UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4058

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

IAN MCDONALD,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. William D. Quarles, Jr., District Judge.

(1:05-cr-00146-WDQ)

Submitted: December 11, 2006 Decided: January 4, 2007

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Maryland, for

Appellant. Rod J. Rosenstein, United States Attorney, Andrew G. W.

Norman, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Following trial, a jury found Ian McDonald guilty of

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1) ("Count One"); possession with intent to

distribute cocaine base in violation of 21 U.S.C. 841(a)(1) ("Count

Two"); possession of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c) and aiding and abetting in

violation of 18 U.S.C. § 2 ("Count Three"). On appeal, McDonald

argues that the district court erred in denying his motion to

suppress cocaine and a firearm seized from his person and his

vehicle. McDonald also appeals the district court’s admission of

testimony at trial that on prior occasions he had been convicted of

possession with intent to distribute narcotics and arrested for the

unlawful possession of a firearm. For the reasons that follow, we

affirm.

I.

At a hearing on the suppression motion, Officer Richard Watts

of the Baltimore Police Department testified that during the early

morning hours of October 21, 2005, he responded to a call reporting

an armed robbery. Arriving at the scene less than five minutes

later, Officer Watts interviewed the victim, George Treas. Mr.

Treas stated that a black male had stepped out of a white vehicle,

pointed a handgun at him, and demanded property. Mr. Treas
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believed the vehicle to be a Mazda, and recalled a partial tag

number of MJK. Officer Watts broadcast the information via radio

dispatcher, and returned to the streets to look for the vehicle.

Shortly thereafter he spotted a white Mazda in a gas station

parking lot less than three blocks away bearing a license plate

number MTK340. A black male was standing outside the vehicle; he

then got into the driver’s seat. Officer Watts alerted other

Baltimore police officers, who converged on the vehicle. One of

the officers, Mark Bergeron, testified to observing a handgun on

the front passenger seat. McDonald was arrested and searched, and

the police recovered approximately 4.9 grams of cocaine and $687.00

from his person. The handgun was found to be loaded with several

rounds of live ammunition. McDonald moved to suppress this

evidence. 

The district court denied the motion. The court found that

the officers were entitled to stop McDonald under Terry v. Ohio,

392 U.S. 1 (1968). The court went on to note that “[t]he officers

were where they had a right to be--that is, conducting an

investigative stop. While being where they had a right to be, they

saw, in plain view, at least through the eyes of Officer Bergeron,

a weapon that gave probable cause to believe that there had been a

violation of the weapons laws. The arrest and search incident to

that arrest were also lawful.” J.A. 105. 
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Prior to trial, pursuant to Federal Rule of Evidence 404(b),

the government notified McDonald of its intent to introduce

evidence that on two prior occasions he had unlawfully possessed

narcotics with intent to distribute, and on one occasion had

unlawfully possessed a firearm. McDonald filed a motion in limine

objecting to the introduction of such evidence. The district court

denied this motion as well, ruling that the probative value of the

evidence outweighed its potential for prejudice. 

II.

On appeal, McDonald challenges the denial of the motion to

suppress and the denial of his motion in limine with respect to the

proffered evidence. We consider each issue in turn.

A.

McDonald argues that the police did not have a reasonable

basis to stop him on these facts. In evaluating the denial of a

motion to suppress, we review legal conclusions de novo and factual

findings for clear error. We view the evidence in the light most

favorable to the prevailing party below--here, the government.

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

The Fourth Amendment requires that a brief, investigatory stop

of an individual be supported by "a reasonable, articulable

suspicion that criminal activity is afoot." Illinois v. Wardlow,
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528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). The

reasonable suspicion standard is “a less demanding standard than

probable cause and requires a showing considerably less than a

preponderance of the evidence.” Wardlow, 528 U.S. at 123.

In deciding whether an officer had the requisite reasonable

suspicion to conduct an investigatory stop, courts apply an

objective test rather than examining the subjective beliefs of the

investigating officer. Id. The “[r]easonable suspicion standard

is a commonsensical proposition. Courts are not remiss in

crediting 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). The Supreme Court has

recognized that individual factors consistent with innocent travel

can, when taken together, give rise to reasonable suspicion.

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

We conclude that a policeman in Officer Watts’s position would

have had an objectively reasonable suspicion that the car McDonald

was driving was connected with the recent robbery--i.e., that

criminal activity was afoot. Officer Watts was looking for a black

male in a white Mazda and had a partial description of the license

plate. He encountered McDonald only several minutes later and less

than three blocks away standing next to a white Mazda bearing a

license plate with some of the same letters. Although there were

discrepancies between the description given by Mr. Treas and Mr.
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McDonald’s actual appearance, Officer Watts testified that victims

who have undergone life-threatening experiences may confuse details

about their assailants. We conclude that the factors on which the

officers relied, taken together, give rise to reasonable suspicion

sufficient to justify the stop under Terry.

B.

We now consider McDonald’s claims regarding the admissibility

of the evidence of his prior arrest and convictions. Federal Rule

of Evidence 404(b) provides for the introduction of “[e]vidence of

other crimes, wrongs or acts” to prove matters other than

propensity, such as “motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.”

Fed. R. Evid. 404(b). We have consistently interpreted the rule as

one of inclusion, not exclusion, noting that it “admits all

evidence of other crimes (or acts) relevant to an issue in a trial

except that which tends to prove only criminal disposition.”

United States v. Masters, 622 F.2d 83, 85 (4th Cir.

1980)(quotations omitted). Evidence of other bad acts may be

introduced if such evidence is "(1) relevant to some issue other

than character, (2) necessary, and (3) reliable." United States v.

Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988); see also United States

v. Hadaway, 681 F.2d 214, 217 (4th Cir. 1982). Evidence is

necessary, even if it does not relate to an element of a charged
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offense, “when it furnishes part of the context of the crime.”

United States v. Wells, 163 F.3d 889, 896 (4th Cir. 1998) (citation

omitted). Of course, evidence which is offered for a proper

purpose under Rule 404(b) may still be excluded “if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Fed. R. Evid. 403; see also

Masters, 622 F.2d at 87.

There was no violation of Rule 404(b) here. McDonald argues

that because he took the stand and acknowledged possessing cocaine

with intent to distribute, evidence of his prior convictions for

drug offenses and arrest for unlawful possession of a gun was

unecessary and prejudicial. This argument fails for two reasons.

First, the government plausibly contends that it had no way to

know, prior to trial, that McDonald, who consistently maintained

his innocence, intended to make such a concession. Evidence that

McDonald possessed and distributed drugs in the past was clearly

relevant to the issue of his intent to do so here.

Moreover, McDonald’s belated concession conveniently overlooks

the presence of the gun recovered from his car. Count One, the

felon in possession charge under § 922(g)(1), and Count Three, the

possession of a firearm in furtherance of a drug trafficking crime

under § 924(c), both turn on the knowing possession of a firearm.
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We conclude that evidence that McDonald had previously been

arrested for the possession of a firearm was relevant to his

knowledge and intent to possess the handgun recovered here. 

III.

For the foregoing reasons, we affirm. 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