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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31109
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EARNEST E. JORDAN Jr.,
Defendant-Appellant.
Appeal from the United States District Court
For the Middle District of Louisiana
November 6, 2000
Before KING, Chief Judge, PARKER, Circuit Judge, and KAZEN,
District Judge.1
ROBERT M. PARKER, Circuit Judge:
Earnest Jordan appeals his conviction, after guilty plea, for
being a felon in possession of a firearm, in violation of 18
U.S.C.A. § 922(g)(1)(West 2000). Jordan pleaded guilty conditioned
upon his right to appeal the district court's denial of his motion
to suppress evidence gained by police officers in a warrantless
1District Judge of the Southern District of Texas, sitting by
designation.
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stop and search of his person. We affirm.
Testimony at the suppression hearing established that on
January 9, 1999, at about 6:45 p.m., Baton Rouge City Police
Officers Tray Walker and Phillip Wyckoff were patrolling Gus Young
Avenue. This high crime area of the city is noted for frequent
drug activity, robberies, rapes and murders. The officers saw
Earnest Jordan "running at full sprint" from the direction of
Triple E Grocery, a store located about a block away. As they
observed Jordan, they saw him "looking back over his shoulder, left
and right, over his shoulder. At one point he tripped and fell to
the ground, immediately got up and continued into a full sprint."
The officers, concluding that Jordan may have robbed the
grocery store, pulled their car in front of Jordan and stopped him.
Officer Walker exited the car and told Jordan to put his hands on
the hood of the car. Jordan refused to do so, moving his hands
erratically back and forth, pointing toward the edge of the store.
Walker testified that Jordan "kept saying, no, he wasn't giving the
police statements" and "wouldn't give us straight answers." When
Walker grabbed Jordan's right arm, told him to calm down and to
place his hands on the car, Jordan jerked his hand away. Walker
then handcuffed Jordan's arms behind his back. Officer Wyckoff
simultaneously conducted a pat-down search of Jordan. The search
revealed a semi-automatic pistol in Jordan's left pant leg.
Jordan moved to suppress the pistol, arguing that the police
did not have reasonable suspicion sufficient to justify an
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investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
He also contended that, even if the stop was legal, the pat-down
search violated his Fourth Amendment rights. The district court
denied the motion. As part of the oral ruling, the district court
noted that (1) the conduct that first attracted attention to
Jordan, given the time of night and vicinity of the store,
warranted further inquiry by the officers; (2) Jordan's conduct
after the stop, including the fidgety conduct and his refusal to
give requested information, warranted their taking precautions; (3)
the fact that the officers went to the store at the first
opportunity to inquire if there had been a robbery reinforced the
conclusion that they were concerned at the initial stop that Jordan
had committed some offense involving the store and (4) the fact
that there was no evidence contradicting the officers' version of
events lent credibility to their testimony.
In reviewing a ruling on a motion to suppress, this court
reviews questions of law de novo and factual findings for clear
error. See United States v. Dortch, 199 F.3d 193, 197 (5th Cir.
1999), op. corrected on denial of reh'g, 203 F.3d 883 (5th Cir.
2000). The evidence is viewed in the light most favorable to the
party that prevailed in the district court. See id. "The
reasonableness of an investigatory stop and frisk is reviewed de
novo." United States v. Campbell, 178 F.3d 345, 348 (5th Cir.
1999)(internal quotation and citation omitted).
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An officer may, consistent with the Fourth Amendment, conduct
a brief investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot. See Terry,
392 U.S. at 30. "While `reasonable suspicion' is a less demanding
standard than probable cause and requires a showing considerably
less than preponderance of the evidence, the Fourth Amendment
requires at least a minimal level of objective justification for
making the stop." Illinois v. Wardlow, ___U.S.___, 120 S. Ct. 673,
675-76 (2000).
Reasonable suspicion cannot be reduced to a
neat set of legal rules, but must be determined by looking to "the
totality of the circumstances the whole picture." United States
v. Sokolow, 490 U.S. 1, 7-8 (1989).
Both parties argue that the Supreme Court's recent decision in
Illinois v. Wardlow, 120 S. Ct. 673 (2000), which was decided after
the district court denied Jordan's motion to suppress, guides our
decision in this case. In Wardlow, Officer Nolan was participating
in a police caravan sweep of a high-crime area. See id. at 674.
Nolan observed respondent Wardlow "standing next to the building
holding an opaque bag." Id. at 675. Wardlow "looked in the
direction of the officers and fled." Id. at 675. Nolan stopped
Wardlow and conducted a pat-down frisk which revealed that Wardlow
was carrying a loaded handgun. See id.
Based on the totality of the circumstances, including the
high-crime character of the neighborhood and Wardlow's "unprovoked
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flight upon noticing the police," the Supreme Court concluded that
"Officer Nolan was justified in suspecting that Wardlow was
involved in criminal activity, and therefore, in investigating
further." Id. at 676. The Court's holding was expressly limited
to the propriety of the initial stop and thus excluded
consideration of the lawfulness of the subsequent pat-down. See
id. at 676 n.2.
Jordan argues that his situation is distinguishable from
Wardlow in that Jordan was already running when the officers first
observed him. Therefore, Jordan contends that his running cannot
be characterized as flight from the police as discussed in Wardlow,
and does not support an investigative stop. The government
counters that the totality of the circumstances, including Jordan's
running, the proximity of the store, his furtive glances over his
shoulder, the time (6:45 p.m. on a January evening) and place (a
high crime area), justified the officer's decision to stop Jordan.
We agree.
Wardlow did not establish a bright-line test in cases where a
defendant is seen to be running. Instead, citing Terry, Wardlow
examined the totality of circumstances to determine whether the
officer had "a reasonable, articulable suspicion that criminal
activity is afoot." Id. at 675. Wardlow noted that an
individual's presence in a "high crime area" is a relevant
consideration, as is "nervous, evasive behavior." Id. Also,
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"[h]eadlong flight wherever it occurs is the consummate act of
evasion: it is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such." Id.
The undisputed facts in the instant case clearly do not
portray a recreational runner. The defendant appeared to be
fleeing from something or someone. This conduct, combined with the
time and place, was at least as "ambiguous" as the observation in
Terry that two individuals were "pacing back and forth in front of
a store, peering into the window and periodically conferring."
Wardlow, at 677 (discussing Terry). The officers were justified in
detaining the defendant briefly to resolve this ambiguity.
Jordan further alleges that, even if the initial investigatory
stop was permissible, the subsequent search of his person violated
the Fourth Amendment. The officers testified that because Jordan
was physically and verbally evasive to the officers' requests and
because the incident occurred in a high crime area, they
simultaneously handcuffed Jordan and performed a pat-down search
for weapons to protect their safety. This court has held that,
after making a proper Terry stop, the police are within their
constitutional authority to pat down a party and to handcuff him
for their personal safety even if probable cause to arrest is
lacking. See United States v. Webster, 162 F.3d 308, 332 (5th Cir.
1998).
Handcuffing a suspect does not automatically convert an
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investigatory detention into an arrest requiring probable cause.
United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993). The
relevant inquiry is whether the police were unreasonable in failing
to use less intrusive procedures to safely conduct their
investigation. Id. Here the officers first asked Jordan to place
his hands on the hood of the car, but he refused to do so. He was
acting nervously, saying "wait, wait" in response to the officers'
questions, moving his hands erratically, and continuously looking
over his shoulder. When one officer grabbed Jordan's arm and told
him to calm down, Jordan jerked his hand away and walked towards
the officers in "an aggressive-type manner." Under those
circumstances, we conclude that the officers did not act
unreasonably in handcuffing Jordan long enough to frisk him.
Based on the foregoing, we affirm the district court's denial
of Jordan's motion to suppress.
AFFIRMED.

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