PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                     No. 95-5441

CARL SPRINKLE, a/k/a Carl Sprinkler,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CA-94-684)

Argued: September 24, 1996

Decided: February 11, 1997

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded with instructions by published opinion. Judge
Michael wrote the majority opinion, in which Judge Motz joined.
Judge Niemeyer wrote a separate concurring and dissenting opinion.

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COUNSEL

ARGUED: Albert Peter Shahid, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellant. Ann Briks Walsh, Assis-
tant Federal Public Defender, Charleston, South Carolina, for Appel-
lee. ON BRIEF: J. Preston Strom, Jr., United States Attorney,
Charleston, South Carolina, for Appellant.

_________________________________________________________________
OPINION

MICHAEL, Circuit Judge:

Carl Sprinkle was indicted for being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). The police discovered
Sprinkle's gun during events immediately following an investigative
stop. Sprinkle filed a motion to suppress the gun, arguing that the
police did not have reasonable suspicion to make the stop. The district
court granted the suppression motion and dismissed the case; the gov-
ernment now appeals. We hold that although no reasonable, articul-
able suspicion justified the stop, Sprinkle's use of the gun to commit
a new, distinct crime after the stop made the gun subject to lawful sei-
zure. We therefore reverse with instructions to reinstate the indict-
ment.

I.

Police officers Daniel Riccio and Holly Ann Connolly work as
partners, patrolling downtown Charleston, South Carolina. At 5:30
p.m. on June 24, 1994, the officers escorted a misbehaving (rock-
throwing) juvenile to his house on Reed Street, which is in a crowded
residential neighborhood. The officers and the juvenile arrived to a
busy scene in the Reed Street area: quite a few people were on the
sidewalks, and there was no place to park in front of the juvenile's
house. The officers, each of whom had a patrol car, parked about a
block away. They then delivered the juvenile (and his bicycle) and
had a talk with his mother on the front stoop.

While standing on the stoop of the juvenile's house, Officer Riccio
noticed Victor Poindexter sitting in the driver's seat of a red Mercury
Cougar parked directly across the street about twenty-five feet away.
Officer Riccio knew that Poindexter, who was the stepbrother of Ric-
cio's mother, had served time for narcotics violations. Riccio also
knew that Poindexter had been out of prison for only a few months,
but Riccio had no reports of any criminal activity by Poindexter since
his release. The street where Poindexter was parked (and where the
juvenile lived) was in a neighborhood known by the police for consid-
erable narcotics trafficking. Riccio himself had made numerous drug
arrests in the area.

                    2
Within a few seconds after Officer Riccio noticed Poindexter, the
officers saw Sprinkle, whom they did not know, walk out of a house
across the street and get into the passenger side of Poindexter's Cou-
gar. The officers then left the stoop. As they walked by the driver side
of the Cougar on the way to their patrol cars, Officer Riccio noticed
Sprinkle "huddling and talking to [ ] Poindexter." Specifically, they
were "huddled to the center of the console of the vehicle" with their
hands "close[ ] together." Riccio"believed that [Sprinkle] was passing
or about to pass Poindexter something." When Poindexter saw Officer
Riccio, he "put his head down and put his hand to the left side of his
face as if to conceal his face from [Riccio] seeing him." At this point
Officer Riccio told Officer Connolly, "I know that person [Poindex-
ter], he is involved in illegal activity, narcotics especially. And with
[the two men] being in that [high crime] area and the suspicious
actions of both . . . we'll probably need to stop that vehicle to conduct
an investigation."

Both officers were close to the Cougar as they walked by. It was
a "fairly bright day" with "plenty of light," according to Officer Ric-
cio. Officer Connolly could see that Poindexter and Sprinkle were
facing each other and talking. Officer Riccio, who was closest, could
see inside the car and "saw everybody's hands." Riccio did not see
anything in either man's hands. Neither officer saw any drugs,
money, guns, or drug paraphernalia in the car. Moreover, Poindexter
and Sprinkle did not make any movement that indicated an attempt
to conceal any object inside the car.

As the officers hurried on foot to their own cars, Poindexter started
the Cougar and pulled into the street. He drove in a normal, unsuspi-
cious fashion; he did not speed, drive erratically, or commit any traf-
fic violations. Once in their own cars the officers intended to pursue
and stop Poindexter's car, but some of their work was done for them.
Poindexter had driven only 150 feet when an unrelated traffic stop
completely blocked his way. Officers Riccio and Connolly simply
pulled their cars up behind the Cougar, turned on their blue lights, and
walked toward the blocked car. By the time Officer Riccio got to the
passenger side of the car, Sprinkle had stepped out. Sprinkle appeared
nervous and agitated as Riccio told him he was going to pat him down
for weapons. Just as Riccio started the patdown, Sprinkle "pushed
away and began to run." After running about one-half block with Ric-

                     3
cio in pursuit, Sprinkle pulled a handgun from the front of his pants.
Riccio, now drawing his own gun, chased Sprinkle for another block
and a half, repeatedly ordering Sprinkle to drop his gun. Sprinkle then
ran behind a house and paused with his gun still drawn. Riccio
dropped to the ground and spotted Sprinkle through the open crawl
space under the house. Riccio again ordered Sprinkle to drop his gun.
Sprinkle then ran to the front gate of the next house, turned, and fired
one shot toward Officer Riccio, who was not hit. Sprinkle "immedi-
ately placed the gun to the right side of his head and told [Riccio] that
if [he] did not leave him alone that he would shoot himself." After a
period of negotiation Sprinkle was persuaded to drop his gun, a .357
Magnum. Sprinkle was placed under arrest, and the police seized the
gun.

Later, a federal grand jury indicted Sprinkle for possessing a fire-
arm after conviction for a felony, in violation of 18 U.S.C.
§ 922(g)(1). Sprinkle moved to suppress evidence of the gun on the
ground that it was the fruit of an unlawful stop. After an extensive
suppression hearing during which Officers Riccio and Connolly both
testified, the district judge granted the suppression motion and dis-
missed the indictment, concluding that the officers did not have a
"reasonable articulable suspicion" to justify the stop. The experienced
district judge, who has served for over twenty-five years, could not
recall that he had ever before granted a motion to suppress.

The government appeals. We review de novo the ultimate question
of reasonable suspicion, but we "take care both to review findings of
historical fact only for clear error and to give due weight to inferences
drawn from those facts by resident judges and local law enforcement
officers." Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).

II.

The government first argues that Officers Riccio and Connolly had
reasonable suspicion to stop Poindexter and Sprinkle. An investiga-
tive detention or stop is constitutional if supported "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).
Thus, an officer who stops and detains a person for investigative
questioning "must be able to point to specific and articulable facts

                     4
which, taken together with rational inferences from those facts, rea-
sonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968).
While such a detention does not require probable cause, it does
require something more than an "inchoate and unparticularized suspi-
cion or `hunch.'" Id. at 27.

The government says that five facts, taken together, provided Offi-
cers Riccio and Connolly the basis for a reasonable suspicion of crim-
inal activity: (1) Officer Riccio knew that Poindexter had a criminal
record and had recently been released from prison after serving time
for narcotics violations, (2) the subjects were spotted in a neighbor-
hood known by the officers for high (narcotics) crime, (3) when
Sprinkle entered the Cougar, he and Poindexter huddled toward the
center console with their hands close together, (4) as Officer Riccio
walked past the car, Poindexter put his head down and his hand up
to his face as if to avoid recognition, and (5) Poindexter drove away
as soon as the officers walked by the car. The government is right that
in the end we must evaluate the combined strength of these factors,
see United States v. Sokolow, 490 U.S. 1, 8-10 (1989), but we will
discuss them one by one as we put them into the mix.

Poindexter first got Officer Riccio's attention because the officer
knew Poindexter had a criminal record and that he had recently fin-
ished a sentence for a drug conviction. Riccio, however, had no infor-
mation that Poindexter had returned to crime since his release. A prior
criminal record "is not, standing alone, sufficient to create reasonable
suspicion." United States v. Davis, 94 F.3d 1465, 1469 (10th Cir.
1996). Nevertheless, an officer can couple knowledge of prior crimi-
nal involvement with more concrete factors in reaching a reasonable
suspicion of current criminal activity. See United States v. Sandoval,
29 F.3d 537, 542 (10th Cir. 1994) (collecting cases).

Next, the fact that Officer Riccio spotted Poindexter in a high
crime neighborhood at 5:30 p.m. on a sunny day does not provide
independent or freestanding grounds for reasonable suspicion. See
Brown v. Texas, 443 U.S. 47, 52 (1979); United States v. Perrin, 45
F.3d 869, 873 (4th Cir. 1995) ("Were we to treat the dangerousness
of the neighborhood as an independent corroborating factor, we
would be, in effect, holding a suspect accountable for factors wholly
outside of his control."). Although being seen in a high crime district

                    5
carries no weight standing alone, "an area's disposition toward crimi-
nal activity is an articulable fact," United States v. Moore, 817 F.2d
1105, 1107 (4th Cir. 1987) (citation omitted), that may be considered
along with more particularized factors to support a reasonable suspi-
cion.

According to the government the particular acts of suspicious
behavior started when Poindexter and Sprinkle huddled toward the
center console with their hands close together. When Officer Riccio
saw this, he got "the impression that they were in the midst of a nar-
cotics transaction." But it would take more for this impression to
qualify as a reasonable suspicion. Here, as Officer Riccio walked by,
he could see into the car and see the hands of both men: he saw no
drugs, no money, no weapons and no drug paraphernalia. Nor did he
see either man try to conceal any object.

When Poindexter saw Officer Riccio, Poindexter raised his hand to
the side of his face as if to conceal his identity. Hiding one's face is
an act that may be appraised with others in deciding whether suspi-
cion reaches the threshold of reasonableness. See United States v.
Tate, 648 F.2d 939, 942 (4th Cir. 1981).1

The last factor the government cites as suspicious is that Poindexter
started his car and pulled from the curb right after the officers walked
by. Evasive conduct can, of course, assist an officer in forming rea-
sonable suspicion. See United States v. Lender , 985 F.2d 151, 154
(4th Cir. 1993) (noting that "[e]vasive conduct, although stopping
short of headlong flight, may inform an officer's appraisal of a street-
corner encounter"). Here, Poindexter drove off right after his passen-
ger got in the car, and the officers admitted that he drove in a normal,
unhurried manner. Compare Tom v. Voida, 963 F.2d 952, 958 (7th
Cir. 1992) (distinguishing flight from simple departure from scene),
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1 The district court did not give much weight, if any, to Poindexter's
hand movement:

          I don't think [at] five or five-thirty in the afternoon, putting your
          hand up by your face when your [step-nephew] walks by . . . is
          going to shield you from somebody that knows you that well. . . .
          I don't know that putting your hand up is going to shield you that
          much or if it means anything.

                     6
with United States v. Sharpe, 470 U.S. 675, 683 n.3 (1985) (using fact
that defendant "started speeding as soon as [police] began following"
to support finding of reasonable suspicion).2

As indicated earlier, "we must consider `the totality of the circum-
stances -- the whole picture'" in deciding whether the officers had a
reasonable suspicion of criminal activity. Sokolow, 490 U.S. at 8
(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Officer
Riccio's curiosity was understandably aroused when he spotted
Poindexter, who had recently served time for a narcotics offense, in
a neighborhood with a high incidence of drug traffic. But for these
factors to support reasonable suspicion, there must be (other) particu-
larized evidence that indicates criminal activity is afoot. Thus, the
government points to the huddling in the center of the car, the face-
shielding move, and the driving away. We have already pointed out
some of the shortcomings of these factors.

When Poindexter and Sprinkle huddled with their hands close
together, Officer Riccio was able to see into the car: he saw their
hands, he did not see anything pass between them, and they did not
try to conceal any object. In other words, Riccio could actually see
that nothing of a criminal nature was happening in the car. Of course,
after Officer Riccio looked into the car, Poindexter did try to hide his
face. We agree that this appears suspicious. Nevertheless, without
some stronger indication of criminal activity, this act cannot tip this
case to reasonable suspicion. Nor does the final factor, driving away
in a normal, unhurried fashion, lend itself to a finding of reasonable
suspicion here. Poindexter's passenger had just gotten into the car, so
a prompt departure could be expected. Our conclusion is that the five
factors cited by the government gain little, if any, strength when put
together. Together, they did not give the officers the necessary rea-
sonable, articulable suspicion of criminal activity. 3 The district court
_________________________________________________________________

2 The district court found that"there wasn't any evasive conduct. They
did drive off, but they didn't try to run away or flee or anything [before
the initial stop]."
3 The government has relied heavily, both in the district court and in its
brief, on our decision in United States v. Lender, 985 F.2d 151, 154-55
(4th Cir. 1993). The district judge concluded that the Lender case "was

                    7
was therefore correct to conclude that the initial stop was unjustified.
That does not end the matter, however.

III.

The government argues that even if the initial stop was improper,
Sprinkle's intervening illegal acts make the gun admissible. Sprinkle
counters that his own acts which led to the discovery of the gun were
in direct response to illegal police conduct, that is, the stop and
attempted patdown. Thus, Sprinkle argues that the gun must be sup-
_________________________________________________________________
a lot different" from this one, and we agree that Lender's facts are suffi-
ciently different that it does not compel a finding of reasonable suspicion
here. In Lender two policemen were patrolling an area known for heavy
drug trafficking. As the police drove across an intersection at 1:00 a.m.,
they saw three or four men on a street corner huddled around Lender and
looking down into his open palm. The police, suspecting a drug deal,
stopped their car and got out. We described what happened next as fol-
lows: "When the officers tried to approach Lender, he attempted to evade
them by turning his back and walking away." Id. at 154. We held that the
police had reasonable suspicion to stop Lender, and we upheld the dis-
trict court's denial of his motion to suppress the evidence seized, a pistol
that fell to the ground from his waist when he finally stopped.

Several factors distinguish Lender. First, although the police could not
see (from their passing car) into Lender's open hand, the fact that several
men were looking to his hand indicated there was actually something in
it. Here, although Poindexter and Sprinkle had their hands close together,
Officer Riccio was close enough to see that their hands appeared empty.
Thus, Riccio's initial suspicion that Sprinkle was about to pass some-
thing to Poindexter was simply not confirmed by what Riccio actually
saw. Second, Lender engaged in what we considered evasive conduct
when he turned his back on the approaching officers and walked away.
Here, the district court found that Poindexter, who"didn't pull off in any
hurry," was not being evasive. We agree that Poindexter did not appear
evasive as he pulled out and drove away. Third, in Lender we determined
that the lateness of the hour (1:00 a.m.) properly contributed to reason-
able suspicion. In the case before us today, the hour does not weigh in
favor of suspicion. Poindexter was parked in broad daylight on a busy
street with people all around. In sum, Lender is distinguishable to the
point that it is not controlling.

                     8
pressed as the tainted product of the illegal police action because
there are no "intervening circumstances of attenuation to purge the
[taint]." Br. of Appellee at 10. See Brown v. Illinois, 422 U.S. 590,
600-04 (1975). Sprinkle's argument, however, overlooks whether his
own illegal acts after the initial stop trigger an exception to the exclu-
sionary rule of the "fruit of the poisonous tree" doctrine. We believe
they do.

If a suspect's response to an illegal stop "is itself a new, distinct
crime, then the police constitutionally may arrest the [suspect] for that
crime." United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982).4
There is a strong policy reason for holding that a new and distinct
crime, even if triggered by an illegal stop, is a sufficient intervening
event to provide independent grounds for arrest. As the Bailey court
recognized, "[a] contrary rule would virtually immunize a defendant
from prosecution for all crimes he might commit that have a sufficient
causal connection to the police misconduct." Id. Because the arrest for
the new, distinct crime is lawful, evidence seized in a search incident
to that lawful arrest is admissible. See id. at 1018.
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4 Examples of cases where a new and distinct crime purged the taint of
any initial police misconduct include Bailey, 691 F.2d at 1012, 1018-19
(assuming that first arrest was illegal, second arrest was legal because
defendant, when caught after fleeing, struck DEA agent with his fists and
tried to grab the agent's gun during ensuing struggle); United States v.
Waupekenay, 973 F.2d 1533, 1537 (10th Cir. 1992) (although police
entered suspect's house trailer illegally, suspect commenced new illegal
activity when he aimed semi-automatic rifle at police); United States v.
Udey, 748 F.2d 1231, 1240 (8th Cir. 1984) (assuming search warrant for
house was invalid, when someone inside began shooting, "the house
became the scene of a crime committed in the officers' presence");
United States v. King, 724 F.2d 253, 256 (1st Cir. 1984) (assuming
attempted search of passenger was illegal, driver's"shooting [at police]
was an independent intervening act which purged the taint of the prior
illegality"); and United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir.
1971) (whether defendant's first arrest was legal became irrelevant once
he committed the subsequent criminal acts of fleeing at 115 m.p.h. and
shooting at the sheriff).

We note that these cases were not brought to the attention of the dis-
trict judge.

                     9
In this case, Sprinkle fled when Officer Riccio began the patdown.
Sprinkle pulled his .357 Magnum as Officer Riccio chased him. After
Riccio had pursued Sprinkle about two blocks, Sprinkle took a shot
at Riccio. When Sprinkle drew and fired his gun at the officer, he
committed a new crime that was distinct from any crime he might
have been suspected of at the time of the initial stop. See S.C. Code
Ann. § 16-23-410 (Law. Co-op. Supp. 1995) ("It is unlawful for a
person to present or point at another person a loaded or unloaded fire-
arm."). At this point, Officer Riccio had probable cause to arrest
Sprinkle because the new crime purged the taint of the prior illegal
stop. And the gun, which was in plain view at the scene of the new
crime, could be legitimately seized.5

For the foregoing reasons, we reverse the district court's order that
granted Sprinkle's motion to suppress and that dismissed the case. We
remand with instructions to reinstate the indictment.

REVERSED AND REMANDED WITH INSTRUCTIONS

NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

I am pleased to concur in parts I and III of the opinion for the court
and I concur in the judgment. Because I would conclude that experi-
enced officers such as those involved here had a reasonable and
articulable suspicion that Sprinkle was engaged in criminal activity,
and therefore justified in conducting a Terry stop, see United States
v. Lender, 985 F.2d 151 (4th Cir. 1993), I dissent from part II.
_________________________________________________________________
5 The government also argues that Sprinkle's flight was an attenuating
circumstance. His flight, however, was overshadowed by his drawing
and firing the gun, so we would be off the subject to discuss the conse-
quences of flight alone.

                    10
