The federal government has had difficulty beating back suppression motions in the Fourth Circuit this past year. Last week, however, a panel unanimously affirmed the denial of a suppression motion. Judge Wilkinson wrote the opinion in United States v. Glover, which was joined in by Judge King and Judge Diaz. (Attentive readers may also have noted that Judge Wilkinson authored the majority opinion in United States v. Braxton a couple of weeks ago, also affirming denial of a suppression motion–that time, over the dissent of Judge Wynn.)
The opinion begins as follows:
Paul Glover entered a conditional plea of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals the denial of his motion to suppress evidence obtained during a stop-and-frisk in a deserted gas station parking lot in the wee hours of the morning. For the reasons that follow, we affirm the district court’s denial of Glover’s suppression motion.
The stop-and-frisk here occurred after officers observed the defendant lurking outside of the range of the closed circuit cameras at a 24-hour service station at around 4:40 a.m. Judge Wilkinson writes that the circumstances facing the officers were far different than those in United States v. Foster, 634 F.3d 243 (4th Cir. 2011), which “concerned the stop of a driver believed to be involved in drug activity in the middle of the day in a low-crime area.”
With respect to police reliance on nervous behavior, which the Fourth Circuit criticized in United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011), Judge Wilkinson wrote:
While it is important not to overplay a suspect’s nervous behavior in situations where citizens would normally be expected to be upset, see United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011), Glover was furtively watching the attendant from a location outside the range of surveillance cameras, glancing around the corner, and pulling his head back well before Officers Skipper and Archer stopped the patrol car. Such conduct is far more like the casing of the store in Terry than the case of nerves a citizen might ordinarily exhibit in interactions with police.
