In the early morning hours of October 24, 1999, Appellant Darrick Eugene McAllister and co-defendant Malik First Born Allah Farrad were arrested in Knoxville, Tennessee by officers of the Knoxville Po
BACKGROUND
Some time prior to October 23, 1999, three or four African-American males wearing dark clothing had perpetrated a series of robberies in the general area of Magnolia Avenue in Knoxville, Tennessee. The week before McAllister and Farrad’s October 24 arrest, these darkly dressed black males robbed three individuals who had just left the Conversation Pit, a nightclub on Magnolia Avenue. A few nights before the pair’s arrest, four black males had robbed a man six blocks from the Conversation Pit. The Knoxville Police Department knew of these robberies, but had yet to catch the perpetrators.
At approximately 8:30 p.m. on October 23, 1999, Officer Susan Coker answered a call to the Little John Package Store, a liquor store in the 1900 block of Magnolia Avenue. Officer Coker was dispatched to the store because an employee had been told by a customer that four African-American males were planning to rob the store or its patrons sometime over the weekend. Officer Coker relayed the information about the potential robbery to officers Brandon Sharp and Michael Booker, the two officers patrolling the area of Knoxville including the Little John Package Store that night.
During that same shift, at approximately 2:23 a.m. on October 24, 1999, police dispatch reported receiving a call from the Conversation Pit, which is located immediately adjacent to the Little John Package Store. In that call, the owner of the Conversation Pit reported that he had received information (apparently from one or more of his patrons) that his establishment or his customers would be robbed the night of October 23 or the early morning of October 24. The police dispatcher relayed this information to its officers, two of whom, Officers Coker and Sharp, responded to the call.
According to the officers, they went to the Conversation Pit primarily to ensure that there would be no robbery. Upon arriving at the nightclub, Officer Coker went inside to talk to the proprietor. Officer Sharp parked his vehicle on the street in front of the Conversation Pit and went across the street to the Save-Way Food Store parking lot, where club patrons often park. As Officer Sharp walked into the Save-Way lot, he noticed Darrick McAllister and Malik Farrad, both African-American males, who began walking away from him. McAllister was wearing a dark blue sweatshirt, a black vest, black slacks, and a black hat. Farrad was wearing a gray sweatsuit and skull cap.
Officer Sharp, who is also black, testified that the two defendants appeared to be acting nervously and seemed to be trying to avoid him. They repeatedly cast furtive glances over their shoulders, as if keeping a constant check on his whereabouts. Officer Sharp, who had been a patrol officer unsupervised for approximately four months, stated that he found the defen
Officer Sharp testified that he got a good look at both defendants as they walked away, that they were not hiding their faces from him, that he made eye contact with them, and that they were aware that he had seen them. The pair soon reached their car, which had been a few feet away from McAllister and Farrad when Officer Sharp first spotted them. Appellant McAllister entered the driver’s side of the green Pontiac Bonneville. Far-rad approached the passenger side of the car, but went between two bread trucks when he saw Sharp walking in their direction. Although Officer Sharp saw Far-rad peeking out from behind the front epd of one of the trucks, Sharp lost sight of Farrad as he continued toward the two defendants.
In the meantime, Officer Booker arrived in his police cruiser and parked on Magnolia Avenue. Officer Booker observed Officer Sharp walking across the parking lot and saw McAllister and Farrad walking away. He saw the two defendants separate, and it appeared to Officer Booker that Farrad was trying to hide from Officer Sharp behind the bread trucks. Officer Booker got out of his car and paralleled Officer Sharp’s course. From his position, Officer Booker could see Appellant McAllister sitting in the vehicle and watching Officer Sharp. He also could see Farrad, who appeared to be hiding from Officer Sharp. Officer Sharp asked Officer Booker if he had seen a man “hiding” behind the trucks, and Booker responded that he had.
By this time, Farrad had emerged from behind the trucks and gotten in the passenger side of the Bonneville. McAllister began backing the car out of its parking space as the officers neared the vehicle. The officers saw that Farrad had slid far down in the passenger seat below the edge of the window and was peering up over his shoulder back toward the officers. Officer Sharp walked to the passenger side of the vehicle as the occupants locked the car doors. Officer Sharp went to the passenger side of the vehicle to talk to Farrad, and Officer Booker went to the driver’s side to talk with McAllister.
Because the passenger window apparently was inoperable, Mr. Farrad opened his car door. When he did so, Officer Sharp saw a chrome-like object that appeared to be a gun lying under the passenger seat. Sharp also claims to have smelled the odor of marijuana coming from the car. Officer Booker was unsure whether he smelled marijuana, but said he might have detected a faint odor. He qualified this latter statement by admitting that he was unsure whether it came from the vehicle.
Officer Sharp told Officer Booker about the chrome weapon-like object, and the officers got McAllister and Farrad out of the car and called for a canine unit. The drug dog, which arrived within five to ten minutes, worked his way around the closed vehicle and alerted on the driver’s door. After this happened, the officers opened the door to allow the dog to search the interior. The officers viewed a handgun magazine wedged between the door handle and panel. Inside the car, the dog alerted on the center dash, near the ashtray. A vehicle search revealed that the chrome object originally observed by Officer Sharp
In the instant appeal, McAllister challenges both the initial stop and the subsequent vehicle search. Specifically, he contends that Officers Sharp and Booker were unjustified in stopping the vehicle and that Officer Sharp’s claim of smelling marijuana lacked credibility such that the vehicle search was without probable cause.
DISCUSSION
This Court reviews the lower court’s conclusions of law de novo and its factual determinations for clear error. United States v. Navarro-Camacho,
A. The Initial Stop
As the Supreme Court recently stated, “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, — U.S. -,
Here, Officers Sharp and Booker, in addition to the two anonymous tips,
Appellant offers the unpublished case of United States v. Lewis,
While the appearance of intoxication adds an element not present here, the Lewis case nonetheless proves helpful. The observed conduct — representing little more than nervousness — is significantly less than the actual retreat of McAllister and Farrad, yet this conduct, in combination with the “decoys” and one individual’s seeming unsteadiness, justified the stop.
Similarly, in United States v. Harris,
The recent Supreme Court case of United States v. Arvizu, supra, is instructive. There, the Court upheld an investigative stop by a border patrol agent. The defendants were traveling on an unpaved side road commonly used by smugglers. Arvizu, — U.S. at -,
The Court emphasized that courts “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.” Id. at 751. A court should not adopt a “divide-and-eonquer” analysis and look at each factor of suspicion in isolation. Id.
The Supreme Court held that, looking at the totality of the circumstances in that case, the officer had reasonable suspicion to conduct an investigatory stop. Id. at 752,
B. Probable Cause to Search the Vehicle
Appellant next disputes the district court’s factual determination that Officer Sharp’s account of smelling marijuana coming from the vehicle was credible. In support of this argument, he points to various testimonial inconsistencies, including an apparent disagreement between Sharp and Booker as to whether the smell was present. Appellant’s argument must fail. Even assuming clear error in the magistrate’s determination that Officer Sharp’s testimony of smelling marijuana was credible, see Hamilton v. Carell,
Like the determination of reasonable suspicion to stop, an examination of probable cause to search requires evaluating the totality of the circumstances. Smith v. Thornburg,
Certainly the chrome weapon-like object and the dog sniff — each independently sufficient to supply probable cause to search the vehicle — together furnished probable cause for the search of McAllister’s vehicle.
CONCLUSION
In summary, the district court properly found that Officers Sharp and Booker had sufficient reasonable suspicion to stop McAllister and Farrad as they attempted to drive away and properly found that the officers had probable cause to search the vehicle. Accordingly, the district court did not err in denying McAllister’s motion to suppress. We therefore AFFIRM the district court’s order.
Notes
. Officer Booker claimed uncertainty because "a lot of people smoke marijuana in that parking lot.” (J.A. 213.)
. The district court refused to consider in its analysis of reasonable suspicion the two anonymous tips, finding that the tips were not reliable by themselves to justify an investigatory stop. See Florida v. J.L.,
. While Appellant challenges Sharp and Booker’s experience as police officers, this is but one factor in the totality analysis, and is not determinative. See Arvizu, - U.S. at -,
. Because a drug dog sniff is not a Fourth Amendment search, probable cause was not a necessary prerequisite to a canine sniff of the vehicle’s exterior. United States v. Holloman,
