UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4719

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SHUN J. DIGGS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Frank D. Whitney,

District Judge. (3:06-cr-00015-FDW)

Submitted: January 11, 2008 Decided: January 23, 2008

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Peter Adolf, Ann L. Hester,

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Gretchen C.F. Shappert, United States

Attorney, Adam Morris, Assistant United States Attorney, Charlotte,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Shun J. Diggs pled guilty to possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000),

and was sentenced to 59 months’ imprisonment. Diggs appeals his

conviction and sentence. Finding no reversible error, we affirm.

Diggs argues the district court erred in denying his

motion to suppress evidence seized after officers stopped, frisked

and searched him. This court reviews the district court’s factual

findings underlying a motion to suppress for clear error, and the

district court’s legal determinations de novo. Ornelas v. United

States, 517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d

868, 873 (4th Cir. 1992). The evidence is construed in the light

most favorable to the prevailing party below. United States v.

Seidman, 156 F.3d 542, 547 (4th Cir. 1998). 

Diggs first alleges the officers lacked reasonable

suspicion to stop and frisk him. Under Terry v. Ohio, 392 U.S. 1,

21-22, 27 (1968), an officer may seize a person if the officer can

articulate reasonable suspicion that the person has just committed

or is about to commit a crime, and the officer may pat-down the

person’s outer clothing for weapons if the officer reasonably

believes that the person may be armed. Reasonable suspicion

requires more than a hunch but less than probable cause and may be

based on the collective knowledge of officers involved in an

investigation. See United States v. Hensley, 469 U.S. 221, 232
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(1985). In assessing whether an officer possesses more than a mere

hunch to justify a stop, a reviewing court must credit the

“practical experience of officers who observe on a daily basis what

transpires on the street.” United States v. Lender, 985 F.2d 151,

154 (4th Cir. 1993). Factors which by themselves suggest only

innocent conduct may amount to reasonable suspicion when taken

together. United States v. Arvizu, 534 U.S. 266, 274-75 (2002);

United States v. Sokolow, 490 U.S. 1, 9-10 (1989).

When reviewing the totality of the circumstances,

relevant behavior includes whether the stop occurred in a

high-crime area, and whether the suspect seemed nervous or evasive.

United States v. Mayo, 361 F.3d 802, 805-06 (4th Cir. 2004). In

Mayo, this court found sufficient reasonable suspicion that

criminal activity was afoot based on the following facts: (1) the

encounter occurred in a high-crime area; (2) after seeing the

officers, the defendant put his hand in his pocket and appeared to

be supporting something heavy; (3) the defendant turned away from

the officers and headed in another direction; and (4) the defendant

displayed nervous behavior. Id. at 807-08. 

Here, Agent Andrew Cheramie of the Bureau of Alcohol,

Tobacco, Firearms and Explosives was conducting surveillance of a

high crime area and noticed Diggs and two other individuals

loitering around different areas over a period of time without an

obvious purpose. Agent Cheramie then contacted uniformed Charlotte
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Mecklenburg police officers Christopher Miller and Anthony Hall,

who were working with him on a robbery prevention task force, and

advised them to follow-up with the individuals. When the officers

arrived to the area, Diggs and the other two individuals split up

to go separate directions, which based on Officer Miller’s

experience, was done in an attempt to elude police or gain a

tactical advantage over officers. When Officer Miller asked Diggs

where he was going, he stated he was going home but pointed in the

opposite direction than he had been walking. 

Officer Miller noticed a bulge in Diggs’ pocket.

Although Diggs initially stated he had identification, when Officer

Miller asked to see it, Diggs reached into that pocket and

immediately withdrew his hand, stating he did not have

identification. Officer Miller was thus lead to believe Diggs was

hiding something. Officer Miller also testified Diggs’ eye

movements and body language suggested he was looking for a way to

run and that “wasn’t just a hunch or suspicion . . . I was pretty

certain that I was dealing with somebody who was engaged in

criminal activity.” 

We find, construing the evidence in the light most

favorable to the Government, that the district court did not err in

finding that the officers had reasonable suspicion to stop and

frisk Diggs based on the totality of the circumstances. 
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Diggs next contends that his raising his arms up when

Officer Miller asked if he could search him did not amount to

consent to the search of his person. Whether a defendant consents

to a search is a factual question determined under the totality of

the circumstances and reviewed under the clearly erroneous

standard. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49

(1973); United States v. Jones, 356 F.3d 529, 533 n.* (4th Cir.

2004). The Government has the burden of proving that consent was

freely and voluntarily given. Schneckloth, 412 U.S. at 222. 

This court has previously recognized that consent can be

inferred from the physical actions of a suspect. See United States

v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990). In Wilson, the

suspect had been stopped by a Drug Enforcement Agent in one of the

Washington, D.C., area airports. Id. The agent was searching

Wilson’s bag when he noticed a suspicious bulge in Wilson’s pants.

Id. He then asked Wilson if he could search his person. Wilson

responded by “shrugg[ing] his shoulders and extend[ing] his arms.”

Id. We found this conduct sufficient to convey consent.

Similarly, here, Officer Miller noticed a bulge in Diggs’

pocket and asked Diggs if he had any weapons. Diggs stated he did

not have any weapons. Officer Miller then asked, “[d]o you mind if

I search?” Diggs made no verbal response but raised his arms up.

We find that based on the absence of evidence of threats, force, or

physical intimidation, which Diggs has not alleged, Diggs’ raising
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of his arms constituted a voluntary consent to search his person.

See Wilson, 895 F.2d at 170. Accordingly, the district court did

not clearly err in finding Diggs consented to the search and

therefore denying the motion to suppress.

Finally, Diggs contends the district court erred by

enhancing his sentence for possessing a stolen firearm based on

hearsay evidence. However, Diggs’ claims fails, because hearsay

evidence is admissible at sentencing. See United States v. Love,

134 F.3d 595, 607 (4th Cir. 1998).

Accordingly, we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED