United States of America v.  Dennis Deon Smith

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4311 
DENNIS DEON SMITH,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-03-236)
Argued: December 3, 2004
Decided: February 10, 2005
Before WILKINS, Chief Judge, and NIEMEYER
and DUNCAN, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Niemeyer and Judge Duncan joined.
COUNSEL
ARGUED: William Stimson Trivette, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant. Michael Francis Joseph,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
ON BRIEF: Louis C. Allen, III, Federal Public Defender, Greens-

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boro, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.
OPINION
WILKINS, Chief Judge:
Dennis Deon Smith appeals a district court order denying his
motion to suppress evidence obtained by police following an investi-
gatory stop of his vehicle. Because the officers possessed reasonable
suspicion to stop Smith’s vehicle, we affirm.
I.
During the early morning of March 19, 2003, Durham, North Caro-
lina police officers established a driver’s license checkpoint on High-
way 54. The checkpoint, which was established in response to
numerous break-ins and traffic violations in the area, was located at
the bottom of a small hill and was operated by five officers, each with
a patrol vehicle, from around 2:00 a.m. until shortly after 3:00 a.m.
During this time, the police lights on each patrol vehicle were acti-
vated, and all motorists traveling in either direction were stopped.
At approximately 3:05 a.m., a vehicle traveling west on Highway
54 crested the hill about 985 feet from the checkpoint. According to
the officers, the vehicle "appeared to slam on its brakes," J.A. 24, 55,
because its headlights "dipped down toward the ground," id. at 55.
The officers then observed the vehicle turn left onto a private gravel
driveway leading to a single residence. The entrance to the driveway
was located about 810 feet from the checkpoint.
Based on these observations, Officer Clyde McCoy drove his patrol
vehicle to the driveway to investigate. When McCoy turned into the
driveway, he observed that the suspect vehicle, a Lexus sedan, was
stopped just before a sharp left curve in the driveway, approximately
240 feet from the highway. Either before or after entering the drive-
way, McCoy activated his police lights.1 Rather than remaining
1The record is unclear on this point. Officer McCoy testified that he
activated his police lights after he entered the driveway and saw the
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stopped, however, the Lexus "proceeded slowly around the curve." Id.
at 26. When McCoy drove around the curve, he saw the Lexus
stopped at the end of the driveway with its lights off.2
McCoy pulled up behind the Lexus and exited his patrol vehicle.
He then approached the Lexus and asked its driver and only occupant,
Smith, for his driver’s license. Smith responded that he did not have
a license. McCoy asked Smith if he lived at the residence; Smith
replied that he did not. Smith told McCoy that he had turned off of
the highway "because he saw the patrol vehicles down the street and
thought there was an accident." Id. McCoy asked Smith to step out
of his vehicle and handcuffed him. After verifying by radio that
Smith’s license had been revoked, McCoy placed Smith under arrest.
A second police officer who had followed McCoy to the scene then
asked Smith for permission to search the Lexus. Smith replied that
"he didn’t care, it wasn’t his vehicle." Id. at 60. Police searched the
vehicle and discovered a loaded magazine for a 9-millimeter handgun
and a small quantity of cocaine base. After advising Smith of his
Miranda rights,3 officers asked him about the weapon to which the
magazine belonged. Smith responded that he had thrown a handgun
out of the vehicle near the entrance to the driveway. Although the
officers found no handgun in the area Smith described, they eventu-
ally recovered a Ruger 9-millimeter pistol near the Lexus at the end
of the driveway. Smith was then transported to the police station.
After receiving his Miranda warnings in writing, Smith stated that the
pistol belonged to a friend who had died and that he kept the weapon
because he was uncertain what to do with it.
Lexus stopped there, but a second officer who followed McCoy to the
driveway testified that the officers drove from the checkpoint to the
driveway with their lights already on. The district court did not resolve
this issue, concluding that it did not affect the resolution of Smith’s
motion to suppress. We agree with this assessment and thus will not
address the issue further.
2It is not clear from the record how far the Lexus traveled from its
original stopped position just before the curve until reaching its final
position at the end of the driveway. Nevertheless, it appears that the vehi-
cle moved, at most, approximately 120 feet.
3See Miranda v. Arizona, 384 U.S. 436, 467-73 (1966).
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Smith was subsequently charged with possession of a firearm by
a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West 2000). He
pleaded not guilty and moved to suppress the evidence obtained fol-
lowing the vehicle stop, arguing that the officers lacked reasonable
suspicion to justify the stop. The district court held that the officers
had reasonable suspicion to stop Smith’s vehicle because it (1) turned
abruptly into a private driveway before reaching the police checkpoint
and (2) moved—from a stopped position—around the curve of the
driveway "as far as it could go," J.A. 83, in response to McCoy’s
police lights. The court concluded that based on the totality of the cir-
cumstances, the officers reasonably suspected that Smith was attempt-
ing to avoid the police checkpoint to conceal his involvement in
criminal activity. The district court therefore denied Smith’s motion
to suppress.
Smith subsequently entered a conditional guilty plea pursuant to a
plea agreement. The district court sentenced Smith to 60 months in
prison.
II.
Smith contends that the district court erred in denying his motion
to suppress, arguing that the stop of his vehicle violated the Fourth
Amendment because the officers lacked reasonable suspicion that he
was engaged in criminal activity. Whether the stop of Smith’s vehicle
was based on reasonable suspicion is a mixed question of law and fact
that we review de novo. See Ornelas v. United States, 517 U.S. 690,
699 (1996).
The Fourth Amendment prohibits "unreasonable searches and sei-
zures." U.S. Const. amend. IV. And, it is well settled that a search
conducted without a warrant is per se unreasonable unless it falls
within one of the "well-delineated exceptions" to the warrant require-
ment. Katz v. United States, 389 U.S. 347, 357 (1967). One such
exception is the authority of law enforcement officers to effect a lim-
ited investigatory detention when they possess "a reasonable and
articulable suspicion that the person seized is engaged in criminal
activity." Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam); see
Terry v. Ohio, 392 U.S. 1, 21-22 (1968). A reasonable, articulable
suspicion is "‘a particularized and objective basis’ for suspecting the
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person stopped of criminal activity." Ornelas, 517 U.S. at 696 (quot-
ing United States v. Cortez, 449 U.S. 411, 417 (1981)). In determin-
ing whether a detention is supported by reasonable suspicion, we look
to the circumstances known to the officer and "the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience." Terry, 392 U.S. at 27. In so doing, we must consider "the
totality of the circumstances—the whole picture." Cortez, 449 U.S. at
417.
A.
Emphasizing the general principle that individuals have a right to
avoid encounters with the police, see, e.g., United States v. Burton,
228 F.3d 524, 527, 528-29 (4th Cir. 2000), Smith asserts that a motor-
ist "should be free to avoid a police encounter at [a] roadblock by
stopping and turning around, so long as he does so legally." Br. of
Appellant at 21. Smith argues that a motorist’s legal turn to avoid a
police roadblock cannot create reasonable suspicion of criminal activ-
ity because the driver may be turning away from the roadblock for
innocent reasons. By contrast, the Government maintains that when
police reasonably suspect that a driver is attempting to avoid a road-
block, they may stop the driver to ascertain the reason for that avoid-
ance.
We find instructive the decision of the Supreme Court in Illinois
v. Wardlow, 528 U.S. 119 (2000). In Wardlow, two Chicago police
officers were part of a police caravan patrolling a high-crime area
investigating drug transactions. See Wardlow, 528 U.S. at 121. One
officer observed Wardlow standing next to a building holding an
opaque bag. See id. at 121-22. Wardlow looked in the officers’ direc-
tion and fled. See id. at 122. The officers followed Wardlow in their
patrol vehicle and eventually stopped him. See id. Upon conducting
a protective patdown search of Wardlow, the officers discovered a
loaded handgun in Wardlow’s bag and arrested him. See id. After
moving unsuccessfully to suppress the handgun, Wardlow was con-
victed of a weapons charge in Illinois state court. See id. The Illinois
appellate courts, however, reversed Wardlow’s conviction on Fourth
Amendment grounds, holding that the weapon should have been sup-
pressed because the officers lacked reasonable suspicion to stop
Wardlow. See id. at 122-23.
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The Supreme Court reversed. The Court initially noted that
Wardlow’s presence in a high-crime area, while not dispositive, was
a relevant factor in the reasonable suspicion analysis. See id. at 124.
The Court explained that "officers are not required to ignore the rele-
vant characteristics of a location in determining whether the circum-
stances are sufficiently suspicious to warrant further investigation."
Id. More importantly, the Court recognized, the officers became
suspicious of Wardlow based on "his unprovoked flight upon noticing
the police." Id. Noting that "nervous, evasive behavior is a pertinent
factor in determining reasonable suspicion," the Court emphasized
that "[h]eadlong flight—wherever it occurs—is the consummate act
of evasion: It is not necessarily indicative of wrongdoing, but it is cer-
tainly suggestive of such." Id. The Court thus determined that the offi-
cers were "justified in suspecting that Wardlow was involved in
criminal activity, and, therefore, in investigating further." Id. at 125.
The Supreme Court observed that its holding was consistent with
the principle that "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." Id. (citing Florida v.
Royer, 460 U.S. 491, 498 (1983)). The Court explained that the case
before it—involving an individual who fled upon seeing police—was
different from cases in which an individual merely chooses not to talk
to police and continues his normal activities:
[U]nprovoked flight is simply not a mere refusal to cooper-
ate. Flight, by its very nature, is not "going about one’s busi-
ness"; in fact, it is just the opposite. Allowing officers
confronted with such flight to stop the fugitive and investi-
gate further is quite consistent with the individual’s right to
go about his business or to stay put and remain silent in the
face of police questioning.
Id.
Wardlow also rejected the argument that flight from police cannot
establish reasonable suspicion of criminal activity because that flight
may be motivated by innocent reasons. The Court pointed out that the
conduct observed by the officers in Terry—two individuals pacing in
front of a store, peering into the window, and conferring with each
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other—"was ambiguous and susceptible of an innocent explanation."
Id. Nevertheless, because this conduct "also suggested that the indi-
viduals were casing the store for a planned robbery," Terry held that
the officers could stop the individuals "to resolve the ambiguity." Id.
"In allowing such detentions," the Court explained, "Terry accepts the
risk that officers may stop innocent people." Id. at 126.
We believe that the principles of Wardlow apply to evasive conduct
by drivers approaching a police roadblock. As with an individual who
encounters police on foot, "[h]eadlong flight" or other "nervous, eva-
sive behavior" in response to a roadblock may contribute to reason-
able suspicion that the driver is engaged in criminal activity. Id. at
124. Such evasive behavior is "not going about one’s business," id.
at 125 (internal quotation marks omitted), but instead suggests that
the driver is avoiding the roadblock for other than innocent reasons,
see id. at 124-25. Indeed, we have repeatedly recognized that evasive
reactions to the presence of police may be considered in determining
whether reasonable suspicion exists for an investigatory stop. See
United States v. Sims, 296 F.3d 284, 287 (4th Cir. 2002) (holding that
defendant’s evasive behavior—which reasonably suggested he was
hiding from officers and not simply "going about his business"—
supported finding of reasonable suspicion for investigatory stop
(alteration & internal quotation marks omitted)); United States v. Bru-
gal, 209 F.3d 353, 360-61 (4th Cir. 2000) (en banc) (plurality opin-
ion) (concluding that officers had reasonable suspicion to stop vehicle
that immediately exited interstate after passing "decoy" signs indicat-
ing drug checkpoint was ahead, in part because area surrounding exit
was deserted when vehicle exited at 3:30 a.m.); United States v.
Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997) ("Evasive conduct can,
of course, assist an officer in forming reasonable suspicion."); see
also United States v. Humphries, 372 F.3d 653, 657, 660 (4th Cir.
2004) (explaining, in context of probable cause analysis, that officers
may consider "evasive conduct that falls short of headlong flight,"
such as walking away from approaching officers at a quick pace and
ignoring commands to stop). We therefore hold that when law
enforcement officers observe conduct suggesting that a driver is
attempting to evade a police roadblock—such as unsafe or erratic
driving or behavior indicating the driver is trying to hide from officers
—police may take that behavior into account in determining whether
there is reasonable suspicion to stop the vehicle and investigate the
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situation further. See United States v. Montero-Camargo, 208 F.3d
1122, 1138-39 (9th Cir. 2000) (en banc) (holding that U-turn of
defendants’ vehicles shortly before reaching border checkpoint, com-
bined with other factors, including fact that vehicle subsequently
stopped on side of highway in isolated area, provided reasonable sus-
picion for investigatory stop); United States v. Duguay, 93 F.3d 346,
351 (7th Cir. 1996) (holding that defendant’s apparent attempt to
avoid roadblock by turning into parking lot was a factor supporting
reasonable suspicion to stop vehicle); see also United States v.
Brignoni-Ponce, 422 U.S. 873, 884-85 (1975) (explaining that among
other factors officers may consider in determining whether reasonable
suspicion exists to stop a vehicle near the border, "[t]he driver’s
behavior may be relevant, as erratic driving or obvious attempts to
evade officers can support a reasonable suspicion").
B.
Having concluded that evasive behavior by a motorist approaching
a police roadblock may contribute to a reasonable suspicion of crimi-
nal activity, we now consider whether, based on the totality of the cir-
cumstances here, the officers possessed a reasonable suspicion that
Smith was engaged in criminal activity. For the reasons that follow,
we conclude that they did.
The officers observed Smith’s vehicle brake abruptly and turn sud-
denly into a private gravel driveway. Smith’s erratic driving and the
nature of the road onto which he turned could have reasonably sug-
gested to the officers that Smith was attempting to evade the road-
block rather than simply "going about [his] business," Wardlow, 528
U.S. at 125 (internal quotation marks omitted). See Steinbeck v. Com-
monwealth, 862 S.W.2d 912, 914 (Ky. Ct. App. 1993) (finding rea-
sonable suspicion for investigatory stop when, at 3:15 a.m.,
defendant’s vehicle turned onto unpaved and uninhabited road before
reaching roadblock). Upon further investigation, Officer McCoy
observed Smith’s vehicle stopped in the middle of the driveway, more
than 200 feet from the public road but still some distance from the
residence. McCoy could have reasonably inferred from this observa-
tion that Smith was attempting to evade the police checkpoint by hid-
ing in the driveway and was not simply turning into the driveway
because he lived there or because he was turning around to avoid the
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checkpoint for innocent reasons, such as a belief that an accident was
ahead. See Smith v. State, 515 So. 2d 149, 150, 151 (Ala. Crim. App.
1987) (holding that investigatory stop of defendant’s vehicle was jus-
tified when officer observed vehicle come around a curve approxi-
mately 200 yards from roadblock, turn rapidly into a private
driveway, and stop 50 feet from a residence with its lights off but
engine running); State v. D’Angelo, 605 A.2d 68, 70-71 (Me. 1992)
(finding reasonable suspicion when defendant’s vehicle turned into
private driveway 75 yards before checkpoint, officer knew some resi-
dents of home but had never seen defendant’s vehicle parked there,
and occupants of vehicle did not exit after stopping engine and turn-
ing off lights but instead turned to observe police activities); State v.
Foreman, 527 S.E.2d 921, 922-23 (N.C. 2000) (concluding that offi-
cer possessed reasonable suspicion when defendant’s vehicle made
abrupt turn before reaching checkpoint, made second abrupt turn, and
parked in residential driveway with its lights and engine off).4 And
although McCoy had activated his police lights, Smith’s vehicle did
not remain stopped—as one would expect of a driver who turned
away from the roadblock for innocent reasons—but instead proceeded
around the curve in the driveway. As the district court recognized,
this additional evasive behavior gave McCoy further reason to believe
that Smith might be engaged in criminal activity. See Watkins v. City
of Southfield, 221 F.3d 883, 889 (6th Cir. 2000) ("[T]he fact that [the
defendant] refused to stop when [officers turned on their police lights]
contributed to the officers’ suspicion that criminal activity may have
been afoot."); United States v. Lyles, 946 F.2d 78, 80 (8th Cir. 1991)
(considering, in reasonable suspicion analysis, the fact that "[w]hen
the officers stopped behind the [defendants’] car and turned on the
flashing red lights, the car began to drive away"); United States v.
Walraven, 892 F.2d 972, 975-76 (10th Cir. 1989) (holding that rea-
sonable suspicion existed for investigatory stop in part because vehi-
cle failed to stop promptly in response to police lights). Thus, by the
time Smith finally submitted to McCoy’s display of authority by stop-
ping at the end of the driveway, McCoy had observed Smith engage
in a series of evasive actions—all inconsistent with innocent reasons
4McCoy could not recall whether Smith’s vehicle lights were off when
he was stopped before the curve in the driveway, but McCoy testified
that Smith’s lights were off when he finally stopped at the end of the
driveway.
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for avoiding the roadblock.5 And, all of this conduct occurred at
3:05 a.m., compounding the suspiciousness of Smith’s behavior. See
United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993) (explain-
ing that "[t]he lateness of the hour is another fact that may raise the
level of suspicion"). We conclude that these facts, viewed in their
totality, provided the officers with reasonable suspicion that Smith
may have been engaged in criminal activity, thus permitting them to
stop his vehicle to investigate that suspicion.
5The district court concluded that because Smith moved his vehicle
around the curve in the driveway in response to McCoy’s police lights,
Smith was not seized for Fourth Amendment purposes until he finally
stopped at the end of the driveway. Smith challenges this finding, assert-
ing that he was seized when McCoy first pulled into the driveway
because at that point McCoy displayed his police lights and blocked
Smith from exiting the driveway. Smith thus contends that the district
court erred in considering the subsequent movement of his vehicle
around the curve as an additional factor supporting reasonable suspicion.
We reject this argument.
The Supreme Court has held that a suspect is not seized within the
meaning of the Fourth Amendment until officers apply physical force or
the suspect submits to a show of authority. See California v. Hodari D.,
499 U.S. 621, 626 (1991). When an officer asserts his authority but the
suspect does not yield to that authority, there is no seizure. See id.; see
also United States v. Scheetz, 293 F.3d 175, 183 (4th Cir. 2002) (holding
that defendant was not seized in connection with police checkpoint
because he executed an illegal U-turn to avoid checkpoint); United States
v. Lender, 985 F.2d 151, 154 (4th Cir. 1993) (explaining that an officer’s
"show of authority in calling for the defendant to stop is not a seizure
when the defendant does not yield to that authority"). When McCoy
pulled into the driveway behind Smith with his police lights visible,
Smith responded not by keeping his vehicle stopped but instead by driv-
ing it around the curve, apparently out of McCoy’s view. As the district
court recognized, although Smith may have been blocked in when
McCoy entered the driveway, there is no indication that, at the moment
he began driving the Lexus around the curve, Smith knew that the drive-
way dead-ended within a short distance. Also, after driving around the
curve, Smith likely could have exited the vehicle and attempted to flee
on foot. Thus, the district court did not err in concluding that Smith was
not seized until he finally submitted to McCoy’s show of authority by
stopping at the end of the driveway.
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Smith cites United States v. Ogilvie, 527 F.2d 330 (9th Cir. 1975),
and United States v. Lester, 148 F. Supp. 2d 597 (D. Md. 2001), in
arguing that his reaction to the roadblock, involving a legal turn off
the highway, could not create reasonable suspicion of criminal activ-
ity. But here, the officers observed a series of evasive actions by
Smith, while no such facts were present in either Ogilvie or Lester.
The defendant in Ogilvie simply exited the interstate before reaching
a roadblock, drove over the overpass, and resumed traveling in the
opposite direction. See Ogilvie, 527 F.2d at 331. The Ninth Circuit
emphasized that "Ogilvie’s actions in turning off the highway and
turning around were not in themselves suspicious" and that no evi-
dence showed that "Ogilvie drove fast, as if running away, disobeyed
any traffic laws, or otherwise drove in an unusual or erratic manner."
Id. at 332; see Montero-Camargo, 208 F.3d at 1137 (explaining that
"Ogilvie simply holds that a turnaround alone is not enough in and of
itself to create reasonable suspicion," but that later Ninth Circuit deci-
sions had made clear that "a turnaround combined with other factors
may be considered as part of a reasonable suspicion analysis"). Simi-
larly, in Lester, there was no evidence that the defendant—who exe-
cuted a U-turn before reaching a military checkpoint—drove
erratically or unsafely or "display[ed] any other behavior that rose to
the level of suspicion necessary to justify a Terry stop." Lester, 148
F. Supp. 2d at 605.6
6Smith also cites a number of state decisions that he claims "have gen-
erally followed the rule of Lester and Ogilvie." Br. of Appellant at 13.
We note that most of these decisions turn on their specific facts and gen-
erally distinguish between situations in which the record reflects evasive
conduct by the defendant and those in which it does not. Moreover,
Smith emphasizes two factors that some of these decisions have identi-
fied as relevant to determining whether a driver is attempting to evade
a roadblock: (1) the distance between the driver’s turn and the roadblock
(here, 810 feet) and (2) whether notice of the roadblock was posted (here,
it was not). Although these factors might be important in other cases, we
decline to place significant weight on them here. The officers’ observa-
tions of Smith’s multiple evasive actions in response to the presence of
police strongly suggested that he was attempting to avoid the roadblock
for other than innocent reasons.
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III.
For the reasons set forth above, we affirm the order of the district
court denying Smith’s motion to suppress evidence.
AFFIRMED
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