     Case: 13-10841      Document: 00512708806         Page: 1    Date Filed: 07/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 13-10841
                                                                                  FILED
                                                                              July 23, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff - Appellee
v.

DARRELL DEWAYNE LUCKY,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-CR-124


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Darrell Dewayne Lucky was convicted by his plea of guilty of possessing
a firearm while being a convicted felon. He reserved the right to appeal the
district court’s denial of his motion to suppress a gun Dallas police recovered
from the scene of his arrest. In this connection, Lucky argues that he was
unlawfully seized under the Fourth Amendment and that the recovered gun
was the fruit of that unlawful seizure. Because Lucky was violating a well-
established Texas traffic ordinance when officers first approached him, the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-10841
officers were entitled lawfully to detain him under the Fourth Amendment and
the district court did not err by denying his motion to suppress. The judgment
of the district court is AFFIRMED.
                                        I.
      On December 29, 2011, two Dallas police officers were patrolling a high
crime area around midnight. Officer Cooley and his partner, Officer Nielson,
were in a marked patrol car driving down a residential street when they
noticed Lucky and another male walking in the middle of the street toward the
officers. Because the officers observed accessible sidewalks on both sides of the
street Lucky was walking on, they noted that he was violating TEX. TRANSP.
CODE ANN. § 552.006, which forbids pedestrians from “walk[ing] along and on
a roadway if an adjacent sidewalk is provided and is accessible to the
pedestrian.” Intending to either cite or arrest Lucky for the offense, Cooley
began to get out of his patrol car. As Cooley exited the vehicle, Lucky moved
behind the trunk of an adjacent parked car, attempting to block the officers’
view of him. At the same time officers observed Lucky making an “exaggerated
pulling motion” with his right arm as if he was attempting to retrieve
something from his pocket. Cooley immediately drew his weapon and ordered
Lucky to show his hands. At about that time Cooley heard a soft thud as Lucky
threw an object into the grass of the closest residential yard.            Cooley
subsequently ordered both Lucky and the other man to the ground; Cooley
placed Lucky in handcuffs while Nielson dealt with Lucky’s companion.
      After placing Lucky in handcuffs, Cooley walked over to the tossed object
and discovered that it was a very small, fully loaded, silver .22 caliber revolver.
Although it was a chilly night, the gun was warm; furthermore, in spite of
ample dew on the ground, the gun was dry. A background check of Lucky
showed him to be a convicted felon and he was arrested. Lucky was charged
with a being a convicted felon in possession of a firearm, a violation of 18 U.S.C.
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                                  No. 13-10841
§ 922(g)(1). Before trial, Lucky filed a motion to suppress the gun, alleging
that the officers had unreasonably seized him in violation of the Fourth
Amendment. He disputed the officers’ version of events and argued that he
was only standing in the middle of the street and that the officers never saw
him throw anything. He stated that the officers simply encountered him on
the street in their patrol car, immediately drew their guns, and demanded that
he show his hands. According to Lucky, the officers lacked the requisite
suspicion necessary to make the officers’ stop of him lawful under the Fourth
Amendment.
      Lucky presented two witnesses to support him and to contradict the
officers’ testimony. The district court found that these witnesses were not
credible. Accepting the officers’ account of the incident, the district court
denied Lucky’s motion to suppress. Specifically, the court found that the
officers “had multiple levels of reasonable suspicion” which included the
officers “seeing [Lucky] in the street, [in the] middle of the night[,”] Lucky’s
apparent throwing motion, and the accompanying sound of something landing
in the yard. According to the court, the officers’ detention of Lucky was lawful;
thus, there was no basis upon which to suppress the gun. Following the denial
of his motion, Lucky pled guilty to the single charge.        The district court
subsequently sentenced him to a 60-month term of imprisonment. Lucky
properly filed a notice of appeal based solely upon the district court’s denial of
his motion to suppress.
                                       II.
      We review the denial of a motion to suppress evidence in two parts. The
factual findings are reviewed for clear error, while conclusions “regarding . . .
the constitutionality of law enforcement action [are reviewed] de novo.” United
States v. Perez, 484 F.3d 735, 739 (5th Cir. 2007). “We view the evidence in the
light most favorable to the prevailing party, here the Government.” United
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                                   No. 13-10841
States v. Abdo, 733 F.3d 562, 565 (5th Cir. 2013). From the outset, it is
important to note that Lucky does not argue the district court’s factual findings
were clear error and, as a result, he has effectively waived that argument.
United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (“[F]ailure to raise
an issue on appeal constitutes waiver of that argument.”). We thus accept the
district court’s findings of fact for our review.
      Generally, there are three recognized categories of police/citizen
encounters in our Fourth Amendment jurisprudence.              Here, there is the
investigative Terry stop, which is considered a seizure for Fourth Amendment
purposes. It applies when an officer detains an individual for a limited time to
conduct a brief investigation in which the officer does not necessarily have
probable cause to believe a crime is committed, but “has reasonable, articulable
suspicion that the person has been, or is about to be engaged in criminal
activity.” United States v. Hensley, 469 U.S. 221, 227 (1985). Both Lucky and
the Government agree that Cooley’s detention was an investigative stop under
Terry. The question, then, is whether the officers had reasonable suspicion at
the time of a seizure. We look at the “totality of the circumstances–the whole
picture.” United States v. Sokolow, 490 U.S. 1, 8 (1989). The totality of the
circumstances must be such that a reasonable officer would suspect some legal
wrongdoing. United States v. Pack, 612 F.3d 341, 353–57 (5th Cir. 2010).
      We review Terry stops under a two-part inquiry. Id. at 350. The first
question we ask is “whether or not the officer’s decision to stop . . . was justified
at its inception.” Id. (emphasis added). Even if the stop was justified, the
second part of the inquiry requires us to ask “whether or not the officer’s
subsequent actions were reasonably related in scope to the circumstances that
cause[d] him to [make the] stop in the first place.” Id. There is no reasonable
relation if the officer detains the individual “beyond the time necessary to
investigate the circumstances that caused the stop, unless he develops
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                                 No. 13-10841
reasonable suspicion of additional criminal activity in the meantime.” Id.
Lucky focuses on the first prong and argues that his initial seizure, at its
inception, was illegal. With regard to the second prong, Lucky does not argue
that the officers detained him for an unreasonable amount of time and
consequently that is not an issue in this case.           We thus turn to the
consideration of whether the initial detention was lawful.
      The officers observed Lucky walking down the center of a street that had
accessible sidewalks; this was a violation of Texas law. See TEX. TRANSP. CODE
ANN. § 552.006 (“A pedestrian may not walk along and on a roadway if an
adjacent sidewalk is provided and is accessible to the pedestrian.”). Not only
did Cooley have reasonable suspicion to stop Lucky, but under Texas law, he
had a basis to make an arrest if he chose to do so. See McBride v. State, 359
S.W.3d 683 (Tex. App.–Houston 2011) (reaffirming that an officer may arrest
without a warrant an individual found violating this particular subsection of
the Texas Transportation Code); see also Atwater v. City of Lago Vista, 532 U.S.
318, 353 (2001) (acknowledging that a probable cause standard applies to all
offenses, even minor ones such as a violation of this particular subsection of
the Texas Transportation Code). The stop of Lucky, at its inception, was
reasonable under the Fourth Amendment because the officer had “reasonable,
articulable suspicion” that Lucky was “engaged in criminal activity.” Hensley,
469 U.S. at 227.     Cooley lawfully stopped Lucky when he observed him
breaking Texas law. There is no basis upon which to suppress the discarded
gun and, therefore, the district court did not err when it denied Lucky’s motion
to suppress. Accordingly, the judgment of the district court is
                                                                    AFFIRMED.




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