While all of the events leading up to the Terry stop could
have an innocuous explanation, the Supreme Court has specifically stated "[e]ven in
Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent
explanation." Illinois v. Wardlow, 528 U.S. 119, 125 (2000). "Terry accepts the risk
that officers may stop innocent people." Id. at 126. Even though Cotton remained
still and complied with the direction not to take the keys, the evasive behavior of his
apparent companion, when viewed in combination with the apartment's security policy
and its location in a violent area, rose to the level of reasonable suspicion that criminal
activity was afoot. Therefore, the Terry stop was justified.

                    ii. The Terry frisk was supported by reasonable suspicion

      Cotton next asserts that the officers did not have reasonable suspicion to detain
him for a Terry frisk. After Officer Suchta yelled "stop," he walked quickly towards
Cotton, who had a nervous look on his face. Officer Suchta testified that as he
approached "[Cotton] made a motion with his hands to his front waistband." Officer
Suchta's first thought was "[Cotton] is reaching for a weapon." Only then did Officer
Suchta grab Cotton's arms and handcuff him.


                                           -6-
       "A protective frisk is only warranted if specific articulable facts taken together
with rational inferences support the reasonable suspicion that a party was potentially
armed and dangerous." United States v. Ellis, 501 F.3d 958, 961 (8th Cir. 2007)
(internal quotation marks omitted). Based on the events leading up to the Terry frisk,
including Cotton's actions as Officer Suchta approached, we find the officers had
reasonable suspicion that criminal activity was afoot and that Cotton was potentially
armed and dangerous. See United States v. Davis, 202 F.3d 1060, 1063 (8th Cir.
2000) (upholding a protective frisk based, in part, on the defendant's nervous
movements and adjustment of his jacket in a high-crime area). This encounter
occurred in a violent area, Cotton reached for his waistband as the officers were
approaching, and he had a nervous look on his face.5 Because the officers had
reasonable suspicion that Cotton was armed and dangerous, it was proper for the
officers to detain Cotton for a limited period of time to conduct the Terry frisk.
Therefore, the Terry frisk was justified.

             B. Motion to Reconsider

       In the district court, Cotton filed a motion to reconsider the district court's
denial of his motion to suppress the evidence. Specifically, Cotton argued the district
court erred when it characterized the unidentified male and Cotton as companions. On
appeal, Cotton asserts that because the "district court adopted a different and new
analysis, one that relied on the unfounded determination that the two men were
companions," he did not have a chance to address the companion characterization
discussed in the order adopting the R&R.

       Cotton's argument is unpersuasive. He had the opportunity to object, and in
any event, there was no error in the characterization. The magistrate judge stated
in the R&R:


      5
      A suspect's nervousness is considered in the totality of circumstances analysis.
See United States v. Beck, 140 F.3d 1129, 1139 (8th Cir. 1998).

                                          -7-
      But, under the totality of the circumstances of this case, (1) Defendant's
      presence in a high-crime area, (2) the throwing of keys from the third
      floor to persons outside the building contrary to the property owner's
      rules, and (3) the unidentified male companion picking up the keys,
      going quickly to the building, ignoring Officer Suchta's command to
      stop, opening the door with the keys, and pulling the door shut, there are
      sufficient facts to generate reasonable suspicion.

(emphasis added). This passage explicitly refers to the unidentified male as Cotton's
companion. Characterization of the relationship between the two men did not differ
between the R&R and the district court's order adopting the R&R. Cotton, therefore,
could have objected before the district court adopted the R&R. Furthermore, because
Cotton and the unidentified male were standing in the vicinity of each other and
awaiting keys to enter the apartment, the record supports the conclusion that a
reasonable officer could have viewed Cotton and the unidentified male as
companions.

      Cotton has made no showing to warrant reconsideration by the district court.
As a result, the district court did not err by denying the motion to reconsider.

                                       III.

      The judgment of the district court is affirmed.
                     ______________________________




                                        -8-
