United States v. Edmonds

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4077

TROY EDMONDS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-96-345)

Argued: April 9, 1998

Decided: May 29, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
CHAMBERS, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Edwin Arnold Williams, KELLOGG, WILLIAMS &
LYONS, Vienna, Virginia, for Appellant. William Neil Hammer-
strom, Jr., Assistant United States Attorney, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alex-
andria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Troy Edmonds conditionally pled guilty to several federal narcotics
and firearm offenses. On appeal, he raises two issues. He argues that
the district court should have suppressed evidence obtained during
and after an investigatory stop. He also challenges his classification
under the Sentencing Guidelines as a career offender. Finding both of
these contentions without merit, we affirm the judgment of the district
court.

I.

On the night of August 1, 1996, Officer Joseph T. Kantor, a four
and one-half year veteran of the Arlington County Police Department,
was alone on patrol. He was working near an area known as the South
Eades Street Corridor where several automobile thefts and larcenies
recently had occurred. At approximately 10:30 p.m., Officer Kantor
drove his marked patrol car toward the intersection of Army/Navy
Drive and South 12th Street. There was no traffic and very little activ-
ity in the area, which contains primarily government buildings and
offices.

As he approached the intersection, Officer Kantor saw two men in
and around a dark-colored automobile parked on a grassy strip. The
car was in an "alley type area" behind a parking garage for a South
Eades Street apartment building. The area was generally dark, though
lights from the garage and a nearby highway provided some ambient
lighting. The car was parked in a no parking/tow away zone with its
engine not running and its lights off. One individual sat inside the
vehicle; a second stood to the left rear of it with a duffle bag slung
over his shoulder. In Officer Kantor's experience, automobile thieves
often keep tools such as slam hammers and dent pullers in duffle
bags.

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Believing that he had come across an auto larceny or auto crime
in progress, Officer Kantor began to approach the scene in his cruiser.
As he did so, the individual standing in the alley, later identified as
Edmonds, looked up from the dark-colored car. Edmonds looked to
the left, looked to the right, then stared directly at Officer Kantor,
never taking his eyes off of him. Edmonds began to walk away from
the dark-colored car and toward Officer Kantor's cruiser. Edmonds
initially walked slowly, but his gait soon became rapid. By the time
Officer Kantor exited his cruiser, Edmonds was standing next to it.
The other individual remained in the driver's seat of the dark-colored
vehicle, approximately thirty yards away. Officer Kantor positioned
himself so that he could speak to Edmonds but still observe the indi-
vidual seated in the car.

Edmonds told Officer Kantor that his buddy, referring to the other
individual, had just dropped him off. In light of the car's suspicious
location, Officer Kantor did not believe him. Ample parking was
available on 12th Street and in a guest parking lot at a nearby apart-
ment building. To park on the grassy strip where the dark-colored
automobile was located, one had to drive over a curb. Officer Kantor
inquired who owned the car; Edmonds responded that it belonged to
his buddy. Officer Kantor then requested to see Edmonds' identifica-
tion. While Edmonds placed the duffle bag on the ground to retrieve
his identification, Officer Kantor asked Edmonds whether he had any
weapons or drugs on him. Edmonds replied that he did not.

Officer Kantor then directed Edmonds to pull up the large, baggy
T-shirt covering the top of his waist. Officer Kantor made this
request, rather than conduct a pat down search of Edmonds, so he
could continue to observe the individual still seated in the dark-
colored car. In response to Officer Kantor's request, Edmonds did not
comply but immediately became anxious, shrugging his shoulders and
shaking his head. Officer Kantor repeated his request; Edmonds con-
tinued to refuse. After Edmonds' third refusal, Officer Kantor drew
his weapon, keeping it against the side of his leg, and lifted the right
corner of Edmonds' shirt. He immediately saw the black handle of a
semiautomatic weapon in Edmonds' waistband. As Officer Kantor
was about to summon assistance, the other individual exited the dark-
colored car and fled the scene. Officer Kantor removed a Taurus 9mm
semiautomatic pistol from Edmonds' waistband and arrested him for

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carrying a concealed weapon. A search of the duffle bag, incident to
the arrest and for inventory purposes, revealed a loaded Glock 10mm
semi-automatic pistol, several bags containing approximately 290
grams of cocaine base and 503 grams of cocaine hydrochloride, and
$23,610 cash.

A grand jury charged Edmonds with two counts of possessing a
controlled substance with an intent to distribute in violation of 21
U.S.C. § 841(a)(1), one count of using and carrying a firearm during
a drug trafficking crime in violation of 18 U.S.C.§ 924(c), and one
count of possessing a firearm after a felony conviction in violation of
18 U.S.C. § 922(g)(1). The district court denied Edmonds' motion to
suppress all evidence seized from his person, the duffle bag, and any
statements obtained after his arrest. United States v. Edmonds, 948 F.
Supp. 562 (E.D. Va. 1996). Edmonds then conditionally pled guilty
to all four counts of the indictment pursuant to Fed. R. Crim. P. 11.
He reserved the right to appeal the denial of his motion to suppress
and to appeal any illegal sentence. Due to Edmonds' criminal history,
the district court classified him as a career offender for sentencing
purposes. See U.S.S.G. § 4B1.1. The court sentenced Edmonds to 322
months incarceration plus five years supervised release and imposed
a $400 special assessment.

II.

Edmonds contends that the district court erroneously denied his
motion to suppress. The district court found Officer Kantor's conduct
lawful under the principles enunciated in Terry v. Ohio, 392 U.S. 1
(1968). In upholding the initial stop, the district court found that the
circumstances gave "rise to articulable, reasonable suspicion that
some sort of criminal activity was afoot." Edmonds, 948 F. Supp. at
565. The district court also found that the subsequent search was a
"limited and reasonable intrusion under the circumstances." Id. at 566.
Edmonds concedes that Officer Kantor's initial stop was lawful under
Terry but contends that Officer Kantor violated his Fourth Amend-
ment rights when he requested Edmonds to lift his shirt and then
raised it himself. We disagree.

The Supreme Court in Terry made clear that police officers may
conduct a protective search for weapons during the course of a lawful

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investigatory stop. This search "allow[s] the officer to pursue his
investigation without fear of violence . . . ." Adams v. Williams, 407
U.S. 143, 146 (1972). "So long as the officer is entitled to make a
forcible stop, and has reason to believe that the suspect is armed and
dangerous, he may conduct a weapons search limited in scope to this
protective purpose." Id. (citation and footnote omitted). In order to
take this protective step, an officer need not be certain that the indi-
vidual is armed. Terry, 392 U.S. at 27. Rather "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." Id. (cita-
tions omitted). We review the district court's ultimate finding of rea-
sonable suspicion de novo but evaluate its factual findings only for
clear error. Ornelas v. United States, 517 U.S. 690, 699 (1996);
United States v. Sprinkle, 106 F.3d 613, 616-17 (4th Cir. 1997).

Courts reviewing a search under Terry must respect the officer's
first-hand assessment of a potentially dangerous situation. The
Supreme Court has instructed judges to give "due weight . . . to the
specific reasonable inferences which [the officer] is entitled to draw
from the facts in light of his experience." Terry, 392 U.S. at 27 (cita-
tion omitted); accord Ornelas, 517 U.S. at 699. Of course an officer's
inchoate suspicions or groundless hunches cannot justify a protective
search. Terry, 392 U.S. at 27; Sprinkle , 106 F.3d at 617. But "a police
officer views the facts through the lens of his police experience and
expertise. The background facts provide a context for the historical
facts, and when seen together yield inferences that deserve defer-
ence." Ornelas, 517 U.S. at 699.

In this case, several factors support Officer Kantor's limited search
of Edmonds. Initially, the circumstances surrounding the encounter
suggest that Officer Kantor had ample reason to fear for his safety.
He was alone, outnumbered, and in a poorly lit alley. Edmonds tries
to downplay the significance of these circumstances by conceding the
lawfulness of the initial stop. Of course, reasonable suspicion to con-
duct a Terry stop does not automatically entitle the officer to conduct
a protective search. But the circumstances surrounding a police
encounter cannot be so easily assigned only to the stop or only to the
search. See United States v. Cortez, 449 U.S. 411, 417-18 (1981);
United States v. Taylor, 857 F.2d 210, 214 (4th Cir. 1988). Thus, this
circuit repeatedly has looked to the dangerousness of a particular situ-

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ation to uphold an officer's decision to frisk for weapons. See, e.g.,
United States v. Crittendon, 883 F.2d 326, 328-29 (4th Cir. 1989);
United States v. Moore, 817 F.2d 1105, 1107-08 (4th Cir. 1987). For
example, in Moore, we approved an officer's pat down of a suspect
when "[t]he hour was late, the street was dark, the officer was alone,
and the suspected crime was a burglary, a felony that often involves
the use of weapons." 817 F.2d at 1108. The circumstances surround-
ing Officer Kantor's encounter with Edmonds are virtually indistin-
guishable from those in Moore. Indeed, Officer Kantor confronted a
potentially more threatening situation than in Moore for, unlike the
officer in that case, he also was outnumbered.

Furthermore, Officer Kantor believed he had come upon two auto-
mobile thieves, individuals who easily could become violent. Both the
Supreme Court and this circuit have repeatedly approved protective
searches where an officer suspects individuals of criminal activity that
is likely to involve the use of weapons. See, e.g., Terry, 392 U.S. at
28 (robbery); United States v. Perrin, 45 F.3d 869, 873 (4th Cir.
1995) (selling drugs); Moore, 817 F.2d at 1108 (burglary). An auto
thief interrupted in the course of committing a crime, no less than a
burglar, could be expected to carry a weapon or tools on his person
that might easily be employed against an officer. Officer Kantor's
experience only confirmed this risk. Several incidents in Arlington
County involving stolen cars had resulted in gunfire, and Officer Kan-
tor personally had been involved in one such incident in a nearby
town. Furthermore, given Officer Kantor's experiences with other
auto thefts, the duffle bag strongly suggested that Edmonds might
have been carrying a weapon or tool on his person when Officer Kan-
tor confronted him. In light of the suspected crime, Officer Kantor
"had ample reason to fear for his safety." Adams, 407 U.S. at 148
(footnote omitted); see United States v. Douglas , 964 F.2d 738, 740-
41 (8th Cir. 1992) (upholding officer's protective search where defen-
dant suspected of automobile break-in).

Finally, the intrusion in this case was a limited one. In evaluating
the reasonableness of a search under Terry, we balance "the officer's
interest in self-protection against the resulting intrusion upon [the sus-
pect's] personal security." United States v. Baker, 78 F.3d 135, 138
(4th Cir. 1996). Directing Edmonds to lift his shirt allowed Officer
Kantor to ensure his safety and keep the other suspect in constant

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view. Such a request, as we noted in Baker, is "less intrusive than the
patdown frisk sanctioned in Terry." Id. Raising the right corner of
Edmonds' large, baggy T-shirt after three refusals likewise repre-
sented a sensible safety measure while only minimally intruding on
Edmonds' personal security. See United States v. Hill, 545 F.2d 1191,
1193-94 (9th Cir. 1976) (per curiam); cf. Adams , 407 U.S. at 147-48.
In light of the circumstances of the encounter and the suspected
crime, Officer Kantor was fully justified in taking these measured
steps to ensure his safety in a threatening situation. Accordingly, the
district court properly denied Edmonds' motion to suppress.

III.

Edmonds also contests his classification as a career offender under
the Sentencing Guidelines. The district court adopted the probation
officer's recommendation to classify Edmonds as a career offender
due to his two prior felony convictions. We agree with the district
court and, thus, affirm the sentence.

The Sentencing Guidelines set out three requirements for classify-
ing a defendant as a career offender. A defendant is a career offender
if (1) he "was at least eighteen years old at the time [he] committed
the instant offense of conviction"; (2) that offense "is a felony that is
either a crime of violence or a controlled substance offense"; and (3)
he "has at least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense." U.S.S.G. § 4B1.1. Edmonds
raises no challenge with respect to the first two requirements. He dis-
putes only whether he has the requisite prior felony convictions.

At the time he was sentenced for the present offenses, Edmonds
had two prior felony convictions. On May 9, 1988, Edmonds fired a
semi-automatic pistol at someone in a New York City subway station.
He was arrested on the same day and later was convicted of attempted
murder in the second degree. Subsequently, on October 31, 1988,
Edmonds and a group of approximately twenty-four other accom-
plices attacked someone else in another New York City subway sta-
tion. Edmonds later was arrested and convicted of robbery in the first
degree. Both attempted murder and robbery constitute crimes of vio-
lence. Id. § 4B1.2 Application Note 1. Edmonds maintains, however,
that these prior convictions do not satisfy the requirements for career

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offender classification because the sentences should not be counted
separately. See id. § 4B1.2(c) (career offender classification requires
that sentences for at least two prior felony convictions be counted
separately under § 4A1.1(a)-(c)). Specifically, he argues that the sen-
tences resulted from offenses that formed "part of a single common
scheme or plan" because both occurred in New York City subway sta-
tions in 1988. Id. § 4A1.2 Application Note 3.

We disagree. Prior sentences are counted separately if they were
imposed in unrelated cases. U.S.S.G. § 4A1.2(a)(2). Application Note
3 of § 4A1.2 elaborates on when cases are related:

Related Cases. Prior sentences are not considered related
if they were for offenses that were separated by an interven-
ing arrest (i.e., the defendant is arrested for the first offense
prior to committing the second offense). Otherwise, prior
sentences are considered related if they resulted from
offenses that (1) occurred on the same occasion, (2) were
part of a single common scheme or plan, or (3) were consol-
idated for trial or sentencing.

Application Note 3 exposes the flaw in Edmonds' argument. It directs
that prior sentences are not to be considered related where the
offenses are separated by an intervening arrest. See U.S.S.G. App. C
n. 382 (Nov. 1, 1992) (Application Note 3 specifically amended "to
provide that cases separated by an intervening arrest for one of the
offenses are not treated as related cases."). Thus, a court cannot con-
sider whether two offenses might form part of a single common
scheme or plan when an intervening arrest separates them. We note
several other circuits have routinely held that prior sentences sepa-
rated by an intervening arrest are counted separately. United States v.
Boonphakdee, 40 F.3d 538, 544 (2d Cir. 1994); United States v.
Hallman, 23 F.3d 821, 824-25 (3d Cir. 1994); United States v.
Springs, 17 F.3d 192, 195-96 (7th Cir. 1994); United States v.
Aguilera, 48 F.3d 327, 330 (8th Cir. 1995); United States v. Gallegos-
Gonzalez, 3 F.3d 325, 326-28 (9th Cir. 1993).

Edmonds' prior sentences must be counted separately. Edmonds
shot someone on the New York subway on May 9, 1988; he was
arrested later that same day. Subsequently, in October 1988, Edmonds

8
participated in the attack that led to his robbery conviction. The inter-
vening arrest between the shooting and the attack compels the conclu-
sion that Edmonds' sentences for these two convictions must be
counted separately. Moreover, Edmonds' two offenses do not form
part of a single common scheme or plan merely because they
occurred in the same year on the New York City subway system; the
substantive offenses are not the same, involved different victims,
were not solved during a single investigation, did not share a similar
modus operandi, and appear to have had different motives. See United
States v. Singleton, 107 F.3d 1091, 1104 (4th Cir. 1997), cert. denied,
118 S. Ct. 84 (1997); United States v. Breckenridge, 93 F.3d 132,
138-40 (4th Cir. 1996) Accordingly, Edmonds has two prior felony
convictions for crimes of violence, and the district court properly
classified him as a career offender for sentencing.

IV.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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