                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                  December 13, 2006
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                         No. 06-30176



       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellant,

                                             versus

       JEREMY BROWN,

                                                           Defendant-Appellee.


                    Appeal from the United States District Court for
                           the Middle District of Louisiana
                              (USDC No. 3:05-CR-62-1)
           _________________________________________________________


Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

       The Government appeals the district court’s grant of Brown’s motion to suppress a

gun, marijuana, and drug paraphernalia recovered from Brown’s person, auto, and

residence pursuant to a Terry stop in the parking lot of Brown’s apartment complex. For

the following reasons, we reverse the district court’s order suppressing the drug and


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
weapon evidence and remand to the district court for further proceedings.

                             I. FACTS AND PROCEEDINGS

       On the evening of June 4, 2004, two Baton Rouge police detectives were working

extra-duty shifts for a private company that provides security services for several area

apartment complexes. On the night in question, the officers were providing security for

the Spanish Arms complex, which had a “no loitering” policy. The officers were tasked

with monitoring the parking lots and, if called for, advising tenants and visitors of the

policy. The officers later testified that they were hired because the complex had

experienced some problems with crime.

       At around 8:30 p.m. the two officers were patrolling the complex in an unmarked

police car when they passed a car parked in the parking lot with two men inside, one of

whom was Brown. The officers did not approach the car on the first pass, but some five

to ten minutes later, they noted the two occupants still seated in the car and, parking their

own vehicle, approached Brown’s car on foot. The officers were clad in pullover shirts

with the word “POLICE” written across the chest in large letters. The officers later

testified that, when Brown and his companion spotted them approaching, they slumped

down and appeared to be reaching underneath both the driver’s and passenger’s seats

suspiciously.

       The officers testified that, based on their experience, they believed and feared the

two men may have been concealing or retrieving a weapon. The detectives ordered

Brown and his companion out of the car, then conducted a pat-down search of the men.

                                              2
A two-ounce baggie of marijuana was found in Brown’s right knee pocket. The officers

advised Brown he was under arrest and handcuffed and Miranda-ized both men.1 The

officers then searched the car, finding a loaded revolver underneath the driver’s seat and

three bags of marijuana under the passenger’s seat.

       In response to questions from the officers, Brown revealed that he lived on the

property and had more marijuana and a digital scale in his apartment. The officers asked

Brown for voluntary consent to search his residence, which Brown provided. The

officers recovered the marijuana and scale from locations Brown indicated and also found

additional plastic baggies sitting next to the scale. Brown was taken to the narcotics

office and, during booking, revealed that he had more marijuana in the same pocket

where the detectives found marijuana during the pat-down.

       Brown, who had a prior felony record, was indicted for possession of a firearm by

a convicted felon and possession of marijuana. Brown moved to suppress evidence of the

gun and marijuana, alleging that the officers lacked reasonable suspicion that criminal

activity was afoot when they conducted the pat-down and that the subsequent car and

residence search were thus not justified. The district court granted Brown’s motion,

finding that Brown’s slouching in his seat and apparent hiding or retrieving of something

were insufficient facts to establish reasonable suspicion of criminal activity. The district



       1
           Pursuant to Miranda v. Arizona, 384 U.S. 436, 469-71, 86 S. Ct. 1602, 1625–26
(1966).


                                              3
court noted that the Government had failed to show that the complex was in a high crime

area. Finally, the district court also found that the officers’ subsequent search of Brown’s

car and warrantless search of Brown’s apartment were likewise violative of the Fourth

Amendment, because there was no evidence of a break in the chain of events sufficient to

refute the inference that the evidence obtained was a result of the initial constitutional

violation.

                              II. STANDARD OF REVIEW

       When reviewing a ruling on a motion to suppress, we review questions of law de

novo and findings of fact for clear error. United States. v. Grant, 349 F.3d 192, 195 (5th

Cir. 2003). We view the evidence in the light most favorable to the party that prevailed

in the district court. Id.

                                    III. DISCUSSION

                                   A. The Terry Standard

       We have articulated three tiers of police encounters with the public: (1) simple

questioning of a citizen without detention; (2) a temporary seizure of the citizen if the

officer has reasonable suspicion based upon articulable facts that the person has

committed or is about to commit a crime; and (3) an arrest of a citizen if the officer has

probable cause to believe a crime has been committed. United States v. Zukas, 843 F.2d

179, 181-82 (5th Cir. 1988). Brown conceded at oral argument that the officers’ initial

approach of the car falls within the first tier of police encounters — simple questioning

by the police — which is not a “seizure” implicating the Fourth Amendment and thus

                                              4
needs no justification on an articulated basis for suspicion.

       The second sort of police encounter is governed by the principles of Terry v. Ohio,

392 U.S. 1, 88 S. Ct. 1868 (1968). Under Terry, officers may briefly detain pedestrians

and motorists in public, even without probable cause to arrest them, so long as the

officers have reasonable suspicion to believe that criminal activity is afoot. United States

v. Baker, 47 F.3d 691, 693 (5th Cir. 1995). Police officers must base their reasonable

suspicion on “specific and articulable facts,” not merely “inarticulate hunches” of

wrongdoing. Terry, 392 U.S. at 21, 22. Terry also instructs that a police officer “who

reasonably believes that he is dealing with armed and dangerous individuals may conduct

a limited protective search for weapons.” Baker, 47 F.3d at 693. For purposes of a Terry

pat-down, “[t]he 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.” Id. Where an initial stop and

pat-down of an occupant of a car are justified under Terry, a search of the car for

weapons is also a valid “Terry pat-down” of the car. See United States v. Wallen, 388

F.3d 161, 166 (5th Cir. 2004) (upholding protective sweep of car as Terry pat-down

under the rationale set forth in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469

(1983)).

       The only question in this case is whether, having legitimately approached the car

for the purpose of advising the occupants about the anti-loitering policy, the officers

lacked reasonable suspicion either that criminal activity was afoot or that the car’s

                                              5
occupants may be armed when the officers conducted a Terry pat-down of Brown and his

car. As discussed below, we conclude that reasonable suspicion justified the officers’

actions.

           B. Brown’s actions raised reasonable suspicion under the circumstances

       Officer Thompson testified that as he and his partner, Officer Busbin, approached

the front of Brown’s car, “[w]e observed both the driver, which was Jeremy Brown, and

[his passenger] slumped down in their seats. When they realized that the police were

walking towards them, both of them appeared to go underneath the driver’s seat and the

passenger’s seat suspiciously.” Officer Busbin testified that, upon approach to Brown’s

car, he observed Brown and Chavez “begin to slump down in their seats, and it appeared

to us that they were trying to conceal something underneath their seats.” Officer Busbin

further stated that, upon spotting the police, Brown and Chavez “started going up under

the seats” and that they each had “both hands leaning forward, and both hands going

underneath the seat.”

       We have found that similar behavior in similar circumstances may support an

investigatory stop. In United States v. Watson, 953 F.2d 895, 896-97 (5th Cir. 1992), we

held that two police officers, having approached a car parked in an abandoned service

station and observed Watson “move his body as if to conceal or retrieve something on the

car floor,” were justified in ordering the defendant and his passenger out of the car while

a visual inspection of the car’s interior (which revealed a pistol) was conducted. In

United States v. Colin, 928 F.2d 676, 678 (5th Cir. 1991), a police officer, who had

                                             6
pulled over a car for a traffic violation, observed the front-seat passenger engaging in

“some unusual movements” by “stooping down and moving from side to side.” We held

that this behavior supported a reasonable belief by the officer that the passenger was

armed and dangerous and that the officer was thus justified in ordering the passenger out

of the car and frisking him. Id. at 678.

                        C. The border patrol cases are inapplicable

       In granting Brown’s motion to suppress, the district court relied on a series of

border patrol cases in which we have held that ducking or slouching behavior of the

occupants of a car was insufficient, in itself, to create a reasonable suspicion that criminal

activity was afoot.2 In each of the cases relied upon by the district court, we found that,

under the factors set forth in United States v. Brigoni-Ponce, 422 U.S. 873, 884-85, 95 S.

Ct. 2574, 2582 (1975), for determining whether a roving patrol stop is justified,3 the mere

slouching or “hunkering down” of auto occupants did not warrant a stop. Orona-

Sanchez, 648 F.2d at 1042; Pena-Cantu, 639 F.2d at 1229-30; Pacheco, 617 F.2d 86-87.

       The test set forth in Brigoni-Ponce does not apply in non-border patrol cases


       2
          The district court cited United States v. Orona-Sanchez, 648 F.2d 1039, 1042
(5th Cir. Unit A June 1981); United States v. Pena-Cantu, 639 F.2d 1228, 1229-30 (5th
Cir. Unit A Mar. 1981); and United States v. Pacheco, 617 F.2d 84, 86-87 (5th Cir.
1980).
       3
          The factors to be considered are: (1) characteristics of the area in which a
vehicle is encountered, including proximity to the border; (2) history of illegal alien
traffic patterns, and history of illegal alien traffic; (3) type and appearance of vehicle,
including whether it appears heavily loaded; (4) behavior of the driver; and (5) number,
appearance, and behavior of the passengers.

                                              7
because the slouching down of an occupant of a vehicle does not have the same import

outside the border context. In the border context, the suspected criminal activity is illegal

presence in the United States. In the above-cited cases, we have reasoned that the act of

slouching alone is not a sufficient indicator of an attempt to avoid detection of one’s

presence, a rationale that is inapplicable to this case. We agree with the district court that

mere slouching in an automobile, absent any other suspicious circumstances, is likewise

insufficient to warrant an investigatory stop outside of the border context. However, the

behavior reported here was something more. The sort of deliberate, furtive actions — the

apparent ducking and hiding of objects — that the officers observed reasonably aroused

further suspicion beyond a mere “hunch” and, under Watson and Colin, supported the

conduct of a Terry pat-down.

       We do not find that the Government was required to show that the incident

occurred in a high crime area. While area crime rates may be a factor for consideration,

in the Terry context, “[r]easonable suspicion cannot be reduced to a neat set of legal

rules, but must be determined by looking to the totality of the circumstances — the whole

picture.” United States v. Jordan, 232 F.3d 447, 449 (5th Cir. 2000) (internal quotations

and citation omitted). Here, the officers testified that the apartment complex parking lot

had a history of criminal activity and that this was the reason they had been engaged by

the complex owners. Taken together with the actions of Brown and his passenger upon

spotting the police, we conclude that the officers were justified in suspecting that criminal

activity was afoot, and therefore in investigating further.

                                              8
                  D. No formulaic approach was required of the officers

       Brown also argues that, even if sufficient grounds existed for the officers to

conduct a Terry stop, there were insufficient grounds to conduct any search. Brown

asserts that if the officers were concerned about the presence of a gun, they should not

have searched his person until a visual inspection was made of the car. In support,

Brown cites United States v. Watson, in which, after observing the motions of the

accused to hide or retrieve something from under the seat of the vehicle, officers order the

occupants out to be watched by one officer while the second conducted a visual

inspection of the car; and no further search of the accused person or property was

conducted until after a pistol was observed in plain view inside the vehicle. 953 F.2d

895, 896 (5th Cir. 1992). However, as commentators recognize, once the circumstances

reasonably warrant officers in believing that weapons may be inside the automobile

involved in a Terry stop, the Supreme Court does not require a formulaic approach by the

officers to overcome the perceived danger. See WAYNE R. LAFAVE ET AL., 2 CRIM.

PROC. § 3.8 (2d ed. 2006) (citing Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469

(1983) (declaring that officers are not required to “adopt alternate means to insure their

safety in order to avoid the intrusion involved in a Terry encounter.”)).

                                            IV.

       Because the initial stop and pat-down of Brown were justified under Terry, as

interpreted by this court in Watson and Colin, the subsequent search of the car for

weapons was a valid “Terry pat-down” of the car under Wallen. Because the Terry stop

                                             9
was valid, Brown’s subsequent consent to search his apartment was not tainted by

unconstitutional seizure. Accordingly, the evidence found pursuant to the Terry stop and

subsequent consensual search of Brown’s apartment was rightfully obtained and should

be available to the Government as evidence at trial.

REVERSED AND REMANDED.




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