                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4011


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PETER KENDALL SMITH,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:06-cr-00063-CCB-1)


Argued:   May 13, 2010                     Decided:   July 7, 2010


Before DUNCAN and KEENAN, Circuit Judges, and Arthur L. ALARCÓN,
Senior United States Circuit Judge for the Ninth Circuit,
sitting by designation.


Affirmed by unpublished opinion.       Judge Alarcón wrote     the
opinion in which Judge Duncan and Judge Keenan joined.

ARGUED: William A. Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA,
LLP, Greenbelt, Maryland, for Appellant.        Michael Clayton
Hanlon, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Timothy J. Sullivan, Brett J.
Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for
Appellant.     Rod   J.  Rosenstein,  United   States  Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
ALARCÓN, Senior Circuit Judge:

      Peter   Kendall    Smith   appeals     from   the    order    denying   his

motion to suppress evidence recovered during a search incident

to   his   arrest   on   October     22,   2005.    We     affirm   because    we

conclude that the district court did not clearly err in denying

the suppression motion.          The officers had reasonable suspicion

to stop and question Smith, and probable cause to arrest as well

as to search him when he assaulted the officers to prevent a

lawful detention.



                                       I

                                       A

      On October 22, 2005, Officers Matthew Sammons and Corey

Hurst of the Salisbury Police Department were on patrol in the

Church Street area of Salisbury, Maryland.1               They were in uniform

and driving a marked police car.             The officers were aware that

the Church Street area is known as a high crime area.                         The

police     dispatcher    announced    over    the   police     radio   that    an

anonymous 9-1-1 caller had reported a fight involving a handgun

near Church and Anne Streets.




      1
       The facts summarized here are taken from the testimony
provided by Officers Sammons and Hurst at the suppression
hearing.


                                       2
    Officers Sammons and Hurst were a few blocks away from the

reported location of the fight                  when they received the radio

dispatch.    They observed an adult male and two juveniles running

toward the police vehicle.          The three individuals slowed down to

a fast walk as they approached the police car.                          They looked

straight    ahead    without      making       eye    contact   with    the    police

officers.

    The officers turned their car around and pulled up next to

the three individuals.            They got out of the car and went to

question    Smith    and    his     two        companions.       Officer      Sammons

approached Smith from the front.                  Officer Hurst walked around

the back of the car and approached the three males from the

side.

    Officer Sammons told Smith that a fight, possibly involving

a handgun, had been reported in the area and                          he sought any

information Smith might have about it. Both officers observed

that one of the three individuals, Brandon Curtis, was shoeless.

Officer    Hurst    noticed      that   Brandon’s       left    eye    was    red   and

beginning to swell.

    Officer Sammons asked Smith if he was carrying anything

illegal.     Officer Sammons testified at the suppression hearing

that he     could not remember Smith’s response.                      Officer Hurst

asked   Brandon     what   had    happened       to   his    shoes    and    his    eye.

Brandon explained that he had been in a fight and had stepped

                                           3
out of his shoes.           Officer Sammons advised Smith that he was

going to pat him down and reached out toward him.                      Smith turned

and   “shuffle-stepped”       away.      Both     officers      grabbed    Smith    to

prevent him from fleeing and a struggle ensued.

      During the struggle, Smith struck both officers.                         Officer

Hurst told Brandon and Byron Curtis, the second juvenile who was

with Smith, to leave the area.               Byron left the scene.             Brandon

remained and yelled at the officers during their struggle with

Smith.    Officer        Sammons   sprayed     Smith    with     a    strong    pepper

spray.    The officers brought Smith under control, handcuffed

him, and informed him that he was under arrest.

      Officer      Hurst   searched     Smith’s      front    pockets     and    found

several rocks of cocaine.             Officer Sammons retrieved a handgun

from Smith’s back pocket.

                                         B

      Smith   was       indicted   on   February       15,    2006,    for:     felony

possession    of    a    firearm   pursuant     to    18     U.S.C.   §   922(g)(1);

possession of 5 grams or more of rock cocaine with intent to

distribute pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(B); and,

possession of a firearm in furtherance of a drug trafficking

crime pursuant to 18 U.S.C. § 924(c)(1).

      On April 21, 2006, Smith filed a motion to suppress the

handgun and the cocaine recovered during the search incident to

his arrest.        On August 24, 2006, the district court held an

                                         4
evidentiary hearing on the motion to suppress.                          Officer Sammons

and Officer Hurst testified that they had reasonable suspicion

to perform a Terry stop based upon their collective knowledge:

the   9-1-1      call,     the   fact    that        the   three    individuals      were

observed running away from the disturbance and slowed when they

saw the police car, they made no eye contact with the officers

as they passed, as well as the fact that Brandon was wearing

socks without shoes and had a swollen eye.

      Brandon and Byron testified that they did not slow their

pace when they saw the officers and that the officers did not

try to ask any questions upon exiting their vehicle.                           Instead,

the officers immediately went for Smith, who resisted detention.

The district court credited the testimony of the officers over

that of Brandon and Byron and denied the motion to suppress.

      On    December       16,   2008,       Smith    pleaded      guilty     to   felony

possession of a weapon.           The Government dismissed the other two

counts in the indictment.                His plea was conditioned upon the

outcome of his appeal from the district court’s denial of his

motion     to    suppress.       Smith       was   sentenced       to   120   months   in

prison.         He filed a timely appeal from the district court’s

order    denying     his     motion     to    suppress      the    evidence    obtained

during the search incident to his arrest.                     We have jurisdiction

under 28 U.S.C. § 1291.



                                              5
                                        II

                                        A

       In its dismissal of the motion to suppress, the district

court concluded that “the officer[s] had reasonable suspicion

for    a   Terry   stop   after   Mr.   Smith   turned    to   flee,   and   the

officer’s physical contact with Mr. Smith did not elevate the

Terry stop to an arrest.”         (District Court Order dated September

20, 2006) (internal citations omitted).

       Smith argues that the district court erred in determining

that the officers had reasonable suspicion to stop him and his

companions.        In reviewing the denial of a motion to suppress,

this Court reviews a district court’s findings for clear error

and its legal conclusions de novo.              United States v. Perkins,

363 F.3d 317, 320 (4th Cir. 2004).           The evidence is construed in

the light most favorable to the Government.              Id.

       In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held

that

       where a police officer observes unusual conduct which
       leads him reasonably to conclude in light of his
       experience that criminal activity may be afoot and
       that the persons with whom he is dealing may be armed
       and presently dangerous, where in the course of
       investigating this behavior he identifies himself as a
       policeman and makes reasonable inquiries, and where
       nothing in the initial stages of the encounter serves
       to dispel his reasonable fear for his own or others’
       safety, he is entitled for the protection of himself
       and others in the area to conduct a carefully limited
       search of the outer clothing of such persons in an
       attempt to discover weapons which might be used to

                                        6
       assault him.    Such a search is a reasonable search
       under the Fourth Amendment, and any weapons seized may
       properly be introduced in evidence against the person
       from whom they were taken.

Id. at 30-31.

       An officer’s decision to detain a person must be based on

more than just an “inchoate and unparticularized hunch.”                        Id. at

27 (internal quotations omitted).                 The officer must be able to

offer “some minimal level of objective justification for making

the stop.”       United States v. Sokolow, 490 U.S. 1, 7 (1989)

(internal quotation marks omitted).                   “An investigatory stop must

be justified by some objective manifestation that the person

stopped is, or is about to be, engaged in criminal activity.”

United States v. Cortez, 449 U.S. 411, 417 (1981).                         Two elements

must     be      satisfied           in     evaluating        whether        reasonable

particularized suspicion exists to conduct a Terry stop: 1) “the

assessment       must     be        based     upon      [a    totality        of]     the

circumstances;”         and    2)    the    circumstances      together       “raise    a

suspicion     that   that      particular        individual        being    stopped    is

engaged in wrongdoing.”             Id. at 418.        The basis for an officer’s

reasonable suspicion “can rest upon the collective knowledge of

the    police,   rather       than    solely     on    that   of    the    officer    who

actually makes the [stop].”                 United States v. Pitt, 382 F.2d

322, 324 (4th Cir. 1967).




                                             7
    The Supreme Court has articulated the factors that may be

weighed    in    considering     the   totality        of    the    circumstances      to

determine whether reasonable suspicion exists.                          These factors

include:     whether    the    area    is       a   high    crime     area,    Adams   v.

Williams,       407   U.S.    143,    147       (1972);     whether    an     individual

exhibits evasive behavior, United States v. Brignoni-Ponce, 422

U.S. 873, 885 (1975); and, whether there is unprovoked flight,2

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).                             Any one of

these factors may not suffice to establish reasonable suspicion.

It is “the totality of the circumstances -- the whole picture --

[which] must be taken into account.”                 Cortez, 449 U.S. at 417.

    Smith contends that the elements considered by the district

court   to   support     reasonable     suspicion          are   insufficient.         He

argues that an anonymous 9-1-1 tip cannot be relied upon.                              He

also asserts that there were no bulges in their clothing and

they did not behave in any way that might have indicated that


    2
       While an “individual has a right to ignore the police and
go about his business [and a] refusal to cooperate, without
more,   does not furnish the minimal level of objective
justification   needed  for   a  detention  or   seizure,  . . .
unprovoked flight is simply not a mere refusal to cooperate
. . . [and] is not going about one’s business; in fact, it is
just the opposite.”      Wardlow, 528 U.S. at 125 (internal
quotation marks and citations omitted). See also United States
v. Haye, 825 F.2d 32, 34 (4th Cir. 1987) (Defendants, instead of
declining to answer questions and walking away, panicked and
fled, giving officers “reasonable suspicion for a brief,
involuntary, investigative stop.”)


                                            8
they were carrying weapons.            Smith     further     argues that     “[a]

group of men walking at a fast pace in a high crime neighborhood

near the location of a reported fight, who slow their pace and

do not meet the gaze of the police upon seeing them is not

sufficient to justify a Terry stop.”            Appellant’s Brief at 16.

      Terry “precludes this sort of divide-and-conquer analysis.”

United States v. Arvizu, 534 U.S. 266, 274 (2002).                     Reasonable

articulable suspicion of “ongoing criminal activity” is measured

by a totality of the circumstances.          Sokolow, 490 U.S. at 8.

      For example, in Florida v. J.L., 529 U.S. 266 (2000), the

Supreme    Court   held   that   the   police    did   not    have     reasonable

suspicion based solely on an anonymous tip to the police.                       Id.

at 268 (“[A]n anonymous tip that a person is carrying a gun[],

without more, [is in]sufficient to justify a police officer’s

stop and frisk of that person.”).                Here, the officers based

their suspicions on the totality of the circumstances, including

the   anonymous    tip.    Similarly,      whether     someone    looks    at   an

officer or avoids looking at an officer may not be sufficient

alone,    but   when   considered   with    other    factors     may    establish

reasonable suspicion for a stop.           See Arvizu, 534 U.S. at 276 (A

driver’s avoidance of eye contact with an officer was one of

several factors that established reasonable suspicion to stop

the vehicle).



                                       9
      Here,       in     evaluating        whether      the      totality        of    the

circumstances created reasonable suspicion, the district court

credited     the       testimony    of     the   officers       at    the    suppression

hearing.      “When findings are based on determinations regarding

the     credibility       of    witnesses,       Rule     52(a)       demands     [great]

deference to the trial court’s findings.”                       Anderson v. Bessemer

City, 470 U.S. 564, 575 (1985).                   “[T]he reviewing court must

give due regard to the trial court's opportunity to judge the

witnesses'     credibility.”             Fed.    R.   Civ.      P.    52(a)(6).         The

district court did not clearly err in finding that the officers

had reasonable suspicion to detain Smith.



                                             B

      Smith also contends that the officers lacked probable cause

to arrest and search him after he tried to walk away from the

officers’ attempt to detain and frisk him.                           We disagree.       As

discussed above, the officers had a right to detain him and pat

him down for weapons based on their reasonable suspicion.

      When    Smith      resisted    and    struck      both    officers,       they   had

probable cause to arrest him for the crime of assault.                             Police

officers are entitled to use force in order to effectuate a

Terry     stop.         See    Graham      v.    Connor,       490    U.S.      386,    396

(1989)(“[T]he      right       to   make   an    arrest    or    investigatory         stop

necessarily carries with it the right to use some degree of

                                            10
physical coercion or threat thereof to effect it.”); Adams, 407

U.S. at 146 (“So long as the officer is entitled to make a

forcible stop, and has reason to believe that the suspect is

armed and dangerous, he may conduct a weapons search limited in

scope   to   this   protective    purpose.”).       Accordingly,    we     are

persuaded that the officers had probable cause to arrest and

search Smith.



                                 Conclusion

    Accordingly     we   AFFIRM    the    denial   of   Smith’s   motion   to

suppress the evidence obtained during the search incident to his

arrest.

                                                                   AFFIRMED




                                     11
