United States v. Jordan

                    UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                               No. 99-31109



                         UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   VERSUS

                          EARNEST E. JORDAN Jr.,

                                                       Defendant-Appellant.



           Appeal from the United States District Court
               For the Middle District of Louisiana


                             November 6, 2000
Before   KING,   Chief    Judge,   PARKER,   Circuit    Judge,   and   KAZEN,
District Judge.1
ROBERT M. PARKER, Circuit Judge:

      Earnest Jordan appeals his conviction, after guilty plea, for

being a felon in possession of a firearm, in violation of 18

U.S.C.A. § 922(g)(1)(West 2000). Jordan pleaded guilty conditioned

upon his right to appeal the district court’s denial of his motion



to suppress evidence gained by police officers in a warrantless


  1
   District Judge of the Southern District of Texas, sitting by
designation.

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stop and search of his person.      We affirm.

      Testimony at the suppression hearing established that on

January 9, 1999, at about 6:45 p.m., Baton Rouge City Police

Officers Tray Walker and Phillip Wyckoff were patrolling Gus Young

Avenue.     This high crime area of the city is noted for frequent

drug activity, robberies, rapes and murders.             The officers saw

Earnest Jordan “running at full sprint” from the direction of

Triple E Grocery, a store located about a block away.             As they

observed Jordan, they saw him “looking back over his shoulder, left

and right, over his shoulder.      At one point he tripped and fell to

the ground, immediately got up and continued into a full sprint.”

      The officers, concluding that Jordan may have robbed the

grocery store, pulled their car in front of Jordan and stopped him.

Officer Walker exited the car and told Jordan to put his hands on

the hood of the car.      Jordan refused to do so, moving his hands

erratically back and forth, pointing toward the edge of the store.

Walker testified that Jordan “kept saying, no, he wasn’t giving the

police statements” and “wouldn’t give us straight answers.”          When

Walker grabbed Jordan’s right arm, told him to calm down and to

place his hands on the car, Jordan jerked his hand away.           Walker

then handcuffed Jordan’s arms behind his back.            Officer Wyckoff

simultaneously conducted a pat-down search of Jordan.          The search

revealed a semi-automatic pistol in Jordan’s left pant leg.

      Jordan moved to suppress the pistol, arguing that the police

did   not   have   reasonable   suspicion   sufficient    to   justify   an

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investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

He also contended that, even if the stop was legal, the pat-down

search violated his Fourth Amendment rights.               The district court

denied the motion.        As part of the oral ruling, the district court

noted that (1) the conduct that first attracted attention to

Jordan,   given     the   time   of   night   and   vicinity      of    the   store,

warranted further inquiry by the officers; (2) Jordan’s conduct

after the stop, including the fidgety conduct and his refusal to

give requested information, warranted their taking precautions; (3)

the   fact   that   the    officers    went   to    the   store    at   the   first

opportunity to inquire if there had been a robbery reinforced the

conclusion that they were concerned at the initial stop that Jordan

had committed some offense involving the store and (4) the fact

that there was no evidence contradicting the officers’ version of

events lent credibility to their testimony.

      In reviewing a ruling on a motion to suppress, this court

reviews questions of law de novo and factual findings for clear

error.    See United States v. Dortch, 199 F.3d 193, 197 (5th Cir.

1999), op. corrected on denial of reh’g, 203 F.3d 883 (5th Cir.

2000).    The evidence is viewed in the light most favorable to the

party that prevailed in the district court.                       See id.      “The

reasonableness of an investigatory stop and frisk is reviewed de

novo.”    United States v. Campbell, 178 F.3d 345, 348 (5th Cir.

1999)(internal quotation and citation omitted).


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     An officer may, consistent with the Fourth Amendment, conduct

a brief investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot.      See Terry,

392 U.S. at 30.    “While ‘reasonable suspicion’ is a less demanding

standard than probable cause and requires a showing considerably

less than preponderance of the evidence, the Fourth Amendment

requires at least a minimal level of objective justification for

making the stop.”   Illinois v. Wardlow, ___U.S.___, 120 S. Ct. 673,

675-76   (2000).      Reasonable suspicion cannot be reduced to a

neat set of legal rules, but must be determined by looking to “the

totality of the circumstances – the whole picture.”      United States

v. Sokolow, 490 U.S. 1, 7-8 (1989).

     Both parties argue that the Supreme Court’s recent decision in

Illinois v. Wardlow, 120 S. Ct. 673 (2000), which was decided after

the district court denied Jordan’s motion to suppress, guides our

decision in this case. In Wardlow, Officer Nolan was participating

in a police caravan sweep of a high-crime area.        See id. at 674.

Nolan observed respondent Wardlow “standing next to the building

holding an opaque bag.”      Id. at 675.    Wardlow “looked in the

direction of the officers and fled.”     Id. at 675.     Nolan stopped

Wardlow and conducted a pat-down frisk which revealed that Wardlow

was carrying a loaded handgun.    See id.

     Based on the totality of the circumstances, including the

high-crime character of the neighborhood and Wardlow’s “unprovoked

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flight upon noticing the police,” the Supreme Court concluded that

“Officer    Nolan    was    justified         in    suspecting       that    Wardlow     was

involved in criminal activity, and therefore, in investigating

further.”    Id. at 676.        The Court’s holding was expressly limited

to   the    propriety      of    the     initial         stop    and    thus      excluded

consideration of the lawfulness of the subsequent pat-down.                              See

id. at 676 n.2.

     Jordan argues that his situation is distinguishable from

Wardlow in that Jordan was already running when the officers first

observed him.       Therefore, Jordan contends that his running cannot

be characterized as flight from the police as discussed in Wardlow,

and does    not     support     an   investigative           stop.      The    government

counters that the totality of the circumstances, including Jordan’s

running, the proximity of the store, his furtive glances over his

shoulder, the time (6:45 p.m. on a January evening) and place (a

high crime area), justified the officer’s decision to stop Jordan.

We agree.

     Wardlow did not establish a bright-line test in cases where a

defendant is seen to be running.                   Instead, citing Terry, Wardlow

examined the totality of circumstances to determine whether the

officer had “a reasonable, articulable suspicion that criminal

activity    is    afoot.”        Id.     at       675.     Wardlow      noted     that   an

individual’s      presence      in   a   “high       crime      area”   is    a   relevant

consideration, as is “nervous, evasive behavior.”                             Id.    Also,


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“[h]eadlong flight – wherever it occurs – is the consummate act of

evasion: it is not necessarily indicative of wrongdoing, but it is

certainly suggestive of such.”         Id.

     The undisputed facts in the instant case clearly do not

portray a recreational runner.             The defendant appeared to be

fleeing from something or someone. This conduct, combined with the

time and place, was at least as “ambiguous” as the observation in

Terry that two individuals were “pacing back and forth in front of

a store, peering into the window and periodically conferring.”

Wardlow, at 677 (discussing Terry). The officers were justified in

detaining the defendant briefly to resolve this ambiguity.

     Jordan further alleges that, even if the initial investigatory

stop was permissible, the subsequent search of his person violated

the Fourth Amendment.      The officers testified that because Jordan

was physically and verbally evasive to the officers’ requests and

because   the   incident    occurred       in    a    high   crime   area,   they

simultaneously handcuffed Jordan and performed a pat-down search

for weapons to protect their safety.                 This court has held that,

after making a proper Terry stop, the police are within their

constitutional authority to pat down a party and to handcuff him

for their personal safety even if probable cause to arrest is

lacking. See United States v. Webster, 162 F.3d 308, 332 (5th Cir.

1998).

     Handcuffing   a   suspect   does      not       automatically   convert   an


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investigatory detention into an arrest requiring probable cause.

United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993).                The

relevant inquiry is whether the police were unreasonable in failing

to    use   less   intrusive     procedures   to    safely    conduct     their

investigation.     Id.    Here the officers first asked Jordan to place

his hands on the hood of the car, but he refused to do so.              He was

acting nervously, saying “wait, wait” in response to the officers’

questions, moving his hands erratically, and continuously looking

over his shoulder.       When one officer grabbed Jordan’s arm and told

him to calm down, Jordan jerked his hand away and walked towards

the   officers     in    “an   aggressive-type     manner.”     Under     those

circumstances,      we    conclude   that   the    officers   did   not     act

unreasonably in handcuffing Jordan long enough to frisk him.

      Based on the foregoing, we affirm the district court’s denial

of Jordan’s motion to suppress.

      AFFIRMED.




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