UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4373

KENNETH PERNELL JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-96-123)

Argued: March 6, 1998

Decided: June 4, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Carlton Ingram, Jr., FLOYD, ALLEN &
JACOBS, L.L.P., Greensboro, North Carolina, for Appellant. Sandra
Jane Hairston, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee. ON BRIEF: Walter C. Holton, Jr., United
States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Kenneth Pernell Johnson entered a conditional guilty plea under
Fed. R. Crim. P. 11(a)(2) and was convicted of possession with intent
to distribute cocaine, 21 U.S.C. § 841(a)(1). Johnson reserved the
right to appeal the district court's partial denial of his motion to sup-
press evidence. While the district court did suppress a confession
made by Johnson, it held that evidence seized from the apartment of
his girlfriend, Kristine Neilson, was legally obtained. To reach this
conclusion, the district court ruled (1) that the police made a legal
Terry stop of the automobile in which Johnson and Neilson were rid-
ing on June 12, 1996, (2) that the stop did not escalate into a full cus-
todial arrest of Neilson, and (3) that Neilson's consent to search her
car and her apartment was voluntarily given. Accordingly, the district
court held that the evidence obtained in the apartment search was not
"fruit of a poisonous tree" and was therefore admissible. On appeal
Johnson renews his claim that the search was illegal by challenging
the three rulings mentioned above. We affirm.

I.

In the morning of June 12, 1996, the Greensboro Police Depart-
ment received information from the North Carolina State Police about
a drug investigation involving Jason Ware. After stopping Ware's
out-of-state Isuzu for speeding on Interstate 85, state troopers con-
ducted a consensual search of the vehicle and discovered $21,000 in
bundles of cash concealed in a hidden compartment. Ware told the
troopers that he was returning from a visit with his uncle in Greens-
boro and that his uncle had given him the money for college
expenses. He described the uncle as a black male with short hair and
a dark complexion. Additionally, Ware gave the troopers a phone
number at which he said the uncle could be reached. A subscriber
check on this number revealed that the phone belonged to Kristine

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Neilson at 3225-D Orange Street in Greensboro. This information was
relayed to Detectives Graves and Austin of the Greensboro Police
Department's Vice and Narcotics Division, and they proceeded to
check out the address.

Detective Graves already had some familiarity with this address.
Approximately six months earlier, he had received an anonymous
telephone tip from a woman who alleged that narcotics were being
received at 3225-D Orange Street by another woman via the mail or
a delivery service. Although Graves thought that the caller might be
a "jealous individual" who "had something against" the woman at the
address, he nevertheless felt that the tip had "some validity" because
he had arrested a man on a narcotics charge who was alleged to be
the boyfriend of a woman living at this address. Consequently, Graves
took a written complaint and investigated the tip. When he spoke to
the manager for the apartment complex in which 3225-D was located,
he discovered that Nielsen rented apartment 3225-D and that she
drove a black Infiniti with New Jersey tags. Although Graves saw this
vehicle during his surveillance of the apartment complex (which he
conducted in fifteen to twenty minute intervals over a series of eve-
nings), he did not see anything suspicious. Graves informed a postal
inspector about the tip, but Graves had not received any response
from the Postal Service. Once the state police provided him with the
information from Ware on June 12, 1996, Graves realized that the
address was the same one mentioned by the anonymous tipster. More-
over, from his experience as a narcotics detective, Graves knew that
Ware's explanation was dubious because $21,000 (the amount of cash
Ware was carrying) was the prevailing wholesale price in Greensboro
for a kilogram of powder cocaine. Graves also knew that drug dealers
often conceal cash in hidden compartments in their automobiles.
Ware's indirect implication of 3225-D Orange Street thus had a
degree of consistency with the prior tip that the apartment had some
tie to the narcotics trade.

When Detectives Graves and Austin went to the apartment at this
address on the morning of June 12, 1996, no one was home and the
black Infiniti was gone. Graves and his partner, Detective Wallace,
returned later that afternoon. Again, no one answered the door and the
car was still gone. The apartment manager then verified that Neilson
rented the 3225-D unit, and the manager provided the detectives with

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Neilson's employment information. Further investigation revealed
that Neilson had gone to a beauty salon to get a haircut and that she
was a short, attractive black woman.

Three detectives (Graves, Wallace, and Austin) went to the salon
around 3 p.m. Although they identified themselves as police officers
to the employees of the salon and asked whether Kristine Neilson was
there, the employees were uncooperative and slow to answer ques-
tions. When they finally did answer, some employees told the officers
that they did not know who Neilson was and others said that she was
not there. After the officers had been at the salon a few minutes, a
woman meeting Neilson's general description emerged from a back
room, walked past the officers, exited the salon, and stepped into a
black Infiniti that had pulled to the curb. Detective Wallace recog-
nized that the Infiniti matched the description of Neilson's car. More-
over, Wallace noticed that the driver (later discovered to be Johnson)
was a dark-complexioned black male with short hair, who met the
general description of Ware's "uncle." Wallace informed the other
detectives that he believed that the woman was Neilson, and the three
left the salon to follow the Infiniti.

The officers then conducted moving surveillance on the Infiniti in
two unmarked police cars. The Infiniti initially appeared to be headed
to Neilson's home, and a computer check of the car's New Jersey tags
verified that it was registered to Kristine Neilson. Although the offi-
cers would occasionally pass the Infiniti in an effort to avoid detec-
tion, one of the police cars always stayed behind the Infiniti in order
to maintain visual contact. However, after proceeding several miles
the Infiniti began to slow down from its prior speed of 35 mph to a
sluggish 10 to 15 mph. When the Infiniti slowed down it was in the
left (fast) lane, there were no traffic lights, stop signs, or turnoffs for
another 300 to 400 feet, and there was no other traffic that could have
forced the car to slow to a crawl. Detective Wallace testified that
despite its slow speed, the Infiniti had "nowhere to go but straight."
Even though the second undercover vehicle driven by Detective Aus-
tin was already in front of the Infiniti, Detectives Graves and Wallace
decided to pass the car, hoping to avoid suspicion. Both Johnson and
Neilson looked at the detectives as they drove by, and once the offi-
cers had passed, Johnson made a left turn to get off the roadway. Con-

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sidering this maneuver to be evasive, the detectives turned around,
placed their blue lights on the dashboard, and stopped the Infiniti.

Detectives Graves and Wallace approached both sides of the car,
told Johnson and Neilson that they were stopped because the detec-
tives were conducting a narcotics investigation, and asked for identifi-
cation. During this stop the officers were low key and courteous and
did not draw their weapons. Neilson gave consent to search her car
and, later, to search her apartment. After the search of her apartment
(where Johnson often stayed as an overnight guest) revealed a hand-
gun and approximately a kilogram of cocaine, Johnson was formally
arrested and charged.

II.

We first address whether Detectives Graves and Wallace conducted
a legal Terry stop of Johnson and Neilson. Cf. Terry v. Ohio, 392 U.S.
1 (1968). The Fourth Amendment permits limited investigative stops
by law enforcement officers when they are justified"by a reasonable
and articulable suspicion that the person seized is engaged in criminal
activity." Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam).
While we review de novo the ultimate question of reasonable suspi-
cion, we review findings of historical fact only for clear error and
"`give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers.'" United States v. Sprinkle,
106 F.3d 613, 616-17 (4th Cir. 1997) (quoting Ornelas v. United
States, 517 U.S. 690, 699 (1996)).

We also consider the "totality of the circumstances" surrounding
the stop to assess its constitutionality. See United States v. Cortez, 449
U.S. 411, 417 (1981). "Based upon that whole picture the detaining
officers must have a particularized and objective basis for suspecting
the particular person stopped of criminal activity." Id. at 417-18. As
the Supreme Court has counseled, inferences and deductions made by
officers do "not deal with hard certainties, but with probabilities" and
the information possessed by law enforcement "must be seen and
weighed not in terms of library analysis by scholars, but as under-
stood by those versed in the field of law enforcement." Id. at 418.

In light of these principles, we believe that the facts set forth above,
when taken as a whole, justified the initial stop of the black Infiniti.

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Therefore, we affirm the district court's determination that the offi-
cers legally stopped and questioned Johnson and Neilson based on a
reasonable and articulable suspicion that they were involved in nar-
cotics trafficking.

Turning to the remaining two issues, we believe the district court
correctly ruled that Neilson's consent to search her car and apartment
was voluntarily given and that the original stop did not escalate into
a custodial arrest of Neilson. On these issues we affirm on the reason-
ing of the district court. See United States v. Johnson, No.
2:96CR123-2, mem. op at 12-15 (M.D.N.C. Apr. 29, 1997).

Accordingly, the order of the district court is

AFFIRMED.

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