UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4474
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRODERICK F. JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cv-00253-REP)
Argued: March 13, 2007 Decided: May 24, 2007
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert James Wagner, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Stephen Wiley Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S.
Nachmanoff, Acting Federal Public Defender, Alexandria, Virginia,
Sapna Mirchandani, Research and Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Angela Mastandrea-Miller,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Broderick F. Jones was found guilty after a bench
trial of unlawful possession of a firearm by a felon in violation
of 18 U.S.C.A. § 922(g)(1) (West 2000). The district court
sentenced Jones to 51 months imprisonment. On appeal, Jones
contends that the district court erred in denying his motion to
suppress evidence and in refusing to apply a two-level reduction to
his offense level based on acceptance of responsibility. For the
following reasons, we affirm.
I.
On the evening of March 6, 2005, into the early hours of
March 7, 2005, Sergeant Chris Preuss of the Virginia Commonwealth
University Police Department was patrolling on a bicycle outside a
nightclub called the 534 Club, which is in a known high-crime area
in Richmond, Virginia. At approximately two o’clock in the
morning, Club 534 was closing and more than 500 people were
lingering around the area. An altercation involving fifteen to
twenty female club patrons ensued, and Sergeant Preuss and other
officers were called to intercede and restore order. While he was
following several of the women involved in the altercation down the
street, a woman in a car approached Sergeant Preuss and told him
that she had seen a black male with a gun in his hand standing by
the very last car on the right hand side of the parking lot near
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Club 534. Seconds later, Sergeant Preuss went directly to the
location and observed a black male standing near a car that was
parked in the back right hand corner of the parking lot. The man
was later identified as the defendant. Sergeant Preuss observed a
second man, later identified as Corry Woody, who appeared to be
sleeping in the rear passenger seat of the car.
Sergeant Preuss dismounted his bicycle and approached the car
to determine whether Jones was the individual described to him by
the citizen. As Sergeant Preuss approached the vehicle, Jones sat
down in the front passenger seat of the car, but left the door
ajar. Sergeant Preuss walked up to the car, stood in the wedge
between the side of the car and the open door, and asked Jones if
the man in the back seat was all right.
When Sergeant Preuss approached Jones, he observed that
Jones’s left hand was concealed between his knees. He asked Jones
what was in his left hand, and Jones opened his hand to show
Sergeant Preuss that it was empty. At that point, Jones suddenly
and without warning jumped from the passenger seat towards Sergeant
Preuss, which placed him “maybe a foot away” from Sergeant Preuss’s
face. J.A. 86. Viewing this as an overreaction to his question,
Sergeant Preuss put his hands up and backed away while asking Jones
what was going on.
Sergeant Preuss testified that things then went “a little
haywire.” J.A. 86. In addition to Jones’s sudden and seemingly
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aggressive motion, Sergeant Preuss was then faced with a second
threat--with Jones no more than a foot from Sergeant Preuss’s face,
Woody woke up and became verbally combative. Concerned about his
own safety, Sergeant Preuss ordered Jones to turn around and place
his hands on the car in order to conduct a patdown search. Instead
of complying with this request, however, Jones doubled over,
falling into Sergeant Preuss while bringing his hands toward his
own body. After Jones doubled over, he complained of pain from a
gun shot wound. Sergeant Preuss believed the complaint was feigned
and pushed Jones upward toward the car. While these events were
unfolding, Woody, who continued to be verbally combative, tried to
exit the rear door of the vehicle, which Sergeant Preuss struggled
to prevent by simultaneously placing his body against the door. A
third man, Albert Anderson, also arrived and attempted to intercede
on Jones’s behalf.
During the struggle, Sergeant Preuss managed to call for
backup. Because several officers were still at the front of the
parking lot dealing with the aftermath of the earlier altercation,
help arrived quickly. Officer Milligan arrived and, upon observing
Woody attempting to reach under the rear car seat, drew his weapon
and ordered Woody to exit the car. Anderson was restrained after
attempting to charge other officers on the scene, and Jones was
taken to the ground and handcuffed. During a patdown search, the
officers retrieved a loaded .357 magnum from Jones’s outside jacket
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pocket and two additional firearms from the car, one under the
front passenger seat. Jones was charged with being a felon in
possession of a firearm.
Prior to trial, Jones moved to suppress the evidence seized on
the night of his arrest, arguing that his seizure violated the
Fourth Amendment. After an evidentiary hearing, the district court
denied Jones’s motion to suppress. Immediately thereafter, Jones
informed the court that he wished to enter a conditional guilty
plea that preserved his right to appeal the denial of his
suppression motion, any adverse rulings at sentencing, and any
other appellate issues. The government, however, would only agree
to a conditional plea that allowed an appeal of the suppression
issue.
After plea negotiations fell through, Jones proceeded to a
bench trial. On the morning of trial, after the district court
denied Jones’s motion to dismiss the indictment for Speedy Trial
Act violations, Jones stipulated to the evidence presented by the
government at the suppression hearing and at trial. Jones
presented no evidence and raised no new motions on his behalf. The
district court found Jones guilty of the charged offense.
The presentence investigation report (“PSR”) recommended that
Jones be assigned an offense level of 16 and a Category V criminal
history, resulting in a Guidelines range of 41 to 51 months
imprisonment. Jones objected to the PSR’s failure to reduce his
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offense level to reflect his acceptance of responsibility. See
U.S.S.G. § 3E1.1. Jones argued that he qualified for acceptance of
responsibility because he proceeded to trial for the sole purpose
of preserving appellate issues that were unrelated to his factual
guilt.
The district court overruled Jones’s objection and determined
that Jones failed to accept responsibility by continuing to
challenge the validity of his arrest on constitutional grounds, by
delaying in stipulating to the government’s evidence until the
morning of trial, and by failing to admit his guilt until he met
with the probation officer regarding his PSR. The court adopted
the PSR’s recommendations and sentenced Jones to 51 months
imprisonment.
II.
The Fourth Amendment provides that “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S.
Const. amend. IV. It was “designed to prevent arbitrary and
oppressive interference by enforcement officials with the privacy
and personal security of individuals.” INS v. Delgado, 466 U.S.
210, 215 (1984) (internal quotation marks omitted). “The Supreme
Court has recognized three distinct types of police-citizen
interactions: (1) arrest, which must be supported by probable
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cause; (2) brief investigatory stops, which must be supported by
reasonable articulable suspicion; and (3) brief encounters between
police and citizens, which require no objective justification.”
United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002)
(citations omitted). In reviewing a denial of a motion to
suppress, “we review the factual findings of the district court for
clear error and its legal conclusions de novo.” See United States
v. Brown, 401 F.3d 588, 592 (4th Cir. 2005) (internal quotation
marks omitted).
Jones contends that the district court erred in denying his
motion to suppress the evidence as a result of his encounter with
Sergeant Preuss. Specifically, he asserts that he was unlawfully
seized on three occasions: when Sergeant Preuss positioned himself
within the passenger door opening, when Sergeant Preuss asked Jones
what was in his left hand, and when Sergeant Preuss ordered him to
turn around and place his hands on top of the car. Jones argues
that at no point did Sergeant Preuss have a reasonable, articulable
suspicion or probable cause to believe that Jones had engaged in
criminal activity.
The district court found that the initial encounter between
Sergeant Preuss and Jones was consensual and, therefore, did not
implicate the protections of the Fourth Amendment. The district
court found that a seizure did occur when Sergeant Preuss ordered
Jones to place his hands on the car, but that this seizure did not
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violate Jones’s Fourth Amendment rights because “[t]he officer had
a reasonable articulable apprehension of an assault on a police
officer when the defendant jumped out of the car in response to a
perfectly simple limited, very civilly stated, nonauthoritatively
stated, question. . . . [T]he officer was entitled at that juncture
to stop the assault and he did.” J.A. 166. Accordingly, the
district court denied Jones’s motion to suppress. In sum, the
district court found that the seizure was justified by the totality
of the circumstances including the citizen report of an armed man
in the location where Jones was found, the high-crime area, and
Sergeant Preuss’s reasonable fear for his safety when Jones jumped
toward Sergeant Preuss in a seemingly aggressive manner.
A.
We begin with Jones’s challenge to the district court’s
finding that Jones’s encounter with Sergeant Preuss was a
consensual one prior to Jones’s act of jumping from the vehicle.
Determining whether an encounter was consensual or a seizure
requires consideration of many factors, such as whether there
existed “the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980). A seizure
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of the person occurs only when a law enforcement official, by means
of physical force or a show of authority, restrains the liberty of
a citizen in such a way that a reasonable person would believe he
was not free to terminate the encounter, and the person submits to
the show of authority. See California v. Hodari D., 499 U.S. 621,
626 (1991). “[A] seizure does not occur simply because a police
officer approaches an individual and asks a few questions. So long
as a reasonable person would feel free to disregard the police and
go about his business, the encounter is consensual and no
reasonable suspicion is required.” Florida v. Bostick, 501 U.S.
429, 434 (1991) (citation and internal quotation marks omitted).
Having considered the facts in light of the appropriate
factors, we agree that Sergeant Preuss’s act of positioning himself
in the passenger doorway and asking Jones what was in his left hand
was a consensual police-citizen encounter. This encounter involved
only Sergeant Preuss and Jones. When Sergeant Preuss approached
Jones, Jones was already seated in the front seat of the vehicle
with the door ajar. Sergeant Preuss placed himself in the doorway
to speak with Jones, but the record contains no indication that his
placement was threatening or constituted a show of authority. He
asked Jones in a conversational tone whether Woody, who was asleep
in the rear seat, was okay and simply asked Jones what was in his
left hand. Sergeant Preuss never displayed his weapon, nor did he
touch or in any way prevent Jones from exiting the vehicle and
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terminating the conversation. Sergeant Preuss simply asked
questions, to which Jones voluntarily responded. Such an encounter
does not constitute a seizure. See Weaver, 282 F.3d at 312-13 (no
seizure where defendant voluntarily complied with officers’
requests).
B.
As found by the district court, when Jones jumped up
unexpectedly and Sergeant Preuss ordered him to turn around and
place his hands on top of the vehicle, the previously consensual
encounter did become a seizure, implicating Fourth Amendment
concerns. The question thus becomes whether Sergeant Preuss’s act
of seizing Jones, followed by the patdown which revealed the
initial handgun, was reasonable under the totality of the
circumstances.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court
recognized that
there must be a narrowly drawn authority to permit a
reasonable search for weapons for the protection of the
police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the
individual for a crime. The officer need not be
absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his
safety or that of others was in danger. And in
determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his
inchoate and unparticularized suspicion or “hunch,” but
to the specific reasonable inferences which he is
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entitled to draw from the facts in light of his
experience.
Id. at 27 (internal citations omitted); see also United States v.
Raymond, 152 F.3d 309, 312 (4th Cir. 1998) (“Police may conduct a
patdown search without a warrant if, under the totality of the
circumstances, the officer has an articulable, reasonable suspicion
that a person is involved in criminal activity and that he is
armed. . . . If a reasonably prudent person would believe that his
safety, or the safety of others, is endangered, he may conduct a
limited search of outer clothing to discover any weapons.”
(internal citation omitted)).
Here, Sergeant Preuss initially approached Jones in response
to an eyewitness report by a citizen who had observed a black male
carrying a firearm in a specific location within the Club 534
parking lot. Even if Sergeant Preuss did not have reasonable
suspicion for a Terry stop at that time, cf. Florida v. J.L., 529
U.S. 266, 271-72 (2000), when Jones unexpectedly and suddenly
jumped from the vehicle in response to Sergeant Preuss’s questions,
the circumstances evolved to present a much more suspicious and
dangerous climate. Sergeant Preuss had received an eyewitness
citizen report of an armed man in the exact location where he found
Jones, and Sergeant Preuss had been involved in dealing with the
altercation that had just occurred outside the nightclub, creating
heightened tension in an already-known high-crime area. When Jones
engaged in activity which Sergeant Preuss reasonably perceived to
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be aggressive in nature -- jumping from the vehicle suddenly and
unexpectedly in response to an innocuous question –- the totality
of the facts known to Sergeant Preuss combined to create a
reasonable, articulable suspicion that Sergeant Preuss was in
danger and that Jones was armed and dangerous.
As we have previously stated, “the very point of Terry was to
permit officers to take preventive action and conduct investigative
stops before crimes are committed, based on what they view as
suspicious -- albeit even legal -- activity.” United States v.
Perkins, 363 F.3d 317, 326 (4th Cir. 2004). “We cannot afford to
read the Fourth Amendment to require officers to wait until
criminal activity occurs, and perhaps until innocent bystanders are
physically harmed, before taking reasonable, preventive measures.”
Id. at 328; see Adams v. Williams, 407 U.S. 143, 145 (1972) (“The
Fourth Amendment does not require a policeman who lacks the precise
level of information necessary for probable cause to arrest to
simply shrug his shoulders and allow a crime to occur or a criminal
to escape. On the contrary, Terry recognizes that it may be the
essence of good police work to adopt an intermediate response.”).
Given the totality of the circumstances, we agree with the district
court that Sergeant Preuss was justified in seizing Jones and
conducting a patdown search for weapons. Accordingly, we affirm
the district court’s denial of Jones’s motion to suppress.
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III.
Jones’s second contention is that the district court erred in
refusing to apply the two-level reduction of his offense level for
acceptance of responsibility under U.S.S.G. § 3E1.1. After the
suppression hearing, Jones wanted to enter a conditional guilty
plea preserving his right to appeal the denial of his suppression
motion, any adverse rulings at sentencing, and any other appellate
issues. The government offered Jones a plea agreement which would
allow him to appeal only the denial of his suppression motion, but
Jones declined the government’s limited offer. Jones elected a
bench trial, and on the morning of trial advised the court that he
would stipulate to the government’s evidence.
At the sentencing hearing, Jones argued that he was entitled
to the two-level acceptance of responsibility reduction because he
proceeded to trial solely to preserve his appellate rights on
issues unrelated to his factual guilt. The district court
overruled Jones’s objection, concluding that Jones’s desire to
preserve all of his rights to appeal, delay in stipulating to the
government’s evidence until the morning of trial, and failure to
admit his guilt until meeting with the probation officer regarding
the PSR amounted to the “antithesis of acceptance of
responsibility.” J.A. 350.
Section 3E1.1 provides for a two-level reduction of the
offense level “[i]f the defendant clearly demonstrates acceptance
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of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Because
“[t]he sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility. . . . the determination
of the sentencing judge is entitled to great deference on review.”
U.S.S.G. § 3E1.1 comment. (n.5); see also United States v.
Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) (“A trial judge's
determination that a defendant is entitled to a two-level reduction
for acceptance of responsibility under Guidelines § 3E1.1 is a
factual issue that will not be disturbed unless clearly
erroneous.”).
As a general rule, acceptance of responsibility is
inconsistent with a defendant’s decision to exercise his right to
a trial. The Guidelines, however, provide for a narrow exception:
This adjustment is not intended to apply to a defendant
who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses
remorse. Conviction by trial, however, does not
automatically preclude a defendant from consideration for
such a reduction. In rare situations a defendant may
clearly demonstrate an acceptance of responsibility for
his criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for
example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute or
a challenge to the applicability of a statute to his
conduct). In each such instance, however, a
determination that a defendant has accepted
responsibility will be based primarily upon pre-trial
statements and conduct.
U.S.S.G. § 3E1.1 comment. (n.2) (emphasis added).
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This case is not one of the “rare situations” in which a
defendant who proceeds to trial may still be entitled to an
acceptance of responsibility reduction. Id. Jones’s decision to
proceed to trial to preserve his right to appeal the denial of his
suppression motion would not have disqualified him from receiving
an acceptance of responsibility reduction. See United States v.
Muldoon, 931 F.2d 282, 289 (4th Cir. 1991) (concluding that Muldoon
was entitled to an acceptance-of-responsibility reduction under the
Guidelines where he proceeded to trial in order to preserve his
constitutional and statutory challenge to the wiretaps but did not
testify or introduce any evidence). But in this case, Jones
rejected the government’s limited offer of a conditional guilty
plea in order to preserve any and all issues that might exist for
appeal, and while he ultimately stipulated to the facts, he did not
do so until the morning of trial, thereby requiring the government
to be fully prepared for trial and have its witnesses present. Cf.
United States v. Dickerson, 114 F.3d 464, 469-70 (4th Cir. 1997)
(concluding that acceptance-of-responsibility reduction not
warranted where defendant put the government to its burden of proof
at trial by denying an essential factual element of his guilt).
Moreover, Jones did not admit his guilt until he met with the
probation officer regarding the PSR. Given these facts and the
deference to which the district court’s decision is entitled in
this regard, we cannot say that the district court clearly erred in
15
finding that Jones was not entitled to a two-level reduction for
acceptance of responsibility.
IV.
For the foregoing reasons, we affirm Jones’s conviction and
sentence.
AFFIRMED
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