Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-30-2004
USA v. West
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3700
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3700
UNITED STATES OF AMERICA
v.
CHARLES WEST,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 02-cr-00234)
District Judge: Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
May 26, 2004
Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN*, Circuit Judges.
(Filed: June 30, 2004)
OPINION OF THE COURT
*Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
RENDELL, Circuit Judge.
Charles West entered a conditional guilty plea to possessing ammunition as a
convicted felon, in violation of 18 U.S.C. § 922(g). As part of his plea, West reserved the
right to challenge the police stop that resulted in his arrest, as violative of the fourth
amendment. The District Court denied his pre-trial motion to suppress the ammunition
and certain inculpatory statements made to federal agents, concluding that the stop was
justified by West’s nervous behavior. We have jurisdiction under 18 U.S.C. § 3731. We
will affirm, albeit on grounds somewhat different from the District Court.
I.
The facts underlying this dispute are largely uncontroverted. On August 27, 2002,
Special Agents Endy and Graybill of the Bureau of Alcohol, Tobacco and Firearms
(“ATF”), with over seventeen years combined experience at the ATF, were conducting an
investigation unrelated to this case at Danny’s Sporting Goods in Harrisburg,
Pennsylvania. The plain-clothed agents remained in the parking lot after concluding their
investigation, when their attention was drawn to the defendant, West, and his companion,
Marcus Bethea. According to the agents’ testimony, West and Bethea drove into the lot
and remained in their car, staring at the agents. Both agents testified that the men
appeared hesitant to leave their vehicle. When they finally emerged, West and Bethea
repeatedly looked over and then away from the agents.
The agents then telephoned an employee inside the store, who informed them that
West and Bethea were purchasing ammunition. When West and Bethea left the store, the
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agents stated that the two men again seemed nervous and unsure of their movements,
even bumping into each other on their walk back to the car. The agents further testified
that, upon leaving the store, West had tucked a small package into the waistband of his
pants. After West and Bethea got into their car, the agents approached the passenger side
of the vehicle, where West was seated, identified themselves, and asked what the two
men were doing. West replied that he had purchased ammunition for a friend. Agent
Endy then requested identification from both West and Bethea. West turned over a
Pennsylvania identification card, but Bethea, in the driver’s seat, had none.
Agent Endy called in a criminal background check at ATF headquarters. The
agents testified that Bethea had placed the car keys into the ignition and began fidgeting
with them. As a precaution, the agents asked to hold onto Bethea’s car keys. Before the
background check was complete, Agent Endy asked the suspects if they had ever been
convicted of a crime. West replied that he had been convicted for stealing cars. The ATF
background check revealed that West had prior arrests for drug violations, aggravated
assault, stolen vehicles, and receiving stolen property. The local police were called and
West was arrested on an outstanding warrant for probation violation.
Based on the aforementioned facts, the District Court denied West’s motion to
suppress the evidence, finding that West’s nervous behavior, both upon entering and
exiting the store, justified the agents’ reasonable suspicion, pursuant to Terry v. Ohio, 392
U.S. 1 (1968).
We review the District Court’s determinations of reasonable suspicion de novo and
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findings of fact for clear error. Ornelas v. United States, 517 U.S. 690, 699 (1996);
United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000).
II.
Under Terry and its progeny, a police officer may conduct a short investigatory
stop if he can point to “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21.
Reasonable suspicion is an objective standard determined by the totality of the
circumstances, United States v. Cortez, 449 U.S. 411, 417 (1981), and while certain
behavior may be entirely legal, it can, nonetheless, lead to an inference of criminal
activity. United States v. Ubiles, 224 F.3d 213, 217 (3d Cir. 2000).
The District Court found that reasonable suspicion could be established solely on
the basis of West’s nervous behavior. While such behavior clearly is relevant in the
assessment of whether there was reasonable suspicion, it is not necessarily enough,
standing alone. The District Court relied on Illinois v. Wardlow, 528 U.S. 119, 124
(2000), in which the Supreme Court noted that “nervous, evasive behavior is a pertinent
factor in determining reasonable suspicion.” But neither Wardlow nor the decisions of
this Court have ever held that nervousness alone justifies reasonable suspicion. In
Wardlow, the Court held that flight from police officers in a high crime area, and not
flight by itself, constituted reasonable suspicion. As stated recently by this Court, “[i]n
Wardlow, the Supreme Court carefully distinguished unprovoked flight in a high crime
area . . . from mere nervousness or evasiveness.” Johnson v. Campbell, 332 F.3d 199,
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208 (3d Cir. 2003); see also United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004)
(“[T]he Supreme Court has never held that unprovoked flight alone is enough to justify a
stop.”).
Nonetheless, here, the totality of the circumstances supports a finding of
reasonable suspicion. The nervous behavior was accompanied by other conduct. The
two men appeared hesitant to exit their car, repeatedly stared at the agents when entering
the store, and even tripped over each other while walking back to their car. And, in
addition to observing this nervous behavior, both agents testified that West concealed a
package in his waistband. Moreover, after speaking with the store employer, the agents
were aware that West was concealing a potentially lethal package, the recently purchased
ammunition. These facts leading up to the Terry stop, in light of the experienced agents’
“commonsense judgments and inferences about human behavior” at the time of the
seizure, unquestionably supported the agents’ reasonable suspicion to stop and question
West. Wardlow, 528 U.S. at 125.
III.
For the foregoing reasons, the judgment of the District Court will be AFFIRM ED.
____________________
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