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finding handcuffing reasonable where officers believed suspect was "preparing to flea" and completing the investigatory stop without handcuffing would be "an incredibly dangerous maneuver"
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No. 19-4102
05-28-2020
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BONDURANT AKEEM RUFFIN, Defendant - Appellant.
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UNPUBLISHED
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) 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 Affirmed by unpublished opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 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 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 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 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.
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 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. 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 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 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) 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 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, 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 "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.
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.
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.
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, 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. 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, 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 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 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 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. 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.
Citations to the "J.A." refer to the Joint Appendix filed by the parties in this appeal.
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 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.
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").
Image materials not available for display.
But instead of the blue footpath indicated on the map above (i.e., the shortest direct route following the streets), 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. 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.
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).
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, 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 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 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. Even worse, the 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.
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.
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.
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 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 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 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 Ante at 12 (noting that the child "somehow never appeared"). 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.").
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.
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 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 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.
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 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 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.