                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2004

USA v. West
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3700




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 03-3700


                        UNITED STATES OF AMERICA

                                        v.

                                CHARLES WEST,
                                         Appellant


                   Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                          (D.C. Criminal No. 02-cr-00234)
                  District Judge: Honorable William W. Caldwell


                    Submitted Under Third Circuit LAR 34.1(a)
                                 May 26, 2004

   Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN*, Circuit Judges.

                              (Filed: June 30, 2004)



                            OPINION OF THE COURT




 *Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
RENDELL, Circuit Judge.

       Charles West entered a conditional guilty plea to possessing ammunition as a

convicted felon, in violation of 18 U.S.C. § 922(g). As part of his plea, West reserved the

right to challenge the police stop that resulted in his arrest, as violative of the fourth

amendment. The District Court denied his pre-trial motion to suppress the ammunition

and certain inculpatory statements made to federal agents, concluding that the stop was

justified by West’s nervous behavior. We have jurisdiction under 18 U.S.C. § 3731. We

will affirm, albeit on grounds somewhat different from the District Court.

                                               I.

       The facts underlying this dispute are largely uncontroverted. On August 27, 2002,

Special Agents Endy and Graybill of the Bureau of Alcohol, Tobacco and Firearms

(“ATF”), with over seventeen years combined experience at the ATF, were conducting an

investigation unrelated to this case at Danny’s Sporting Goods in Harrisburg,

Pennsylvania. The plain-clothed agents remained in the parking lot after concluding their

investigation, when their attention was drawn to the defendant, West, and his companion,

Marcus Bethea. According to the agents’ testimony, West and Bethea drove into the lot

and remained in their car, staring at the agents. Both agents testified that the men

appeared hesitant to leave their vehicle. When they finally emerged, West and Bethea

repeatedly looked over and then away from the agents.

       The agents then telephoned an employee inside the store, who informed them that

West and Bethea were purchasing ammunition. When West and Bethea left the store, the

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agents stated that the two men again seemed nervous and unsure of their movements,

even bumping into each other on their walk back to the car. The agents further testified

that, upon leaving the store, West had tucked a small package into the waistband of his

pants. After West and Bethea got into their car, the agents approached the passenger side

of the vehicle, where West was seated, identified themselves, and asked what the two

men were doing. West replied that he had purchased ammunition for a friend. Agent

Endy then requested identification from both West and Bethea. West turned over a

Pennsylvania identification card, but Bethea, in the driver’s seat, had none.

       Agent Endy called in a criminal background check at ATF headquarters. The

agents testified that Bethea had placed the car keys into the ignition and began fidgeting

with them. As a precaution, the agents asked to hold onto Bethea’s car keys. Before the

background check was complete, Agent Endy asked the suspects if they had ever been

convicted of a crime. West replied that he had been convicted for stealing cars. The ATF

background check revealed that West had prior arrests for drug violations, aggravated

assault, stolen vehicles, and receiving stolen property. The local police were called and

West was arrested on an outstanding warrant for probation violation.

       Based on the aforementioned facts, the District Court denied West’s motion to

suppress the evidence, finding that West’s nervous behavior, both upon entering and

exiting the store, justified the agents’ reasonable suspicion, pursuant to Terry v. Ohio, 392

U.S. 1 (1968).

       We review the District Court’s determinations of reasonable suspicion de novo and

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findings of fact for clear error. Ornelas v. United States, 517 U.S. 690, 699 (1996);

United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000).


                                            II.
       Under Terry and its progeny, a police officer may conduct a short investigatory

stop if he can point to “specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21.

Reasonable suspicion is an objective standard determined by the totality of the

circumstances, United States v. Cortez, 449 U.S. 411, 417 (1981), and while certain

behavior may be entirely legal, it can, nonetheless, lead to an inference of criminal

activity. United States v. Ubiles, 224 F.3d 213, 217 (3d Cir. 2000).

       The District Court found that reasonable suspicion could be established solely on

the basis of West’s nervous behavior. While such behavior clearly is relevant in the

assessment of whether there was reasonable suspicion, it is not necessarily enough,

standing alone. The District Court relied on Illinois v. Wardlow, 528 U.S. 119, 124

(2000), in which the Supreme Court noted that “nervous, evasive behavior is a pertinent

factor in determining reasonable suspicion.” But neither Wardlow nor the decisions of

this Court have ever held that nervousness alone justifies reasonable suspicion. In

Wardlow, the Court held that flight from police officers in a high crime area, and not

flight by itself, constituted reasonable suspicion. As stated recently by this Court, “[i]n

Wardlow, the Supreme Court carefully distinguished unprovoked flight in a high crime

area . . . from mere nervousness or evasiveness.” Johnson v. Campbell, 332 F.3d 199,

                                              4
208 (3d Cir. 2003); see also United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004)

(“[T]he Supreme Court has never held that unprovoked flight alone is enough to justify a

stop.”).

       Nonetheless, here, the totality of the circumstances supports a finding of

reasonable suspicion. The nervous behavior was accompanied by other conduct. The

two men appeared hesitant to exit their car, repeatedly stared at the agents when entering

the store, and even tripped over each other while walking back to their car. And, in

addition to observing this nervous behavior, both agents testified that West concealed a

package in his waistband. Moreover, after speaking with the store employer, the agents

were aware that West was concealing a potentially lethal package, the recently purchased

ammunition. These facts leading up to the Terry stop, in light of the experienced agents’

“commonsense judgments and inferences about human behavior” at the time of the

seizure, unquestionably supported the agents’ reasonable suspicion to stop and question

West. Wardlow, 528 U.S. at 125.

                                                 III.

       For the foregoing reasons, the judgment of the District Court will be AFFIRM ED.

       ____________________




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