                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT



                             No. 04-4341



UNITED STATES OF AMERICA,


                                              Plaintiff - Appellant,
     versus




DANIEL DAVID GARCIA; RAMON GARCIA, JR.,



                                           Defendants - Appellees.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-86)


Argued:   October 29, 2004             Decided:    December 16, 2004


Before WIDENER and MOTZ, Circuit Judges, and Glen E. CONRAD, United
States District Judge for the Western District of Virginia, sitting
by designation.


Reversed by unpublished per curiam opinion.


ARGUED: Lawrence Patrick Auld, Assistant United States Attorney,
Deputy Chief, Criminal Division, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellant. Steven Price
Weaver, BROTHERTON, FORD, YEOMAN & WORLEY, P.L.L.C., Greensboro,
North Carolina; Gregory Davis, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina,
for Appellees.    ON BRIEF: Anna Mills Wagoner, United States
Attorney, Robert A. J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellant. Louis C. Allen, III,
Federal Public Defender, Greensboro, North Carolina, for Appellee
Daniel David Garcia; Robert A. Ford, BROTHERTON, FORD, YEOMAN &
WORLEY, P.L.L.C., Greensboro, North Carolina, for Appellee Ramon
Garcia, Jr.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               -2-
PER CURIAM:

     A federal grand jury charged Daniel David Garcia and Ramon

Garcia, Jr. with a Hobbs Act robbery in violation of 18 U.S.C.

§ 1951 (2000), carrying and using a firearm during the robbery in

violation of 18 U.S.C. § 924(c)(1)(A)(2000), and possessing a

firearm    as   convicted   felons        in   violation   of   18   U.S.C.

§ 922(g)(1)(2000).     Prior to trial, the district court granted

defendants’ motion to suppress evidence seized from them when

Corporal Mike J. Riazzi stopped their vehicle shortly after the

robbery.   The Government appeals.        For the reasons that follow, we

reverse.



                                     I.

     While on patrol at 4:25 a.m. October 2, 2003, Riazzi, a

twelve-year police department veteran (with a decade of patrol

experience), heard a police radio broadcast stating that a Quality

Mart on Peace Haven Road in Winston-Salem, North Carolina, had just

been robbed.    The broadcast described the suspect as an armed,

white man wearing a black hooded sweatshirt last seen running north

from the convenience store.      Riazzi, who was familiar with the

upper-middle class neighborhood along Peace Haven Road, thought the

robber might flee by car through the intersection of Robinhood Road

and Peace Haven Road, so he drove there.




                                 -3-
     Peace Haven Road is a through street and numerous streets

intersect it along the 3.7 miles between the Quality Mart and

Robinhood Road.   But because of the early hour, very few cars were

on the road.   Soon after arriving at the intersection,   Riazzi saw

a red vehicle pass through it.   He followed the red car for eight

blocks to see if the driver would commit a traffic violation.    When

the driver did so, Riazzi turned on his blue lights and pulled up

beside the car.    Based on the driver’s demeanor when told of the

robbery and Riazzi’s calculation that the suspect could not have

reached the intersection so quickly, Riazzi ruled the driver out as

a suspect.

     Upon his return to the intersection, Riazzi observed a “beat-

up” car -- occupied by the defendants -- drive north on Peace

Haven, stop at a red light, and turn right onto Robinhood.      About

four minutes had passed since the radio broadcast. Riazzi followed

the car for eight miles but did not see the driver commit any

traffic violations.   The car took an indirect route to a highway to

Greensboro.    When the car entered a lighted area on the highway,

Riazzi pulled alongside it and saw that it was occupied by two men

with light complexions; he could not tell if they were white.     He

noticed that the driver was wearing a black sweater.      The driver

neither made eye contact with him nor looked at him, even though,

as Riazzi remembers it, no other cars were on the road.       Riazzi

pulled the defendants over and, after asking some questions,


                                 -4-
frisked the defendants and the car, finding a pistol, a black

hooded sweatshirt, and a mask similar to those used in the robbery.



                                        II.

        In ruling on the defendants’ motion to suppress this evidence,

the district court carefully considered Riazzi’s testimony.                The

court     noted   that   Riazzi   had    relied   on   several   factors   as

justification for the stop: the car arrived at an intersection that

someone escaping the robbery might pass through; the car was beat-

up and, therefore, out of place in the well-to-do neighborhood; the

driver took an indirect path to Route 421; the driver wore a black

sweater; both occupants of the car had light complexions; and the

driver did not look at or make eye contact with Riazzi when the

officer pulled up alongside the car.

     The district court concluded that these factors did not

provide “an articulable suspicion for the officer to pull the

driver over for an investigatory stop.”           The court reasoned that

because two dozen streets intersect Peace Haven in the 3.7 miles

between the Quality Mart and Robinhood Road, the presence of the

defendants’ car at the Robinhood/Peace Haven intersection did not

mean it came from the Quality Mart.           The court further held that

neither the condition of the car nor the circuitous route it took

to the highway proved anything.          And the court noted that although

the driver fit the description of the suspect in that he had a


                                        -5-
light complexion and wore a black sweater, the police broadcast did

not mention a second man or indicate that the suspect had a car --

the suspect had last been seen on foot.                         The district court

concluded that although this was a “close case,” the stop was not

based on reasonable suspicion, but only a good hunch.



                                          III.

     We agree with the district court that this is a very close

case.

     The    Supreme      Court    has    held    that    when    a   police     officer

possesses    a   reasonable,          articulable       suspicion    that      criminal

activity “may be afoot” the Fourth Amendment permits a brief

investigative       stop     of   a     vehicle,    without     probable       cause   of

criminal    activity.        Terry      v.   Ohio,   392    U.S.     1,   30    (1968).

Reviewing courts “must look at the ‘totality of the circumstances’

of   each   case    to    see     whether     the    detaining       officer     has   a

‘particularized       and    objective        basis’      for    suspecting       legal

wrongdoing.”       United States v. Arvizu, 534 U.S. 266, 273 (2002)

(citation omitted).         This means that courts cannot engage “in the

sort of ‘divide-and-conquer analysis’ that treats each action by a

defendant in isolation, finds each of them to be possibly innocent,

and thus picks apart an officer’s reasonable assessments.”                       United

States v. Perkins, 363 F.3d 317, 327 (4th Cir. 2004) (citing

Arvizu, 534 U.S. at 274-75).


                                          -6-
      Given these generous standards of review and the district

court’s failure to consider the effect of one critical fact in

assessing the totality of the circumstances, we must reverse its

grant of the suppression motion.

      The   district   court    examined   the     relevant   evidence   with

commendable care except for its failure to give due weight to one

important factor: the early morning hour.             See Wayne R. LaFave,

Search and Seizure § 9.4(g) at 206-07 (3d ed. 1996).               While the

high volume of cars on the road at 4:30 p.m.             render it somewhat

unlikely that a car at the intersection originated at the Quality

Mart, the few cars on the road at 4:30 a.m. significantly increase

that probability.      Similarly, while it may not be unusual for a

driver not to acknowledge a marked police car driving next to him

on a highway at 4:30 p.m. during rush hour, it may seem highly

unusual for a driver to fail to acknowledge a marked police car

driving right next to him on a highway at 4:30 a.m. when few, if

any, other cars are on the road, and particularly when, as here,

the police car had followed the driver for some time.             See Arvizu,

534 U.S. at 275-76 (“We think it quite reasonable that a driver’s

slowing down, stiffening of posture, and failure to acknowledge a

sighted law enforcement officer might well be unremarkable in one

instance (such as a busy San Francisco highway) while quite unusual

in   another   (such   as   a   remote   portion    of   rural   southeastern

Arizona).”).


                                     -7-
     No case is identical to that at hand.       But we, and other

courts, have upheld the reasonableness of investigatory stops in

similar circumstances. See, e.g., United States v. Hurst, 228 F.3d

751, 757 (6th Cir. 2000); United States v. Jones, 187 F.3d 210,

216-17 (1st Cir. 1999); United States v. Colclough, 549 F.2d 937,

940 (4th Cir. 1977).   We must conclude that the stop here was also

reasonable, though an even closer case than some of those cited

above, and withstands constitutional scrutiny.



                                IV.

     For the reasons set forth above, the judgment of the district

court is

                                                         REVERSED.




                                -8-
