                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-5043


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DECARLOS GEORGE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00035-BO-1)


Argued:   September 20, 2013                Decided:   October 16, 2013


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by published opinion.        Judge Niemeyer wrote the
opinion, in which Judge Agee and Senior Judge Hamilton joined.


ARGUED:    James Anthony Martin, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, North Carolina, for Appellant.       Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.     ON BRIEF:   Thomas P.
McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.     Thomas G.
Walker,   United  States   Attorney,   Jennifer  P.  May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

      After     Wilmington,         North    Carolina          Police    Officer    Daniel

Roehrig stopped a vehicle in a high-crime area of Wilmington at

3:30 a.m. for giving chase to another vehicle and running a red

light, he observed suspicious conduct of Decarlos George, one of

the passengers, and asked George to exit the vehicle.                                  Upon

frisking      George,     Officer      Roehrig       discovered          a   handgun    and

arrested him.         During George’s prosecution for possession of a

handgun    by   a    felon,    in    violation       of    18    U.S.C.      §   922(g)(1),

George filed a motion to suppress evidence of the handgun, based

on   his   claim     that     the    frisk       violated       his     Fourth   Amendment

rights.    The district court denied George’s motion, and George

pleaded guilty to the charge.

      Because       the     objective        facts        of    record       support    the

reasonableness of Officer Roehrig’s suspicion that George was

armed and dangerous and thus his authority to conduct a frisk,

we affirm.


                                             I

      At 3:30 a.m. on Sunday, November 27, 2011, Officer Roehrig,

while patrolling Wilmington District Two, which he characterized

as “one of the highest crime areas in the city,” observed a

dark-colored        station   wagon     closely      and       aggressively      following

another vehicle -- within a car’s length -- as if in a chase.


                                             2
As the two vehicles made a right turn, they ran a red light at

the “fairly high rate of speed” of approximately 20 to 25 miles

per hour such that their tires screeched.                 As Officer Roehrig

pulled     behind   the   vehicles    following    the    turn,   the    station

wagon, which had accelerated to approximately 45 miles per hour,

slowed to 25 miles per hour and broke off the chase, making a

left turn.       Officer Roehrig followed the station wagon as it

made three more successive left turns, which Officer Roehrig

interpreted as an effort by the driver to determine whether he

was following the vehicle.          When Officer Roehrig decided to stop

the vehicle for its aggressive driving and red light violation,

he called for backup, which was answered by K9 Officer Poelling.

With Officer Poelling nearby, Officer Roehrig then effected the

stop in a parking lot.

      As Officer Roehrig approached the vehicle, he observed four

males in it, including Decarlos George, who was sitting behind

the driver’s seat.        George was holding up his I.D. card with his

left hand, while turning his head away from the officer.                     His

right hand was on the seat next to his leg and was concealed

from view by his thigh.           Roehrig instructed George to place both

of his hands on the headrest of the driver’s seat in front of

him, but George placed only his left hand on the headrest.                  This

caused Officer Roehrig concern, as he “didn’t know what [George]

had   in   his   right    hand,    [but   it]   could    easily   have   been   a

                                          3
weapon.”       Officer Roehrig directed George again to place both

hands on the headrest.           As Officer Roehrig testified, “I had to

give [George] several more requests to move his hand.                         Probably

I asked four or five times.                 It was actually getting to the

point that I was getting worried about what he had in his right

hand.”     George ultimately complied, but he still never made eye

contact with Officer Roehrig.

      Once Officer Roehrig observed that George did not have a

weapon in his right hand, he proceeded to speak with Weldon

Moore, the driver of the vehicle.                  Moore denied running the red

light    and    claimed    he   was   not       chasing    anyone.     When    Officer

Roehrig informed Moore that he had observed Moore chasing the

other vehicle and going through a red light, Moore adjusted his

story, now saying that his girlfriend was in the front vehicle

and that he was following her home.                     Roehrig found this story

inconsistent with Moore’s aggressive chase of the other vehicle

and the abandonment of that chase when the police were spotted.

He   found     Moore’s    driving     to   be    more     consistent   with    hostile

criminal activity, and he questioned the passengers in the car

about recent gang violence.

      Officer Roehrig then consulted with Officer Poelling, and

the two decided to remove all four passengers from the car and

interview       them      separately.            Because     the     officers     were

outnumbered, they called for more backup.                    When backup officers

                                            4
arrived, Officer Poelling removed the right rear passenger of

the vehicle and conducted a protective frisk.               Officer Roehrig

then directed George to step out of the vehicle.              As George was

doing so, he dropped his wallet and cell phone onto the ground.

As   George   bent   over   to   pick   the   items   up,   Officer   Roehrig

stopped him by holding onto George’s shirt, fearing that letting

George bend over to the ground would create an increased risk of

escape.   Officer Roehrig turned George around, had him place his

hands on the car, and conducted a protective frisk.              During the

pat down, Roehrig felt an object in George’s right front pocket

that he “immediately recognized as a handgun.”              After announcing

the presence of the gun to the other officers, Roehrig pressed

George against the car and placed him in handcuffs, as a second

officer removed the handgun from George’s pocket.

      After the gun was seized, Officer Roehrig secured George in

the back of his patrol car and issued Moore a written warning

for failing to stop at a red light.               Upon checking George’s

criminal history, Officer Roehrig discovered that George was a

convicted felon and that the serial number on the gun indicated

that it had been stolen.         George was charged and pleaded guilty

to possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1).

      Before pleading guilty, George filed a motion to suppress

the evidence of the gun on the ground that it resulted from an

                                        5
unlawful frisk, in violation of his Fourth Amendment right to be

free from unreasonable searches and seizures.

        At the suppression hearing, George claimed that Moore was

dropping him off at his home and that they had circled around

the block because they had driven past George’s house on the

first pass.       George also contended that he had made direct eye

contact with Officer Roehrig during the stop and that he had put

both hands on the headrest following Officer Roehrig’s first

request for him to do so.           George also gave an explanation as to

how he obtained the firearm, stating that he had found it on the

sidewalk when walking home from work.                   According to George, he

accidentally      dropped     his   cell       phone,   activating        the    phone’s

light,    which    illuminated      the    gun     as     it   was      lying    on   the

sidewalk.     George claimed that he picked the gun up “to get it

off the street.”

     The district court, in denying George’s motion to suppress,

found     George’s     testimony     inconsistent          and     implausible        and

instead     credited     Officer       Roehrig’s        testimony        on     George’s

demeanor and actions.          George then entered a conditional guilty

plea,     reserving     the    right      to     appeal    the       denial     of    his

suppression motion.         The district court sentenced George to time

served, which amounted to a little over one year.

     George    filed    this    appeal,        challenging       only    the    district

court’s denial of his motion to suppress.

                                           6
                                             II

       George acknowledges that Officer Roehrig had the right to

stop the vehicle in which he was a passenger “[w]hen the driver

ran the red light.”             He argues, however, that “[n]o objective

facts supporting reasonable suspicion that Mr. George was armed

or   dangerous    arose       during      the     stop.”      Stated      otherwise,      he

maintains that the facts of record, as found by the district

court, failed to provide Officer Roehrig with a legal basis to

frisk him and that the government and the court merely “cobbled

together a set of factual circumstances that fell far short of

supporting reasonable suspicion in this case.”

       The    facts    of    record       show    that     Officer      Roehrig    legally

stopped      Weldon    Moore’s      vehicle       for   running     a   red    light,    see

Whren v. United States, 517 U.S. 806, 810 (1996), and, after the

stop,   legally       ordered       the   passengers        from    the   vehicle,       see

Maryland v. Wilson, 519 U.S. 408, 415 (1997).                        The issue in this

case    centers       on    whether,      after     asking     George     to    exit     the

vehicle, the facts as found by the district court show that

Officer Roehrig had a sufficient basis to frisk him.                            This is a

legal question that we review de novo.                        See United States v.

Black, 525 F.3d 359, 364 (4th Cir. 2008).

       To conduct a lawful frisk of a passenger during a traffic

stop,   “the    police       must    harbor       reasonable       suspicion      that   the

person subjected to the frisk is armed and dangerous.”                             Arizona

                                              7
v. Johnson, 555 U.S. 323, 327 (2009).                      “The officer need not be

absolutely certain that the individual is armed; the issue is

whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in

danger.”      Terry v. Ohio, 392 U.S. 1, 27 (1968).                        The reasonable

suspicion      standard       is   an    objective         one,    and     the   officer’s

subjective state of mind is not considered.                            United States v.

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

       In determining whether such reasonable suspicion exists, we

examine the “totality of the circumstances” to determine if the

officer had a “particularized and objective basis” for believing

that the detained suspect might be armed and dangerous.                              United

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

States v. Cortez, 449 U.S. 411, 417 (1981) (internal quotation

marks omitted)); see also United States v. Hernandez-Mendez, 626

F.3d   203,    211     (4th    Cir.     2010)      (“[C]ourts       have    relied    on   a

standard      of   objective       reasonableness          for    assessing      whether   a

frisk is justified”); United States v. Mayo, 361 F.3d 802, 808

(4th   Cir.    2004)    (evaluating       a       frisk    by    the   totality     of   the

circumstances).

       A host of factors can contribute to a basis for reasonable

suspicion, including the context of the stop, the crime rate in

the area, and the nervous or evasive behavior of the suspect.

See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).                            A suspect’s

                                              8
suspicious    movements      can    also          be   taken    to     suggest       that    the

suspect may have a weapon.              See, e.g., United States v. Raymond,

152 F.3d 309, 312 (4th Cir. 1998).                     And multiple factors may be

taken together to create a reasonable suspicion even where each

factor, taken alone, would be insufficient.                            See United States

v. Branch, 537 F.3d 328, 339 (4th Cir. 2008).                          Thus, we will not

find reasonable suspicion lacking “based merely on a ‘piecemeal

refutation of each individual’ fact and inference.”                              Id. at 337

(quoting United States v. Whitehead, 849 F.2d 849, 858 (4th Cir.

1988)).

     In     this    case,    we    conclude            from    the     totality       of     the

circumstances       that    Officer          Roehrig’s         frisk     of     George      was

supported by objective and particularized facts sufficient to

give rise to a reasonable suspicion that George was armed and

dangerous.

     First, the stop occurred late at night (at 3:30 a.m.) in a

high-crime     area.        Officer          Roehrig      testified           that    he    had

patrolled    the    area    of    the    stop      for    his    five-and-a-half            year

tenure with the Wilmington Police Department and that, based on

his experience, it had one of the highest crime rates in the

city and was characterized by violence and narcotics.                                      While

George argues that such conclusory testimony given by an officer

should not be given much weight, as the government could have

employed    crime    statistics         to    make      the    point,    George       himself

                                              9
acknowledged in testimony that it was a “drug-related area.”

And although general evidence that a stop occurred in a high-

crime        area,        standing        alone,         may        not     be        sufficiently

particularized to give rise to reasonable suspicion, it can be a

contributing         factor.         See       Wardlow,       528    U.S.    at       124;    United

States       v.    Sprinkle,        106      F.3d       613,       617    (4th     Cir.       1996).

Likewise,         that    the   stop      occurred       late       at    night    may       alert   a

reasonable officer to the possibility of danger.                                       See United

States v. Foster, 634 F.3d 243, 247 (4th Cir. 2011) (noting that

the encounter occurred “in the middle of the day” in explaining

why the officer lacked reasonable suspicion); United States v.

Clarkson, 551 F.3d 1196, 1202 (10th Cir. 2009) (“[T]ime of night

[is]     a    factor       in   determining             the    existence         of    reasonable

suspicion”).

        Second, the circumstances of the stop suggested that the

vehicle’s occupants might well be dangerous.                                 Officer Roehrig

observed the vehicle aggressively chasing the vehicle in front

of it, following by less than one car length.                               He also observed

the two vehicles turn right through a red light at 20 to 25

miles    per      hour,     which      was     a    speed      sufficient         to    cause    the

vehicles’ tires to screech.                     But when Officer Roehrig began to

follow the vehicles, the rear vehicle slowed down and ended its

pursuit      of     the     vehicle       in    front         of    it.      Officer         Roehrig

concluded that the chase was consistent with the individuals in

                                                   10
the rear vehicle “engag[ing] in some type of crime against the

people in the first vehicle,” as it indicated hostility between

the   two    vehicles.     This   suspicion,       which       we   conclude    was

objectively reasonable in the circumstances, was reinforced when

the   second    vehicle    disengaged    from    its     pursuit    of   the   first

vehicle upon seeing law enforcement.

      Third,    the    vehicle    that       Officer     Roehrig     stopped    was

occupied by four males, increasing the risk of making a traffic

stop at 3:30 a.m. in a high-crime area.                   “[The] danger from a

traffic stop is likely to be greater when there are passengers

in addition to the driver in the stopped car.”                  Wilson, 519 U.S.

at 414.

      Fourth,     George     acted    nervously         when    Officer    Roehrig

approached the vehicle.           Without request, George held up his

I.D. card while at the same time pointing his head away from

Officer     Roehrig.      Moreover,     even    after    Officer    Roehrig    gave

George a direct order to put his hands on the headrest in front

of him, George failed to comply and continued not to make eye

contact with Officer Roehrig.             Such conduct can contribute to

reasonable suspicion.        See Wardlow, 528 U.S. at 124; Branch, 537

F.3d at 338; Mayo, 361 F.3d at 808.                     To be sure, while the

failure of a suspect to make eye contact, standing alone, is an

ambiguous indicator, see United States v. Massenburg, 654 F.3d



                                        11
480, 489 (4th Cir. 2011), the evidence may still contribute to a

finding of reasonable suspicion.

     Fifth, the driver of the vehicle made arguably misleading

statements       and   presented       Officer     Roehrig       with    an    implausible

explanation for his aggressive driving.                          He initially claimed

that he did not run the red light and that he was not chasing

anyone.    After Officer Roehrig confronted him with the fact that

he   had    personally        observed      the     chase        and    the     red    light

violation,       the   driver    stated     that    he     had    been    following      his

girlfriend.       But even that explanation was inconsistent with the

driver’s conduct in breaking off the chase.                             If the driver’s

girlfriend had been in the front car, it would not have been

logical for the vehicles to suddenly part ways when a marked

police     car     showed     up.         Such     implausible          and     misleading

statements       contribute       to      the     establishment          of     reasonable

suspicion.       See Powell, 666 F.3d at 188-89.

     Sixth       and   most   importantly,        George’s        movements      indicated

that he may have been carrying a weapon.                         When Officer Roehrig

initially approached the stopped vehicle, George’s right hand

was on the seat next to his right leg and was concealed by his

thigh.     When Officer Roehrig ordered George to put his hands on

the headrest, George placed his left hand on the headrest, but

not his right hand, which he kept next to his thigh.                                  Officer

Roehrig    had    to    repeat      his   order     four    or     five       times:     “It

                                            12
was . . . getting to the point that I was getting worried about

what    he     had    in       his     right   hand.”        As       Roehrig   explained,    he

“didn’t know what [George] had in his right hand, [but it] could

easily       have     been        a     weapon.”        Although          Officer    Roehrig’s

subjective impressions are not dispositive, we conclude that his

concern in this instance was objectively reasonable.

       Seventh and finally, after Officer Roehrig ordered George

to step out of the vehicle, George dropped his wallet and his

cell phone onto the ground as he got out of the car.                                        When

George bent over to pick the items up, Officer Roehrig stopped

him.     George’s actions could have created an opportunity for him

to     reach    for        a     weapon    or    to     escape.           Officers    in    such

circumstances are not required to “take unnecessary risks in the

performance of their duties.”                    Terry, 392 U.S. at 23.

       Taking        these       facts    together      in    their       totality,    we    are

satisfied       that           Officer     Roehrig      had       a     “particularized      and

objective basis” for believing that George might be armed and

dangerous.           See Arvizu, 534 U.S. at 273.                        As such, he had a

right to frisk George for weapons to protect himself and his

fellow officers during the lawful stop.                           Adams v. Williams, 407

U.S. 143, 146 (1972).

       George relies particularly on our decision in Powell to

argue    that        the       facts    here    were    insufficient        to   justify     the

frisk.       In Powell, the officers conducted a routine traffic stop

                                                 13
for a burned out headlight, 666 F.3d at 183, which was not in a

high-crime area, id. at 187.            The stop began amicably, and the

officer told Powell he was free to leave if he wanted.                       Id.

During the stop, however, the officer was alerted to the fact

that   Powell    had   “priors”   for    armed   robbery,    and,     with   that

information, the officer frisked Powell.               Id. at 184.      We held

that   those    circumstances     did   not   give    rise   to   a   reasonable

suspicion that Powell was armed and dangerous.               Id. at 189.     The

facts in Powell, however, are readily distinguishable from those

presented here.        In this case, the stop occurred at 3:30 in the

morning in a high-crime area; the driver of the vehicle could

not explain his aggressive driving to the satisfaction of the

officers; George was palpably nervous; George failed to obey the

officer’s orders, maintaining his hand on his right thigh as if

to protect a weapon; and George exited the vehicle in a manner

that created a threat to the officers.               We conclude that Powell

provides George with scant support for his argument and that the

officer’s actions here were supported by a reasonable suspicion

that George was armed and dangerous.

       Accordingly, we affirm the district court’s order denying

George’s motion to suppress and the judgment of the court.

                                                                        AFFIRMED




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