UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4058
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IAN MCDONALD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:05-cr-00146-WDQ)
Submitted: December 11, 2006 Decided: January 4, 2007
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Andrew G. W.
Norman, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following trial, a jury found Ian McDonald guilty of
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) ("Count One"); possession with intent to
distribute cocaine base in violation of 21 U.S.C. 841(a)(1) ("Count
Two"); possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c) and aiding and abetting in
violation of 18 U.S.C. § 2 ("Count Three"). On appeal, McDonald
argues that the district court erred in denying his motion to
suppress cocaine and a firearm seized from his person and his
vehicle. McDonald also appeals the district court’s admission of
testimony at trial that on prior occasions he had been convicted of
possession with intent to distribute narcotics and arrested for the
unlawful possession of a firearm. For the reasons that follow, we
affirm.
I.
At a hearing on the suppression motion, Officer Richard Watts
of the Baltimore Police Department testified that during the early
morning hours of October 21, 2005, he responded to a call reporting
an armed robbery. Arriving at the scene less than five minutes
later, Officer Watts interviewed the victim, George Treas. Mr.
Treas stated that a black male had stepped out of a white vehicle,
pointed a handgun at him, and demanded property. Mr. Treas
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believed the vehicle to be a Mazda, and recalled a partial tag
number of MJK. Officer Watts broadcast the information via radio
dispatcher, and returned to the streets to look for the vehicle.
Shortly thereafter he spotted a white Mazda in a gas station
parking lot less than three blocks away bearing a license plate
number MTK340. A black male was standing outside the vehicle; he
then got into the driver’s seat. Officer Watts alerted other
Baltimore police officers, who converged on the vehicle. One of
the officers, Mark Bergeron, testified to observing a handgun on
the front passenger seat. McDonald was arrested and searched, and
the police recovered approximately 4.9 grams of cocaine and $687.00
from his person. The handgun was found to be loaded with several
rounds of live ammunition. McDonald moved to suppress this
evidence.
The district court denied the motion. The court found that
the officers were entitled to stop McDonald under Terry v. Ohio,
392 U.S. 1 (1968). The court went on to note that “[t]he officers
were where they had a right to be--that is, conducting an
investigative stop. While being where they had a right to be, they
saw, in plain view, at least through the eyes of Officer Bergeron,
a weapon that gave probable cause to believe that there had been a
violation of the weapons laws. The arrest and search incident to
that arrest were also lawful.” J.A. 105.
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Prior to trial, pursuant to Federal Rule of Evidence 404(b),
the government notified McDonald of its intent to introduce
evidence that on two prior occasions he had unlawfully possessed
narcotics with intent to distribute, and on one occasion had
unlawfully possessed a firearm. McDonald filed a motion in limine
objecting to the introduction of such evidence. The district court
denied this motion as well, ruling that the probative value of the
evidence outweighed its potential for prejudice.
II.
On appeal, McDonald challenges the denial of the motion to
suppress and the denial of his motion in limine with respect to the
proffered evidence. We consider each issue in turn.
A.
McDonald argues that the police did not have a reasonable
basis to stop him on these facts. In evaluating the denial of a
motion to suppress, we review legal conclusions de novo and factual
findings for clear error. We view the evidence in the light most
favorable to the prevailing party below--here, the government.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
The Fourth Amendment requires that a brief, investigatory stop
of an individual be supported by "a reasonable, articulable
suspicion that criminal activity is afoot." Illinois v. Wardlow,
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528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). The
reasonable suspicion standard is “a less demanding standard than
probable cause and requires a showing considerably less than a
preponderance of the evidence.” Wardlow, 528 U.S. at 123.
In deciding whether an officer had the requisite reasonable
suspicion to conduct an investigatory stop, courts apply an
objective test rather than examining the subjective beliefs of the
investigating officer. Id. The “[r]easonable suspicion standard
is a commonsensical proposition. Courts are not remiss in
crediting the practical experience of officers who observe on a
daily basis what transpires on the street.” United States v.
Lender, 985 F.2d 151, 154 (4th Cir. 1993). The Supreme Court has
recognized that individual factors consistent with innocent travel
can, when taken together, give rise to reasonable suspicion.
United States v. Sokolow, 490 U.S. 1, 9-10 (1989).
We conclude that a policeman in Officer Watts’s position would
have had an objectively reasonable suspicion that the car McDonald
was driving was connected with the recent robbery--i.e., that
criminal activity was afoot. Officer Watts was looking for a black
male in a white Mazda and had a partial description of the license
plate. He encountered McDonald only several minutes later and less
than three blocks away standing next to a white Mazda bearing a
license plate with some of the same letters. Although there were
discrepancies between the description given by Mr. Treas and Mr.
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McDonald’s actual appearance, Officer Watts testified that victims
who have undergone life-threatening experiences may confuse details
about their assailants. We conclude that the factors on which the
officers relied, taken together, give rise to reasonable suspicion
sufficient to justify the stop under Terry.
B.
We now consider McDonald’s claims regarding the admissibility
of the evidence of his prior arrest and convictions. Federal Rule
of Evidence 404(b) provides for the introduction of “[e]vidence of
other crimes, wrongs or acts” to prove matters other than
propensity, such as “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b). We have consistently interpreted the rule as
one of inclusion, not exclusion, noting that it “admits all
evidence of other crimes (or acts) relevant to an issue in a trial
except that which tends to prove only criminal disposition.”
United States v. Masters, 622 F.2d 83, 85 (4th Cir.
1980)(quotations omitted). Evidence of other bad acts may be
introduced if such evidence is "(1) relevant to some issue other
than character, (2) necessary, and (3) reliable." United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988); see also United States
v. Hadaway, 681 F.2d 214, 217 (4th Cir. 1982). Evidence is
necessary, even if it does not relate to an element of a charged
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offense, “when it furnishes part of the context of the crime.”
United States v. Wells, 163 F.3d 889, 896 (4th Cir. 1998) (citation
omitted). Of course, evidence which is offered for a proper
purpose under Rule 404(b) may still be excluded “if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Fed. R. Evid. 403; see also
Masters, 622 F.2d at 87.
There was no violation of Rule 404(b) here. McDonald argues
that because he took the stand and acknowledged possessing cocaine
with intent to distribute, evidence of his prior convictions for
drug offenses and arrest for unlawful possession of a gun was
unecessary and prejudicial. This argument fails for two reasons.
First, the government plausibly contends that it had no way to
know, prior to trial, that McDonald, who consistently maintained
his innocence, intended to make such a concession. Evidence that
McDonald possessed and distributed drugs in the past was clearly
relevant to the issue of his intent to do so here.
Moreover, McDonald’s belated concession conveniently overlooks
the presence of the gun recovered from his car. Count One, the
felon in possession charge under § 922(g)(1), and Count Three, the
possession of a firearm in furtherance of a drug trafficking crime
under § 924(c), both turn on the knowing possession of a firearm.
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We conclude that evidence that McDonald had previously been
arrested for the possession of a firearm was relevant to his
knowledge and intent to possess the handgun recovered here.
III.
For the foregoing reasons, we affirm. 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
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