United States Court of Appeals

For the Eighth Circuit

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No. 14-1428

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Marquis Leval Cotton

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: November 12, 2014

 Filed: April 6, 2015 

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Before MURPHY, MELLOY, and BENTON, Circuit Judges.

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MELLOY, Circuit Judge. 

As Marquis Cotton was attempting to enter an apartment complex, two police

officers stopped him and searched him. They found a gun in Cotton's waistband and

arrested him for illegally possessing a firearm. Cotton filed a motion to suppress the
evidence, and the district court1

 rejected it. Cotton pleaded guilty to illegally

possessing the firearm but reserved his right to appeal the suppression issue. Because

the officers conducted a constitutionally permissible seizure, the district court

correctly denied Cotton's motion to suppress. We affirm. 

I.

On April 30, 2012, Minneapolis Police Officers Kocher and Suchta were

patrolling an area around an apartment complex in north Minneapolis. This was a

department-approved, off-duty assignment. Both officers, however, were wearing

police uniforms.2

 Officer Suchta is an experienced police officer who has patrolled

the north Minneapolis area for over eight years. He described the location around the

complex as a very violent area that is "plagued with narcotic activity, robberies, [and]

shootings." Around 11 a.m., the officers saw an individual throw a set of keys off a

third floor balcony to two men, Cotton and an unidentified male, waiting on the

ground below. 

The property manager previously had instructed residents of the complex not

to throw their keys off their balconies to people waiting below. And in mid-April, the

property manager sent residents a letter stating "under no circumstances" should

residents throw their keys to someone waiting below. The company imposed the

restriction because throwing keys to individuals outside of the building compromised 

the security of the building. Officer Suchta was aware of this security provision when

he saw the individual throw the keys from the balcony.

 

1

 The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota. 

2

 The management company of the apartment complex paid the police officers

to patrol the area surrounding the apartment complex. There is no dispute, however,

that the police officers acted as state actors for purposes of the Fourth Amendment. 

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Immediately after the keys hit the ground, Officer Kocher yelled to Cotton and

the unidentified male that they were not allowed to take the keys. The unidentified

male ignored the command, grabbed the keys, and walked quickly towards a back

door of the complex. As the unidentified male was unlocking the door, Officer Suchta

yelled "stop." The unidentified male did not stop. He finished unlocking the door,

entered the complex, and pulled the door shut. 

Cotton did not move during this interaction. Once the unidentified male was

inside the building, Officer Suchta walked quickly towards Cotton, who had a nervous

look on his face. According to Officer Suchta, Cotton then reached for his waistband. 

Because Officer Suchta believed Cotton was reaching for a weapon, he grabbed

Cotton's arms and handcuffed him. Officer Kocher performed a pat-down and felt a

pistol in Cotton's waistband. Cotton was charged with being a felon in possession of

a firearm. 

Cotton filed a motion to suppress the evidence of the gun, arguing that the stop

was not supported by probable cause or reasonable suspicion. A magistrate judge

issued a report and recommendation (R&R), recommending that the district court 

deny Cotton's motion to suppress. The magistrate judge concluded that Cotton was

subject to a Terry stop3

 when Officer Suchta yelled, "stop," but the Terry stop was

supported by reasonable suspicion. The magistrate judge considered the totality of the

circumstances and concluded: 

(1) Defendant's presence in a high-crime area, (2) the throwing of keys

from the third floor to persons outside the building contrary to the

property owner's rules, and (3) the unidentified male companion picking

up the keys, going quickly to the building, ignoring Officer Suchta's

order to stop, opening the door with the keys, and pulling the door shut,

there [were] sufficient facts to generate reasonable suspicion. 

3

 Terry v. Ohio, 392 U.S. 1 (1968).

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In addition, the magistrate judge found that the officers conducted a permissible Terry

frisk of Cotton after Cotton reached for his waistband. 

After both parties filed objections to the R&R, the district court agreed with the

magistrate judge's conclusion that the Terry stop was supported by reasonable

suspicion.4

 In addition, the district court agreed with the magistrate judge that Officer

Suchta feared for his safety and suspected Cotton of being armed and dangerous when

Cotton moved for his waistband. Therefore, the district court concluded that the

evidence obtained from the Terry frisk was admissible. 

Cotton filed a motion to reconsider, arguing the district court erred when it

denied the motion to suppress and characterized the unidentified male and Cotton as

"companions." The district court denied the motion, finding that the record supported

the conclusion that Cotton and the other individual were in close proximity to one

another outside the rear door of the apartment building and were both awaiting the

resident's keys. The district court also concluded that although Officer Suchta

directed the unidentified male to stop, it is reasonable to assume Cotton thought the

command applied to him as well because he did not move. 

Cotton pleaded guilty to illegally possessing a firearm. He reserved his right

to appeal the denial of his motion to suppress, and he timely filed this appeal.

4

 The R&R based its reasoning in part on the unidentified male's action after

Officer Suchta yelled stop. Because the seizure occurred at the moment Officer

Suchta yelled, "stop," however, the district court specifically did not consider the

unidentified male's actions after Officer Suchta yelled, "stop." 

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II.

Cotton argues the officers lacked reasonable suspicion to justify the stop and

eventual frisk. He also contends the district court erred by denying the motion to

reconsider. 

The Government argues the initial stop did not implicate the Fourth

Amendment at all, and even if the initial stop implicated the Fourth Amendment, it

was supported by reasonable suspicion. The Government also asserts the district court

committed no error in denying the motion to reconsider. 

A. The Initial Stop and Subsequent Search

This Court reviews the facts supporting a district court's denial of a motion to

suppress for clear error and reviews its legal conclusions de novo. United States v.

Clark, 409 F.3d 1039, 1044 (8th Cir. 2005). 

i. The Terry stop was supported by reasonable suspicion

Assuming, without deciding, that Cotton was subject to a Terry stop, we agree

with the district court that the officers had reasonable suspicion to support a Terry

stop. "The principal components of a determination of reasonable suspicion . . . will

be the events which occurred leading up to the stop or search, and then the decision

whether these . . . facts, viewed from the standpoint of an objectively reasonable

police officer, amount to reasonable suspicion." Ornelas v. United States, 517 U.S.

690, 696 (1996). Cotton's presence in an area known for violence and drugs; the

unidentified male's failure to comply with the command to not pick up the keys; that

man's evasive flight after grabbing the keys (but before Officer Suchta yelled stop);

Cotton's location in relation to the other man and the keys; and the violation of the

apartment's rules, together, provided reasonable suspicion to justify the Terry stop of

Cotton. See United States v. Barker, 437 F.3d 787, 790 (8th Cir. 2006) (finding that

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a series of innocent actions, when viewed together, can lead an officer to formulate

reasonable suspicion). 

 Cotton argues that the unidentified male was not his companion. The relevant

inquiry is not whether Cotton and the unidentified male were actually companions;

rather, it is whether they appeared to be companions from the perspective of a

reasonable officer based on the totality of the circumstances. Further, assuming it was

a mistake for the officers to assume Cotton and the unidentified individual were

companions, an officer's reasonable mistake can still give rise to reasonable suspicion. 

United States v. Johnson, 326 F.3d 1018, 1022 (8th Cir. 2003) (finding that a

reasonable but mistaken belief may justify an investigative stop). Cotton and the

unidentified male appeared to be the recipients of the thrown keys based on their

location below the balcony. While all of the events leading up to the Terry stop could

have an innocuous explanation, the Supreme Court has specifically stated "[e]ven in

Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent

explanation." Illinois v. Wardlow, 528 U.S. 119, 125 (2000). "Terry accepts the risk

that officers may stop innocent people." Id. at 126. Even though Cotton remained

still and complied with the direction not to take the keys, the evasive behavior of his

apparent companion, when viewed in combination with the apartment's security policy

and its location in a violent area, rose to the level of reasonable suspicion that criminal

activity was afoot. Therefore, the Terry stop was justified. 

ii. The Terry frisk was supported by reasonable suspicion 

Cotton next asserts that the officers did not have reasonable suspicion to detain

him for a Terry frisk. After Officer Suchta yelled "stop," he walked quickly towards

Cotton, who had a nervous look on his face. Officer Suchta testified that as he

approached "[Cotton] made a motion with his hands to his front waistband." Officer

Suchta's first thought was "[Cotton] is reaching for a weapon." Only then did Officer

Suchta grab Cotton's arms and handcuff him. 

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 "A protective frisk is only warranted if specific articulable facts taken together

with rational inferences support the reasonable suspicion that a party was potentially

armed and dangerous." United States v. Ellis, 501 F.3d 958, 961 (8th Cir. 2007)

(internal quotation marks omitted). Based on the events leading up to the Terry frisk,

including Cotton's actions as Officer Suchta approached, we find the officers had

reasonable suspicion that criminal activity was afoot and that Cotton was potentially

armed and dangerous. See United States v. Davis, 202 F.3d 1060, 1063 (8th Cir.

2000) (upholding a protective frisk based, in part, on the defendant's nervous

movements and adjustment of his jacket in a high-crime area). This encounter

occurred in a violent area, Cotton reached for his waistband as the officers were

approaching, and he had a nervous look on his face.5

 Because the officers had

reasonable suspicion that Cotton was armed and dangerous, it was proper for the

officers to detain Cotton for a limited period of time to conduct the Terry frisk. 

Therefore, the Terry frisk was justified. 

B. Motion to Reconsider

 

In the district court, Cotton filed a motion to reconsider the district court's

denial of his motion to suppress the evidence. Specifically, Cotton argued the district

court erred when it characterized the unidentified male and Cotton as companions. On

appeal, Cotton asserts that because the "district court adopted a different and new

analysis, one that relied on the unfounded determination that the two men were

companions," he did not have a chance to address the companion characterization

discussed in the order adopting the R&R. 

Cotton's argument is unpersuasive. He had the opportunity to object, and in

any event, there was no error in the characterization. The magistrate judge stated

in the R&R:

5

 A suspect's nervousness is considered in the totality of circumstances analysis. 

See United States v. Beck, 140 F.3d 1129, 1139 (8th Cir. 1998). 

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But, under the totality of the circumstances of this case, (1) Defendant's

presence in a high-crime area, (2) the throwing of keys from the third

floor to persons outside the building contrary to the property owner's

rules, and (3) the unidentified male companion picking up the keys,

going quickly to the building, ignoring Officer Suchta's command to

stop, opening the door with the keys, and pulling the door shut, there are

sufficient facts to generate reasonable suspicion. 

(emphasis added). This passage explicitly refers to the unidentified male as Cotton's

companion. Characterization of the relationship between the two men did not differ

between the R&R and the district court's order adopting the R&R. Cotton, therefore,

could have objected before the district court adopted the R&R. Furthermore, because

Cotton and the unidentified male were standing in the vicinity of each other and

awaiting keys to enter the apartment, the record supports the conclusion that a

reasonable officer could have viewed Cotton and the unidentified male as

companions. 

Cotton has made no showing to warrant reconsideration by the district court. 

As a result, the district court did not err by denying the motion to reconsider. 

III.

The judgment of the district court is affirmed. 

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