     Case: 13-10555      Document: 00512693591         Page: 1    Date Filed: 07/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 13-10555                                FILED
                                                                              July 10, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                  Plaintiff - Appellee
v.

ELMER SPENCER,

                                                  Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CR-173


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Elmer Spencer was convicted of being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He appeals the district court’s
denial of his motion to suppress the firearm. We AFFIRM.
                                             I.
       Dallas Police Department Officer Quinn Huntley (“Officer Huntley”) was
working off-duty at a shopping mall in Dallas when he heard gunshots.
Immediately thereafter, Officer Huntley saw Spencer running in his direction


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-10555
away from the area where he had heard the gunshots.              Officer Huntley
observed a silver object in Spencer’s hand, which he thought could have been
a weapon.     Officer Huntley surmised that Spencer may have fired the
gunshots, and, after exiting his patrol car, drew his firearm and ordered
Spencer to lie on the ground. Spencer initially indicated that he did not have
any weapons on him; but, after being told by Officer Huntley that he was going
to perform a patdown, Spencer admitted to having a gun in his jacket pocket.
Officer Huntley recovered the firearm from Spencer’s jacket and concluded
that it had recently been fired because it was warm and missing ammunition.
Officer Huntley handcuffed and arrested Spencer.
      After his indictment for one count of being a felon in possession of a
firearm, Spencer moved to suppress the firearm, arguing that it was obtained
pursuant to an illegal search. The district court held a suppression hearing
during which Officer Huntley testified to the facts described above.          The
district court denied the motion, finding Officer Huntley’s testimony credible
and observing that Spencer’s running from an area where gunshots had been
fired with a silver object in his hand, which the court noted could have been a
gun, was sufficient to provide the necessary reasonable suspicion to conduct a
Terry stop. Spencer was convicted and now appeals the denial of his motion to
suppress.
                                        II.
      A. Standard of Review
      When evaluating a denial of a motion to suppress, we review a district
court’s conclusions of law de novo and its findings of fact for clear error. United
States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005). We view the evidence in
the light most favorable to the prevailing party, which in this case is the
Government. See id. When, as here, the district court denied a motion to
suppress after observing live testimony, “the clearly erroneous standard is
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                                 No. 13-10555
particularly strong because the judge had the opportunity to observe the
demeanor of the witnesses.” See id.
      B. Arrest or Terry Stop?
      Spencer argues that his detention was an arrest requiring probable
cause because Officer Huntley drew his gun and ordered him to the ground.
An officer may briefly detain and investigate a suspect (i.e., perform a Terry
stop) when he has a “reasonable suspicion, based on specific and articulable
facts and rational inferences, that justifies the intrusion.” United States v.
Abdo, 733 F.3d 562, 565 (5th Cir. 2013) (citing Terry v. Ohio, 392 U.S. 1, 21
(1968)), cert. denied, 134 S. Ct. 1760 (2014). The determination of whether a
detention is an arrest or merely a Terry stop turns on “the reasonableness of
the intrusion under all the facts.” United States v. Martinez, 808 F.2d 1050,
1053 (5th Cir. 1987) (internal quotation marks omitted).
      In the circumstances as found by the district court, Officer Huntley’s
decision to draw his weapon and order Spencer to the ground did not elevate
the stop to an arrest. It is well settled that “using some force on a suspect,
pointing a weapon at a suspect, ordering a suspect to lie on the ground, and
handcuffing   a   suspect—whether      singly   or   in   combination—do      not
automatically convert an investigatory detention into an arrest requiring
probable cause.” United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993);
see also Abdo, 733 F.3d at 565–66 (holding that a detention was only a Terry
stop when the suspect was detained at gunpoint, handcuffed, and placed in a
police car). Upon hearing gunshots and seeing Spencer run in his direction
with a silver object in his hand, which the district court observed could have
been a weapon, Officer Huntley took reasonable steps to protect himself during
the detention.    Through his actions, Officer Huntley was able to quickly
confirm his suspicions (that Spencer was armed). See Sanders, 994 F.2d at
204; see also United States v. Sharpe, 470 U.S. 675, 686 (1985) (“A court making
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                                     No. 13-10555
this assessment should take care to consider whether the police are acting in
a swiftly developing situation, and in such cases the court should not indulge
in unrealistic second-guessing.”).
      Based on the facts found by the district court, we conclude that Officer
Huntley’s relatively brief detention and patdown of Spencer was merely a
Terry stop and not a “full-blown arrest” as Spencer suggests. 1 See United
States v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010) (“In order to ensure their
safety during the stop, police may frisk the subject for weapons that they
reasonably suspect he may carry.”); United States v. Campbell, 178 F.3d 345,
349–50 (5th Cir. 1999) (holding that an investigatory detention of a suspect for
ten to twenty-five minutes, during which the police officer drew his weapon,
ordered the suspect to lie on ground, handcuffed him, and frisked him, did not
amount to arrest). Accordingly, we will analyze the legal arguments through
this prism.
      C. Reasonable Suspicion
      To perform a Terry stop, an officer must have “a reasonable suspicion
supported by articulable facts that criminal activity may be afoot.” United
States v. Jaquez, 421 F.3d 338, 340–41 (5th Cir. 2006) (citation and internal
quotation marks omitted). This reasonable suspicion cannot be established by
an officer’s “mere hunch or unparticularized suspicion”; instead, there must be
specific and articulable facts that show a “minimal level of objective
justification for the stop.” Id. at 341; see also United States v. Arvizu, 534 U.S.
266, 273 (2002) (“[We] must look at the totality of the circumstances of each
case to see whether the detaining officer has a particularized and objective




      1 Because we conclude that Spencer’s detention was a Terry stop, we need not address
Spencer’s argument that the firearm should be suppressed because Officer Huntley lacked
probable cause to arrest him.
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basis for suspecting legal wrongdoing.” (citation and internal quotation marks
omitted)).
      To address whether Spencer’s stop was supported by an objectively
reasonable suspicion, we need look no further than our holding in United States
v. Bolden, 508 F.3d 204 (5th Cir. 2007). In Bolden, we held that an objectively
reasonable suspicion sufficient to justify stopping several individuals existed
when the individuals were traveling in a vehicle approaching an officer from
the general direction where the officer testified that he had heard gunshots
fired less than a minute earlier. Id. at 205. Here, in addition to hearing the
gunshots and almost immediately thereafter witnessing Spencer running in
his direction from the area where the shots were fired, Officer Huntley, whom
the district court found to be credible, testified that he observed Spencer
carrying a silver object, which could have been a weapon. Considered as a
whole, these circumstances demonstrate that an objectively reasonable officer
would have had a suspicion of criminal activity sufficient to justify Spencer’s
detention. 2
                                           III.
      Because the facts reasonably found by the district court support the
conclusion that Officer Huntley’s detention of Spencer was a Terry stop
supported by a reasonable suspicion, the district court did not err in denying
Spencer’s motion to suppress. AFFIRMED.




      2 Spencer suggests that by not suppressing the firearm, we would be establishing that
a reasonable suspicion exists to stop anyone fleeing a crime scene. However, this position
ignores that in addition to observing Spencer flee from a potential crime scene, Officer
Huntley had just heard gunshots fired and observed Spencer carrying an object that he
thought could have been a weapon. Therefore, we need not address whether a reasonable
suspicion may have arisen simply from witnessing Spencer flee a potential crime scene, as
there were additional circumstances that establish an objectively reasonable suspicion of
criminal activity.
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