UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4341
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
DANIEL DAVID GARCIA; RAMON GARCIA, JR.,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-86)
Argued: October 29, 2004 Decided: December 16, 2004
Before WIDENER and MOTZ, Circuit Judges, and Glen E. CONRAD, United
States District Judge for the Western District of Virginia, sitting
by designation.
Reversed by unpublished per curiam opinion.
ARGUED: Lawrence Patrick Auld, Assistant United States Attorney,
Deputy Chief, Criminal Division, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellant. Steven Price
Weaver, BROTHERTON, FORD, YEOMAN & WORLEY, P.L.L.C., Greensboro,
North Carolina; Gregory Davis, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina,
for Appellees. ON BRIEF: Anna Mills Wagoner, United States
Attorney, Robert A. J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellant. Louis C. Allen, III,
Federal Public Defender, Greensboro, North Carolina, for Appellee
Daniel David Garcia; Robert A. Ford, BROTHERTON, FORD, YEOMAN &
WORLEY, P.L.L.C., Greensboro, North Carolina, for Appellee Ramon
Garcia, Jr.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
A federal grand jury charged Daniel David Garcia and Ramon
Garcia, Jr. with a Hobbs Act robbery in violation of 18 U.S.C.
§ 1951 (2000), carrying and using a firearm during the robbery in
violation of 18 U.S.C. § 924(c)(1)(A)(2000), and possessing a
firearm as convicted felons in violation of 18 U.S.C.
§ 922(g)(1)(2000). Prior to trial, the district court granted
defendants’ motion to suppress evidence seized from them when
Corporal Mike J. Riazzi stopped their vehicle shortly after the
robbery. The Government appeals. For the reasons that follow, we
reverse.
I.
While on patrol at 4:25 a.m. October 2, 2003, Riazzi, a
twelve-year police department veteran (with a decade of patrol
experience), heard a police radio broadcast stating that a Quality
Mart on Peace Haven Road in Winston-Salem, North Carolina, had just
been robbed. The broadcast described the suspect as an armed,
white man wearing a black hooded sweatshirt last seen running north
from the convenience store. Riazzi, who was familiar with the
upper-middle class neighborhood along Peace Haven Road, thought the
robber might flee by car through the intersection of Robinhood Road
and Peace Haven Road, so he drove there.
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Peace Haven Road is a through street and numerous streets
intersect it along the 3.7 miles between the Quality Mart and
Robinhood Road. But because of the early hour, very few cars were
on the road. Soon after arriving at the intersection, Riazzi saw
a red vehicle pass through it. He followed the red car for eight
blocks to see if the driver would commit a traffic violation. When
the driver did so, Riazzi turned on his blue lights and pulled up
beside the car. Based on the driver’s demeanor when told of the
robbery and Riazzi’s calculation that the suspect could not have
reached the intersection so quickly, Riazzi ruled the driver out as
a suspect.
Upon his return to the intersection, Riazzi observed a “beat-
up” car -- occupied by the defendants -- drive north on Peace
Haven, stop at a red light, and turn right onto Robinhood. About
four minutes had passed since the radio broadcast. Riazzi followed
the car for eight miles but did not see the driver commit any
traffic violations. The car took an indirect route to a highway to
Greensboro. When the car entered a lighted area on the highway,
Riazzi pulled alongside it and saw that it was occupied by two men
with light complexions; he could not tell if they were white. He
noticed that the driver was wearing a black sweater. The driver
neither made eye contact with him nor looked at him, even though,
as Riazzi remembers it, no other cars were on the road. Riazzi
pulled the defendants over and, after asking some questions,
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frisked the defendants and the car, finding a pistol, a black
hooded sweatshirt, and a mask similar to those used in the robbery.
II.
In ruling on the defendants’ motion to suppress this evidence,
the district court carefully considered Riazzi’s testimony. The
court noted that Riazzi had relied on several factors as
justification for the stop: the car arrived at an intersection that
someone escaping the robbery might pass through; the car was beat-
up and, therefore, out of place in the well-to-do neighborhood; the
driver took an indirect path to Route 421; the driver wore a black
sweater; both occupants of the car had light complexions; and the
driver did not look at or make eye contact with Riazzi when the
officer pulled up alongside the car.
The district court concluded that these factors did not
provide “an articulable suspicion for the officer to pull the
driver over for an investigatory stop.” The court reasoned that
because two dozen streets intersect Peace Haven in the 3.7 miles
between the Quality Mart and Robinhood Road, the presence of the
defendants’ car at the Robinhood/Peace Haven intersection did not
mean it came from the Quality Mart. The court further held that
neither the condition of the car nor the circuitous route it took
to the highway proved anything. And the court noted that although
the driver fit the description of the suspect in that he had a
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light complexion and wore a black sweater, the police broadcast did
not mention a second man or indicate that the suspect had a car --
the suspect had last been seen on foot. The district court
concluded that although this was a “close case,” the stop was not
based on reasonable suspicion, but only a good hunch.
III.
We agree with the district court that this is a very close
case.
The Supreme Court has held that when a police officer
possesses a reasonable, articulable suspicion that criminal
activity “may be afoot” the Fourth Amendment permits a brief
investigative stop of a vehicle, without probable cause of
criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968).
Reviewing courts “must look at the ‘totality of the circumstances’
of each case to see whether the detaining officer has a
‘particularized and objective basis’ for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(citation omitted). This means that courts cannot engage “in the
sort of ‘divide-and-conquer analysis’ that treats each action by a
defendant in isolation, finds each of them to be possibly innocent,
and thus picks apart an officer’s reasonable assessments.” United
States v. Perkins, 363 F.3d 317, 327 (4th Cir. 2004) (citing
Arvizu, 534 U.S. at 274-75).
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Given these generous standards of review and the district
court’s failure to consider the effect of one critical fact in
assessing the totality of the circumstances, we must reverse its
grant of the suppression motion.
The district court examined the relevant evidence with
commendable care except for its failure to give due weight to one
important factor: the early morning hour. See Wayne R. LaFave,
Search and Seizure § 9.4(g) at 206-07 (3d ed. 1996). While the
high volume of cars on the road at 4:30 p.m. render it somewhat
unlikely that a car at the intersection originated at the Quality
Mart, the few cars on the road at 4:30 a.m. significantly increase
that probability. Similarly, while it may not be unusual for a
driver not to acknowledge a marked police car driving next to him
on a highway at 4:30 p.m. during rush hour, it may seem highly
unusual for a driver to fail to acknowledge a marked police car
driving right next to him on a highway at 4:30 a.m. when few, if
any, other cars are on the road, and particularly when, as here,
the police car had followed the driver for some time. See Arvizu,
534 U.S. at 275-76 (“We think it quite reasonable that a driver’s
slowing down, stiffening of posture, and failure to acknowledge a
sighted law enforcement officer might well be unremarkable in one
instance (such as a busy San Francisco highway) while quite unusual
in another (such as a remote portion of rural southeastern
Arizona).”).
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No case is identical to that at hand. But we, and other
courts, have upheld the reasonableness of investigatory stops in
similar circumstances. See, e.g., United States v. Hurst, 228 F.3d
751, 757 (6th Cir. 2000); United States v. Jones, 187 F.3d 210,
216-17 (1st Cir. 1999); United States v. Colclough, 549 F.2d 937,
940 (4th Cir. 1977). We must conclude that the stop here was also
reasonable, though an even closer case than some of those cited
above, and withstands constitutional scrutiny.
IV.
For the reasons set forth above, the judgment of the district
court is
REVERSED.
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