UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4373

KENNETH PERNELL JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Frank W. Bullock, Jr., Chief District Judge.

(CR-96-123)

Argued: March 6, 1998

Decided: June 4, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and

CLARKE, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Carlton Ingram, Jr., FLOYD, ALLEN &

JACOBS, L.L.P., Greensboro, North Carolina, for Appellant. Sandra

Jane Hairston, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee. ON BRIEF: Walter C. Holton, Jr., United

States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kenneth Pernell Johnson entered a conditional guilty plea under

Fed. R. Crim. P. 11(a)(2) and was convicted of possession with intent

to distribute cocaine, 21 U.S.C. § 841(a)(1). Johnson reserved the

right to appeal the district court's partial denial of his motion to suppress evidence. While the district court did suppress a confession

made by Johnson, it held that evidence seized from the apartment of

his girlfriend, Kristine Neilson, was legally obtained. To reach this

conclusion, the district court ruled (1) that the police made a legal

Terry stop of the automobile in which Johnson and Neilson were riding on June 12, 1996, (2) that the stop did not escalate into a full custodial arrest of Neilson, and (3) that Neilson's consent to search her

car and her apartment was voluntarily given. Accordingly, the district

court held that the evidence obtained in the apartment search was not

"fruit of a poisonous tree" and was therefore admissible. On appeal

Johnson renews his claim that the search was illegal by challenging

the three rulings mentioned above. We affirm.

I.

In the morning of June 12, 1996, the Greensboro Police Department received information from the North Carolina State Police about

a drug investigation involving Jason Ware. After stopping Ware's

out-of-state Isuzu for speeding on Interstate 85, state troopers conducted a consensual search of the vehicle and discovered $21,000 in

bundles of cash concealed in a hidden compartment. Ware told the

troopers that he was returning from a visit with his uncle in Greensboro and that his uncle had given him the money for college

expenses. He described the uncle as a black male with short hair and

a dark complexion. Additionally, Ware gave the troopers a phone

number at which he said the uncle could be reached. A subscriber

check on this number revealed that the phone belonged to Kristine

 2
Neilson at 3225-D Orange Street in Greensboro. This information was

relayed to Detectives Graves and Austin of the Greensboro Police

Department's Vice and Narcotics Division, and they proceeded to

check out the address.

Detective Graves already had some familiarity with this address.

Approximately six months earlier, he had received an anonymous

telephone tip from a woman who alleged that narcotics were being

received at 3225-D Orange Street by another woman via the mail or

a delivery service. Although Graves thought that the caller might be

a "jealous individual" who "had something against" the woman at the

address, he nevertheless felt that the tip had "some validity" because

he had arrested a man on a narcotics charge who was alleged to be

the boyfriend of a woman living at this address. Consequently, Graves

took a written complaint and investigated the tip. When he spoke to

the manager for the apartment complex in which 3225-D was located,

he discovered that Nielsen rented apartment 3225-D and that she

drove a black Infiniti with New Jersey tags. Although Graves saw this

vehicle during his surveillance of the apartment complex (which he

conducted in fifteen to twenty minute intervals over a series of evenings), he did not see anything suspicious. Graves informed a postal

inspector about the tip, but Graves had not received any response

from the Postal Service. Once the state police provided him with the

information from Ware on June 12, 1996, Graves realized that the

address was the same one mentioned by the anonymous tipster. Moreover, from his experience as a narcotics detective, Graves knew that

Ware's explanation was dubious because $21,000 (the amount of cash

Ware was carrying) was the prevailing wholesale price in Greensboro

for a kilogram of powder cocaine. Graves also knew that drug dealers

often conceal cash in hidden compartments in their automobiles.

Ware's indirect implication of 3225-D Orange Street thus had a

degree of consistency with the prior tip that the apartment had some

tie to the narcotics trade.

When Detectives Graves and Austin went to the apartment at this

address on the morning of June 12, 1996, no one was home and the

black Infiniti was gone. Graves and his partner, Detective Wallace,

returned later that afternoon. Again, no one answered the door and the

car was still gone. The apartment manager then verified that Neilson

rented the 3225-D unit, and the manager provided the detectives with

 3
Neilson's employment information. Further investigation revealed

that Neilson had gone to a beauty salon to get a haircut and that she

was a short, attractive black woman.

Three detectives (Graves, Wallace, and Austin) went to the salon

around 3 p.m. Although they identified themselves as police officers

to the employees of the salon and asked whether Kristine Neilson was

there, the employees were uncooperative and slow to answer questions. When they finally did answer, some employees told the officers

that they did not know who Neilson was and others said that she was

not there. After the officers had been at the salon a few minutes, a

woman meeting Neilson's general description emerged from a back

room, walked past the officers, exited the salon, and stepped into a

black Infiniti that had pulled to the curb. Detective Wallace recognized that the Infiniti matched the description of Neilson's car. Moreover, Wallace noticed that the driver (later discovered to be Johnson)

was a dark-complexioned black male with short hair, who met the

general description of Ware's "uncle." Wallace informed the other

detectives that he believed that the woman was Neilson, and the three

left the salon to follow the Infiniti.

The officers then conducted moving surveillance on the Infiniti in

two unmarked police cars. The Infiniti initially appeared to be headed

to Neilson's home, and a computer check of the car's New Jersey tags

verified that it was registered to Kristine Neilson. Although the officers would occasionally pass the Infiniti in an effort to avoid detection, one of the police cars always stayed behind the Infiniti in order

to maintain visual contact. However, after proceeding several miles

the Infiniti began to slow down from its prior speed of 35 mph to a

sluggish 10 to 15 mph. When the Infiniti slowed down it was in the

left (fast) lane, there were no traffic lights, stop signs, or turnoffs for

another 300 to 400 feet, and there was no other traffic that could have

forced the car to slow to a crawl. Detective Wallace testified that

despite its slow speed, the Infiniti had "nowhere to go but straight."

Even though the second undercover vehicle driven by Detective Austin was already in front of the Infiniti, Detectives Graves and Wallace

decided to pass the car, hoping to avoid suspicion. Both Johnson and

Neilson looked at the detectives as they drove by, and once the officers had passed, Johnson made a left turn to get off the roadway. Con-

 4
sidering this maneuver to be evasive, the detectives turned around,

placed their blue lights on the dashboard, and stopped the Infiniti.

Detectives Graves and Wallace approached both sides of the car,

told Johnson and Neilson that they were stopped because the detectives were conducting a narcotics investigation, and asked for identification. During this stop the officers were low key and courteous and

did not draw their weapons. Neilson gave consent to search her car

and, later, to search her apartment. After the search of her apartment

(where Johnson often stayed as an overnight guest) revealed a handgun and approximately a kilogram of cocaine, Johnson was formally

arrested and charged.

II.

We first address whether Detectives Graves and Wallace conducted

a legal Terry stop of Johnson and Neilson. Cf. Terry v. Ohio, 392 U.S.

1 (1968). The Fourth Amendment permits limited investigative stops

by law enforcement officers when they are justified"by a reasonable

and articulable suspicion that the person seized is engaged in criminal

activity." Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam).

While we review de novo the ultimate question of reasonable suspicion, we review findings of historical fact only for clear error and

"`give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.'" United States v. Sprinkle,

106 F.3d 613, 616-17 (4th Cir. 1997) (quoting Ornelas v. United

States, 517 U.S. 690, 699 (1996)).

We also consider the "totality of the circumstances" surrounding

the stop to assess its constitutionality. See United States v. Cortez, 449

U.S. 411, 417 (1981). "Based upon that whole picture the detaining

officers must have a particularized and objective basis for suspecting

the particular person stopped of criminal activity." Id. at 417-18. As

the Supreme Court has counseled, inferences and deductions made by

officers do "not deal with hard certainties, but with probabilities" and

the information possessed by law enforcement "must be seen and

weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Id. at 418.

In light of these principles, we believe that the facts set forth above,

when taken as a whole, justified the initial stop of the black Infiniti.

 5
Therefore, we affirm the district court's determination that the officers legally stopped and questioned Johnson and Neilson based on a

reasonable and articulable suspicion that they were involved in narcotics trafficking.

Turning to the remaining two issues, we believe the district court

correctly ruled that Neilson's consent to search her car and apartment

was voluntarily given and that the original stop did not escalate into

a custodial arrest of Neilson. On these issues we affirm on the reasoning of the district court. See United States v. Johnson, No.

2:96CR123-2, mem. op at 12-15 (M.D.N.C. Apr. 29, 1997).

Accordingly, the order of the district court is

AFFIRMED.

 6