United States v. Reo Leonardo Hunter

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________ MAY 21, 2002
THOMAS K. KAHN
No. 01-16759 CLERK
_________________________

D. C. Docket No. 00-00876-CR-1-1

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus

REO LEONARDO HUNTER,
a.k.a. Demarco Hill, etc.,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the
for the Northern District of Georgia
________________________
(May 21, 2002)

Before WILSON, RONEY and ALARCÓN*, Circuit Judges.

ALARCÓN, Circuit Judge:

*
Honorable Arthur L. Alarcón, U.S. Circuit Judge for the Ninth Circuit,
sitting by designation.
 The Government appeals from the grant of Reo Leonardo Hunter’s motion

to suppress evidence obtained as a result of a stop and frisk. It seeks reversal of the

order on the ground that the district court erred in concluding that the stop and frisk

was not supported by reasonable suspicion. We vacate the order granting Mr.

Hunter’s motion to suppress because we conclude that there was reasonable

suspicion to stop and frisk Mr. Hunter.

I

On November 3, 1999, at 2:30 p.m., Officer Willie Adams and two other

officers of the Atlanta Police Department were riding in a marked City of Atlanta

patrol car. The three officers were members of the police department’s Red Dog

Unit, a unit responsible for patrolling high crime areas. Officer Adams had been a

law enforcement officer for approximately nine years. As they approached a

convenience store at 1623 Pryor Road, one of the “hot spots” in the area for

criminal activity, the officers saw several men in the store’s parking lot rolling dice

and exchanging money. The men were engaged in illegal gambling. Mr. Hunter

was standing next to the gamblers.

The officers quickly exited the patrol car. Officer Adams observed Mr.

Hunter start to walk away “very quickly.” As Mr. Hunter turned his body, Officer

Adams noticed a bulge in Mr. Hunter’s waistband. Officer Adams then walked up

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very quickly behind Mr. Hunter and frisked him. He discovered a pistol with an

obliterated serial number in the waistband of Mr. Hunter’s pants.

On December 12, 2000, Mr. Hunter was indicted by a federal grand jury in

the Northern District of Georgia for knowingly possessing a firearm after having

been convicted of several felonies, in violation of 18 U.S.C. § 922(g), and for

knowingly possessing a firearm with an obliterated serial number, in violation of

18 U.S.C. § 922(k). Mr. Hunter filed a motion to suppress the pistol on the ground

that Officer Adams lacked reasonable suspicion for the stop and frisk. Magistrate

Judge E. Clayton Scofield, III held a hearing on the suppression motion on July 19,

2001.

Following the hearing, Judge Scofield issued a report and recommendation,

in which he opined that Mr. Hunter’s motion to suppress should be granted

because the stop and frisk of Mr. Hunter was not supported by reasonable

suspicion. The Government filed objections to Judge Scofield’s report and

recommendation. On October 19, 2001, the district court signed an order adopting

Judge Scofield’s report and recommendation and granting Mr. Hunter’s motion to

suppress. The district court’s order was entered on the criminal docket on October

22, 2001. The Government filed a notice of appeal on November 20, 2001.

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 II

This action arises under 18 U.S.C. § 922. The district court had jurisdiction

over the action pursuant to 18 U.S.C. § 1326. We have jurisdiction from the order

granting the motion to suppress evidence pursuant to 18 U.S.C. § 3731.

At oral argument, counsel for Mr. Hunter suggested that this court lacked

jurisdiction because the instant appeal was untimely. We requested further

briefing. After having reviewed and considered the letter briefs submitted by the

parties, we conclude that the instant appeal was timely and that this court has

jurisdiction. The order granting Mr. Hunter’s motion to suppress was entered on

the criminal docket on October 22, 2001. The Government filed its notice of

appeal on November 20, 2001. The notice of appeal was therefore filed within

thirty days of the date the order was entered on the criminal docket. See Fed. R.

App. P. 4(b)(1)(B)(i) (providing that when the Government appeals an adverse

decision, the notice of appeal must be filed within thirty days of “the entry of the

judgment or order being appealed”); see also Fed. R. App. P. 4(b)(6) (defining

“entry” of the judgment or order as “when it is entered on the criminal docket.”).

III

The Government contends that given the totality of the circumstances

surrounding the stop and frisk of Mr. Hunter, Officer Adams had reasonable

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suspicion to believe that Mr. Hunter was involved in criminal activity and may

have been armed with a weapon. We review for clear error a district court’s

findings of fact on a motion to suppress. United States v. Gonzalez, 71 F.3d 819,

824 (11th Cir. 1996). We review de novo its application of the law to those facts.

Id.

The Supreme Court has instructed that an officer may conduct a brief,

warrantless, investigatory stop of an individual when the officer has a reasonable,

articulable suspicion that criminal activity is afoot, without violating the Fourth

Amendment. Terry v. Ohio, 392 U.S. 1, 30 (1968). To determine whether

reasonable suspicion exits, the court “must look at the ‘totality of the

circumstances’ of each case to see whether the detaining officer has a

‘particularized and objective basis’ for suspecting legal wrongdoing.” United

States v. Arvizu, 122 S. Ct. 744, 750 (2002) (citation omitted); United States v.

Cortez, 449 U.S. 411, 417 (1981). “This process allows officers to draw on their

own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that ‘might well elude an

untrained person.’” Arvizu, 122 S. Ct. at 750-51 (citation omitted). The totality of

the circumstances must support a finding of “specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant” the

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stop and frisk. Terry, 392 U.S. at 21. In evaluating the totality of the

circumstances in a given case, the court may not consider each fact in isolation.

Arvizu, 122 S. Ct. at 750-51 (2002) (rejecting the approach taken by the Ninth

Circuit in attempting to delimit the extent to which certain factors may be

considered as a type of “divide-and-conquer analysis.”). The Court held in Arvizu

that reasonable suspicion may exist even if each fact alone is susceptible to an

innocent explanation. Id. at 751, 753. Once an officer has legitimately stopped an

individual, the officer can frisk the individual so long as “a reasonably prudent

man in the circumstances would be warranted in the belief that his safety or that of

others was in danger.” Terry, 392 U.S. at 27.

The Government points to the following facts in support of its contention

that the stop and frisk of Mr. Hunter was supported by reasonable

suspicion: (1) Mr. Hunter was in a high crime area, known for drug and firearm

arrests; (2) Mr. Hunter was standing over and observing unlawful gambling;

(3) Mr. Hunter saw the police approach and then began to walk quickly away; and

(4) as Mr. Hunter turned to walk away, Officer Adams saw a bulge in his

waistband.

We agree with the Government that each of these factors may be considered

in determining whether the totality of the circumstances demonstrates a reasonable

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suspicion that criminal activity was afoot. First, the reputation of an area for

criminal activity may be considered when determining whether circumstances are

“sufficiently suspicious” to warrant further investigation. United States v. Gordon,

231 F.3d 750, 755-56 (11th Cir. 2000). In the instant case, Mr. Hunter was in a

high-crime area when Officer Adams stopped him. Second, an individual’s

proximity to illegal activity may also be considered. United States v. Brown, 159

F.3d 147, 150 (3d Cir. 1998). Mr. Hunter was standing next to and observing

illegal gambling moments before Officer Adams stopped him. Third, an

individual’s flight from the scene of illegal activity upon the arrival of the police

may also be considered in the totality of the circumstances. Illinois v. Wardlow,

528 U.S. 119, 125 (2000); Gordon, 231 F.3d at 756. In the instant case, Mr.

Hunter walked quickly away from the illegal gambling activity when the officers

approached. Fourth, the presence of a visible, suspicious bulge on an individual

may be considered in the totality of the circumstances. See United States v. Davis,

94 F.3d 1465, 1470 (10th Cir. 1996) (indicating that the presence of a “suspicious

bulge” can support an investigative stop). The record shows that Officer Adams

saw a bulge in Mr. Hunter’s waistband when Mr. Hunter turned to walk away.

In light of the totality of these circumstances, we conclude Officer Adams

had reasonable suspicion that Mr. Hunter was engaged in illegal gambling activity

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and was carrying a concealed weapon. Accordingly, Officer Adams’s stop of Mr.

Hunter was supported by reasonable suspicion.

An officer who has a reasonable suspicion that an individual is engaged in

illegal activity and is armed with a concealed weapon is justified in conducting a

limited search for weapons. Terry, 392 U.S. at 24. “[T]he 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. at 27. If reasonable suspicion

supports a Terry stop, the officer’s observation of a bulge under a defendant’s shirt

at the waist warrants a pat-down for weapons to ensure the officer’s safety. United

States v. Pantoja-Soto, 768 F.2d 1235, 1236 (11th Cir. 1985).

IV

We VACATE the order granting Mr. Hunter’s motion to suppress because

the record shows that Officer Adams had a reasonable, articulable suspicion that

criminal activity was afoot when he stopped and frisked Mr. Hunter. We

REMAND for further proceedings regarding the merits of the indictment.

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