PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-4462

PAUL RAMON GLOVER,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert J. Conrad, Jr., Chief District Judge.

(3:09-cr-00083-RJC-1)

Argued: October 28, 2011

Decided: December 9, 2011

Before WILKINSON, KING, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge King and Judge Diaz joined.

COUNSEL

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF

WESTERN NORTH CAROLINA, INC., Asheville, North

Carolina, for Appellant. Richard Lee Edwards, OFFICE OF

THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, Peter S. Adolf, Assistant Federal Defender,

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne

M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Paul Glover entered a conditional plea of guilty to being a

felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). He now appeals the denial of his motion to suppress evidence obtained during a stop-and-frisk in a deserted

gas station parking lot in the wee hours of the morning. For

the reasons that follow, we affirm the district court’s denial of

Glover’s suppression motion.

I.

In the early morning hours of March 24, 2009, Officers

Aaron Skipper and Travis Archer of the CharlotteMecklenburg Police Department were patrolling the Eastway

Division of Charlotte, North Carolina in a marked police car.

Each officer had been with the police department for six years

and was familiar with the area. Officer Skipper had patrolled

the Eastway Division since early 2004 and Officer Archer had

been assigned to the area for his entire six years on the force.

Based on their past experience as well as their nightly briefings on criminal activity, both officers knew that the Eastway

Division was plagued by armed robberies and assaults.

Around 4:40 a.m., the officers pulled into a twenty-four

hour gas station located at the intersection of Westover Street

and Central Avenue. Both officers were familiar with this

facility. Approximately one year earlier, Officer Skipper had

2 UNITED STATES v. GLOVER
investigated a robbery of this particular gas station and Officer Archer knew that it had been previously robbed as well.

Officer Skipper was also aware that in the early hours of the

morning, this gas station remained open for business even

though its doors were locked. Usually a single attendant

would be on duty during these hours and he would either let

one customer into the building at a time or deal with customers through a slot in the glass similar to a bank teller’s window.

On this occasion, however, the officers noticed that the

attendant was outside the protection of the locked building.

As Officer Skipper observed, he was instead bent down in the

parking lot and "preoccupied" with using a large dipstick to

check the levels of the fuel tanks. There were no vehicles in

the parking lot at this time.

Aside from the attendant, the only person in the area was

Glover, who was standing at the back corner of the station and

appeared to be talking on a cell phone while watching the

attendant. Glover’s location caught the attention of Officer

Skipper, who knew from investigating a previous robbery that

this area was not covered by the gas station’s surveillance

cameras. Officer Archer also noticed Glover "glancing around

the corner" and then pulling "his head back as if he were trying to hide." According to the officers, Glover and the attendant were about forty-five to sixty feet apart at the time.

The officers pulled into the back parking lot from a side

entrance and then drove around to the front as if they were

exiting onto Central Avenue. As they drove through the lot,

Glover "followed [their] movements with his eyes and head."

The officers agreed that Glover’s observation of the attendant

was suspicious and they were concerned about the possibility

of "[t]he store being robbed." Officer Skipper suggested that

they "should get out and speak with" Glover to "find out what

he was doing."

UNITED STATES v. GLOVER 3
So instead of leaving, the officers circled back around and

drove again into the station’s back parking lot. In the approximately five to six seconds they were out of Glover’s sight, he

had traversed the forty-five to sixty feet that had previously

separated him from the attendant and was, as Officer Archer

observed, "standing, basically, over top of him." The attendant was "still bent down checking the fuel levels" and

appeared to be unaware that Glover was standing only a foot

or two away from him.

The officers parked the patrol car and walked over to

Glover and the attendant, who were neither engaged in a conversation nor making eye contact with one another. Concerned that Glover was "stalking the clerk" and "believ[ing]

him to have a weapon," Officer Skipper informed Glover that

he was going to pat him down and then proceeded to do so.

When he patted Glover’s right pants pocket, he felt an object

he believed was a gun barrel. Officer Skipper then retrieved

a handgun from Glover’s pocket and placed him under arrest.

In April 2009, a federal grand jury indicted Glover for

being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). Glover filed a pre-trial motion to suppress

the evidence seized at the gas station. The district court then

held a hearing on the issue during which it both heard testimony from Officers Skipper and Archer as well as viewed the

patrol car’s video recording of the incident. At the end of the

hearing, the district court denied Glover’s suppression

motion. Glover subsequently entered a conditional plea of

guilty and the district court sentenced him to sixty months in

prison. Glover now appeals the denial of his motion to suppress. 

II.

A.

Glover contends that the stop-and-frisk in the gas station

parking lot violated the Fourth Amendment because Officers

4 UNITED STATES v. GLOVER
Skipper and Archer lacked reasonable suspicion of criminal

activity. According to Glover, the fact that he was merely

standing near a gas station attendant in a high crime area is

not enough to create a reasonable suspicion that he was planning to commit a crime. This argument neglects the import of

the leading case in this area of law. In Terry v. Ohio, 392 U.S.

1, 24 (1968), the Supreme Court per Chief Justice Warren

held that the Fourth Amendment’s bar against unreasonable

searches and seizures does not prohibit police officers from

engaging in a brief stop-and-frisk necessary "to protect themselves and other prospective victims of violence in situations

where they may lack probable cause for an arrest." That is

exactly the situation we have here.

Terry provides a good illustration of the type of preventive

police action that complies with Fourth Amendment safeguards. While patrolling downtown Cleveland around 2:30

p.m., Officer McFadden noticed two men pacing back and

forth in front of a store and conferring with one another as

well as with a third man who soon left the area. Based in part

on his years of experience with the neighborhood, Officer

McFadden became suspicious that the men were casing the

store in preparation for a robbery. Concerned that they might

be carrying a gun, he followed the men, asked them what their

names were, and then briefly patted one of them down,

whereupon he discovered a revolver in the suspect’s coat

pocket. Id. at 5-7.

The Supreme Court upheld this conduct as constitutional.

Refusing to apply the Fourth Amendment in a manner that

might "exact a high toll in human injury," id. at 15, or "require that police officers take unnecessary risks," id. at 23, it

held that a protective stop-and-frisk is legitimate if a police

officer has a reasonable suspicion that a suspect "is armed and

presently dangerous to the officer or to others." Id. at 24. It

also held that Officer McFadden’s conduct met this standard.

Noting that while each of the suspects’ acts was "perhaps

innocent in itself," the Court concluded that "[i]t would have

UNITED STATES v. GLOVER 5
been poor police work indeed" for Officer McFadden to have

simply gone on his way and not to have investigated this

"possibly criminal behavior" further. Id. at 22-23. 

Since Terry, the Supreme Court has reaffirmed that engaging in a stop-and-frisk to prevent a crime from occurring is a

valid use of police authority. See, e.g., Michigan v. Long, 463

U.S. 1032, 1049 (1983) ("Our past cases indicate then that

protection of police and others can justify protective searches

when police have a reasonable belief that the suspect poses a

danger . . . ."); Adams v. Williams, 407 U.S. 143, 145 (1972)

("The Fourth Amendment does not require a policeman who

lacks the precise level of information necessary for probable

cause to arrest to simply shrug his shoulders and allow a

crime to occur . . . ."); see also United States v. Perkins, 363

F.3d 317, 326 (4th Cir. 2004) ("[T]he very point of Terry was

to permit officers to take preventive action and conduct investigative stops before crimes are committed, based on what

they view as suspicious—albeit even legal—activity.")

(emphasis in original). While this in practice means that officers can detain suspects for conduct that is "ambiguous and

susceptible of an innocent explanation," Terry and its progeny

permit reasonable stops in order "to resolve the ambiguity."

Illinois v. Wardlow, 528 U.S. 119, 125 (2000). 

This makes sense. Terry balanced the government’s interest

in protecting the public and the police from unnecessary risks

and a suspect’s interest in avoiding a brief frisk of his person.

See 392 U.S. at 20-25. When an officer has a reasonable suspicion that an armed robbery is about to occur, this balance

favors the government. Sparing a victim the trauma of being

held up with a gun—not to mention the possibility of being

injured or killed—as well as sparing an officer and suspect the

risk of an armed confrontation justifies the utilization of a

brief protective measure. The Constitution does not command

an officer to stand idly by and run the risk that a suspect will

commit a violent crime on his watch. See id. at 24 (holding

that it would be "clearly unreasonable to deny" a police offi6 UNITED STATES v. GLOVER
cer the ability to "neutralize the threat of physical harm" if he

has reasonable suspicion that a suspect is armed and dangerous). 

Because of its focus on police action designed to prevent an

armed robbery, we believe Terry to be relevant here. It is

more relevant than decisions upon which Glover relies,

because those decisions do not concern the imminent outbreak

of armed violence. Given that a reasonable suspicion inquiry

is "multi-faceted, ‘one determination will seldom be a useful

‘precedent’ for another,’" Ornelas v. United States, 517 U.S.

690, 698 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 238

n.11 (1983)), and this is particularly true when the decisional

contexts differ so markedly. United States v. Sprinkle, 106

F.3d 613, 615-18 (4th Cir. 1997), for instance, involved the

stop of a suspect believed to be in the middle of a drug deal

on a sunny afternoon in a crowded residential neighborhood.

United States v. Foster, 634 F.3d 243, 246-48 (4th Cir. 2011),

similarly concerned the stop of a driver believed to be

involved in drug activity in the middle of the day in a lowcrime area. These cases do not address how police should

respond to the threat of armed robbery in a deserted gas station parking lot in the middle of the night. We must therefore

look to Terry to guide our analysis.

B.

With Terry in mind, we now ask whether the facts of this

case created a reasonable suspicion that Glover was planning

to commit an armed robbery. As the Supreme Court has made

clear, "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be,

engaged in criminal activity." United States v. Cortez, 449

U.S. 411, 417 (1981). In making this inquiry, we consider the

totality of the circumstances. United States v. Sokolow, 490

U.S. 1, 8 (1989). Factors which alone may be "susceptible of

innocent explanation" can "form a particularized and objecUNITED STATES v. GLOVER 7
tive basis" for a stop when taken together. United States v.

Arvizu, 534 U.S. 266, 277-78 (2002).

After considering the totality of the circumstances, we

believe that Officers Skipper and Archer had reasonable suspicion to justify the stop-and-frisk of Glover. To start, the setting of the stop supports their suspicion that Glover was

planning to engage in an armed robbery. The high degree of

crime in an area and the lateness of the hour are each relevant

factors in a reasonable suspicion inquiry, Wardlow, 528 U.S.

at 124; United States v. Lender, 985 F.2d 151, 154 (4th Cir.

1993), and here we have both. The officers were patrolling the

Eastway Division of Charlotte, an area they both knew was

plagued by violent crime. As Officer Skipper later testified,

"[W]ithin the three months prior to the incident, we had over

300 larceny reports, over 100 vehicles stolen, over . . . 54 robberies, 17 kidnappings, 5 rapes and 4 homicides within 10

square miles." 

But the knowledge of the officers was even more precise

than this. The officers knew that the gas station itself was the

particular target of criminal activity. Officer Archer knew that

it had been robbed before and Officer Skipper himself had

investigated a previous robbery of this facility. Both officers

were therefore aware that this gas station was a tempting target before they set eyes on Glover. This is an important consideration. It cannot be conclusive, however, because the

nature of an area or facility does not furnish particularized

suspicion as to any individual suspect. The district court put

it best: while "the high crime nature of the area" does not

transform it into "a search zone," it is nevertheless a relevant

factor in a Terry analysis.

It is further relevant that Glover was watching the attendant

at a time when few people would be around. Whereas in Terry

Officer McFadden observed the suspects walking in front of

a store around 2:30 in the afternoon in downtown Cleveland,

the police here saw Glover watching a gas station attendant at

8 UNITED STATES v. GLOVER
4:40 in the morning in a deserted parking lot. The lateness of

the hour significantly lowered the risk that a robber would be

observed or reported. The fact these events took place at this

late hour only "compound[s] the suspiciousness" of Glover’s

behavior. See United States v. Smith, 396 F.3d 579, 586-87

(4th Cir. 2005).

We also note the vulnerability of the gas station attendant

himself. As the district court observed, "24 hour gas stations

like this are frequently targets of robbery," and it is not hard

to see why. The attendant was alone at the station and there

were only a few residences and a National Guard Armory

nearby. He was also unprotected. He had left the protective

confines of the locked building and, as Officer Skipper

observed, was "bent down checking the fuel levels." The

parking lot was completely deserted save for Glover and himself. And given that Glover was standing outside the range of

the surveillance cameras, the attendant would have been

unaware of his presence until after he had left the building.

Common sense would suggest that this lone attendant was a

candidate for a holdup. 

With this setting in mind, we now turn to Glover’s conduct.

The officers observed him standing in the back corner of the

station—a location that Officer Skipper knew fell outside the

range of the station’s surveillance cameras — and appearing

to be talking on his cell phone. Glover was obviously not

there to buy gas, as there were no cars in the parking lot. And

he did not appear to be interested in purchasing anything else

from the station, as he was not speaking with the attendant.

In fact, the attendant told Officer Archer following the stop

that "he did not know who this person was or why he was

there." Instead, Glover was watching the attendant, who was

busy checking the fuel tank levels.

What is more, Officer Archer noticed that Glover was

"glancing around the corner" and then "would pull his head

back as if he were trying to hide." Such "nervous, evasive

UNITED STATES v. GLOVER 9
behavior" supports the reasonableness of the officers’ belief

that Glover was preparing to commit a crime. See Wardlow,

528 U.S. at 124. While it is important not to overplay a suspect’s nervous behavior in situations where citizens would

normally be expected to be upset, see United States v.

Massenburg, 654 F.3d 480, 490 (4th Cir. 2011), Glover was

furtively watching the attendant from a location outside the

range of surveillance cameras, glancing around the corner,

and pulling his head back well before Officers Skipper and

Archer stopped the patrol car. Such conduct is far more like

the casing of the store in Terry than the case of nerves a citizen might ordinarily exhibit in interactions with police. 

Finally, we cannot ignore Glover’s actions as soon as the

police left his sight. As the patrol car drove through the parking lot, Glover remained in the back corner of the station and

followed the officers’ movements until they left. But as soon

as the police were gone, he suddenly left his location and

planted himself next to the attendant. Although the officers

were out of sight for only about five to six seconds, Glover

had covered a distance of forty-five to sixty feet. 

At this point, the attendant was in the most vulnerable position possible. He was outside of the protection of the locked

building and bent over checking the fuel tank levels in a

deserted parking lot. For all he and Glover knew, the police

had completed their patrol of the station and would not be

back for some time. Despite the fact that Glover was "standing, basically, over top of him," the two men were neither

making eye contact nor speaking to one another. As the district court concluded, Glover’s conduct suggests that he may

have been taking advantage of the most auspicious circumstances to commit a robbery.

Given the setting and the conduct, we believe Glover’s

actions were sufficient to create a reasonable suspicion that

"criminal activity [was] afoot." Wardlow, 528 U.S. at 123. In

Terry, the Supreme Court upheld a stop based on less threat10 UNITED STATES v. GLOVER
ening behavior. While the suspects in Terry were merely

walking back and forth in front of a store during the middle

of the afternoon, Glover moved suddenly toward a solitary

gas attendant in the wee hours of the morning once it

appeared that the police had left the scene. And whereas Officer McFadden stopped the suspects in Terry after they had

walked away from their potential target, 392 U.S. at 6-7, the

officers here intervened following Glover’s move toward the

attendant. On the basis of the record before us, we cannot see

how the stop-and-frisk here was anything other than good

police work that may well have prevented a man from being

robbed at gunpoint with all the unpredictable consequences

that such a volatile confrontation poses. As the Terry Court

noted: "It would have been poor police work indeed for an

officer of 30 years’ experience in the detection of thievery

from stores in this same neighborhood to have failed to investigate this behavior further." Id. at 23. Glover’s argument

ignores the import of the Supreme Court’s statement. 

III.

The stop-and-frisk of Glover was neither "the product of a

volatile or inventive imagination" nor "undertaken simply as

an act of harassment," but was instead "the tempered act of a

policeman who in the course of an investigation had to make

a quick decision as to how to protect himself and others from

possible danger, and took limited steps to do so." Id. at 28.

The Fourth Amendment does not preclude officers from taking modest steps to protect twenty-four hour gas stations, convenience stores, or fast-food outlets from armed robberies.

The clerks and attendants who keep these facilities open to the

public late at night often do so at considerable risk to their

own safety. They often work solitary shifts in isolated circumstances where their presumed proximity to cash makes them

uniquely vulnerable. Whether they moonlight as a matter of

personal preference or because times are tough and other jobs

are not available, we do not know. But whatever the case may

UNITED STATES v. GLOVER 11
be, we decline to rule in a manner that would leave them

without the reasonable rudiments of police protection.

The judgment of the district court is accordingly affirmed.

AFFIRMED

12 UNITED STATES v. GLOVER