UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4676
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LATRELL BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-04-128-MJG)
Submitted: October 19, 2005 Decided: November 9, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harold I. Glaser, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,
for Appellant. Allen F. Loucks, United States Attorney, Harry M.
Gruber, P. Michael Cunningham, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Latrell Barnes appeals his conviction and sentence for
possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
(2000). Finding no reversible error, we affirm.
Baltimore Police Officers Christine Hyatt and Kimberly
Betts responded to a dispatch call for an aggravated assault. On
arrival they observed Latrell Barnes standing in the open doorway
of a dark green Toyota Camry. Barnes directed their attention
toward a crowd of people. The officers then received a dispatch
call informing them that an anonymous caller had just advised
dispatch that the officers had just passed the person with the gun
and that he was getting into a green Toyota Camry. Officer Hyatt
told Barnes to get out of the car. Barnes hesitated to turn off
the engine, and Hyatt repeated her order. As Barnes turned the
engine off, he began reaching down as if attempting to place or
retrieve an object under the seat. Officer Hyatt ordered Barnes to
exit the car, but he continued to dip down toward the floor.
Officer Hyatt opened the car door and ordered Barnes out of the
car.
Officer Betts used her flashlight to illuminate the
inside of the car. From outside the vehicle, Officer Hyatt saw the
outline of a handgun wrapped in a white cloth material under the
front seat. After seeing the handgun, Officer Hyatt placed
handcuffs on Barnes and seized the gun.
- 2 -
Barnes first claims that the district court erred in
denying his motion to suppress. This court reviews the factual
findings underlying a motion to suppress for clear error, and the
district court’s legal determinations de novo. See Ornelas v.
United States, 517 U.S. 690, 699 (1996). When a suppression motion
has been denied, this court reviews the evidence in the light most
favorable to the Government. See United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998).
“An officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry v. Ohio, 392
U.S. 1, 30 (1968). To conduct a Terry stop, there must be “at
least a minimal level of objective justification for making the
stop.” Id. Reasonable suspicion requires more than a hunch but
less than probable cause, and it may be based on the collective
knowledge of the police officers. Id. In assessing police conduct
in a Terry stop, courts must look to the totality of the
circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989).
Barnes claims the officers did not have reasonable
suspicion for a Terry stop. The officers based their stop upon:
(1) the report of a gun assault; (2) an anonymous tipster stating
that the officers had just passed the individual with the gun and
that he was getting into a green Toyota Camry; (3) Barnes’ failure
- 3 -
to comply with Officer Hyatt’s directive to get out of the vehicle;
and (4) Barnes’ motion that suggested he was reaching under the
front seat of the car. These actions, taken together, provided the
officers with a reasonable and articulable suspicion that Barnes
was engaged in criminal activity, thus justifying his detention and
removal from the vehicle. See Maryland v. Wilson, 519 U.S. 408,
411 (1997) (no Fourth Amendment violation in requiring defendant to
exit car to be frisked); Michigan v. Long, 463 U.S. 1032, 1049
(1983) (no Fourth Amendment violation for searching car’s passenger
compartment where a gun may have been secreted).
Barnes claimed the anonymous tip was not sufficient to
establish reasonable suspicion because not enough suitable
corroborative information existed to satisfy Florida v. J.L., 529
U.S. 266 (2000). The police officers in this case sufficiently
corroborated the anonymous tipster through their observations of
the car and Barnes’ actions. The green Toyota Camry that the
anonymous tip said the officers had passed matched the car the
officers had earlier observed. The tipster also specifically
referenced the officers and that they had just walked past the
person with the gun. Barnes exhibited furtive behavior, including
failure to comply with the officer’s order to turn the engine off
and exit the vehicle and suspicious motions as if he was reaching
under the car seat. See United States v. Sims, 296 F.3d 284, 287
(4th Cir. 2002) (evasive behavior is a relevant factor in Terry
- 4 -
analysis and sufficient corroboration to satisfy J.L.). Taken in
context, the officers’ observations of the car and Barnes’ actions
sufficiently corroborated the anonymous tip, and the district court
properly found the facts justified a Terry stop and detention of
Barnes.
Further, the officers properly searched the car and
seized the gun because they saw the gun in plain view from outside
the vehicle. “The plain view doctrine authorizes warrantless
seizures of incriminating evidence when (1) the officer is lawfully
in a place from which the object may be plainly viewed; (2) the
officer has a lawful right of access to the object itself; and
(3) the object’s incriminating character is immediately apparent.”
United States v. Jackson, 131 F.3d 1105, 1109 (4th Cir. 1997). An
officer who sees an incriminating object in plain view inside a
vehicle during a vehicle stop may seize that object. Texas v.
Brown, 460 U.S. 730, 741 n.6 (1983). Officer Hyatt clearly saw the
outline of the gun and properly seized it. The district court did
not err in denying Barnes’ motion to suppress.
Barnes also claims the district court erred when it
sentenced him as an armed career criminal under 18 U.S.C.
§ 924(e)(1) (2000). We review the district court’s legal
determinations de novo and its factual findings for clear error.
See United States v. Brandon, 247 F.3d 186, 188 (4th Cir. 2001).
Barnes argues that his prior conviction for escape is not a violent
- 5 -
felony because he merely did not return from a work release.
However, this court has consistently held that the offense of
felony escape qualifies as a violent felony for purposes of the
classification of an armed career criminal. See United States v.
Wardrick, 350 F.3d 446, 455 (4th Cir. 2003); United States v.
Hairston, 71 F.3d 115, 188 (4th Cir. 1995). The district court did
not err in finding that Barnes’ felonies were violent felonies.
Barnes also claims the district court improperly enhanced
his sentence by using his prior convictions to conclude he was an
armed career criminal under U.S. Sentencing Guidelines Manual
§ 4B1.4(a) (2004). Because Barnes preserved his Sixth Amendment
claim by objecting to his armed career criminal classification
based upon Blakely v. Washington, 124 S. Ct. 2531 (2004), this
court’s review is de novo. See United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003). This court has recently ruled that the
nature and occasion of prior offenses are facts inherent in the
convictions and that the government does not have to allege prior
convictions in the indictment or submit proof of them to a jury to
invoke the armed career criminal enhancement. United States v.
Thompson, 421 F.3d 278, 285-87 (4th Cir. 2005). Thus, the district
court did not err when it used Barnes’ prior convictions in
calculating Barnes’ sentence.
Barnes finally claims that the district court erred when
it sentenced him under the mandatory sentencing guidelines. The
- 6 -
district court sentenced Barnes to the statutory minimum sentence
under 18 U.S.C. § 924(e)(1). In United States v. Robinson, 404
F.3d 850, 862 (4th Cir. 2005), this court stated that “Booker did
nothing to alter the rule that judges cannot depart below a
statutorily provided minimum sentence.” As the district court
could not depart below the statutory minimum, the district court
did not commit Booker error.
Accordingly, we affirm Barnes’ conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 7 -