UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4102

UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BONDURANT AKEEM RUFFIN, Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:16-cr-00321-FL-1)

Submitted: March 20, 2020 Decided: May 28, 2020

Before WILKINSON, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Wilkinson wrote the opinion, in which Judge Agee joined. Judge Thacker wrote a dissenting opinion.

Seth A. Neyhart, LAW OFFICE OF SETH A. NEYHART, Durham, North Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Kirby A. Heller, Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr., United States Attorney, Jennifer May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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WILKINSON, Circuit Judge:

Following a jury trial in the United States District Court for the Eastern District of

North Carolina, appellant Bondurant Akeem Ruffin was found guilty of possession with

intent to distribute 500 or more grams of cocaine and 28 or more grams of cocaine base in

violation of 21 U.S.C. § 841(a)(1). Ruffin appeals his conviction on two grounds. First,

he asserts that the district court erred in denying his motion to suppress certain evidence—

specifically $2,082.37 in cash—that police discovered on Ruffin’s person during a search

incident to his arrest. Second, he maintains there was insufficient evidence to support the

jury’s verdict because the government failed to adequately prove that he possessed the

drugs in question. We disagree on both scores and accordingly affirm Ruffin’s conviction.

I.

A.

Though Ruffin was eventually found guilty of a drug offense, the trail of events

leading to his arrest began with a different crime. At approximately one o’clock on the

morning of November 24, 2016, Tiffany Farmer, a Wilson, North Carolina resident,

discovered that her car had been broken into and that numerous items, including her cell

phone, were missing. After finding several of the items discarded in the grass near where

her car was parked, Farmer called the police. Officer Brandon Ochoa of the Wilson Police

Department (“WPD”) responded to the call. He was soon joined by Officer Jesse Emory,

who also brought along his police dog named Jaxx. Jaxx is trained in both narcotics

detection and human tracking.

After Ochoa took a brief statement from Farmer, he and Emory began searching for

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the perpetrator. Based on the trail of abandoned items leading away from Farmer’s vehicle,

the officers believed that the suspect had fled on foot. Emory hooked Jaxx up to his thirty-

foot harness, and the dog immediately began tracking a scent, pulling hard on his leash and

leading Emory and Ochoa behind Farmer’s apartment, down several streets, and eventually

to a path running through a nearby wooded area. Simultaneously, additional WPD officers

arrived on the scene and began setting up a perimeter.

Still following Jaxx, Ochoa and Emory emerged from the woods into the common

backyard area of an adjacent residential neighborhood. To this point, the officers had not

encountered anyone during their search. Almost immediately upon clearing the wood line,

however, they spotted appellant Ruffin near several apartment buildings. According to

Ochoa, Ruffin was “bent over” near a wheelchair ramp that was attached to one of the

apartments. J.A. 91. As Ruffin stood up and began to move away from the ramp, both

officers noticed several objects underneath the ramp “[d]irectly in front” of where Ruffin

had been bent down. J.A. 92. They suspected that Ruffin might have been involved in the

vehicle breaking and entering and that the items under the ramp could include property

stolen from Farmer’s car.

The officers decided to investigate further. While Emory restrained Jaxx, Ochoa

approached and spoke to Ruffin. Ochoa later testified that Ruffin appeared distracted and

preoccupied from the outset of their conversation, refusing to give his name when asked

and continually moving away from both the officers and the items underneath the ramp.

Ruffin admitted that he did not live in the area but claimed he was waiting for his child to

use the restroom in the nearby woods. Given the lateness of the hour and the fact that

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neither officer had seen a child while passing through the woods, Ochoa found this

explanation suspicious and believed it to be false. As Ochoa’s questioning continued,

Ruffin became increasingly agitated, repeatedly “stuttering,” glancing towards the woods,

and behaving in a generally nervous and evasive manner. J.A. 95. Eventually, Ochoa

asked Ruffin if he could pat him down for weapons, to which Ruffin consented. Ochoa

did not discover any weapons or contraband during the pat-down.

At this point, both officers “believed that [Ruffin] was looking for an escape route

to flee,” so they decided to temporarily detain him as a suspect in the break-in of Farmer’s

vehicle. J.A. 95; see also J.A. 156 (Emory testifying that he told “Ochoa to go ahead and

grab [Ruffin] before he takes off [be]cause it looks like he’s fixin’ to run.”). Ochoa

informed Ruffin that “he wasn’t free to leave, he was being detained” and placed his hand

on Ruffin’s arm. J.A. 96. Ochoa then reached for his handcuffs and attempted to put them

on Ruffin, who responded by “straighten[ing] his arm out” and “pulling away.” J.A. 96-

97. A struggle ensued. Eventually, Ochoa was able to subdue and handcuff Ruffin.

In the meantime, Emory radioed for assistance, and several WPD officers

responded, including Officer David Stancil. With their assistance, Ochoa transported

Ruffin to a squad car and conducted a search incident to arrest. As relevant here, that

search revealed that Ruffin was carrying $2,082.37 in cash and coins stuffed in various

pockets. The cash comprised notes of every denomination: eight $100 bills, one $50 bill,

forty-six $20 bills, twelve $10 bills, thirty-four $5 bills, and twenty-two $1 bills.

Meanwhile, Stancil investigated the items that Ochoa and Emory had noticed under

the wheelchair ramp. He found a white grocery bag sitting next to a black sock. After the

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objects were photographed, Stancil opened the grocery bag and “immediately saw what

appeared to [be] a large quantity of cocaine packaged up.” J.A. 462. Upon further inquiry,

the white bag was found to contain a vacuum sealed package of cocaine weighing 397.3

grams and a white sock, which in turn contained three individually wrapped packages of

cocaine, two weighing 136.5 grams and one weighing 266.2 grams. Also inside the grocery

bag were a digital scale and various other drug paraphernalia. The black sock also

contained illegal drugs, specifically two packages of cocaine base weighing a total of 86

grams and a bag of cocaine weighing 20 grams. Police believed the drugs belonged to

Ruffin, and he was subsequently transferred to federal custody.

B.

On December 21, 2016, Ruffin was indicted by a grand jury in the United States

District Court for the Eastern District of North Carolina. He was charged with one count

of possession with the intent to distribute 500 grams or more of cocaine and 28 grams or

more of cocaine base in violation of 21 U.S.C. § 841(a)(1).

Prior to his arraignment, Ruffin filed a motion to suppress all evidence discovered

during the search incident to his arrest. He asserted that the police lacked probable cause

to arrest him for either the breaking and entering of Farmer’s vehicle or possession of the

drugs found under the ramp. As such, according to Ruffin, his arrest violated the Fourth

Amendment, the subsequent search of his person was likewise unconstitutional, and any

evidence obtained from that search must be suppressed as fruit of the poisonous tree.

On January 12, 2018, after conducting two hearings on the matter and considering

testimony from Officers Ochoa and Emory, a magistrate judge issued a Memorandum

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Opinion recommending that Ruffin’s motion be denied. At the outset, the court held that

when Ochoa told Ruffin he was not free to leave, the officers possessed sufficient

reasonable suspicion to temporarily detain Ruffin as a suspect in the car break-in. Turning

to the constitutionality of Ruffin’s arrest, the court concluded that when Ruffin physically

resisted Ochoa’s lawful efforts to detain him, Ochoa had probable cause to arrest him for

violating North Carolina law, specifically N.C. Gen. Stat. § 14-223, which prohibits

“resist[ing], delay[ing], or obstruct[ing]” a public officer “in discharging or attempting to

discharge a duty of his office.” J.A. 244. Thus, the magistrate judge held that both Ruffin’s

arrest and the ensuing search incident complied with the Fourth Amendment. On April 16,

2018, over Ruffin’s objection, the district court adopted the magistrate judge’s

recommendation and denied the motion to suppress.

Ruffin’s trial commenced on August 13, 2018. The government presented its case

over the course of two days, calling seven witnesses, including Officers Ochoa, Emory,

and Stancil, and introducing various pieces of physical evidence, including the $2,082.37

cash found in Ruffin’s pockets when he was arrested. Ruffin offered no evidence or

testimony.

At the close of the government’s case, Ruffin moved for a judgment of acquittal

pursuant to Federal Rule of Criminal Procedure 29 on the grounds that the government had

failed to establish his actual or constructive possession of the controlled substance at issue.

Ruffin argued that the only evidence the government presented on this element was his

physical proximity to the drugs under the wheelchair ramp, which, under prevailing case

law, was insufficient standing alone to find that he possessed them.

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The district court denied Ruffin’s motion. Noting that a motion for judgment of

acquittal must meet a “high bar” to succeed, the court concluded that “[t]here’s enough

here for this case to go to the jury.” J.A. 556-57. After deliberating for approximately one

day, the jury returned a guilty verdict. Ruffin was subsequently sentenced to 69 months in

prison to be followed by four years of supervised release. This appeal followed.

II.

We begin with Ruffin’s claim that the district court erred in denying his motion to

suppress the cash found on his person when he was arrested. Ruffin asserts that because

the police lacked the requisite objective suspicion of criminal wrongdoing to stop and arrest

him, the resulting search incident to arrest violated the Fourth Amendment and the fruits

of that search must be suppressed. For the reasons that follow, we disagree.

A.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const. Amend. IV. Ultimately, as the text of the Amendment itself makes plain, the

“touchstone of the Fourth Amendment inquiry is one of simple reasonableness.” United

States v. Bumpers, 705 F.3d 168, 171 (4th Cir. 2013).

Generally, warrantless searches of the type at issue here, that is, “searches conducted

outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few specifically established

and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967) (footnote

omitted). One such exception to the warrant requirement is for searches conducted incident

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to arrest. See United States v. Robinson, 414 U.S. 218, 230-35 (1973). As the Supreme

Court has explained, this “exception derives from interests in officer safety and evidence

preservation that are typically implicated in arrest situations,” and it permits law

enforcement to search “the arrestee’s person and the area within his immediate control.”

Arizona v. Gant, 556 U.S. 332, 338-39 (2009) (internal quotation marks omitted).

Of course, for a search incident to arrest to be constitutionally valid, the predicate

arrest must also have been valid. See Gant, 556 U.S. at 338. As relevant here, “[u]nder

the Fourth Amendment, a warrantless arrest is an unreasonable seizure unless there is

probable cause to believe that a criminal offense has been or is being committed.” United

States v. Johnson, 599 F.3d 339, 346 (4th Cir. 2010). In determining if a law enforcement

officer had probable cause to make an arrest, we ask whether “at the time the arrest

occur[ed], the facts and circumstances within the officer’s knowledge would warrant the

belief of a prudent person that the arrestee had committed or was committing an offense.”

United States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984). While this inquiry is an

objective one, Johnson, 599 F.3d at 346, it “does not involve the application of a precise

legal formula or test,” United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).

Rather, we must undertake a “commonsense and streetwise assessment” of the totality of

the circumstances, giving due deference to the “inferences drawn by law enforcement

officers on the scene.” Humphries, 372 F.3d at 657.

Even in the absence of probable cause, “[t]he Fourth Amendment permits brief

investigative stops . . . when a law enforcement officer has ‘a particularized and objective

basis for suspecting the particular person stopped of criminal activity.’” Navarette v.

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California, 572 U.S. 393, 396-97 (2014) (quoting United States v. Cortez, 449 U.S. 411,

417-18 (1981)). Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, such stops

require only that the investigating officer have “reasonable suspicion” that “criminal

activity may be afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal

quotation marks omitted). Though a mere “hunch” is insufficient to give rise to reasonable

suspicion, the proof required to meet this standard is “obviously less” than necessary to

establish probable cause. Navarette, 572 U.S. at 397 (internal quotation marks omitted).

Like probable cause, the reasonable suspicion analysis is an objective inquiry that looks to

the “totality of the circumstances.” Ibid. And because the existence of reasonable

suspicion is a “commonsensical proposition, courts are not remiss in crediting the practical

experience of officers who observe on a daily basis what transpires on the street.” United

States v. Foreman, 369 F.3d 776, 782 (4th Cir. 2004) (internal quotation marks omitted).

When reviewing the denial of a motion to suppress, we construe the evidence in the

light most favorable to the government and “review the district court’s factual findings for

clear error and its legal conclusions de novo.” United States v. Green, 740 F.3d 275, 277

(4th Cir. 2014). We also bear in mind that, in the Fourth Amendment context, “the role of

courts of appeal is comparatively circumscribed.” Johnson, 599 F.3d at 344. This is

because, while we “have a comparative advantage born of collegial deliberations over

matters of law,” the “trial courts have a distinct edge when it comes to making [the]

context-sensitive judgments” that the Fourth Amendment often requires. Ibid. As such,

we must “give due weight to inferences drawn from [the] facts by resident judges and local

law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996). Or, put

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another way, our analysis should be informed by an understanding that “satellite imagery

often cannot replicate community insights and on-the-ground intelligence.” Johnson, 599

F.3d at 344.

B.

Ruffin’s encounter with WPD officers on the night of his arrest proceeded in four

discrete stages. As will be discussed below, at each step, the police’s actions comported

with the requirements of the Fourth Amendment.

1.

The first stage comprises that portion of the encounter prior to the moment when

Ochoa placed his hand on Ruffin’s arm and informed him that he was being detained. In

this time period, Ochoa asked Ruffin a few questions, and—after specifically obtaining

Ruffin’s consent—briefly patted him down for weapons.

Put plainly, the Fourth Amendment has no bearing on this initial series of events.

This is so for the simple reason that “[i]n the absence of a seizure, a police-citizen encounter

is considered consensual and ‘will not trigger Fourth Amendment scrutiny.’” United States

v. Farrior, 535 F.3d 210, 218 (4th Cir. 2008) (quoting Florida v. Bostick, 501 U.S. 429,

434 (1991)). And the Supreme Court has made clear that a Fourth Amendment “seizure

does not occur simply because a police officer approaches an individual and asks a few

questions.” Bostick, 501 U.S. at 434; accord United States v. Sullivan, 138 F.3d 126, 131

(4th Cir. 1998) (“[P]olice encounters with citizens during which police question them are,

without more, consensual.”). As Ruffin himself concedes, that was the extent of his

interaction with the officers before Ochoa told him he was not free to leave. See

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Appellant’s Opening Br. 28. Thus, until that point, their contact was nothing more than a

consensual encounter, which does not implicate the Fourth Amendment.

2.

The second stage of the encounter began with Ochoa’s initial attempt to detain

Ruffin. The government concedes, as it must, that when Ochoa grabbed Ruffin’s arm, told

him he was being detained, and tried to put handcuffs on him, Ruffin was “seized” within

the meaning of the Fourth Amendment. See Appellee’s Response Br. 21. Thus, we must

focus our analysis on this specific moment in time. If, by this point in their investigation,

the police had developed reasonable suspicion of Ruffin’s involvement in criminal activity,

then they were entitled to detain him for further inquiry. See Arvizu, 534 U.S. at 273. On

the other hand, if no reasonable suspicion existed, then even a temporary restriction of

Ruffin’s physical liberty would violate the Fourth Amendment.

The record before us contains adequate factual evidence to support a finding of

reasonable suspicion. In particular, the following facts, when taken together and

considered in light of the officers’ experience and training, could have reasonably led

Ochoa and Emory to suspect that Ruffin was involved in the breaking and entering of

Farmer’s vehicle: (1) the lateness of the hour; (2) that Jaxx had led the officers from the

scene of the vehicle break-in to Ruffin’s location; (3) that Ruffin was the only person the

officers encountered during their search; (4) that Ruffin was bending over near various

objects under the wheelchair ramp, which the officers’ experience suggested may have

been property stolen from a series of car break-ins; (5) that, when questioned by Ochoa,

Ruffin grew extremely nervous and appeared to be looking for an opportunity to flee; (6)

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that Ruffin behaved in an evasive manner throughout the encounter, consistently moving

away from both Ochoa and the items under the ramp; and (7) that Ruffin’s explanation for

his presence behind the apartment at 1:40 in the morning—that his child (who somehow

never appeared) was using the restroom in the nearby woods—was wholly implausible.

That the foregoing is sufficient to give rise to reasonable suspicion finds ample

support in Fourth Amendment case law. Indeed, courts have specifically identified almost

all of the factors listed above as directly relevant to the Terry inquiry. See United States v.

Lender, 985 F.2d 151, 154 (4th Cir. 1993) (lateness of the hour); Warren v. City of Lincoln,

Neb., 816 F.2d 1254, 1258 (8th Cir. 1987) (dog track leading to suspect); United States v.

Foster, 824 F.3d 84, 95 (4th Cir. 2016) (suspect only person encountered by police in

vicinity of crime); Foreman, 369 F.3d at 785 (suspect’s exceptional nervousness);

Bumpers, 705 F.3d at 176 (suspect’s evasive conduct); United States v. Santillan, 902 F.3d

49, 57 (2d Cir. 2018) (suspect’s implausible story or explanation for conduct or presence);

see also United States v. George, 732 F.3d 296, 299-302 (4th Cir. 2013).

Perhaps more importantly, a finding of reasonable suspicion on these facts is equally

well founded in practical judgment. See Ornelas, 517 U.S. at 695 (noting that reasonable

suspicion is a “commonsense, nontechnical conception[] that deal[s] with the factual and

practical considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.” (internal quotation marks omitted)). Officers Ochoa and Emory came

upon an unknown individual in the dead of night while following what they believed to be

the trail of the suspect in a vehicle break-in. The man was standing right next to several

objects that appeared to have been hastily hidden under a wheelchair ramp. The officers

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prudently stopped to investigate. In the course of that investigation, further information

came to light that only heightened their suspicion. The man was nervous. He continually

edged away from the officers and the items stashed under the ramp. And he told a tale as

to why he was there that the officers knew was almost certainly false. In such

circumstances, “[t]he Fourth Amendment does not require a policeman . . . to simply shrug

his shoulders and allow . . . a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145

(1972). On the contrary, “Terry recognizes that it may be the essence of good police work”

for an officer to briefly detain the individual in question to confirm or dispel his suspicions.

Ibid.

Ruffin argues that each of the seemingly incriminating facts relied upon by the

government to establish reasonable suspicion could easily have innocent explanations. For

example, he ascribes his nervousness “to two officers approaching [him] in the middle of

the night, shining flashlights on him, accompanied by a barking dog.” Appellant’s Opening

Br. 26. While it may indeed be possible to individually characterize each of the facts and

circumstances surrounding Ruffin’s interaction with the police as innocuous, that is not the

appropriate analytical framework to determine the existence of reasonable suspicion. See

Foreman, 369 F.3d at 785. On the contrary, the Supreme Court has repeatedly and

forcefully admonished us against employing “this sort of divide-and-conquer analysis.”

Arvizu, 534 U.S. at 274; see also United States v. Sokolow, 490 U.S. 1, 9-10 (1989).

Instead, we must consider the totality of the circumstances, bearing in mind that “factors

that may be susceptible of innocent explanation when taken in isolation can combine to

form a particularized and objective basis for a stop when considered together.” Bumpers,

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705 F.3d at 174-75 (internal quotation marks omitted). Just so in the instant case, where

the cumulative weight of the facts known to the officers at the time—but not any one

considered in isolation—was sufficient to support reasonable suspicion.

Ruffin also takes issue with the means utilized to effectuate the stop. Specifically,

he asserts that, even if reasonable suspicion existed to temporarily detain him, Ochoa’s

attempt to handcuff him was unwarranted under the circumstances and effectively

transformed the Terry stop into a full-blown arrest for which the police lacked probable

cause. We think not. It is well established in this circuit that “handcuffing a suspect . . .

does not necessarily elevate a lawful [Terry] stop into a custodial arrest.” United States v.

Elston, 479 F.3d 314, 320 (4th Cir. 2007) (internal quotation marks omitted). This is

because “[b]rief, even if complete, deprivations of a suspect’s liberty do not convert a stop

and frisk into an arrest so long as the methods of restraint used are reasonable to the

circumstances.” United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989). In

particular, the reasonableness of handcuffing a suspect during a Terry stop depends on

whether doing so is “necessary to maintain the status quo and protect [officer] safety.”

Ibid. (internal quotation marks omitted).

There is little doubt that this precaution was necessary in the instant case. One of

the reasons that the officers stopped Ruffin was to investigate the items stashed underneath

the wheelchair ramp. But with Emory fully occupied restraining Jaxx, it would have

jeopardized officer safety for Ochoa to divert his focus from Ruffin. Indeed, testimony at

the suppression hearing established that for Ochoa to have asked Ruffin to stand-by while

he looked under the ramp would have been “an incredibly dangerous maneuver” that no

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“officer on earth would do.” J.A. 210. Moreover, both officers believed that Ruffin was

preparing to flee. Viewed in that light, temporarily handcuffing Ruffin was a reasonable

and minimally intrusive means of preserving the status quo for the duration of the stop.*

In cases such as this one, it “makes sense . . . to accord some respect to the fact-

finder’s advantaged posture and to proceed narrowly and non-preclusively in rulings of our

own.” Bumpers, 705 F.3d at 174. As noted, the magistrate judge held two lengthy hearings

on this issue and heard detailed testimony from those officers present on the night of

Ruffin’s arrest. Then, in two thorough, well-reasoned opinions, both the magistrate and

district judges found the evidence adequate to establish reasonable suspicion. Their

considered judgments, always entitled to respect but even more so here given the

“distinctive competence” of trial judges in such fact-intensive inquiries, reinforce our

conclusion that the officers’ decision to temporarily detain Ruffin did not violate his Fourth

Amendment rights. Id. at 173.

3.

With the constitutionality of the underlying Terry stop in mind, we move on to

consider the third and fourth stages of the encounter between Ruffin and the WPD. From

this point, the analysis is straightforward. Neither the third stage, when Ochoa placed

Ruffin under arrest, nor the fourth stage, when WPD officers searched Ruffin’s person

incident to that arrest, raise valid Fourth Amendments concerns.

* What’s more, Emory testified at trial that he “didn’t want [Ruffin] to run because

if he ran, I was going to send the dog to bite him. And that’s not what I was aiming for.” J.A. 448. Thus, when considering the potential alternatives, handcuffs were clearly the less physically intrusive option to ensure that Ruffin stayed put during the pendency of the stop.

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For starters, Ochoa plainly had probable cause to arrest Ruffin once he resisted

Ochoa’s attempt to detain him. As noted, the police had reasonable suspicion to

temporarily detain Ruffin as a suspect in the break-in of Farmer’s vehicle. Thus, when

Ochoa told Ruffin that he was not free to leave, that amounted to a lawful order from a

public officer with which Ruffin was required to comply under North Carolina law. See

State v. Swift, 414 S.E.2d 65, 67-68 (N.C. Ct. App. 1992). But Ruffin did not comply.

Instead, he resisted; he “straightened his arm” to avoid being handcuffed and commenced

a minutes-long struggle with Ochoa. J.A. 96. Ruffin’s resistance gave Ochoa probable

cause to arrest him for violation of N.C. Gen. Stat. § 14-223, which makes it unlawful to

“resist, delay, or obstruct a public officer in discharging or attempting to discharge a duty

of his office.” See Swift, 414 S.E.2d at 68 (“Flight from a lawful investigatory stop may

provide probable cause to arrest an individual for violation of G.S. 14-223.” (internal

quotation marks omitted)); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)

(“If an officer has probable cause to believe that an individual has committed even a very

minor criminal offense in his presence, he may, without violating the Fourth Amendment,

arrest the offender.”).

Ruffin’s argument to the contrary misses the mark. He characterizes the entire

encounter up to this point as “consensual” and maintains that in resisting Ochoa’s efforts

to detain him, he was simply “exercis[ing] his constitutional right to terminate the

consensual encounter.” Appellant’s Opening Br. 28. But, as the foregoing discussion

illustrates, once Ochoa put his hand on Ruffin and told him he was being detained, their

interaction was no longer consensual, and Ruffin had no right, constitutional or otherwise,

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to terminate the encounter. Quite the reverse, his struggle to do so in the face of Ochoa’s

lawful order was contrary to North Carolina law. See State v. Sinclair, 663 S.E.2d 866,

870-71 (N.C. Ct. App. 2008).

Finally, once the police had arrested Ruffin, they were entitled to conduct a full

search of his person incident to arrest. See Robinson, 414 U.S. at 230-35. Given that the

underlying arrest was supported by probable cause and complied with the Fourth

Amendment, any evidence discovered in the course of that search, including the cash

Ruffin had in his pockets, could properly be admitted at trial.

The foregoing course of events makes clear that the police acted in accordance with

the Fourth Amendment throughout their encounter with Ruffin. They did not detain him

until they had a basis for reasonable suspicion. They did not arrest him until their suspicion

had risen to the level of probable cause. And they did not search him until they had lawfully

placed him under arrest. In short, no Fourth Amendment violation occurred in this case,

and the district court correctly denied Ruffin’s motion to suppress.

III.

We next consider Ruffin’s challenge to the sufficiency of the evidence supporting

the jury’s guilty verdict.

A.

A defendant challenging his conviction on sufficiency of evidence grounds “must

overcome a heavy burden.” United States v. Wolf, 860 F.3d 175, 194 (4th Cir. 2017)

(internal quotation marks omitted). We will uphold a jury’s verdict if there is “substantial

evidence in the record to support it,” United States v. Wilson, 198 F.3d 467, 470 (4th Cir.

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1999), that is, if “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Though

we review de novo a district court’s denial of a motion for acquittal, we must “consider the

evidence in the light most favorable to the government, making all inferences and

credibility determinations in its favor.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th

Cir. 1995). And in conducting this review we remain cognizant that “[t]he [fact finder],

not the reviewing court, weighs the credibility of the evidence and resolves any conflicts

in the evidence presented.” United States v. Shorter, 328 F.3d 167, 171 (4th Cir. 2003)

(internal quotation marks omitted). Put simply, reversal on sufficiency grounds is reserved

for “the rare case where the prosecution’s failure is clear.” United States v. Ashley, 606

F.3d 135, 138 (4th Cir. 2010) (internal quotation marks omitted). Ruffin cannot shoulder

this purposefully heavy burden.

B.

Section 841(a) provides, in relevant part, that “it shall be unlawful for any person

knowingly or intentionally [to] . . . possess with intent to . . . distribute . . .a controlled

substance.” 21 U.S.C. § 841(a)(1). The offense of possession with intent to distribute has

three elements: (1) possession of the controlled substance; (2) knowledge of the possession;

and (3) intent to distribute. United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009).

With respect to the first element, the government need not prove that the defendant actually

possessed the controlled substance at issue; rather, a conviction can be premised on

constructive possession. United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). In

the instant case, the government proceeded solely on a theory of constructive possession,

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meaning that it was required to show that Ruffin knew of the presence of the drugs under

the ramp and “exercised or had the power to exercise, dominion and control over” them.

United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Ruffin argues that the

government failed to adduce sufficient evidence of this element to sustain his conviction.

We disagree.

We start with the obvious and most significant fact supporting a finding of

constructive possession—Ruffin was spotted in close proximity to the controlled

substances. See United States v. Shrader, 675 F.3d 300, 308 (4th Cir. 2012) (“[W]e have

repeatedly affirmed the right of juries to consider proximity as part of their analysis of a

defendant’s constructive possession.”). Both Officers Ochoa and Emory testified at trial

to seeing Ruffin near the wheelchair ramp where the drugs had been hidden. And unlike

many constructive possession cases, Ruffin was not simply in the general vicinity of the

contraband. In fact, Ochoa’s unrebutted testimony established that Ruffin was “in very

close proximity” to and was “bent over with both hands towards” the part of the ramp under

which the drugs had been placed. J.A. 376. Ochoa even physically demonstrated for the

jury the position in which he saw Ruffin crouched down directly in front of the packages

containing drugs. A reasonable juror could quite naturally infer from this evidence that

Ruffin had recently placed, opened, or moved those packages and thus had possession over

their illicit contents. See United States v. Suarez, 879 F.3d 626, 634 (5th Cir. 2018)

(upholding a jury’s finding of constructive possession where “[p]olice found [contraband]

in plain sight and close proximity to” the defendant); cf. United States v. Wanoskia, 800

20

F.2d 235, 237 (10th Cir. 1986) (noting that “[d]emonstrative evidence, and in particular,

reenactments of events, can be highly persuasive” to juries).

Furthermore, as far as the trial testimony revealed, Ruffin was the only person in

close proximity to the drugs on the morning in question. As previously noted, Ochoa and

Emory did not encounter anyone else during their search. The same was true of the other

WPD officers on the scene, despite their having set up a perimeter in response to the break-

in of Farmer’s vehicle. And Lakitta Morgan, who lived in the apartment outside of which

the drugs were found, testified that they were not hers and had not been under the

wheelchair ramp when she returned home from work that afternoon. Taken together, these

facts further support an inference that the drugs belonged to Ruffin and that he had recently

hidden them under the ramp. Likewise, the same facts rebut any suggestion that the drugs

belonged to a third party who was no longer in the area. As the government notes, “[i]t is

unlikely that a drug dealer would have left a bag filled with drugs worth close to $20,000

or more just under the edge of the ramp and visible to passersby.” Appellee’s Response

Br. 10. A reasonable juror could easily have come to the same conclusion.

Of course, Ruffin is correct that constructive possession “cannot be established by

mere proximity to the contraband.” United States v. Blue, 808 F.3d 226, 232 (4th Cir.

2015). That said, the government presented ample evidence that, when combined with

close proximity, would permit a reasonable juror to conclude that Ruffin exercised

dominion and control over the drugs. To begin with, Ochoa and Emory testified to Ruffin’s

evasive behavior during their interaction and described how he repeatedly tried to move

away from both the officers and the items underneath the ramp. This logically supports an

21

inference that Ruffin was seeking to distance himself from what he knew to be

incriminating and illegal material. See United States v. Morris, 977 F.2d 617, 620 (D.C.

Cir. 1992) (noting that circumstantial evidence of possession may include “evasive

conduct”). And the jury was likewise free to infer from Ruffin’s preposterous explanation

for his presence behind someone else’s apartment at 1:40 in the morning that he had

something to hide and was hoping to induce officers Ochoa and Emory to move along

without further investigation. See Blue, 808 F.3d at 234.

Finally, there is the cash. The jury heard that Ruffin was found in possession of

over $2000 in currency, including numerous denominations of bills. “As we know beyond

peradventure, drug trafficking and large sums of cash go together.” United States v.

Farrell, 921 F.3d 116, 137 n.24 (4th Cir. 2019); see also United States v. Thomas, 913 F.2d

1111, 1115 (4th Cir. 1990) (observing that “the possession of unusually large amounts of

cash . . . may be circumstantial evidence of drug trafficking.”). Moreover, the government

presented testimony from an employee of the North Carolina Division of Employment

Security to the effect that the sum of money discovered on Ruffin’s person vastly exceeded

his total legitimate income over the last several years. From this evidence and testimony,

the jury could quite reasonably infer that Ruffin was a street-level drug dealer who had

stashed his supply of drugs, packing materials, and other paraphernalia under the ramp

upon the approach of Officers Ochoa and Emory.

Ruffin strenuously maintains that the government’s failure to offer any direct

evidence of possession compels a judgment of acquittal in his favor. But our case law has

recognized that “[c]onstructive possession may be established by either circumstantial or

22

direct evidence.” United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir.1993). And when

the circumstantial evidence in the instant case is viewed appropriately, not in “a piecemeal

fashion” but rather “in cumulative context,” United States v. Burgos, 94 F.3d 849, 863 (4th

Cir. 1996) (en banc), we cannot say that no reasonable juror could have found beyond a

reasonable doubt that Ruffin constructively possessed the drugs under the ramp. This case

ultimately turns on the type of fact-sensitive judgment call that falls squarely within the

province of the jury. See United States v. Small, 944 F.3d 490, 501 (4th Cir. 2019). In

light of the foregoing, we decline to invade that province here by disturbing this jury’s

considered verdict.

IV.

For the foregoing reasons, we reject Ruffin’s challenges to the proceedings below

and affirm his conviction.

AFFIRMED.

23

THACKER, Circuit Judge, dissenting:

As the Government itself argued in the district court, Bondurant Akeem Ruffin

(“Appellant”) was simply in the “wrong place at the wrong time.” J.A. 233.1

Appellant was walking through a path commonly used by residents of Wilson, North

Carolina, in the early morning of Thanksgiving 2016. From a nearby line of trees emerged

Officer Ochoa, Officer Emory, and Jaxx, a tracking dog, tracking the suspect of an

automobile breaking and entering that occurred 40 minutes earlier in another neighborhood

approximately half a mile away. As soon as they came out of the woods, the officers “lit

[Appellant] up with [their] flashlights.” J.A. 93. Jaxx began barking uncontrollably at

Appellant, but did not alert that Appellant was the suspect he was tracking.

As the officers approached, Appellant understandably appeared nervous. The

officers observed that Appellant was near a wheelchair ramp that appeared to have

something beneath it. Despite his nervousness, Appellant cooperated with the officers’

requests that he remove his hands from his pockets and even consented to a frisk, which

yielded no weapons. Nonetheless, the officers decided to grab Appellant because they

believed he was “fixin’ to run.” J.A. 156. This led to Appellant’s resistance, arrest, and

the recovery of over $2,000 in cash on Appellant’s person.

I dissent. I disagree with the majority that, at the moment Officer Ochoa grabbed

Appellant, the officers had a reasonable and articulable suspicion that Appellant was

“involved in the breaking and entering.” Ante at 11. Because everything that followed was

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

24

fruit of the poisonous tree and the error was not harmless, I would vacate Appellant’s

conviction.

I.

The majority’s recitation of the facts omits and mischaracterizes crucial details. In

addition, some facts relied upon by the magistrate judge and district court were clearly

erroneous, disputed and never resolved, or not viewed in the proper context.

A.

Whether Appellant was Under the Porch

The magistrate judge and district court both found that Officer Ochoa “saw a person

who he later learned to be [Appellant] stooped down under a porch.” J.A. 239 (emphasis

supplied) (magistrate judge); id. at 279 (district court adopting this finding). The

Government mentions the same in its brief. See Gov’t’s Br. 17 (Appellant was “stooped

down under a porch” (citing J.A. 239)). However, there is no testimony whatsoever that

the officers saw Appellant under the porch (which, presumably, was attached to the

wheelchair ramp). Ochoa testified Appellant was “bent over at a porch or a handicapped

ramp . . . on his way to a standing position, and as he did, he put his hands in his pocket.

And I could notice that there was some items underneath the porch right where he was

from a bent over position to a standing position at.” J.A. 91 (emphasis supplied). Ochoa

then clarified Appellant was “[o]ne [foot]” from the items. Id. at 92. Officer Emory,

however, testified that when he first saw Appellant, Appellant was “probably five feet”

away from the porch. Id. at 151.

25

Of note, in its response to Appellant’s motion to suppress, the Government stated,

“As the canine led the officers out of the wooded area, they saw [Appellant] wearing a grey

hooded sweatshirt, leaning over underneath the porch of 2129 Glendale Drive.” J.A. 62

(emphasis supplied). But this is wrong for two reasons: as noted, Officer Ochoa did not

testify that he was under the porch, and only Ochoa saw him leaning over at all. In fact,

Officer Emory testified that Appellant was “standing up” and “walking away from the

porch.” Id. at 166, 151. Then, in the same response, the Government went so far as to say

that Appellant “was trespassing on another citizen’s property, hiding something under their

porch, at 1:40 am, when encountered by officers conducting a canine track from a car

break-in that led towards him.” Id. at 71 (emphasis supplied). None of this is accurate.

Again, at the time the officers first saw Appellant, there was no evidence that Appellant

was hiding anything (Ochoa admitted that he never saw Appellant with a package in his

hands, see id. at 112); was under the porch (see above); or was trespassing (Ochoa admitted

the place where they located Appellant was a “common cut-through,” id. at 91).

B.

The Location and Time of the Seizure

Next, according to the testimony at the suppression hearing and a map of the

location, the shortest route between 2206 Candlewood Dr. (the site of the breaking and

entering (“B&E”)) and 2129 Glendale Dr. (where Appellant was seized) was

approximately 0.4 miles and an eight minute walk -- without a tracking dog. See J.A. 386

(at trial, Officer Ochoa agreeing the distance was “possibly” “about a half mile apart by

the streets”).

26

But instead of the blue footpath indicated on the map above (i.e., the shortest direct

route following the streets),2 Officer Emory testified instead that they followed Jaxx

“[b]ack towards the dead-end on Cockran Street,” then “back around to the dead end of

Smallwood Street,” then “north along th[e] woods” to the cut-through to Glendale Drive.

2 This map was not entered into evidence, but rather, I use it as an aid to demonstrate the distance between the B&E and the place where the officers found Appellant. Courts may “take judicial notice of a Google map and satellite image as a ‘source whose accuracy cannot reasonably be questioned.’” Pahls v. Thomas, 718 F.3d 1210, 1216–17 n.1 (10th Cir. 2013) (quoting Fed. R. Evid. 201) (alteration and internal quotation marks omitted) (collecting cases); see also Feminist Majority Found. v. Hurley, 911 F.3d 674, 711 n.5 (4th Cir. 2018) (Agee, J., concurring) (relying on Google maps to show the “general location” of a university and off-campus housing); United States v. Perea-Rey, 680 F.3d 1179, 1182–83 & n.1 (9th Cir. 2012) (taking judicial notice for the purpose of determining the general location of a home that the distance between it and the border was approximately one mile “as the crow flies,” relying on Google map and satellite image as a “source[] whose accuracy cannot reasonably be questioned” (quoting Fed. R. Evid. 201)); Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1218 n.2 (10th Cir. 2007) (taking judicial notice of online distance calculations).

27

J.A. 149–50. So, the distance the officers actually walked was likely even longer on the

night in question, and the officers ended up two neighborhoods away from the site of the

B&E.

Moreover, Officer Ochoa testified that he was dispatched to the scene of the B&E

at 1:02 a.m. The district court found that at around 1:42 a.m., Ochoa first saw Appellant

by the porch. Therefore, approximately 40 minutes had passed from the time of the B&E

to the time the officers finally saw Appellant. In reality, the elapsed time was likely more

than 40 minutes, as Tiffany Farmer (the B&E victim) testified that some time passed from

when she heard suspicious noises of a break-in outside her window, and the time she called

911 to report the B&E.

II.

As explained below, this comprehensive and accurate view of the facts leads to only

one conclusion: the district court erred in concluding that the officers possessed a

reasonable, articulable suspicion that Appellant was involved in the B&E.

A.

A person is seized by the police and thus entitled to challenge the action under the

Fourth Amendment when the officer, “by means of physical force or show of authority,

terminates or restrains his freedom of movement.” Brendlin v. California, 551 U.S. 249,

254 (2007) (internal quotation marks omitted). There is no question that a seizure occurred

when Officer Ochoa grabbed Appellant and told him he was not free to leave. See Ante at

11 (“The government concedes, as it must, that when Ochoa grabbed [Appellant]’s arm,

28

told him he was being detained, and tried to put handcuffs on him, [Appellant] was ‘seized’

within the meaning of the Fourth Amendment.”).

In assessing the constitutionality of the seizure, “we ask whether, at the time of the

seizure, the police officer had a ‘reasonable suspicion’ that the person seized was ‘involved

in criminal activity.’” United States v. Kehoe, 893 F.3d 232, 237 (4th Cir. 2018) (quoting

Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185 (2004)). A police officer

“must be able to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1,

21 (1968) (emphasis supplied).

We should “determine whether there was a sufficient objective, particularized basis

for suspecting the person seized of criminal activity.” United States v. Massenburg, 654

F.3d 480, 485 (4th Cir. 2011). “[A] mere ‘hunch’ is insufficient,” though a reasonable

basis need not establish probable cause and may “fall[] considerably short of satisfying a

preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274

(2002) (quoting Terry, 392 U.S. at 27). “The reasonable suspicion standard is an objective

one, so we examine the facts within the knowledge of [the officer] to determine the

presence or nonexistence of reasonable suspicion.” United States v. Digiovanni, 650 F.3d

498, 511 (4th Cir. 2011). “Reasonable suspicion determinations are made according to the

totality of the circumstances.” Massenburg, 654 F.3d at 488.

B.

Considering the totality of the circumstances here, the district court erred in

concluding the officers had reasonable and articulable suspicion of criminal activity when

29

the officers seized Appellant. First and foremost, our review is complicated by the fact

that neither the district court, nor the magistrate judge, specify which type of “criminal

activity” the officers believed to be afoot -- trespassing or B&E. J.A. 284. Rather, the

district court relies on a list of circumstances that in its view, when taken together, justified

the officers’ actions to combat some unspecified criminal threat. A closer look at the

district court’s analysis, however, reveals both legal and factual missteps in that analysis.

1.

Appellant Was the Only Person the Officers Saw on Jaxx’s Track

First, the district court and magistrate judge both relied on the fact that, although

Officer Emory’s dog Jaxx did not alert on Appellant, Appellant “was the only person the

officers encountered during their search.” J.A. 280 (district court); id. at 245 (Appellant

“was the first and only individual [the officers] encountered that evening” (magistrate

judge)); see also Gov’t’s Br. 16 (“[Appellant] was the only person the officers saw during

the track.”). This cannot be a basis for reasonable, particularized suspicion.

Indeed, we have held that while a defendant and his companions were “the only

people encountered as [officers] responded to [a] tip, this provides little basis for

reasonable, particularized suspicion of [the defendant].” Massenburg, 654 F.3d at 487

(emphasis supplied). And “[a]n individual’s presence in an area of expected criminal

activity, standing alone, is not enough to support a reasonable, particularized suspicion that

the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

To begin, Appellant was not even “in [the] area” of the B&E (see below). In any

event, the fact that Appellant was the only person the officers saw should have no bearing

30

on reasonable suspicion. Of course Appellant was the only person the officers encountered

-- they stopped looking after they encountered him. See J.A. 105 (Officer Ochoa admitting

they found neither the B&E suspect, nor the items stolen during the B&E). In addition,

viewing this fact in the totality of the circumstances, Officer Emory testified that Jaxx led

them on a circuitous route around dead end streets and through a tree line, which was off

of a normal foot path, and it is undisputed that Jaxx did not alert to Appellant. In fact, the

Government argued at the suppression hearing, “[W]ho knows if [the B&E suspect] ran

that way[?] [U]ltimately [Appellant] was in the wrong place at the wrong time.” J.A. 233.

2.

The Items Under the Porch

The district court also found relevant the fact that “[b]oth officers testified they saw

items or a white bag located underneath the porch near [Appellant]. Both officers believed

[Appellant] was in possession of the stolen cell phone from the vehicle break in.” J.A. 283.

But as mentioned above, the district court also incorrectly found that Appellant was

stooped down under the porch. The officers disagreed as to how far away from the porch

Appellant was, and what he was doing (bending down and coming to a standing position

one foot away, versus standing up five feet away). The district court never resolved this

conflict, which, in my view, makes a difference in whether an officer would objectively

have reasonable suspicion that Appellant was stashing something there.3 Even worse, the

3 This is especially true because the district court found that Officer Emory directed Officer Ochoa to “grab” Appellant, meaning Emory believed standing five feet away from the items was sufficient for reasonable suspicion. J.A. 283.

31

district court adopted the wholly distinct fact that Appellant was actually stooped down

under the porch. Based on the testimony at the suppression hearing, this finding was clearly

erroneous.4

3.

The Time and Place

The district court reasoned that this case had “more” than the typical refusal-to-

cooperate case, “given the time, the place, the presence of what officers reasonably

believed was a concealed stolen item.” J.A. 284. But the district court failed to consider

the distance from the B&E crime, instead stating Appellant was found in an “adjacent

neighborhood.” Id. at 279. As seen in the map above, this fact is also clearly erroneous.

We have concluded that an individual located four blocks from reported gunfire

“do[es] little to create particularized suspicion.” See Massenburg, 654 F.3d at 486. Other

cases have found particularized suspicion where the suspect was closer to the crime; a

shorter period of time had passed; or if the suspect was found at a further distance and after

a longer time, there were other significant corroborating facts. See United States v. Moore,

817 F.2d 1105, 1106–07 (4th Cir. 1987) (finding reasonable suspicion where the only

individual in the vicinity was found “30 to 40 yards” from the entrance to a building

burglarized two to three minutes before “moving away from the scene of the crime”);

Chambers v. Mulroney, 399 U.S. 42, 44 (1970) (finding probable cause to arrest suspects

4 At one point in the suppression hearing, the defense attorney, when cross-examining Officer Emory, misstated Officer Ochoa’s testimony as saying that Appellant was “bent over under the porch.” J.A. 166. But again, this was not an accurate representation of Ochoa’s testimony. See supra at I.A.

32

found within an hour of crime in a vehicle matching a distinctive description about two

miles from crime scene, and two suspects were wearing clothing matching the description

of witnesses). Here, we have no description at all because Ms. Farmer did not see the

perpetrator. And although we have Jaxx’s tracking, crucially, Jaxx did not alert when he

got near Appellant. See J.A. 165 (Officer Emory agreeing “nothing that Ja[xx] did that

night indicated [Appellant] was the person [he was] tracking”).

Finally, the time of night “is a factor in determining the existence of reasonable

suspicion.” United States v. George, 732 F.3d 296, 300 (4th Cir. 2013) (quoting United

States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir. 2009)) (alterations omitted). But we

must look to the context: Appellant was not hiding; he was walking in an open area that is

frequently travelled by passersby. See United States v. Beauchamp, 659 F.3d 560, 570 (6th

Cir. 2011) (“[T]he early morning hour . . . may not, without more, give rise to reasonable

suspicion.” (internal quotation marks omitted)).

4.

Appellant’s Evasiveness, Unease, and Inconsistent Statements

The officers testified that, based on their observations and experience, they

reasonably believed that just before Officer Ochoa grabbed him, Appellant was “looking

for an escape route,” J.A. 95, and “fixin’ to run,” id. at 156. Ochoa testified, “The entire

time we encountered him, he was taking steps away from the stuff that was underneath the

porch and us[.] [He was] trying to get distance, was stuttering, . . . he wouldn’t really look

at us, he just kept looking around.” Id. at 95. He would not give officers his name or tell

them why he was there. This behavior, the Government claims, gave officers suspicion to

33

seize Appellant while they figured out what was underneath the porch. When Appellant

told Ochoa he was waiting on a child in the woods, he thought the statement did not

“mak[e] sense.” Id. The district court found this behavior “evasive,” “nervous,” and

“inconsistent.” Id. at 283.

But even viewing the facts in the Government’s favor, Appellant was not evasive or

inconsistent. Appellant obeyed Officer Ochoa’s commands to take his hands out of his

pockets, and he even consented to a frisk. I fail to see how this can be viewed as evasive

under our case law. See, e.g., Massenburg, 654 F.3d at 480 (no reasonable suspicion where

an individual was observed four blocks from where gunfire had been heard, nervously

declined to consent to a pat down, and did not maintain eye contact); United States v.

Burton, 228 F.3d 524, 528 (4th Cir. 2000) (no reasonable suspicion where individual was

standing still, not responding to officers’ questions, refused to remove his hands from his

coat pocket, and the officer felt “uneasy about [his] safety”); United States v. Sprinkle, 106

F.3d 613 (4th Cir. 1997) (no reasonable suspicion where the officer spotted the defendant

in a high-crime area huddled next to a companion -- who had recently served time for a

drug conviction -- with their hands together, the defendant’s companion attempted to hide

his face from the officer as he walked past the vehicle, and the car pulled away from the

curb as soon as the officers walked by).

The Government also relies on the fact that Appellant would not give officers his

name. But, “when an officer, without reasonable suspicion or probable cause, approaches

an individual, the individual has a right to ignore the police and go about his business.”

Wardlow, 528 U.S. at 125. And any “refusal to cooperate, without more, does not furnish

34

the minimal level of objective justification needed for a detention or seizure.” Id. (internal

quotation marks omitted).

The Government also relies on United States v. Mayo, where this court concluded

that behavior such as “shaking hands, heavy breathing, and providing inconsistent

answers” were “unusually nervous” behavior supporting reasonable suspicion of criminal

activity. 361 F.3d 802, 806 (4th Cir. 2004) (quoting United States v. McFarley, 991 F.2d

1188, 1192 (4th Cir. 1993)). But Mayo is a far cry from this case. In Mayo, police

encountered the defendant in a high crime area that had been targeted for “special

enforcement” by the City of Richmond; the defendant’s “activity upon viewing [a] marked

patrol car” suggested he might have had a gun -- that is, putting his hand in the pocket and

the appearance of something heavy in the pocket; when he saw the patrol car, he turned

180 degrees and walked away and when finally confronted, he “averted his eyes” from the

officers; and his “nervousness was palpable” because his “shirt was fluttering as though he

was shaking.” Id. at 807–08 (alterations and internal quotation marks omitted). Here, by

contrast, by the time Officer Ochoa seized Appellant, he had consented to a pat down, had

not run away or attempted to run away, and the officers knew he had no weapons on his

person because they had already frisked him.

The majority and Government both rely on the fact that, although Appellant told

the officers his child was using the bathroom in the woods, a child was never found in the

woods, which ostensibly demonstrates his story was inconsistent or showed evasion. See

35

Ante at 12 (noting that the child “somehow never appeared”).5 But it is black letter law

that our analysis must focus on the time of the seizure. And the point about the child has

absolutely nothing to do with the officers’ awareness at that moment in time. See Terry,

392 U.S. at 21–22 (courts consider “facts available to the officer at the moment of the

seizure”); United States v. Wilson, 953 F.2d 116, 126 (4th Cir. 1991) (“Of course, the police

may not rely on events or observations subsequent to the commencement of the seizure to

bolster the argument that they had reasonable suspicion.”).

Finally, as to nervousness or unease, it “is common for most people to exhibit signs

of nervousness when confronted by a law enforcement officer”; thus, “absent signs of

nervousness beyond the norm, we will discount the detaining officer’s reliance on the

detainee’s nervousness as a basis for reasonable suspicion.” United States v. Bowman, 884

F.3d 200, 214 (4th Cir. 2018) (internal quotation marks omitted). Officer Ochoa testified

they “lit [Appellant] up with [their] flashlights” as soon as they came out of the wood line.

J.A. 93. Both officers testified that Jaxx was barking, to the point that Officer Emory had

to take his attention away from Appellant and attend to Jaxx. Any normal, reasonable

person who found himself in this situation in the wee hours would be nervous. Indeed,

even the district court itself recognized “[Appellant’s] escalating unease . . . could be

attributed, as noted by the magistrate judge, to two officers approaching [Appellant] in the

5 I am surprised the majority and Government rely on this fact. Officer Emory (who directed Officer Ochoa to grab Appellant) testified that he never heard Appellant say anything about a child in the woods, while Ochoa testified that he did. In light of this dispute, the district court decided that whether Appellant mentioned his child was “not ... dispositive in its analysis” and “unnecessary . . . to resolve the issue.” J.A. 283 n.4.

36

middle of the night, shining flashlights on him, accompanied by a barking dog.” Id. at 284.

5.

Suspicion of Trespassing

Appellant contends “the Magistrate Judge, citing United States v. Bumpers, 705

F.3d 168, 176 (4th Cir. 2013), concluded that the police officers had reasonable suspicion

to believe that [Appellant] was trespassing”; “however, nothing in the suppression hearing

testimony of either Officer Ochoa or Emory . . . suggested either of these law enforcement

officer[s] actually had any suspicion -- reasonable or otherwise -- that [Appellant] was

trespassing.” Appellant’s Br. 25. The district court explained, “Although the magistrate

judge references trespassing, . . . [t]he magistrate judge was not claiming that [Appellant]

was properly arrested under a theory of trespass . . . . Instead, the magistrate judge stated

that the facts of the encounter, together with the lateness of the hour, supply the reasonable

suspicion which justified [Appellant]’s temporary detention.” J.A. 285–86 (citations and

internal quotation marks omitted).

Notwithstanding the district court’s statement to the contrary, the magistrate judge

and district court both relied on the notion that the officers believed Appellant was

trespassing, and thus, this was one factor supporting reasonable suspicion of criminal

activity. See J.A. 283 (district court mentioning “suspicion of trespassing” as a ground for

reasonable suspicion); id. at 246 (magistrate judge explaining that the facts support a

“reasonable belief that [Appellant] was trespassing”). And the Government argued below

that trespassing could support reasonable suspicion. See id. at 276 (response to Appellant’s

objections to the magistrate recommendation: “[D]uring this initial stage of the

37

investigation, in the middle of the night, reasonable suspicion existed that [Appellant] was

committing a crime, which could have included trespassing.” (emphasis supplied)).

But the officers plainly did not think Appellant was trespassing. Officer Ochoa

testified more than once that the path where they found Appellant was “a common path,”

J.A. 109, and a “common cut-through,” id. at 91. There was no evidence that the area was

posted with signage prohibiting entrance, and there was no evidence that Appellant was

told he was not allowed to enter. To the contrary, Ochoa testified Appellant was found

near a house belonging to “somebody’s cousin . . . he knows . . . or something like that.”

Id. at 137.

Even the majority opinion mischaracterizes the facts with regard to this point. It

claims Appellant “admitted that he did not live in the area.” Ante at 3. But there is no

testimony to this effect. At the most, Appellant did not answer the officers’ question about

where he lived, which he had every right not to do. This is a crucial distinction. In the

hearing below, the magistrate judge emphasized the fact that Appellant could have been

standing outside of his own wheelchair ramp at the time the officers saw him. The

magistrate judge asked, “Is there reasonable suspicion for officers there investigating my

neighborhood, . . . I’m outside at 1:30 in the morning for some reason, . . . and I’m fooling

around under my porch doing something, is there reasonable suspicion for them to stop

me?” J.A. 212. The Government responded that it was not Appellant’s porch, to which

the magistrate judge replied, “The[] [officers] didn’t know that at the time.” Id. at 213.

Thus, any reliance on trespassing in support of reasonable suspicion is unsupported

by the record.

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6.

Conclusion

In sum, viewing the facts in totality, we are left with a series of innocent

circumstances that, even when cobbled together, fail to rise above innocuity. Therefore, in

my view, the officers could not objectively have possessed a reasonable and articulable

suspicion that Appellant was involved in the B&E.

C.

Fruit of the Poisonous Tree

“[E]vidence obtained in violation of the Fourth Amendment cannot be used in a

criminal proceeding against the victim of the illegal search and seizure.” United States v.

Calandra, 414 U.S. 338, 347 (1974). Moreover, “the indirect fruits of an illegal search or

arrest should be suppressed when they bear a sufficiently close relationship to the

underlying illegality.” New York v. Harris, 495 U.S. 14, 19 (1990). “[E]vidence will not

be excluded as ‘fruit’ unless the illegality is at least the ‘but for’ cause of the discovery of

the evidence.” Segura v. United States, 468 U.S. 796, 815 (1984).

Here, the illegal seizure led to Appellant’s resistance. Under North Carolina law,

“a person is entitled to resist an illegal, but not a legal, arrest.” State v. Swift, 414 S.E.2d

65, 67–68 (N.C. Ct. App. 1992) (citation omitted); see also State v. Sinclair, 663 S.E.2d

866, 870 (N.C. Ct. App. 2008) (same, quoting Swift). Because the officers did not have

reasonable suspicion, Appellant was entitled to resist the unlawful seizure, which led to his

arrest, which led to the search and discovery of the cash. Thus, the cash is “fruit of the

poisonous tree” and should have been suppressed. See United States v. Lentz, 524 F.3d

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501, 522 (4th Cir. 2008) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).

D.

Harmlessness

A district court’s denial of a motion to suppress alleging a Fourth Amendment

violation is subject to harmless error analysis: we ask whether “it is clear beyond a

reasonable doubt that a rational jury would have found the defendant guilty absent the

error.” United States v. Pratt, 915 F.3d 266, 273 (4th Cir. 2019) (alterations and internal

quotation marks omitted). This is the Government’s burden, and “we look to the strength

of the government’s remaining evidence, the centrality of the issue, steps taken to mitigate

any error, and the closeness of the case.” Id.

To bolster its case against Appellant at trial, the Government used the over $2,000

in bills of various denominations (plus a witness testifying that Appellant did not make that

much money) to convince the jury that Appellant was engaged in drug trafficking and,

thus, had the intent to distribute the drugs found under the wheelchair ramp. For example,

during closing argument, when arguing to the jury that Appellant had the requisite intent

to distribute cocaine, the Government argued, “[H]e has this money in his pockets . . . in

multiple pockets. . . . Looking at someone’s knowledge or intent, it’s not the sort of thing

that you would do when someone goes to the bank and makes a withdrawal, stuffing large

amounts of cash in various pockets.” J.A. 586. The Government continued, “[There is] a

large amount of cash right there in the presence of cocaine, packaging materials, scales,

and a spoon. All that shows an intent to distribute.” Id. Therefore, the cash (and how and

where it was found) was integral to the Government’s case, and the Government cannot

40

prove beyond a reasonable doubt that the jury would have convicted Appellant without it.

Thus, the district court’s error in failing to suppress the cash was not harmless.

III.

For the foregoing reasons, I would reverse the district court’s denial of the motion

to suppress.