                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 12-4024


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

            v.

DAVID LEE WALLACE,

                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:11-cr-00109-1)


Submitted:    August 27, 2012                 Decided:   October 17, 2012


Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou    Newberger, Federal Public Defender, David R. Bungard,
Assistant    Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel,    Charleston, West Virginia, for Appellant.      R. Booth
Goodwin,    II, United States Attorney, William Bryan King, II,
Assistant    United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David Lee Wallace appeals from the district court’s

judgment after his conditional guilty plea to possession with

intent to distribute hydrocodone.                   Wallace reserved the right to

challenge the district court’s suppression ruling.                             On appeal,

he raises the issue of whether officers had reasonable suspicion

to believe that he “was engaged in criminal conduct when they

tackled him following his flight from another officer who was in

plain clothes and an unmarked vehicle.”                     We affirm.

            We review the district court’s legal conclusions de

novo and its factual findings for clear error.                          United States v.

Massenburg, 654 F.3d 480, 485 (4th Cir. 2011).                            We review the

district court’s reasonable suspicion determination de novo, and

we construe the evidence in the light most favorable to the

Government,     the     prevailing          party    below.         United     States     v.

Powell, 666 F.3d 180, 183, 186-87 (4th Cir. 2011).

            Under     the     Fourth        Amendment,       a   brief     investigatory

detention     or    stop     must      be    supported       “by    a    reasonable      and

articulable    suspicion          that      the   person     seized      is    engaged    in

criminal activity.”           Reid v. Georgia, 448 U.S. 438, 440 (1980).

Reviewing courts must look at the totality of the circumstances

to   determine      whether       an     officer      had    a     particularized        and

objective     basis     for       suspecting        criminal       activity.        United

States v.     Arvizu,       534    U.S.      266,    273     (2002).          Because    the

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reasonable suspicion standard is an objective one, we examine

the facts within the knowledge of the officer to determine the

presence    or   nonexistence               of     reasonable          suspicion.              United

States v. Digiovanni, 650 F.3d 498, 511 (4th Cir. 2011).

            Although        an    officer’s           reliance         on   a    mere       hunch    is

insufficient     to    justify          a    stop,         the    likelihood           of    criminal

activity need not rise to the level required for probable cause,

and it falls considerably short of satisfying a preponderance of

the evidence standard.                 Arvizu, 534 U.S. at 274 (citations and

quotation    marks     omitted).                 Moreover,        while     a     collection         of

factors     susceptible          of     innocent           explanation           may        form    the

particularized        and    objective             basis         for   suspecting            criminal

activity, id. at 277-78, we have expressed our concern about the

inclination of the Government toward using whatever facts are

present,    no   matter          how    innocent,           as     indicia        of    suspicious

activity.     United States v. Foster, 634 F.3d 243, 248 (4th Cir.

2011).     Thus, the Government must do more than simply label a

behavior as suspicious to make it so, but must either articulate

why   a     particular           behavior             is    suspicious            or        logically

demonstrate,     given      the        surrounding          circumstances,             that    it    is

likely to be indicative of some more sinister activity.                                      Id.

            We have reviewed the record and the parties’ briefs

and   conclude    that       officers             had      reasonable           and    articulable

suspicion that Wallace was engaged in criminal activity when

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they stopped him.       See Illinois v. Wardlow, 528 U.S. 119, 124

(2000); United States v. Haye, 825 F.2d 32, 34 (4th Cir. 1987).

           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                  AFFIRMED




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