UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4029
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO MARQUISE TAYLOR,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00253-MOC-1)
Argued: January 28, 2016 Decided: March 15, 2016
Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, Acting 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Unpublished opinions are not binding precedent in this circuit.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:
Mario Marquise Taylor was charged with being a felon in
possession of a firearm after officers found a gun near a car in
which Taylor was a passenger. The DNA on the gun matched
Taylor’s. He moved to suppress evidence of his identity
obtained during the encounter with police, arguing that the
officers lacked reasonable suspicion to stop and question the
car’s occupants. The district court denied Taylor’s motion in a
decision that Taylor now appeals. For the reasons explained
below, we affirm the judgment of the district court.
I. Background
Officers Aaron Skipper and Todd Watson were patrolling on
their motorcycles on November 26, 2012, investigating an area of
Charlotte, North Carolina, where a burglary was recently
reported. The officers saw Taylor, Preston Fields, and Marquise
Randolph pass by in a blue Crown Victoria. The officers noted
that the men “either look[ed] away or look[ed] down” as they
drove past. J.A. 120. Finding this suspicious, the officers
turned to follow the car, which rounded a bend and accelerated
from approximately 35 to 50 miles per hour. The car then
“turned into a driveway in an abrupt motion,” braking quickly
such that it “nose dived.” J.A. 450.
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As the officers approached, they saw that Taylor’s
passenger side window was rolled down and his hand was extended
outside the car, despite the “very cool” temperature. J.A. 97.
They drove past the Crown Victoria and parked in a field on the
opposite side of the street, 60 to 75 feet away. From there,
the officers watched Fields get out of the car and knock on the
front door of the house adjoining the driveway where he had
parked. No one answered, and Fields returned to the car.
After observing the three men sit in the car for about 45
seconds without moving, the officers pulled their motorcycles
into a gravel area beside the driveway, about 20 feet behind the
rear left of the Crown Victoria. Officer Skipper approached to
question the driver, while Watson remained about 15 to 20 feet
behind the car and off to the side, so that he could keep an eye
on the scene.
Officer Skipper asked Fields if anyone was home, and Fields
explained that he and his companions had come to meet someone
there but that no one answered. Skipper asked if anyone had an
ID, and Fields handed over his ID while Taylor and Randolph gave
their names. Skipper proceeded to question the men and conduct
consensual searches, finding no drugs or weapons.
Meanwhile, Officer Watson received a call from dispatch
that a bus passenger had seen a firearm lying in the grass near
where two motorcycle officers were talking with some men. Upon
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investigation, Watson found a loaded Taurus .38 caliber revolver
in the grass, about 75 feet away from the Crown Victoria, which
had passed the spot before parking. The gun was on the side of
the road Taylor’s window had faced.
DNA analysis showed DNA of at least three people on the
gun’s grip, with one strong profile considered a “partial major”
profile. J.A. 548. The partial major profile was later matched
to a DNA sample from Taylor that was previously obtained and on
file.
A federal grand jury returned an indictment against Taylor,
charging him with possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). Taylor unsuccessfully
moved to suppress evidence of his identity obtained during his
encounter with Officers Skipper and Watson. Following a trial,
the jury returned a guilty verdict, and the district court
sentenced Taylor to 54 months’ imprisonment.
Taylor timely appealed, and we have jurisdiction under 18
U.S.C. § 3742 and 28 U.S.C. § 1291.
II. Discussion
A.
Taylor’s primary argument on appeal is that the district
court erred in denying the motion to suppress evidence of his
identity. In his view, the court should not have concluded that
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Officers Skipper and Watson had reasonable suspicion to initiate
the stop that led to their obtaining Taylor’s identity.
We review factual findings underlying the denial of a
motion to suppress for clear error and legal determinations de
novo. United States v. Hill, 776 F.3d 243, 247 (4th Cir. 2015).
Because the district court denied Taylor’s motion, we construe
the evidence in the light most favorable to the government.
United States v. Green, 740 F.3d 275, 277 (4th Cir. 2014). We
“accord particular deference to a district court’s credibility
determinations,” because of “the district court’s role of
observing the witnesses and of weighing their credibility.”
United States v. Hilton, 701 F.3d 959, 964 (4th Cir. 2012).
Under the Fourth Amendment, “an investigatory detention of
a citizen by an officer must be supported by reasonable
articulable suspicion that the individual is engaged in criminal
activity.” United States v. Black, 707 F.3d 531, 537 (4th Cir.
2013) (citing Terry v. Ohio, 392 U.S. 1, 21 (1967)). Here, we
assume without deciding that the encounter constituted “an
investigatory detention” –- or, in other words, a “seizure” –-
and we move directly to the issue of whether the officers acted
on a reasonable suspicion.
In assessing reasonable suspicion, we “look at the
‘totality of the circumstances’ of each case to see whether the
detaining officer has a ‘particularized and objective basis’ for
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suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S.
266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411,
417-18 (1981)). An “inchoate and unparticularized suspicion or
hunch” is insufficient. United States v. Foster, 634 F.3d 243,
246 (4th Cir. 2011). Still, “the likelihood of criminal
activity need not rise to the level required for probable cause,
and it falls considerably short of satisfying a preponderance of
the evidence standard.” Arvizu, 534 U.S. at 274. Factors to be
considered include “the context of the stop, the crime rate in
the area, and the nervous or evasive behavior of the suspect.”
United States v. George, 732 F.3d 296, 299 (4th Cir. 2013).
Here, a number of factors would have given an officer an
objective basis to suspect that the men in the Crown Victoria
were up to some illegal activity. As the district court noted,
the officers saw the men avert their eyes, away both from the
officers and from where on the road the officers testified a
normal person would have been looking while driving. This
conduct would have immediately aroused some level of suspicion,
given that the officers were investigating a recent burglary.
At that point, the officers may yet have lacked reasonable
suspicion, but the Crown Victoria proceeded in a matter that
erased that doubt. That is, after passing the officers, the
driver accelerated rapidly from around 35 to 50 miles per hour,
seemed to speed up even more when out of sight, and then turned
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“abrupt[ly]” to “nose dive[]” into a driveway. J.A. 450. An
objective officer could view that manner of driving as an
attempt to get off the road and hide –- an inference that is
further supported by the fact that no one responded when Fields
knocked on the front door of the house. The overall sequence of
apparently evasive conduct provided Officers Skipper and Watson
with reasonable suspicion to initiate the brief encounter that
led to the evidence of Taylor’s identity. * The district court
did not err in denying Taylor’s motion to dismiss.
B.
Taylor raises two additional issues on appeal that we
likewise find unpersuasive. First, he asserts that, contrary to
Batson v. Kentucky, 476 U.S. 79 (1986), the government had a
racially discriminatory purpose for using a preemptory strike
against the only remaining black juror, Ms. Robinson. At trial,
the government had explained that Ms. Robinson had a “meek
voice” and “hearing issues,” “look[ed] lost in the courtroom,
with a lost look in her eyes,” and when asked a follow-up
*
Two additional factors the district court cited –- the
open window and the delay in leaving the driveway after knocking
on the door –- are more ambiguous. While neither of these
factors is particularly indicative of criminal activity standing
alone, they could conceivably bolster the officers’ suspicion
when considered as part of the “totality of the circumstances.”
Arvizu, 534 U.S. at 273. All the same, the circumstances noted
above adequately establish reasonable suspicion such that we
need not rely on these other factors.
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question about guns, “could not explain why and would not
explain why, and would not make eye contact.” J.A. 335-36. The
district court accepted this race-neutral explanation and
consequently found that that Taylor had not “established
purposeful discrimination,” as is required for a defendant to
prevail on a Batson challenge. 476 U.S. at 98.
We review a district court’s finding regarding a Batson
challenge for clear error. Jones v. Plaster, 57 F.3d 417, 421
(4th Cir. 1995). Because findings on the issue of
discriminatory intent “largely will turn on evaluation of
credibility,” Batson, 476 U.S. at 98 n.21, we accord the
district court’s decision “great deference on appeal.”
Hernandez v. New York, 500 U.S. 352, 364 (1991).
Here, that deference leads us to find no error in the
district court’s decision to deny Taylor’s Batson challenge.
The court’s own findings confirmed the government’s stated
rationale. The court agreed that Ms. Robinson was “somewhat
distracted” and “much more uncomfortable than the rest of the
folks on the panel.” J.A. 338. Further, it explained that
“[e]ye contact is a big thing” and that “the government’s
reasons for taking that juror off do ring true.” J.A. 339-40.
Taylor insists that the district court failed to conduct a
“comparative juror analysis,” see United States v. Barnette, 644
F.3d 192, 205 (4th Cir. 2011), but the district court made such
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a finding: It stated unequivocally that the juror appeared “much
more uncomfortable than the rest of the folks on the panel.”
J.A. 338. Any potential deficiency in the district court’s
analysis falls far short of clear error.
Second, Taylor asserts that the district court erred in
giving an instruction as to constructive possession of the
firearm. He contends that no evidence supported constructive
possession -- as opposed to actual possession –- and that the
instruction therefore may have confused the jury. See United
States v. Whittington, 26 F.3d 456, 463 (4th Cir. 1994) (stating
that a jury instruction is proper “only if there is a foundation
in evidence to support” it). This Court reviews a district
court’s “decision to give or not to give a jury instruction
. . . for an abuse of discretion.” United States v. Moye, 454
F.3d 390, 397-98 (4th Cir. 2006).
We find that the district court did not abuse its
discretion by giving the constructive possession instruction.
The record provides factual support for the instruction. Given
the possibility that someone other than Taylor threw the gun
from the car, Taylor’s DNA and position in the car could suggest
he nonetheless had control over the gun. See United States v.
Blue, 957 F.2d 106, 107 (4th Cir. 1992) (“[T]o establish
constructive possession, the government must produce evidence
showing ownership, dominion, or control over the contraband
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itself or the premises or vehicle in which the contraband is
concealed.”). As the district court observed, “If [the gun] was
close enough for him to drop sweat on it, it had to be close
enough for him that he could have constructively possessed it.”
J.A. 623. In any event, we are satisfied that any error would
be harmless. See United States v. McCoy, 767 F.2d 395, 398 (7th
Cir. 1985) (holding that a constructive possession instruction
constituted harmless error). Taylor provides no reason to
conclude that the constructive possession instruction, which was
an accurate statement of law, would have confused the jury in
its application of an actual possession theory. See Dawson v.
United States, 702 F.3d 347, 350 (6th Cir. 2012) (“As in McCoy,
the jury in Dawson’s trial is unlikely to have been confused by
the instruction.”).
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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