NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Henry Lee WHITE, Defendant-Appellant.
No. 95-5752.
United States Court of Appeals, Fourth Circuit.
Argued March 7, 1997.
Decided April 7, 1997.
Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. N. Carlton Tilley, Jr., District Judge. (CR-95-10)
ARGUED: Daniel Smith Johnson, Winston-Salem, NC, for Appellant. Clifton Thomas Barrett, Assistant United States Attorney, Greensboro, NC, for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attorney, Greensboro, NC, for Appellee.
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
OPINION
PER CURIAM:
Henry Lee White appeals his conviction for possession of a firearm by a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West Supp.1997), and the enhancement of his sentence under the Armed Career Criminal Act, see 18 U.S.C.A. § 924(e)(1) (West Supp.1997). He argues that the firearm was seized in violation of his Fourth Amendment rights, that using the same prior offense to support a conviction under § 922(g)(1) and an enhancement under § 924(e)(1) violates the double jeopardy clause, and that § 922(g)(1) exceeds Congress's ability to regulate under the Commerce Clause. Finding no error, we affirm.
I.
At 5:15 p.m. on September 2, 1994, Officer Patricia A. McClure of the Winston-Salem police department saw White's vehicle stopped in a moving lane of traffic, about 25 feet from a stop sign. While the vehicle was stopped, a man walked up to the driver's window, placed his hands on the windowsill, and conversed with White. Officer McClure testified that during this conversation, she was unable to see the hand movements of the unidentified man. When White and the unidentified man saw Officer McClure, they "abruptly ended their conversation." (Appellee's Br. at 3.) The man walked away from White's car in the opposite direction from Officer McClure, and White drove to the stop sign.
Officer McClure suspected that White had just completed a drug transaction. White was in an area known for drug activity, and Officer McClure had previously purchased drugs while undercover in a similar fashion. Officer McClure also believed that White's vehicle inspection sticker had expired. Based on these circumstances, Officer McClure stopped White. She immediately learned that the inspection sticker was valid, but she nonetheless asked for White's license and registration. She also told White that she suspected that he had just engaged in a drug transaction, and she asked if he had engaged in any illegal activities. White said no.
Officer McClure called in White's license and learned that it had been revoked. Driving with a revoked license is an arrestable offense. Officer McClure returned to White's car and, after telling him to exit the car, asked him again if he was involved in any illegal activity. Following White's second denial, Officer McClure asked White if she could search the car. She told him that he could be arrested for driving with a revoked license, and that if he did not consent to the search, she could arrest him and lawfully search the car. She then asked if he had any weapons in the car. This time, White admitted that he had a loaded gun under the driver's seat. Officer McClure searched the area described and seized the loaded weapon. She then issued him a citation for driving with a revoked license and sent him on his way. Later, White was indicted for possession of a firearm by a convicted felon. See 18 U.S.C.A. § 922(g)(1) (West Supp.1997).
Alleging a deprivation of his Fourth Amendment rights, White filed a motion to suppress physical evidence on February 16, 1995. The district court heard argument on this motion on March 6, 1995, and denied it on March 28, 1995. Thereafter, on March 29, 1995, the government filed a notice of enhancement under the Armed Career Criminal Act. See 18 U.S.C.A. § 924(e)(1). White filed a motion arguing that such an enhancement would violate the Double Jeopardy Clause. Around the same time, White filed another motion arguing that 18 U.S.C.A. § 922(g)(1) was unconstitutional under United States v. Lopez,
On August 24, 1995, the district court denied both of White's pending motions. At the same time, the district court entered formal judgment. White now appeals.
II.
White challenges Officer McClure's seizure of the firearm, claiming that the firearm should have been inadmissible because it was seized in violation of his constitutional rights. He argues that his initial detention violated the Fourth Amendment because it was not based on reasonable suspicion. He further argues that, because he was not given Miranda warnings before he told Officer McClure that he had a gun, the gun was "fruit of the poisonous tree." We address these arguments in order, and reject each one.
A.
White first argues that Officer McClure did not have the necessary reasonable suspicion to justify the initial investigatory stop. In White's view, upholding this stop would mean that "anytime that two black males had a conversation in a 'high crime' area and this conversation was observed by a law enforcement officer, these black males would be subject to an investigatory detention." (Appellant's Br. at 5.) On the other hand, the Government contends that the character of the neighborhood, White's reaction upon seeing Officer McClure, and Officer McClure's practical experience in recognizing drug transactions all support the existence of reasonable suspicion. The district court agreed with the Government, concluding that the totality of the circumstances supported Officer McClure's claim that she had reasonable suspicion to stop White.
The parties correctly assume that "reasonable suspicion" is required to justify an investigatory stop of an automobile. See United States v. Cortez,
As noted above, the Government argues that the men's conduct upon seeing Officer McClure, the character of the neighborhood, and Officer McClure's practical experience support the existence of reasonable suspicion to stop White. We have previously held that these factors may be considered in establishing reasonable suspicion. See United States v. Stanfield, --- F.3d ----, No. 96-4061, at 13-16 (4th Cir. March 31, 1997); Lender,
On the other hand, White relies on United States v. Sprinkle, --- F.3d ---, No. 95-5441, Slip op. at 1 (4th Cir. Feb. 11, 1997), in arguing that there was not reasonable suspicion to support the stop. In Sprinkle, the arresting officer observed Victor Poindexter, who the officer knew had recently completed a prison sentence for a drugrelated conviction, sitting in the driver's seat of a car. Id. at 2. Soon thereafter, Carl Sprinkle walked out of a nearby house and got into the passenger side of Poindexter's car. Sprinkle and Poindexter then " 'huddled to the center of the console of the vehicle' with their hands 'close[ ] together.' " Id. at 3 (alteration in original). Although the arresting officer could see their hands, he did not see any contraband or exchange. When Poindexter saw the officer, he covered his face. Then, when the arresting officer went to his own car, Poindexter started his car and drove off. "[H]e did not speed, drive erratically, or commit any traffic violations." Id. Nonetheless, the arresting officer tried to stop Poindexter and Sprinkle. When Sprinkle sought to exclude evidence seized as a result of this investigatory detention, the Government offered five factors supporting reasonable suspicion:
(1) [The arresting officer] knew that Poindexter had a criminal record and had recently been released from prison after serving time for narcotics violations, (2) the subjects were spotted in a neighborhood known by the officers for high (narcotics) crime, (3) when Sprinkle entered the Cougar, he and Poindexter huddled toward the center console with their hands close together, (4) as [the arresting officer] walked past the car, Poindexter put his head down and his hand up to his face as if to avoid recognition, and (5) Poindexter drove away as soon as the officers walked by the car.
Id. at 5. Despite this confluence of factors, we concluded that there was not reasonable suspicion to justify an investigatory detention.
In White's view, Sprinkle controls his case. We disagree. First, White was stopped in a moving lane of traffic when first observed by Officer McClure. Even though the Government disclaims reliance on United States v. Whren,
Accordingly, we conclude that this case is closer to Lender than to Sprinkle. Because Lender controls, the district court did not err in finding that Officer McClure had the requisite reasonable suspicion to justify an investigatory detention of White.
B.
White next argues that, even if his initial detention was lawful, the subsequent seizure of the gun from the passenger compartment of his car was unconstitutional. He argues primarily that his Miranda rights were violated, that the seizure of the gun was therefore "tainted," and that the inevitable discovery rule does not apply. The Government apparently concedes that there was a Miranda violation and that the gun is therefore tainted, but argues that the inevitable discovery exception to the exclusionary rule allows its introduction.* The district court agreed with the Government's position, ruling that Officer McClure would have arrested White had he not been cooperative. In the district court's view, because Officer McClure then could have lawfully searched the vehicle--either as a search incident to an arrest or during a subsequent inventory search--discovery of the gun was inevitable.
As framed by the parties, then, the only issue is whether the inevitable discovery rule should apply here. In reviewing the district court's suppression ruling, the court reviews the district court's legal conclusions de novo and its factual findings for clear error. See United States v. McDonald,
The remaining question is whether the district court properly applied the inevitable discovery rule to these facts. The inevitable discovery rule allows the admission of illegally seized evidence if the Government can prove "by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Nix v. Williams,
Unfortunately for White, he is wrong. In George, we accepted the government's theory that "even if the search warrant was defective and Leon' § good faith exception inapplicable, the inevitable discovery doctrine would permit the introduction of the [illegally seized evidence] if the police would have found the blades pursuant to an inventory search of the lawfully impounded vehicle ."
III.
White next argues that, as applied to him, § 924(e) violates the Double Jeopardy Clause. His argument relies on the fact that his "prior 1991 conviction was a necessary element to the 18 U.S.C. Section 922(g)(1) charge. That same conviction was then used to establish a violation falling under the purview of 18 U.S.C. Section 924(e)(1)." (Appellant's Br. at 13.) In other words, he complains that he had only three prior violent or drug-related convictions, and that one of those three supported both the § 922(g) conviction and the § 924(e) enhancement.
Our circuit and others have rejected this argument. See United States v. Presley,
IV.
White's final argument on appeal is that in light of United States v. Lopez,
V.
In conclusion, we hold that reasonable suspicion supported the initial detention of White and that the seizure of the firearm was valid under the inevitable discovery exception. Moreover, we conclude that using the same prior conviction to sustain a substantive offense under § 922(g)(1) and an enhancement under § 924(e)(1) does not violate the Double Jeopardy Clause. Finally, we have already rejected the argument that § 922(g)(1) offends the Commerce Clause. Accordingly, we affirm.
AFFIRMED
Notes
We disagree with the district court's view that a Miranda violation automatically triggers the "fruit of the poisonous tree" doctrine. The fruit of the poisonous tree doctrine, as articulated in Wong Sun v. United States,