                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-4441


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOHN HENRY SWAIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:07-cr-00160-01)


Argued:   March 27, 2009                      Decided:   May 4, 2009


Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D.
SCHROEDER, United States District Judge for the Middle District
of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew A. Victor, VICTOR VICTOR & HELGOE LLP,
Charleston, West Virginia, for Appellant.      John Lanier File,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.     ON BRIEF: Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            John Swain entered a conditional guilty plea to the

charge of being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).                    He reserved the right

to appeal the district court’s denial of his motion to suppress

the    firearm,       which      police     discovered      after     conducting     an

investigative stop and frisk.                Swain argues that the stop and

frisk violated his Fourth Amendment rights because the police

lacked reasonable suspicion.                 We find Swain’s argument to be

without merit and affirm the district court’s determination.



                                            I.

            We recount the evidence in the light most favorable to

the government, which ultimately prevailed in the suppression

proceedings.          United States v. Seidman, 156 F.3d 542, 547 (4th

Cir.   1998).         On   August   2,    2007,    West    Virginia    State    Police

Troopers Jason Davis and R. A. Daniel went to the Beaver Street

Apartment Complex (Beaver Apartments) in Beckley, West Virginia,

to    execute    an    arrest     warrant    for   an     individual    named    Ricky

Toney.      The       troopers    had     information      that   Toney   “had     been

hanging out up at those apartments.”                      J.A. 62.     The troopers

approached the apartment building in a marked police car by an

access road that led into a parking lot in the rear of the

building.       Swain and a companion were seated on a concrete step

                                            2
of one of two rear entrances to the building.            Initially, it did

not appear to Trooper Davis that the individuals “were doing

anything unlawful or were armed and dangerous.”              J.A. 194.     (The

record does not suggest that Trooper Davis mistook either Swain

or his companion for Toney.)

             When the police cruiser entered the parking lot, Swain

and    his   companion   “jump[ed]   up”   and   attempted    to   enter   the

apartment building through the rear door behind them.               J.A. 64.

The rear door was locked, and although Swain and his companion

“rattled the door to get it open,” they could not gain entrance.

J.A. 149.       Both troopers got out of the cruiser, and Trooper

Davis began walking toward Swain and his companion, who were

approximately forty feet away.

             When Trooper Davis was approximately twenty to twenty-

five feet from Swain and his companion, he “hollered at the two

individuals, [and] asked them their names.”          J.A. 65, 67.        Swain

turned to face Davis, stuck his hands in his jacket pockets, and

asked, “What’s going on? What’s going on?”               J.A. 65.    Trooper

Davis asked Swain to remove his hands from his pockets, which

Swain did.      But as Trooper Davis continued to approach, Swain

put his left hand back into his jacket pocket.                Trooper Davis

said, “Hey, get your hands out of your pockets.”                    J.A. 66.

Trooper Davis then asked Swain and his companion whether they

knew    Ricky   Toney.    Swain   responded,     “Why?   What’s    going   on?

                                     3
What’s going on?”        J.A. 66.    Swain stuck his left hand into his

jacket    pocket   for   a   third   time.     Throughout      this     exchange,

Trooper    Davis   noticed   that    Swain   was     “real   jittery,    kind    of

nervous,” and “shaking a little bit.”           J.A. 66, 112.

            At that point Trooper Davis says he suspected that

Swain was hiding something illegal.            Davis removed his gun from

his holster and told Swain to take his hands out of his pockets

and to get up against the wall.              Swain and his companion put

their hands on the building.               Trooper Davis approached Swain

first and conducted a pat-down during which he felt a small

caliber pistol in the left pocket of Swain’s jacket.                      Trooper

Davis called for Trooper Daniel, who, until this point, had been

talking to the driver of a vehicle in the parking about Ricky

Toney’s    possible   whereabouts.         Trooper    Daniel   approached       and

took possession of the firearm.              Trooper Davis then continued

the pat-down of Swain, while Trooper Daniel conducted a pat-down

of the other individual.        The further pat-down of Swain yielded

a small black pouch containing a substance that appeared to be

cocaine.     The substance later tested negative as a controlled

substance.    A subsequent search of Swain incident to his arrest

yielded six rounds of ammunition.

            Trooper Davis arrested Swain because he believed Swain

was in possession of cocaine, an illegal controlled substance;

that charge was dropped after forensic testing.                  Trooper Davis

                                       4
also contacted the dispatcher to check Swain’s criminal history.

Davis learned that Swain had a prior felony conviction and was

thus illegally in possession of the firearm.                                Swain was later

indicted on a felon in possession charge.

              Swain    filed       a    motion       to    suppress       the    gun    that    was

taken from him arguing that Trooper Davis did not conduct a

lawful stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968).

The magistrate judge recommended that the district judge grant

Swain’s       motion.              The         district         judge       rejected           that

recommendation,        however,          and    denied         the   motion.           Swain    now

appeals the denial of the motion.



                                               II.

              A police officer may lawfully stop and briefly detain

an   individual       for   investigative             purposes       if    the    officer       has

“reasonable      suspicion             supported          by   articulable         facts       that

criminal activity ‘may be afoot.’”                         United States v. Perrin, 45

F.3d   869,    871-72       (4th       Cir.    1995)       (quoting       United       States    v.

Sokolow, 490 U.S. 1, 7 (1989)).                       Moreover, if the officer has

reason to believe that he is dealing with an armed and dangerous

individual, the officer may lawfully frisk the individual in the

course of the stop.            Terry v. Ohio, 392 U.S. 1, 27 (1968); see

also United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000)

(authorizing protective frisk only in context of lawful Terry

                                                 5
stop).      “Whether       an        officer       has    a   reasonable        suspicion

sufficient to warrant a Terry stop and frisk is subject to de

novo review, but factual findings will not be overturned unless

clearly erroneous.”          Perrin, 45 F.3d at 871; see also United

States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).

            Swain    contends          that       Trooper     Davis     did     not     have

“reasonable suspicion” that he was illegally in possession of a

concealed weapon or narcotics.                     J.A. 418.          As the district

court    found,    the    encounter         between       Trooper     Davis     and   Swain

escalated to a Terry stop when Trooper Davis pulled his gun and

ordered Swain to move up against the wall.                           United States v.

Swain, No. 5:07-cr-00160, slip op. at 18 (S.D. W. Va. Dec. 3,

2007).     We consider the totality of the circumstances “to see

whether the detaining officer has a particularized and objective

basis for suspecting legal wrongdoing” at that moment.                                United

States v. Mayo, 361 F.3d 802, 805 (4th Cir. 2004) (internal

quotations omitted).

            The     district          court       found     that     Swain’s     behavior

provided   Trooper       Davis       with   reasonable,       articulable       suspicion

that    Swain    possessed       a    controlled         substance     or   a   concealed

weapon.    Swain, slip op. at 24-25.                 To begin with, the district

court    found    that    the        Beaver    Apartments       were    located       in   a

neighborhood disposed to criminal activity.                          It further found

that when the state troopers approached the apartment building,

                                              6
Swain and his companion engaged in evasive behavior; they stood

up    quickly    and     attempted   to    enter    the    apartment        building,

rattling the door in the process.                 Swain appeared nervous and

jittery      throughout    the   encounter.        His    responses       to    Trooper

Davis’s      questions    --   “What’s    going    on?    What’s    going      on?”   --

further evidence Swain’s nervous demeanor.                  J.A. 65.           Finally,

Swain repeatedly put his left hand in his left jacket pocket

despite Trooper Davis’s requests that he keep his hands out of

his pockets.

                                          A.

              Swain first argues that the district court erred in

finding that the Terry stop took place in an “area [that] has a

disposition to criminal activity.”                See Swain, slip op. at 17.

We have held that a suspect’s presence in a high crime area is

something that a court may consider in reviewing the context in

which    a   police    officer   acted,       although    it   is   not    enough     by

itself to raise reasonable suspicion.                United States v. Lender,

985 F.2d 151, 154 (4th Cir. 1993); see also Illinois v. Wardlow,

528 U.S. 119, 124 (2000); Perrin, 45 F.3d at 873.                          Reasonable

suspicion is a context-driven inquiry and the high-crime-area

factor, like most others, can be implicated to varying degrees.

For     example,   an     open-air   drug       market    location        presents     a

different situation than a parking lot where an occasional drug

deal might occur.         In the present case the district court found

                                          7
that   the   Beaver        Apartments       parking     lot    is    an    area    with     a

disposition toward criminal activity, “even if [it] is not a

high crime area per se.”            Swain, slip op. at 17.

             The character of a Terry stop’s location is a factual

question, United States v. Wright, 485 F.3d 45, 53 (1st Cir.

2007), which we review for clear error.                    Perrin, 45 F.3d at 871.

In the present action, the district court considered evidence

that   Trooper    Davis      had    personally      made      drug   buys       within    two

hundred yards of the Beaver Apartments and that other officers

had    arranged      for     controlled      buys     either        at    the    apartment

building     or   in       the    general    area.          Statistical         data     also

supported a finding that the area was disposed toward criminal

activity (it ranked fourteenth of seventy-five areas in the city

in terms of serious crimes).                Moreover, Trooper Davis was in the

Beaver Apartments parking lot to execute an arrest warrant that

arose out of a drug transaction in that very lot.                           Based on the

evidence before it, the district court did not clearly err in

finding that the Beaver Apartments parking lot is located in a

neighborhood with a disposition toward criminal activity.

                                            B.

             Swain         also     challenges          the        district        court’s

determination that Trooper Davis had a reasonable, articulable

suspicion     that     criminal        activity       was      afoot.           Reasonable

suspicion    required        Trooper    Davis     “to      point     to    specific       and

                                             8
articulable facts which, taken together with rational inferences

from those facts, reasonably warrant [the] intrusion.”                          United

States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (quoting

Terry, 392 U.S. at 21).            “[I]n determining whether the officer

acted    reasonably   in    such    circumstances,         due   weight    must     be

given, not to his inchoate and unparticularized suspicion or

‘hunch,’ but to the specific reasonable inferences which he is

entitled to draw from the facts in light of his experience.”

Terry v. Ohio, 392 U.S. 1, 27 (1968); see also Perrin, 45 F.3d

at 872 (“The level of suspicion required to justify a search

under [Terry v. Ohio], must be based on more than an inchoate

and      unparticularized        suspicion        or      ‘hunch.’”)      (internal

quotations omitted).

            Swain argues that United States v. Burton, 228 F.3d

524 (4th Cir. 2000), controls.                 In Burton we determined that

police     officers   lacked       reasonable      suspicion       that    criminal

activity was afoot when they approached an individual without

any suspicion that he was engaged in criminal activity, but the

individual    refused      to    answer       questions    or    to    comply     with

requests that he remove his hands from his coat pockets.                        Id. at

528.     The government notes that Burton is not on all fours: the

defendant in Burton did not engage in evasive behavior or appear

nervous.      Nor   did    the   defendant       repeatedly      remove   and     then



                                          9
replace one hand into a particular pocket.       Additionally, the

encounter in Burton did not take place in a high crime area.

            The government argues that United States v. Mayo, 361

F.3d 802 (4th Cir. 2004), is controlling.    In Mayo we concluded

that police officers had reasonable suspicion to stop and frisk

a suspect they encountered in a high crime area who attempted to

evade police.     Id. at 808.   Swain argues that his efforts to

enter the Beaver Apartments are more susceptible to innocent

explanation than the behavior of the suspect in Mayo, who upon

seeing the police “turned 180 degrees” and walked into a nearby

apartment complex and out the other side.     Id. at 807.   In any

event, the suspect in Mayo was moving quickly with his hand in

his pocket in a way “consistent with an individual’s effort to

maintain control of a weapon while moving,” and there appeared

to be something heavy in his pocket.       Id. at 803, 807.    The

suspect was shaking and reacted to the police “in a peculiar

manner.”    Id. at 804.   His “eyes were extremely wide, his mouth

was slightly agape, and it was almost like nothing registered

with him.    It was almost as if he was in shock.”    Id.   As the

district court recognized, the facts in the present appeal do

not mirror the facts in either Burton or Mayo.

            We conclude that, considered together, the articulable

facts discussed by the district court here establish reasonable

suspicion that Swain had narcotics or a firearm in his pocket.

                                 10
First,    Swain      and     his    companion      engaged    in     evasive       behavior.

Upon seeing the police cruiser, they “jump[ed] up” and attempted

to enter the apartment building behind them.                         J.A. 64.        Second,

Swain did not respond directly to Trooper Davis’s questions, but

stuck    his    hands      in   his    pockets     and   said,      “What’s        going   on?

What’s going on?”               J.A. 65.        Third, throughout the exchange

Swain appeared “real jittery, kind of nervous” and was “shaking

a little bit.”          J.A. 66, 112.           Fourth, Swain removed his hands

from his jacket pockets when asked to by Trooper Davis, but he

replaced       his    left      hand    in   his    pocket        directly    thereafter.

Fifth, after removing his hand from his pocket to comply with

Trooper Davis’ second request, Swain again put his left hand

back    into    his     left       pocket.      Sixth,     the      area     was    somewhat

disposed to drug activity and related crimes.                         These facts give

rise to more than unparticularized suspicion or a simple hunch

that Swain was hiding a firearm or narcotics in his pocket.

Taken in combination, they amount to reasonable suspicion that

Swain had a firearm or narcotics in his pocket.                            Trooper Davis

was thus permitted under the Fourth Amendment to conduct a Terry

stop and frisk of Swain.

               The    district        court’s     denial     of    Swain’s     motion      to

suppress is therefore

                                                                                   AFFIRMED.



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