United States Court of Appeals

For the Eighth Circuit

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No. 12-2264

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jeremiah D. Cotter

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: November 15, 2012

 Filed: December 12, 2012

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Before SMITH, BEAM, and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Jeremiah Cotter was convicted of one count of being a felon in possession of

a firearm based on evidence police officers obtained following a pat-down search

outside a home in Independence, Missouri. On appeal, Cotter argues the district
court erred in denying his motion to suppress the evidence and statements obtained 1

as a result of the search because the officers did not have a reasonable articulable

suspicion that criminal activity was afoot or that Cotter was armed and dangerous. 

For the following reasons, we affirm the district court’s denial of Cotter’s motion to

suppress.

On June 16, 2011, Officers Jeremie Stauch and Logan Waterworth of the

Independence Police Department responded to a call to check on the well-being of

two females at 1217 South Willow Avenue, an address where police had received

previous complaints of illegal drug activity and stolen vehicles. When the officers

arrived at the residence, they saw a man—later identified as Cotter—working on the

stereo speakers of a Cadillac parked in the driveway. As the officers approached the

house, Cotter told them he was working on the speakers for a friend named Matt. 

Officer Stauch then knocked on the door and spoke to one of the females who wasthe

subject of the original police call. After confirming the woman’s well-being, Officer

Stauch asked about Cotter, and the woman told him that she did not know Cotter and

did not know to whomthe vehicle belonged. Meanwhile, Officer Waterworth radioed

in the license plate number for the vehicle in the driveway and was informed that the

plates were registered to a Chevrolet, not a Cadillac. After Officer Stauch finished

talking to the woman at the house, Officer Waterworth told him about the license

plate discrepancy, and the two officers decided to ask for Cotter’s name and

identification. Initially, Cotter told the officers that his name was “Michael Cotter,”

but he said he did not have any form of identification and hesitated when the officers

asked himto provide his date of birth. According to the officers, Cotter also appeared

nervous and shaky during the encounter and reached inside the vehicle.

The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri, adopting the Report and Recommendations of the Honorable

John T. Maughmer, United States Magistrate Judge for the Western District of

Missouri.

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At that point, Officer Stauch performed a protective frisk of Cotter and felt

what he believed to be the butt of a handgun tucked into Cotter’s front waistband. 

The officers removed the gun from Cotter’s waistband, placed Cotter under arrest,

and put him in handcuffs. Officer Stauch then led Cotter to his patrol car and again

asked Cotter for his name. At that point, Cotter gave the officer his social security

number and said that his first name was Jeremiah. Officer Stauch then ran Cotter’s

social security number, discovered Cotter had two outstanding arrest warrants, and

transported Cotter to the police station. Subsequently, Officer Stauch learned that

Cotter had a prior felony conviction.

A federal grand jury returned an indictment charging Cotter with one count of

being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Cotter moved

to suppress the discovery of the gun, statements he made at the scene regarding the

ownership of the gun, and statements he made at the police station after officers

informed him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). On

January 3, 2012, the district court denied Cotter’s motion, with the exception of the

statement made at the scene prior to any Miranda warnings. Two days after the

denial of his motion, Cotter entered a conditional guilty plea, reserving his right to

appeal the denial of his suppression motion.

In reviewing a motion to suppress, we review questions of law de novo but

review the “underlying factual determinations for clear error, giving due weight to

inferences drawn by law enforcement officials.” United States v. Mabery, 686 F.3d

591, 595 (8th Cir. 2012). “We will affirm the district court ‘unless the denial of the

motion “is unsupported by substantial evidence, based on an erroneous interpretation

of the law, or, based on the entire record, it is clear that a mistake was made.”’” 

United States v. Zamora-Lopez, 685 F.3d 787, 789 (8th Cir. 2012) (quoting United

States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008)).

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“[A]n officer may, consistent with the Fourth Amendment conduct a brief

investigatory stop when the officer has reasonable articulable suspicion that criminal

activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). In addition, if the

officer reasonably believes the person with whom he is dealing is armed and

dangerous, he is permitted to conduct a protective search of the person’s outer

clothing, and any weapons seized as the result of such a search “may properly be

introduced in evidence against the person from whom they were taken.” Terry v.

Ohio, 392 U.S. 1, 30-31 (1968). However, such a search requires more than an

officer’s “inchoate and unparticularized suspicion or ‘hunch.’” Id. at 27. Instead, the

officer conducting the search “must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

that intrusion.” Id. at 21. “In determining whether reasonable suspicion exists, we

consider the totality of the circumstances in light of the officers’ experience and

specialized training.” United States v. Preston, 685 F.3d 685, 689 (8th Cir. 2012)

(quoting United States v. Davis, 457 F.3d 817, 822 (8th Cir. 2006)). Further, “[t]he

officer need not be absolutely certain that the individual is armed; the issue is whether

a reasonably prudent man in the circumstances would be warranted in the belief that

his safety or that of others was in danger.” Terry, 392 U.S. at 27. If, however, the

officers conduct an illegal search or detention, physical evidence from the search as

well as verbal evidence obtained from the detention must be excluded as the “fruits”

of the officers’ unlawful action. Wong Sun v. United States, 371 U.S. 471, 484-85

(1963).

Here, Cotter contends that Officers Stauch and Waterworth lacked reasonable

articulable suspicion that criminal activity was afoot or that Cotter was armed and

dangerous. Cotter argues that several of the actions described by the officers—for

example, Cotter’s nervous demeanor—also have innocent explanations. Considering

the totality of the circumstances, however, the officers had reasonable articulable

grounds to suspect that criminal activitywas afoot. After the officers observed Cotter

working on a car outside a home with a history of illegal drug activity and stolen

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automobile complaints, one of the residents of the home told Officer Stauch that she

did not know Cotter and did not know to whom the vehicle belonged. At the same

time, a vehicle records search revealed that the plates on the vehicle were registered

to a different automobile. As the officers approached Cotter, he was reaching inside

the vehicle. Then, as they spoke to him, he appeared nervous and shaky throughout

the encounter and hesitated when the officers asked him for his date of birth. 

Although there could be an innocent explanation for each individual action, when

taken together with rational inferences from those facts, it was reasonable for the

officers to suspect that the vehicle was stolen. See United States v. Hanlon, 401 F.3d

926, 929 (8th Cir. 2005) (explaining that “[defendant’s statement about the truck’s

ownership] wasinconsistent with the truck’s registration status[, and w]hen combined

with [defendant’s] extreme nervousness, profuse shaking, and refusal to look [the

officer] in the eye, this inconsistency was sufficient to create a reasonable suspicion

that the truck might be stolen.”). “Accordingly, because [the officer] already had a

reasonable suspicion that [Cotter] might have stolen the [vehicle], [the officer] also

was justified in suspecting that [Cotter] might possess weapons.” Id. at 929-30. 

Thus, the officers conducted a proper Terry stop. Because the Terry stop was proper,

the district court also did not err in refusing to suppress Cotter’s subsequent

Mirandized confession, as it was not the fruit of a poisonous tree.

For these reasons, we affirm.

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