United States v. Bumpers

705 F.3d 168

UNITED STATES of America, Plaintiff–Appellee,

v.Irvin BUMPERS, Defendant–Appellant.

No. 11–4689.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 20, 2012.

Decided: Jan. 16, 2013.

ARGUED: Patrick L. Bryant, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Rodolfo Cejas, II, Assistant Federal Public Defender, Office of the Federal Public Defender, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Kristine E. Wolfe, Special Assistant United States Attorney, Office of the United States Attorney, Newport News, Virginia, for Appellee.

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge FLOYD joined. Judge DIAZ wrote a dissenting opinion.

OPINION

WILKINSON, Circuit Judge:

Irvin Bumpers was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals the district court's denial of his motion to suppress the firearm that was the basis of his conviction. For the reasons that follow, we affirm the judgment.

I.

On the evening of December 18, 2009, Newport News Police Officer R.B. Tinsley was on routine patrol in his police car. Around 7:30 p.m., his route took him to the intersection of 27th Street and Chestnut Avenue, the location of a small shopping plaza occupied mainly by a local convenience store.

In Officer Tinsley's experience, the shopping plaza was a “high-drug” and “high-crime area” where “multiple shootings” and “countless drug arrests” had taken place. Officer Tinsley considered it to be one of the worst crime spots in the City of Newport News—an assessment that specifically included the convenience store's parking lot. The convenience store had a particular history of problems with trespassing, leading the store's owner to post “no trespassing” signs around the store and to file a written request for the police to “enforce criminal violations” on the premises. Officer Tinsley was aware of this written request on the evening in question.

As he approached the shopping plaza, Officer Tinsley noticed two men standing next to a pair of garbage dumpsters “toward the back” of the convenience store's side parking lot, off to the north side of the building. The place where the men were standing was “not even close” to the convenience store's front entranceway, which was located on the west side of the building. There was no indication that the men had shopping bags or any other items suggestive of recent purchases from the store.

Officer Tinsley observed the two men standing by the garbage dumpsters for five to ten seconds as he approached the parking lot. Once he pulled his car into the lot, the men saw him “almost immediately” and began to walk away at a “fast pace,” trying to “get away from the area.” Although their path took them past the convenience store's entrance, neither man made an attempt to enter the store. Instead, their reaction matched a pattern of previous trespassing conduct in the same parking lot of which Officer Tinsley was well aware: individuals would stand “around that corner behind the dumpster” and then “immediately start to walk away” upon seeing a police officer.

Suspecting that the two men had been trespassing, Officer Tinsley exited his vehicle and told them that they were not free to go and that he needed to see their identification. One of the men disregarded Officer Tinsley's order, but the other man stopped: the defendant, Irvin Bumpers.

Bumpers informed Officer Tinsley that his name was “Aaron Bumpers.” The officer ran a records check on that name, which returned an active warrant. Officer Tinsley accordingly placed Bumpers under arrest. Bumpers then informed Officer Tinsley that he had not provided his real name and that he was actually “Irvin Bumpers.” The officer ran a records check on this second name, which also returned an active warrant. Officer Tinsley told Bumpers that he was therefore still under arrest and proceeded to search him incident to that arrest. The search uncovered a fully-loaded, .38 caliber Special Taurus revolver in the pocket of Bumpers's hooded sweatshirt.

A federal grand jury indicted Bumpers for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Bumpers filed a pre-trial motion to suppress, arguing that the revolver and ammunition were gathered as the result of an unlawful seizure. The district court held a suppression hearing during which it heard testimony from Officer Tinsley regarding the circumstances surrounding his investigatory stop of Bumpers. The court then denied the motion, ruling that the stop was supported by a reasonable suspicion that Bumpers was trespassing based on the “high crime area” where he was found, the fact that he was standing “near a dumpster on the side of the convenience store” in a location away from the entrance, his evasive reaction in “walk[ing] away from the officer at a quick pace,” and the route that he took upon leaving the premises.

Bumpers proceeded to a bench trial where he stipulated to the elements of the felon-in-possession charge. The court found Bumpers guilty and sentenced him to forty-two months in prison. Bumpers now appeals the denial of his motion to suppress.

II.

The touchstone of the Fourth Amendment inquiry is one of simple reasonableness. Pennsylvania v. Mimms, 434 U.S. 106, 108–09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam). The term itself suggests a balance. In this case, that balance lies “between the public interest” in basic community safety and “the individual's right to personal security free from arbitrary interference by law officers.” United States v. Brignoni–Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Where to strike the balance between these two important interests is the product of intensive factual inquiry, but there can be no doubt that the weighing of these respective values informs the resolution of many a Fourth Amendment case.

On one side of the scale is the Fourth Amendment's role in preserving individual dignity and liberty by shielding citizens from arbitrary and purposeless police restraints. Thus, for example, the Supreme Court decisively rejected the argument raised in Terry v. Ohio that “the Fourth Amendment does not come into play at all” when a police officer detains someone in a brief investigatory stop instead of a full-blown arrest. 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court instead announced the now-familiar standard that even a brief investigatory stop is impermissible unless the officer's action is supported by a reasonable and articulable suspicion, under all the circumstances, that criminal activity “may be afoot.” Id. at 21, 30, 88 S.Ct. 1868;see also, e.g., United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

Central to the analysis in Terry was the Supreme Court's recognition that even a brief police investigatory stop constitutes a “restraint” of an individual's “freedom to walk away,” and that such a stop can involve a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.” 392 U.S. at 16, 17, 88 S.Ct. 1868. That concern is surely present with respect to persons who live in the vicinity of a neighborhood convenience store like the one where Bumpers was found. Simply put, a person has every right to go about his daily business unobstructed—to do what he wants when he wants, so long as his actions violate no law. If such a person is approached by an officer who lacks reasonable suspicion that the person “has committed or is about to commit a crime,” the Fourth Amendment enables the person to refuse to “answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.” Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion).

Animated by this interest in individual dignity and liberty, the Fourth Amendment operates as a bar against unfounded police stops. As the Court wrote in Terry, the Fourth Amendment is not satisfied by a mere “inchoate and unparticularized suspicion or ‘hunch’ ” of criminal activity. 392 U.S. at 27, 88 S.Ct. 1868. The Supreme Court has accordingly held that when considered alone, an individual's mere “presence in an area of expected criminal activity ... is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The individual's interest in being free from unjustified police intrusions thus does not disappear because he may be found in an area that is susceptible to crime; the interest follows the individual wherever he or she may go.

But just as the individual liberty interest is critical to the Fourth Amendment's reasonableness requirement, so too is there a weighty interest on the other side of the balance: the community's interest in basic public safety. See Terry, 392 U.S. at 15, 88 S.Ct. 1868 (observing that the Fourth Amendment should not be applied in a “rigid and unthinking” way that would “exact a high toll in human injury and frustration of efforts to prevent crime”). That is to say, the proprietor and customers of the convenience store in this case share an important stake in the safety of the area.

The proprietor has a vital interest in ensuring that his store is a safe place for himself, his employees, and his customers because, quite simply, his business, and the well-being of those who work and shop there, depend on it. It is an all too regrettable fact that many small businesses are unwilling to locate within—or are...