UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE WALLACE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:11-cr-00109-1)
Submitted: August 27, 2012 Decided: October 17, 2012
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. R. Booth
Goodwin, II, United States Attorney, William Bryan King, II,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Wallace appeals from the district court’s
judgment after his conditional guilty plea to possession with
intent to distribute hydrocodone. Wallace reserved the right to
challenge the district court’s suppression ruling. On appeal,
he raises the issue of whether officers had reasonable suspicion
to believe that he “was engaged in criminal conduct when they
tackled him following his flight from another officer who was in
plain clothes and an unmarked vehicle.” We affirm.
We review the district court’s legal conclusions de
novo and its factual findings for clear error. United States v.
Massenburg, 654 F.3d 480, 485 (4th Cir. 2011). We review the
district court’s reasonable suspicion determination de novo, and
we construe the evidence in the light most favorable to the
Government, the prevailing party below. United States v.
Powell, 666 F.3d 180, 183, 186-87 (4th Cir. 2011).
Under the Fourth Amendment, a brief investigatory
detention or stop must be supported “by a reasonable and
articulable suspicion that the person seized is engaged in
criminal activity.” Reid v. Georgia, 448 U.S. 438, 440 (1980).
Reviewing courts must look at the totality of the circumstances
to determine whether an officer had a particularized and
objective basis for suspecting criminal activity. United
States v. Arvizu, 534 U.S. 266, 273 (2002). Because the
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reasonable suspicion standard is an objective one, we examine
the facts within the knowledge of the officer to determine the
presence or nonexistence of reasonable suspicion. United
States v. Digiovanni, 650 F.3d 498, 511 (4th Cir. 2011).
Although an officer’s reliance on a mere hunch is
insufficient to justify a stop, 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 (citations and
quotation marks omitted). Moreover, while a collection of
factors susceptible of innocent explanation may form the
particularized and objective basis for suspecting criminal
activity, id. at 277-78, we have expressed our concern about the
inclination of the Government toward using whatever facts are
present, no matter how innocent, as indicia of suspicious
activity. United States v. Foster, 634 F.3d 243, 248 (4th Cir.
2011). Thus, the Government must do more than simply label a
behavior as suspicious to make it so, but must either articulate
why a particular behavior is suspicious or logically
demonstrate, given the surrounding circumstances, that it is
likely to be indicative of some more sinister activity. Id.
We have reviewed the record and the parties’ briefs
and conclude that officers had reasonable and articulable
suspicion that Wallace was engaged in criminal activity when
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they stopped him. See Illinois v. Wardlow, 528 U.S. 119, 124
(2000); United States v. Haye, 825 F.2d 32, 34 (4th Cir. 1987).
Accordingly, we affirm the district court’s judgment.
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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