UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4063
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN STACKS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00371-FDW-DCK-1)
Argued: January 30, 2014 Decided: May 8, 2014
Before KING, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Henderson
Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Stacks appeals his conviction for being a felon in
possession of a firearm, in contravention of 18 U.S.C.
§ 922(g)(1). Stacks first challenges the district court’s
denial of his motion to suppress evidence obtained as a result
of a traffic stop, maintaining that the officers lacked
reasonable suspicion that he was engaged in criminal activity.
Stacks also contends that his conviction should be vacated
because the court improperly and prejudicially admitted lay
opinion testimony of a police officer. As explained below, we
reject the contention with respect to the suppression issue,
discern no prejudicial error regarding the challenged testimony,
and thus affirm Stacks’s conviction.
I.
A.
Around four o’clock the morning of March 18, 2011, Officers
Bryan Overman and Chandos Williams of the Charlotte-Mecklenburg
Police Department were assigned to patrol the “Westpark
Corridor,” surrounding Westpark Drive, in Charlotte, North
Carolina. The Westpark Corridor, a commercial area on the
western side of Charlotte near Interstate 77, is home to several
hotels, restaurants, and nightclubs. The area was known to the
police, including Officers Overman and Williams, as a “hot spot
2
for breaking and entering motor vehicle cases,” particularly
during the early morning hours. See J.A. 31. 1 As such, the
officers were dispatched to the Westpark Corridor the morning of
March 18 to “do some surveillance on the hotels and along that
corridor for the prevention of larceny from auto or vehicle
break-ins.” Id. At the time, Overman had been a police officer
for more than seventeen years, nearly twelve of which were with
the Charlotte-Mecklenburg Police Department, and nine of those
in the Steele Creek Division, where the Westpark Corridor is
located. Williams had been with the Charlotte-Mecklenburg
Police Department for more than twenty years, and spent a
majority of that time working in the Steele Creek Division.
After arriving at the Westpark Corridor and conducting an
initial sweep of the area, the officers parked their unmarked
patrol car in a business park. They turned off the headlights
and the internal lights in the vehicle. From that vantage, the
officers could observe the parking lots of several of the hotels
on Westpark Drive. Despite the early morning hour, the parking
lots and street were well-lit. The officers observed just “a
handful” of people, mostly employees and deliverymen at the
hotels. See J.A. 34.
1
Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
3
At approximately 4:30 a.m., the officers observed a brown
two-door Cadillac drive past them on Westpark Drive. The
Cadillac was driven by an African-American male later identified
as Stacks, and there were no other passengers in the car. As
the Cadillac passed the officers’ parked unmarked vehicle, the
officers observed the Cadillac’s driver looking to his right,
towards the hotels and parking lots. The officers did not see
the driver look in their direction.
After passing the officers, the Cadillac turned into the
parking lot of a Residence Inn and drove “up and down the rows
of cars in the hotel parking lot.” J.A. 37. The Cadillac then
proceeded to the parking lot of the next hotel, again driving
through the rows of parked cars without stopping or lingering.
According to Officer Williams, it appeared the Cadillac’s driver
was either looking for a parking space or was lost. As the
Cadillac exited the second parking lot and approached a third
hotel (the last hotel on Westpark Drive before it dead-ended
into a cul-de-sac), the officers decided to “stay with” the
Cadillac and started driving towards the third hotel. Id. at
38. The officers left the headlights of their unmarked vehicle
dark. After driving through the third hotel parking lot, the
Cadillac pulled back onto Westpark Drive, driving north away
from the hotels and the cul-de-sac. At that point, the officers
were driving the opposite direction — towards the last hotel at
4
the end of the cul-de-sac. As the cars passed one another,
Stacks saw the officers, turned around completely in his seat to
look at them, and slowed the brown Cadillac down, “almost coming
to a stop.” Id. at 39.
Upon observing Stacks’s reaction, the officers decided to
initiate a traffic stop and activated the blue lights on their
vehicle. Stacks pulled the Cadillac over, and Officer Overman
approached the vehicle and requested Stacks’s driver’s license
and registration. After Overman returned to the police vehicle
to run Stacks’s license and registration through the DMV
database, Officer Williams approached the Cadillac and began to
question Stacks. Williams asked Stacks why he was in the
Westpark Corridor, and Stacks responded that he was dropping off
his girlfriend, Kenia Boo; however, Stacks could not tell the
officers where he had taken her. 2 While he was standing
alongside the Cadillac questioning Stacks, Williams observed a
“camouflage jacket that was in the back seat spread out almost
like it was covering something.” J.A. 74. Williams, cognizant
that he was “out there looking for people that had been breaking
2
Stacks provided the officers with Ms. Boo’s name and a
telephone number, which the officers called later that morning.
Boo spoke with Officer Williams, but failed to corroborate
Stacks’s claim that he had been dropping her off that morning.
Stacks subsequently called the officers back from that same
number and attempted to explain why he had fled from the traffic
stop.
5
into cars,” thought that the jacket could be concealing
something because he had seen other defendants “hide stuff in
the back seat, in the trunk, underneath the seats of the car,
that kind of stuff.” Id. at 75.
After learning that Stacks had previously been arrested
several times for armed robbery, Officer Overman rejoined
Officer Williams alongside the Cadillac. Overman recalled that
Stacks looked “obviously nervous” in that he was talking fast
and “fumbling around with his phone in his car.” J.A. 43. The
officers asked Stacks to step out of the car. In response,
Stacks asked the officers if they had probable cause for their
request. The officers explained that they did not need probable
cause and again asked Stacks to exit the vehicle, whereupon
Stacks pulled away from the curb and sped off. The officers
returned to their vehicle and chased Stacks, but were not able
to apprehend him. The officers thereafter obtained an arrest
warrant for Stacks for resisting, delaying, and obstructing the
officers, as well as for careless and reckless driving, all in
violation of North Carolina law.
Several hours later, at approximately 8:00 a.m. on March
18, a guest at one of the hotels along Westpark Drive found a
firearm underneath some bushes outside the Residence Inn and
6
gave it to a police officer he saw in the area. 3 The firearm,
which was later used as evidence in prosecuting Stacks, was a
Cobra Enterprises Model CA-380 semiautomatic pistol.
Stacks turned himself in to the Charlotte-Mecklenburg
Police later that morning. While Stacks was in custody,
Detective Jimmy Messer interviewed him and asked him about the
pistol recovered from the bushes on Westpark Drive. Stacks told
Messer that he did not know anything about the firearm. Later
that day, while in jail on the obstruction and reckless driving
charges, Stacks made five telephone calls to an unidentified
female. During those calls, which were recorded, Stacks made
several incriminating statements about getting rid of a firearm,
referring to the weapon as a “gun,” a “burner,” and an “iron.”
See J.A. 516, 525, 541-42, 556-59, 580.
B.
On November 15, 2011, a federal grand jury in the Western
District of North Carolina returned an indictment charging
Stacks under 18 U.S.C. § 922(g)(1) with being a felon in
3
The Residence Inn’s parking lot is the first of the three
that the officers observed Stacks drive through on the morning
of March 18, 2011. The Residence Inn was therefore located
within a few hundred yards of the spot on Westpark Drive where
Stacks was stopped by Officers Williams and Overman. The bushes
where the pistol was found later that morning were on the left
of the road, in the direction from which Stacks fled from the
traffic stop.
7
possession of a firearm on March 18, 2011. On February 22,
2012, Stacks moved to suppress all of the evidence derived from
the traffic stop — including his identity and his statements
made during the stop and after his arrest, as well as the pistol
recovered from the bushes on Westpark Drive — asserting that the
stop violated his Fourth Amendment right to be free of
unreasonable searches and seizures. At the conclusion of a
February 27, 2012 suppression hearing, the district court took
Stacks’s motion under advisement and directed the parties to
brief the following issue: Assuming, arguendo, that the stop
was unconstitutional, “what is fruit of the poisonous tree and
what is not, starting with the identity of the defendant
himself.” J.A. 129. After unsuccessfully urging the court to
immediately decide the suppression motion solely on the basis of
the constitutionality of the stop, the prosecution asserted that
all of the evidence was admissible under either an inevitable
discovery theory or the good faith exception to the exclusionary
rule. Stacks challenged both contentions, maintaining that all
of the government’s evidence was tainted as fruit of the
poisonous traffic stop.
On May 15, 2012, after conducting a supplemental hearing,
the district court denied Stacks’s suppression motion. See
United States v. Stacks, No. 3:11-cr-00371 (W.D.N.C. May 15,
8
2012) (the “Order”). 4 In so doing, the court first ruled that
the stop of Stacks’s vehicle “was based on reasonable,
articulable suspicion that criminal activity was afoot,” and
specified nearly a dozen factors in support of that conclusion.
See Order 9. 5 The court further determined that, even if it had
4
The district court’s unpublished Order is found at J.A.
258-71.
5
The district court articulated that the following nine
factors amounted to “reasonable articulable suspicion” that
supported the stop of Stacks’s Cadillac:
• “The area in which the officers were conducting
surveillance, first saw Defendant, and conducted
the traffic stop was an area well known to the
officers specifically for automobile larceny and
vehicle break-ins, which the Charlotte–
Mecklenburg Police Department called a hot spot
for breaking and entering motor vehicle cases”;
• “The officers were conducting surveillance, and
Defendant was present, during a time of night
that is typical for automobile larcenies and
vehicle break-ins to occur”;
• “Defendant drove down Westpark Drive continually
looking only in the direction of the hotel
parking lots”;
• “Defendant was alone in his vehicle at all
relevant times”;
• “Defendant drove up and down the rows of parked
cars in three different hotel parking lots
without parking, stopping, dropping off a
passenger, or picking up a passenger”;
• “While driving up and down the rows of parked
cars, Defendant was continually looking in the
direction of the parked cars”;
(Continued)
9
deemed the stop unconstitutional, “much of the evidence in
question would not be subject to exclusion.” Id. at 13. 6
Thereafter, prior to trial, the prosecution identified
Detective James Helms of the Charlotte-Mecklenburg Police
Department as an expert witness who would “provide expert
testimony as to the general jargon and slang terminology used
for firearms.” J.A. 274. Stacks objected to the designation of
Helms as an expert witness, contending that he lacked the
requisite expertise to testify as an expert. Stacks further
• “Defendant exited each hotel parking lot and
immediately entered another, exhibiting the same
behavior in three (3) different hotel parking
lots”;
• “When Defendant saw the officers, who were in
uniform, he slowed down”; and
• “When Defendant saw the officers, he turned
around in his seat 180 degrees to look at the
officers.”
Suppression Order 9-10 (internal quotation marks omitted).
6
The district court’s alternative ruling was based on two
theories. First, the court deemed the firearm abandoned
property, meaning Stacks had no standing to challenge its
seizure. Second, the court reasoned that when Stacks “fled the
scene, he committed a new and distinct crime,” and evidence
“seized as a result of the new crime, such as the telephone
calls from jail while under arrest for the new crimes would
still be admissible.” Id. Because we discern no error as to
the court’s reasonable suspicion determination, we need not
reach its alternative ruling on the admissibility of the
evidence against Stacks.
10
asserted that because the terms “burner” and “iron” are
“commonly used in popular culture,” expert testimony as to the
meaning of those terms was not necessary or appropriate. Id. at
276-77. And, Stacks maintained that any probative value of
Helms’s expert testimony would be outweighed by prejudice to
Stacks because Helms would also be testifying as a fact witness.
During pretrial proceedings, the district court ruled that Helms
would “not be qualified as an expert,” but would be permitted to
testify — “from his experience as a law enforcement officer” —
about hearing “slang terms ‘burn[er]’ and ‘iron’ referring to
firearms.” Id. at 285.
At trial, the prosecution called nine witnesses, including
Detective Helms, and introduced the recordings of the
incriminating phone calls that Stacks made from jail on March
18, 2011. Helms testified that he recognized Stacks as the male
voice on the recordings. Helms further testified as to his
understanding of the recorded conversations, including that
“burner” and “iron” are slang terms for a firearm. On June 5,
2012, the jury returned a verdict convicting Stacks of the
charged 18 U.S.C. § 922(g)(1) offense. On January 15, 2013, the
district court sentenced Stacks to 212 months in prison. Stacks
timely noticed this appeal, and we possess jurisdiction pursuant
to 28 U.S.C. § 1291.
11
II.
A.
We first address Stacks’s challenge to the district court’s
ruling on his suppression motion — that is, his contention that
the officers lacked reasonable suspicion to justify the March
18, 2011 traffic stop. In considering a district court’s ruling
on a motion to suppress, we review de novo the court’s legal
conclusions, while reviewing its underlying factual findings for
clear error. See United States v. Foster, 634 F.3d 243, 246
(4th Cir. 2011). A court’s determination that the facts of a
citizen-police encounter give rise to reasonable suspicion is a
legal one, which we review de novo. See United States v.
Foreman, 369 F.3d 776, 782 (4th Cir. 2004). As the Supreme
Court has instructed, in assessing determinations of reasonable
suspicion, the courts of appeals are to “give due weight to
inferences drawn from those facts by resident judges and local
law enforcement officers.” Ornelas v. United States, 517 U.S.
690, 699 (1996). Finally, where, as here, the government has
prevailed in opposing a suppression motion, we review the
evidence in the light most favorable to the government. See
United States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012).
1.
The Fourth Amendment “prohibits unreasonable searches and
seizures by the Government, and its protections extend to brief
12
investigatory stops of persons or vehicles that fall short of
traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273
(2002) (internal quotation marks omitted). In the nearly fifty
years that have passed since issuing its seminal decision in
Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court has
frequently revisited the issue of reasonableness in the context
of traffic stops and made clear that an investigatory stop “is
permissible under the Fourth Amendment if supported by
reasonable suspicion” that criminal activity may be afoot.
Ornelas, 517 U.S. at 693.
Reasonable suspicion requires that an officer “be able to
articulate something more than an inchoate and unparticularized
suspicion or hunch” that criminal activity may be afoot. United
States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation
marks omitted). In making reasonable-suspicion determinations,
reviewing courts are to “look at the totality of the
circumstances of each case to see whether the detaining officer
ha[d] a particularized and objective basis for suspecting legal
wrongdoing.” Arvizu, 534 U.S. at 273 (internal quotation marks
omitted). The Supreme Court has recognized that “the concept of
reasonable suspicion is somewhat abstract,” and reminded
reviewing courts that officers are allowed “to draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them
13
that might well elude an untrained person.” Id. (internal
quotation marks omitted). Importantly, “the fact that the stop
occurred in a high crime area [is] among the relevant contextual
considerations” in this analysis; however, “[a]n individual’s
presence in an area of expected criminal activity, standing
alone, is not enough to support a reasonable, particularized
suspicion that the person is committing a crime.” Illinois v.
Wardlow, 528 U.S. 119, 124 (2000).
2.
Applying the foregoing standards, we conclude that Officers
Williams and Overman had reasonable suspicion to stop Stacks’s
Cadillac in the predawn hours of March 18, 2011. We consider,
as we must, the reasonableness of the officers’ suspicions in
light of the totality of the circumstances, and we address all
of the supporting factors in turn.
We first consider the relevant — though not dispositive —
fact that Stacks was in a high crime area when he was pulled
over. Specifically, Stacks was driving in an area known as a
hot spot for breaking and entering into automobiles — precisely
the type of crime that the officers were assigned to prevent and
in which they suspected Stacks might be engaged. Although this
factor “carries no weight standing alone, an area’s disposition
toward criminal activity is an articulable fact, that may be
considered along with more particularized factors to support a
14
reasonable suspicion.” United States v. Sprinkle, 106 F.3d 613,
617 (4th Cir. 1997) (citations and internal quotation marks
omitted).
In addition to being a high crime area, the Westpark
Corridor is also an entirely commercial area consisting of a
strip of hotels, restaurants, and nightclubs near a major
interstate. As such, the area was extremely quiet in the early
morning hours of March 18. Indeed, the officers observed “very,
very little traffic” other than Stacks while they surveilled the
area, namely “a handful” of workers and deliverymen going in and
out of the hotels on the strip. J.A. 34. The suspiciousness of
Stacks’s conduct — driving slowly in and out of three hotel
parking lots without making any stops — was compounded by the
time of day. See United States v. Smith, 396 F.3d 579, 587 (4th
Cir. 2005) (observing that lateness of the hour may raise level
of suspicion); see also Wardlow, 528 U.S. at 129-30 (Stevens,
J., concurring in part and dissenting in part) (observing that
“[f]actors such as the time of day, the number of people in the
area, [and] the character of the neighborhood” may be relevant
in the reasonable suspicion analysis). Indeed, Stacks’s conduct
was more consistent with someone preparing to engage in criminal
activity than with any of the legitimate activities occurring on
Westpark Drive at that hour.
15
Stacks’s reaction to the officers further supports the
officers’ reasonable suspicion. Having observed Stacks drive
slowly through two parking lots without stopping, the officers
drove toward Stacks, and the two vehicles passed as Stacks
exited a third hotel parking lot. Upon seeing the officers,
Stacks slowed his car substantially, coming almost to a complete
stop, and craned himself around to look at the officers as they
passed. Such a reaction, in Officer Overman’s words, “sparked
[the officers’] interest.” J.A. 39. Coupled with the early
hour, the commercial nature of the area, and the Cadillac’s
driving slowly through the parking lots, Stacks’s reaction
cemented the officers’ reasonable suspicion that Stacks was
engaged in, or about to engage in, criminal activity.
Stacks nevertheless contends that the officers lacked
reasonable suspicion because the stop was based on nothing more
than a vague hunch, thus falling far short of the reasonable
suspicion required by the Fourth Amendment. We disagree. As
this Court has previously explained, “factors that may be
‘susceptible of innocent explanation’ when taken in isolation
can combine to ‘form a particularized and objective basis’ for a
stop when considered together.” United States v. Bumpers, 705
F.3d 168, 174-75 (4th Cir. 2013) (quoting Arvizu, 534 U.S. at
277-78). That is certainly the case here. Stacks could,
perhaps, provide a reasonable and legal explanation for each of
16
the factors: the high crime area, the early morning hour,
driving slowly without stopping, and the reaction to the police.
Nevertheless, the whole of the circumstances facing the officers
the morning of March 18 is greater than the sum of its parts.
Considering, as we must, the totality of the circumstances, the
officers possessed reasonable suspicion that Stacks may have
been engaged in criminal activity.
B.
We next consider Stacks’s contention that the trial court
committed reversible error in allowing Detective Helms to
testify as to his understanding of slang terminology for
firearms. We review a district court’s evidentiary rulings for
abuse of discretion. See United States v. Johnson, 617 F.3d
286, 292 (4th Cir. 2010). Moreover, as we have explained,
evidentiary rulings “are subject to harmless error review under
Federal Rule of Criminal Procedure 52, such that in order to
find a district court’s error harmless, we need only be able to
say with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” Id.
(internal quotation marks omitted).
Stacks maintains that because Detective Helms was not
qualified as an expert, his opinion testimony should have been
limited to his personal observations of the conversations at
17
issue. As there is no question that Helms did not personally
observe his calls from jail, Stacks contends, Helms should not
have been permitted to opine on the slang terms Stacks used in
those calls. We agree.
Pursuant to Federal Rule of Evidence 701, lay opinion
testimony — whether offered by a police officer or a civilian —
must be based on the witness’s personal knowledge. See United
States v. Hassan, 742 F.3d 104, 135-36 (4th Cir. 2014). The
situation here is similar to that presented in Johnson, where we
determined that the district court abused its discretion in
permitting lay opinion testimony of a DEA agent regarding his
interpretation of the defendant’s wiretapped phone calls. See
617 F.3d at 293. Because the agent’s testimony was based on his
“credentials and training, not his observations from the
surveillance employed in [the] case,” we concluded that “[h]is
post-hoc assessments [could not] be credited as a substitute for
the personal knowledge and perception required under Rule 701.”
Id. We underscored that, “to adequately build a foundation for
lay testimony,” the testimony must be “based on the perception
of the witness.” Id. at 292-93 (internal quotation marks
omitted). Here, there similarly is no doubt that Detective
Helms’s testimony as to the slang terminology was not based on
his observations from the recorded phone calls, but rather on
18
his general experience as a police officer. Accordingly, his
testimony was not properly admitted under Rule 701.
Nevertheless, in light of the ample additional evidence
linking Stacks to the firearm recovered from Westpark Drive, the
district court’s error was harmless. As we have explained,
“when reviewing a nonconstitutional error under Rule 52(a), an
appellate court must determine if the Government has proved
‘with fair assurance . . . that the judgment was not
substantially swayed by the error.’” United States v. Curbelo,
343 F.3d 273, 286 (4th Cir. 2003) (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)).
In addition to the temporal and geographic proximity
between the traffic stop and the discovery of the firearm, the
jail calls included numerous references, both veiled and non, to
Stacks possessing and disposing of a firearm after the March 18
traffic stop. No expert testimony was necessary to explain or
interpret those calls; that Stacks was referring to a firearm
would be obvious to any lay person who heard the recordings.
Indeed, Stacks conceded as much when he argued before the
district court that “words like ‘burner’ and ‘iron’ are commonly
used in popular culture, and it would not assist the jury for a
witness to opine on their meaning.” J.A. 276. Given the common
understanding of those terms, we are readily able to conclude —
19
with fair assurance — that the jury was not substantially swayed
by the admission of Detective Helms’s testimony. 7
III.
Pursuant to the foregoing, we reject Stacks’s contentions
of error and affirm the judgment of conviction.
AFFIRMED
7
Because there was substantial evidence in the record from
which a juror could have found that Stacks was in possession of
a firearm on March 18, 2011, we need not address the
government’s position that Detective Helms could have been
qualified as an expert witness under Federal Rule of Evidence
702. While Helms, as a veteran officer of thirteen years of
experience, may well possess sufficient credentials to satisfy
Rule 702, the district court explicitly declined to qualify him
as an expert in this case. That the court could have done so is
of no matter in our harmlessness analysis.
20