                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4921


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JODY EARL ELBERT, a/k/a Timmy Tyson, a/k/a John Doe,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:09-cr-00178-H-1)


Submitted:   June 29, 2012                   Decided:   July 12, 2012


Before WILKINSON and    GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jody    Earl    Elbert       was      indicted      for    possession       with

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

§ 841(a)(1)       (2006).         Elbert       moved     to   suppress        all    evidence

resulting from his arrest, which he contended was conducted in

violation of the Fourth Amendment.                       The district court adopted

the     recommendation       of    the     magistrate         judge     and    denied    the

motion.         Following    a    jury     trial,        Elbert    was    convicted       and

sentenced to thirty-six months in prison.

             On    appeal,       Elbert    asserts        that    the    district       court

erred in denying his motion to suppress.                           In considering the

denial of a motion to suppress, we “review the district court’s

legal determinations de novo and its factual determinations for

clear     error,”     construing         the       evidence      “in    the    light    most

favorable to the government.”                  United States v. Kelly, 592 F.3d

586, 589 (4th Cir. 2010).

             Elbert first contends that when the police surrounded

him with guns drawn following an aborted controlled buy, they

arrested him, with no probable cause to support this arrest.

Therefore, Elbert argues, any evidence obtained as a result of

this     arrest     was   obtained        illegally.           Alternatively,          Elbert

contends that if police conduct amounted to an investigatory

stop as opposed to an arrest, the officers had no reasonable

suspicion of criminal activity to support the stop.

                                               2
            We must first decide whether the district court erred

in   finding        that     Elbert’s       initial     detention      constituted        an

investigatory stop, and not an arrest.                         To determine “whether

an   individual        is     in    custody       despite    the    lack   of    a   formal

arrest,” a court assesses “whether, under the totality of the

circumstances, a suspect’s freedom of action is curtailed to a

degree     associated         with       formal    arrest.”         United      States   v.

Hargrove, 625 F.3d 170, 178 (4th Cir. 2010) (internal quotation

marks omitted), cert. denied, 132 S. Ct. 292 (2011).                             A police

officer can make a warrantless arrest as long as he has probable

cause to do so; probable cause is present when “the facts and

circumstances         within       the    officer’s    knowledge”         are   enough    to

justify     a       prudent        person’s   belief        “that    the    suspect      has

committed, is committing, or is about to commit an offense.”

United States v. Williams, 10 F.3d 1070, 1073 (4th Cir. 1993)

(internal quotation marks omitted).                    In contrast, under Terry v.

Ohio, 392 U.S. 1, 30 (1968), a “law enforcement officer may

initiate        a    brief     investigatory          stop    if    the     officer      has

reasonable suspicion to believe that ‘criminal activity may be

afoot.’”        United States v. Griffin, 589 F.3d 148, 152 (4th Cir.

2009) (quoting Terry, 392 U.S. at 30).

          The perception that one is not free to leave does not

convert a brief investigatory stop, as permitted by Terry, into

an arrest, because “a brief but complete restriction of liberty

                                              3
is valid under Terry.”             United States v. Elston, 479 F.3d 314,

319    (4th     Cir.    2007)      (internal            quotation     marks       omitted).

Moreover, the fact that officers have drawn their weapons “does

not necessarily elevate a lawful stop into a custodial arrest.”

Id. at 320.

              After our thorough review of the testimony presented

at the suppression hearing, we conclude that the district court

did not err in determining that Elbert’s detention constituted

an investigatory stop, and not a custodial arrest, and therefore

need only have been supported by reasonable suspicion.                                   Soon

after the stop occurred, police discovered drug evidence that

justified the ensuing arrest.

              Elbert contends that the officers could not have had a

reasonable suspicion for the stop, however, because the source

of    their   information,        Smith,      was       not    reliable,    and     because

Elbert did not act evasively when the officers approached him.

However,      evasive    behavior        is       but    one    factor     that    may     be

considered       in    assessing       reasonable             suspicion    of      criminal

activity;      its     presence     is     not      essential.            Here,    as     the

magistrate judge described, multiple factors contributed to the

officers’       suspicions      that     Elbert          was    engaged     in    criminal

behavior.      Thus, we conclude that the district court did not err

in    finding     police     had    reasonable            suspicion       supporting      an

investigatory stop of Elbert.

                                              4
            Accordingly, we deny Elbert’s motion to file a pro se

supplemental    brief    and    affirm       the   judgment   of    the    district

court.     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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