                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           AUGUST 11, 2005
                             No. 04-16372
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                   D. C. Docket No. 04-00212-CR-B-W

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,
                                  versus

D'ANDRE OSCAR RAY,

                                                        Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                             (August 11, 2005)


Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      D’Andre Oscar Ray was convicted of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1), and sentenced to 37 months’

imprisonment. Ray appeals the district court’s denial of his motion to suppress on

Fourth Amendment grounds, arguing the search of his person was unreasonable.

Specifically, Ray argues the police officers had no cause to stop him, and the

rationale articulated by the police officers was pretextual. Ray claims a reasonable

officer would not have made the stop under the same circumstances, and argues

“common sense” dictates that the provided reasons were not the “real reason[s]

that Ray was stopped.” We affirm the denial of his motion to suppress.

                                I. BACKGROUND

      Ray was charged in a one-count indictment with possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to

suppress the fruits of the search of his person and all statements made during the

search, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). The

Government argued the officers who conducted the search had a reasonable,

articulable suspicion that criminal activity was afoot.

      At the suppression hearing, Officer Randy Baygents testified to the

following. Officer Baygents was a police officer with the Tuscaloosa Police

Department. He and Officer Chris Miller came into contact with Ray on

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October 9, 2003, at 8:00 p.m. at the 2000 block of 25th Avenue in Tuscaloosa,

Alabama. Ray was walking in the street with two other individuals, who

continued walking in the officers’ lane of traffic and would not move out of the

roadway. There was no walkway or a sidewalk on either side of the street for

pedestrians to walk, and Officer Baygents did not believe there was any street

lighting. Officer Baygents stated that Ray and the other two individuals were

violating a disorderly conduct statute in the State of Alabama because they were

walking on the wrong side of the road.1 The officers stopped the patrol car and

got out to speak to Ray, because Ray was in Officer Baygents’ lane of traffic, he

was “very familiar with Mr. Ray,” and there had been a robbery in the area a week

before and the suspect met the same general description as Ray. Officer Baygents

stated he had known Ray based on prior contacts with Ray and his brother for

juvenile offenses, resisting arrest, and disorderly conduct. Officer Baygents stated

he did not mention the robbery in his arrest report when he arrested Ray. The

robbery suspect was a white male, about 6 feet tall, weighing 200 pounds, while

Ray was a black male with a “very light complexion.”




       1
            Under Alabama law, “[a] person commits the crime of disorderly conduct if, with intent
to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
he . . . (5) Obstructs vehicular or pedestrian traffic.” Ala. Code § 13A-11-7 (1975).

                                                3
      Officer Baygents testified he and Officer Miller were very familiar with the

individuals and asked them if they had any weapons. Officer Miller asked Ray if

he had any weapons and Ray stated “these ain’t my pants, these are my cousin’s

pants.” The officers did a pat down for weapons for their safety after Ray made

the statement. Officer Miller performed the pat down and found a firearm on Ray.

      Officer Miller testified as follows. When he and Officer Baygents

approached Ray and the other two individuals, none of them ran or attempted to

evade the officers. Officer Miller asked Ray if he had any weapons “as [he] was

about to pat him down,” “[k]ind of simultaneous[]” to the pat down, and Ray

stated “these ain’t my pants, they’re my cousin’s pants.” When asked to clarify

when Ray made the suspicious statement, before or after the pat down, Officer

Miller testified “[i]t was before, but it was as I was patting him down.”

      The district court denied Ray’s motion to suppress, summarizing the

following facts:

            One, at least one officer, Officer Baygents, was familiar with
      the defendant from prior contacts relating to criminal activity or
      criminal charges.

            Two, a week before the stop there had been a burglary about a
      block away from the location of Mr. Ray and his companions. The
      burglar was described as a white male. Although Mr. Ray is an
      African-American, he is of very light skin color.



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            Three, the area where the defendant was walking was
      essentially unlit.

             Four, the defendant and his companions failed to move out of
      the roadway when the patrol car approached and, therefore, the
      defendant and his companions were in violation of an Alabama
      statute prohibiting obstruction of vehicular traffic.

            Five, the suspicious conduct of the defendant when the officers
      asked whether anyone had any weapons, the defendant stated that he
      was wearing his cousin’s pants.

The district court found, based on these facts, and in light of the totality of the

circumstances, there was a reasonable suspicion Ray “was engaged in or about to

engage in criminal activity, possibly including burglary.” The court found that

since the officers had reasonable suspicion that Ray was engaged in illegal activity

and was armed with a concealed weapon, the officers were justified in conducting

the limited search for weapons. The court found Ray’s comment that he was

wearing his cousin’s pants a “very suspicious comment,” which “would be

something that a person would say if they knew there was something illegal in the

pants.” The district court found Ray’s statement, combined with Officer

Baygents’s prior knowledge of Ray’s criminal activity, “warranted a patdown for

weapons to ensure the officer’s safety.”

      Ray entered a conditional guilty plea, reserving the right to appeal the denial

of his motion to suppress. In the factual basis for the plea agreement, Ray

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admitted he made the statement about his pants before the officer patted him

down. Ray was sentenced to 37 months’ imprisonment and 3 years’ supervised

release.

                                II. DISCUSSION

      “A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

On a motion to suppress evidence, we defer to the district court’s factual findings

unless clearly erroneous, but review de novo the district court’s application of law

to the facts. United States v. Garcia, 890 F.2d 355, 359 (11th Cir. 1989).

Importantly, the facts are construed “in the light most favorable to the prevailing

party.” United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000). “The

individual challenging the search has the burdens of proof and persuasion.”

United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).

      “The Fourth Amendment of the United States Constitution protects

individuals from unreasonable searches and seizures by law enforcement

authorities of the United States government.” Garcia, 890 F.2d at 360. “It is well

settled under the Fourth and Fourteenth Amendments that a search conducted

without a warrant issued upon probable cause is per se unreasonable . . . subject




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only to a few specifically established and well-delineated exceptions.” Id.

(quotations omitted).

      The police may stop and briefly detain a person to investigate a reasonable

suspicion that he is involved in criminal activity, even though probable cause is

lacking. United States v. Williams, 876 F.2d 1521, 1523 (11th Cir. 1989). In

Terry v. Ohio, the Supreme Court held:

      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
      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.

392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85 (1968). To justify an investigatory

detention (Terry stop), the police officer must “be able to point to specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” Id. at 21, 88 S. Ct. at 1880. “[R]easonable

suspicion, like probable cause, is not readily, or even usefully, reduced to a neat

set of legal rules.” United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585,

                                          7
(1989) (quotation omitted). Reasonable suspicion is “considerably less than proof

of wrongdoing by a preponderance of the evidence” and less than probable cause,

which is “a fair probability that contraband or evidence of a crime will be found.”

Id. (citation and quotation omitted). The reasonable suspicion must be “more than

an inchoate and unparticularized suspicion or hunch.” Id. (quotations omitted).

      The Fourth Amendment nevertheless requires the police officer to

“articulate facts which provide some minimal, objective justification for the stop.”

Williams, 876 F.2d at 1524. When determining whether reasonable suspicion

exists, courts must review the “totality of the circumstances” of each case to

ascertain whether the detaining officer had a “particularized and objective basis”

for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122

S. Ct. 744, 750 (2002). The rule is not concerned with “hard certainties, but with

probabilities” and, thus, law enforcement officials may rely on “common sense

conclusions.” United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695

(1981). Investigatory stops can be “invalid as pretextual unless a reasonable

officer would have made the seizure in the absence of illegitimate motivation.”

United States v. Strickland, 902 F.2d 937, 940 (11th Cir. 1990) (quotation

omitted).




                                          8
      “[P]olice may take reasonable action, based upon the circumstances, to

protect themselves during investigative detentions.” United States v. Hastamorir,

881 F.2d 1551, 1556 (11th Cir. 1989). Once an officer has legitimately stopped an

individual, the officer can frisk the individual, so long as “a reasonably prudent

man in the circumstances would be warranted in the belief that his safety or that of

others was in danger.” Terry, 392 U.S. at 27, 88 S. Ct. at 1883.

      The first issue is whether the initial stop was supported by reasonable

suspicion. Id. at 21, 88 S. Ct. at 1880. Because Ray was violating a local statute

by walking in the street when the police officers stopped him, the initial stop

complied with the Fourth Amendment. See Williams, 876 F.2d at 1524.

      The second issue concerns whether it was proper for the officers to frisk

Ray. See Terry, 392 U.S. at 30–31, 88 S. Ct. at 1884–85. The facts undisputably

show the officers approached Ray while Ray and his companions were blocking

traffic, the officers were familiar with Ray from prior criminal activity, there had

been a burglary a week before the stop, and the area where Ray was walking was

essentially unlit. When asked whether he was carrying a weapon, Ray also made

the suspicious statement, “these ain’t my pants, these are my cousin’s pants”

before the pat down, which created a reasonable belief Ray may have been

carrying a weapon on his person. Construing the facts in the light most favorable

                                          9
to the Government, we find no error by the district court in applying the law to the

facts.

         In addition, Ray bears the burden of proof and persuasion, and he fails to

prove why the investigatory stop was pretextual. He does not provide an

explanation for why a reasonable officer would not have made the seizure based

on the surrounding circumstances.

                                 III. CONCLUSION

         The Terry stop and frisk of Ray complied with the Fourth Amendment, and

we find no pretext on the part of the police officers. Accordingly, we affirm the

district court.

         AFFIRMED.




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