                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4228


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

BARRY J. WORKS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:07-cr-00050-1)


Argued:   January 30, 2009                  Decided:   July 21, 2009


Before SHEDD and AGEE, Circuit Judges, and Arthur L. ALARCÓN,
Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Agee and Senior Judge Alarcón joined.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.      Erik S.
Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.   ON BRIEF: Mary Lou Newberger, Federal
Public Defender, George H. Lancaster, Jr., Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant.     Charles T. Miller,
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

     Barry Works was charged with one count of possession of

cocaine with the intent to distribute in violation of 21 U.S.C.

§ 841(a)(1).        After entering a conditional guilty plea, Works

was sentenced to 37 months with three years supervised release.

Works now appeals the denial of his suppression motion.                                For the

following reasons, we affirm.



                                              I

     In     reviewing      the       denial       of    a    suppression         motion,      we

construe     the     facts      in    the     light         most    favorable          to    the

government.        United States v. Murphy, 552 F.3d 405, 409 (4th

Cir. 2009).        We review the district court’s factual findings for

clear error and its legal conclusions de novo.                        Id.

     In January 2006, Sergeant Combs of the Huntington, West

Virginia,    Police       Department        received         a   report        that    a    blue

Chrysler was regularly delivering drugs from out of state to

individuals at a local apartment occupied by Patrick Bryant.

Following     up     on   the    information,               Combs   went       to     Bryant’s

apartment    complex      on    the    evening         of   January      26,    2006.        The

complex contained four units: two on the first floor and two,

including Bryant’s apartment, on the second floor.

     Combs       positioned      himself          in    a    concealed      location        and

observed     a     dark-colored        Chrysler         arrive      at     the        apartment

                                              3
complex.          The Chrysler’s occupants entered the building.                          Combs

knew that Bryant was on home incarceration for a drug-related

offense and thus was subject to search at any time.                             Therefore,

Combs contacted officers with the home incarceration unit and

requested         that    they     search    Bryant’s         apartment.          The      home

incarceration unit arrived quickly and brought additional back-

up officers for assistance.                  Combs led a team of officers to

watch       the    back   door     of     Bryant’s         apartment    while     the      home

incarceration unit approached the front entrance to conduct the

search.

       Because Bryant’s apartment was on the second floor, the

officers had to ascend a narrow stairwell.                         As Combs entered the

bottom of the stairwell, he saw Works exiting Bryant’s apartment

through the back door.                  Works was carrying a plastic grocery

bag.    When Combs shouted for Works to stop, Works tried to enter

an    apartment       across      the    hall.         However,      the   door      to    that

apartment was locked.                  Combs continued to approach Works and

again   instructed         him    to     stop.       Works    then     tried    to   reenter

Bryant’s apartment.              Combs observed that Works looked nervous,

and    he    grabbed      Works     to    keep       him    from   reentering        Bryant’s

apartment.

       Works attempted to shield the plastic bag with his body and

clothes.          When Combs asked what was in the bag, Works said that

it contained flour.              Combs felt the outside of the bag to ensure

                                                 4
that it did not contain a weapon and noted that it felt “mushy”

and    not      like    flour.     Because         the    hallway     was   narrow,       Combs

passed Works down to the officers in the stairwell behind him.

Combs      resumed      watching    the      door    to    Bryant’s     apartment.          His

entire encounter with Works lasted approximately thirty seconds.

       Officer Livingston took charge of Works at the bottom of

the stairs.            Livingston noticed Works switch the bag from one

hand       to   the    other,    attempting        to    hide    it   under      his   armpit.

Livingston asked what was in the bag, and Works repeated that it

contained flour.             Livingston felt the outside of the bag and

told Works that it did not feel like flour.                            Livingston thought

there was a good chance that the bag contained contraband (i.e.

drugs).          Livingston       handed     the     bag    to    Officer        Bills    while

Livingston        frisked       Works   to    ensure       that   he    did      not     have   a

weapon.

       Bills,          who   overheard       Works’        statement        to    Livingston

regarding the contents of the bag, knew Works from two previous

drug and gun cases.              Bills was dubious of Works’ claim that the

bag contained flour.               Bills looked into the bag; based on his

training and experience, he instantly recognized (and a field

test subsequently confirmed) that the bag contained cocaine. 1



       1
       The record does not establish whether the plastic bag was
closed.   If it was not, the contents of the bag were likely
(Continued)
                                               5
After Works was arrested and advised of his Miranda rights, he

voluntarily admitted ownership of the cocaine.



                                            II

       Works    was    indicted      and    moved      to    suppress    the    cocaine,

contending that he was denied his Fourth Amendment right to be

free    from    unreasonable      searches       and    seizures.        The    district

court denied the suppression motion, holding that the officers

had reasonable suspicion to justify the stop at its inception.

See Terry v. Ohio, 392 U.S. 1, 30 (1968).                      The court also found

that the scope of the search was objectively reasonable given

the totality of the circumstances.                     On appeal, Works contends

that there was no reasonable suspicion to perform a Terry stop

and that, even if the Terry stop was permissible, Officer Bills

acted   unreasonably      by    looking      into      the   bag.       The   government

advances       three   independent         justifications       for     the    officers’

actions:       (a)   Terry;    (b)   exigent      circumstances;         and    (c)   the

“plain feel” doctrine. 2




admissible under the “plain view” doctrine. See e.g. Horton v.
California, 496 U.S. 128 (1990).
     2
       Although the district court based its decision solely on
Terry, we may nevertheless affirm on alternative grounds.   See
Covenant Media of SC, LLC v. City of North Charleston, 493 F.3d
421, 431 (4th Cir. 2007).


                                             6
                                           A.

        The Fourth Amendment guarantees the “right of . . . people

to    be    secure   in     their   persons      .     .   .   against     unreasonable

searches      and    seizures.”           The    Fourth        Amendment     “does    not

proscribe all state-initiated searches and seizures; it merely

proscribes those which are unreasonable.”                        Florida v. Jimeno,

500   U.S.    248,    250    (1991).        While      warrantless       searches     are

presumptively unreasonable, United States v. Holmes, 376 F.3d

270, 274-275 (4th Cir. 2004), one important exception allows a

police officer to conduct a brief investigatory stop where the

“officer observes unusual conduct which leads him reasonably to

conclude in light of his experience that criminal activity may

be afoot.”      Terry, 392 U.S. at 30.                Furthermore, the officer is

allowed to “take such steps as [are] reasonably necessary to

protect [his] personal safety” if he believes that the person

being      stopped   may     be   armed    and       presently    dangerous.     United

States v. Hensley, 469 U.S. 221, 235 (1985).                       The scope of the

search must be “reasonably designed to discover guns, knives,

clubs, or other hidden instruments for the assault of the police

officer.”      Terry, 392 U.S. at 29.

       To   assess    the    validity      of    a    Terry     stop   and   frisk,    we

consider the totality of the circumstances, giving due weight to

common sense judgments reached by officers in light of their

experience and training.             United States v. Perkins, 363 F.3d

                                            7
317, 321 (4th Cir. 2004).             We employ an objective standard to

determine whether “the facts available to the officer at the

moment of the seizure or the search warrant a man of reasonable

caution in the belief that the action taken was appropriate.”

Terry, 392 U.S. at 21-22 (internal citations omitted).



                                           B.

        We agree with the district court that the police had a

reasonable       suspicion    to    justify     the    Terry    stop   and       frisk.

Officer Combs was lawfully present at the apartment building to

investigate a tip concerning drugs in Bryant’s apartment.                          After

corroborating information received from the tip, Combs observed

Works     exiting    the     apartment     as    the    home   confinement          unit

executed a valid search for drugs.

     Upon seeing the officers, Works attempted to conceal the

bag he was holding and quickly tried to enter another door so as

to avoid passing the officers in the hallway.                        Officer Combs

further     observed       that    Works   appeared      nervous.          Given     the

totality    of    the   circumstances       –   the    tip   which   was    at     least

partially corroborated, the valid search for drugs, the lateness

of the hour, Works’ evasive conduct – and giving due weight to




                                           8
the officers’ experience, training, and judgment, 3 we find that

the Terry stop and frisk was justified.



                                                    C.

       Works       argues        that      even     if    the    initial      Terry    stop     was

justified, Officer Bills exceeded the bounds of Terry by looking

into       the    plastic        bag       and    discovering         the   cocaine.         Works

contends that because Combs and Livingston both patted down the

bag before it reached Bills and concluded that it did not feel

like it contained a weapon, there was no justification for Bills

to look into the bag.                       We disagree.          Under the “plain feel”

doctrine         set    forth     in       Minnesota      v.    Dickerson,      508    U.S.    366

(1993),      an        officer    may       seize       contraband      other   than        weapons

during a lawful Terry search if the officer “feels an object

whose contour or mass makes its identity immediately apparent.”

Dickerson,         508     U.S.       at    375.         Surrounding        circumstances       may

inform      an    officer        in    making      this    determination.             See    United

States v. Rogers, 129 F.3d 76, 79 (2nd Cir. 1997)(holding that

the officer’s “belief [that defendant’s pocket contained drugs],

combined         with    [defendant’s]            evasive       and    suspicious      conduct,”

allowed          the     officers          to     search        defendant’s      pockets       for

       3
       The three officers involved in this case had 37 combined
years of field experience. All three had prior experience with
drug matters and Combs served as the Drug Unit Commander of the
Huntington Police Department.


                                                    9
contraband).      However, once an officer has determined that the

object is not a weapon and its shape or size does not indicate

its contraband nature, the search must stop.               United States v.

Raymond, 152 F.3d 309, 312 (4th Cir. 1998).

     This case is similar to United States v. Yamba, 506 F.3d

251 (3rd Cir. 2007).            There, the Third Circuit affirmed the

denial of a suppression motion where an officer testified that

in the course of a lawful Terry patdown, he felt a plastic bag

in defendant’s pocket containing a “soft, spongy-like substance”

later revealed to be marijuana.            Yamba, 506 F.3d at 260.         The

court noted that the officer did not have to be “certain that

the object . . . was contraband.”            Id.     Instead, the officer’s

experience led him to “reasonably suspect” that the plastic bag

in the defendant’s pocket contained marijuana, and the “plain

feel” doctrine justified the seizure.          Id.

     We have applied the “plain feel” doctrine to affirm the

denial   of   a   suppression    motion    where   the   police   conducted   a

lawful Terry patdown and felt an object under the defendant’s

jacket which ultimately contained a crack cookie.                 Raymond, 152

F.3d at 311.        The officer initially thought the item was a

weapon, but discovered after removing it from the defendant’s

waistband that it was a pie tin.               We first held that Terry

authorized the officer to remove the object because he thought

it was a weapon.      After the officer discovered that it was a pie

                                      10
tin (and even though there was no indication that the tin was

transparent),          we   found   that     the   incriminating        nature     of    the

object was immediately apparent because the officer knew from

his training that crack cocaine was often created in a pie tin.

Therefore,       we    found   that    the    seizure    fell   within       the    “plain

feel” doctrine.

        In this case,        Officer    Livingston      testified       that      when   he

felt the bag, he could tell that it “wasn’t as dense as flour.

It    was    a   light,     mushy     kind   of    substance    .   .    .    a    powdery

substance.”        J.A. 50. 4       Indeed, he immediately surmised that the

bag contained contraband based on his training and experience,

and in the context of tactily verifying that the plain feel of

the substance was inconsistent with what Works represented it to

be.     He made this observation as a valid search for drugs took

place       in   the    apartment     from    which     Works   had      just      exited.

Further, Officer Bills recognized Works from two prior drug and

gun cases.            Works attempted to evade the officers and, once

detained, repeatedly attempted to conceal the bag.                           In light of

these circumstances, we find that the seizure of the cocaine was

justified by the “plain feel” doctrine.




        4
       Under the “fellow officer rule,” knowledge possessed by
one officer is imputed to all officers on the scene.  See Karr
v. Smith, 774 F.2d 1029, 1032 (10th Cir. 1985).


                                             11
                             III

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




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