UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4011

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PETER KENDALL SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:06-cr-00063-CCB-1)

Argued: May 13, 2010 Decided: July 7, 2010

Before DUNCAN and KEENAN, Circuit Judges, and Arthur L. ALARCÓN,

Senior United States Circuit Judge for the Ninth Circuit,

sitting by designation.

Affirmed by unpublished opinion. Judge Alarcón wrote the 

opinion in which Judge Duncan and Judge Keenan joined.

ARGUED: William A. Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA,

LLP, Greenbelt, Maryland, for Appellant. Michael Clayton 

Hanlon, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,

Maryland, for Appellee. ON BRIEF: Timothy J. Sullivan, Brett J. 

Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for 

Appellant. Rod J. Rosenstein, United States Attorney,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

ALARCÓN, Senior Circuit Judge:

Peter Kendall Smith appeals from the order denying his 

motion to suppress evidence recovered during a search incident 

to his arrest on October 22, 2005. We affirm because we 

conclude that the district court did not clearly err in denying 

the suppression motion. The officers had reasonable suspicion 

to stop and question Smith, and probable cause to arrest as well 

as to search him when he assaulted the officers to prevent a 

lawful detention.

I

A

On October 22, 2005, Officers Matthew Sammons and Corey 

Hurst of the Salisbury Police Department were on patrol in the 

Church Street area of Salisbury, Maryland.1 They were in uniform 

and driving a marked police car. The officers were aware that 

the Church Street area is known as a high crime area. The 

police dispatcher announced over the police radio that an 

anonymous 9-1-1 caller had reported a fight involving a handgun 

near Church and Anne Streets. 

 

1 The facts summarized here are taken from the testimony 

provided by Officers Sammons and Hurst at the suppression 

hearing.
3

Officers Sammons and Hurst were a few blocks away from the 

reported location of the fight when they received the radio 

dispatch. They observed an adult male and two juveniles running 

toward the police vehicle. The three individuals slowed down to 

a fast walk as they approached the police car. They looked 

straight ahead without making eye contact with the police 

officers.

The officers turned their car around and pulled up next to 

the three individuals. They got out of the car and went to 

question Smith and his two companions. Officer Sammons

approached Smith from the front. Officer Hurst walked around 

the back of the car and approached the three males from the 

side.

Officer Sammons told Smith that a fight, possibly involving 

a handgun, had been reported in the area and he sought any 

information Smith might have about it. Both officers observed 

that one of the three individuals, Brandon Curtis, was shoeless. 

Officer Hurst noticed that Brandon’s left eye was red and 

beginning to swell. 

Officer Sammons asked Smith if he was carrying anything 

illegal. Officer Sammons testified at the suppression hearing 

that he could not remember Smith’s response. Officer Hurst 

asked Brandon what had happened to his shoes and his eye. 

Brandon explained that he had been in a fight and had stepped 
4

out of his shoes. Officer Sammons advised Smith that he was 

going to pat him down and reached out toward him. Smith turned 

and “shuffle-stepped” away. Both officers grabbed Smith to 

prevent him from fleeing and a struggle ensued. 

During the struggle, Smith struck both officers. Officer 

Hurst told Brandon and Byron Curtis, the second juvenile who was 

with Smith, to leave the area. Byron left the scene. Brandon 

remained and yelled at the officers during their struggle with 

Smith. Officer Sammons sprayed Smith with a strong pepper 

spray. The officers brought Smith under control, handcuffed 

him, and informed him that he was under arrest.

Officer Hurst searched Smith’s front pockets and found 

several rocks of cocaine. Officer Sammons retrieved a handgun 

from Smith’s back pocket.

B

Smith was indicted on February 15, 2006, for: felony 

possession of a firearm pursuant to 18 U.S.C. § 922(g)(1); 

possession of 5 grams or more of rock cocaine with intent to 

distribute pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(B); and, 

possession of a firearm in furtherance of a drug trafficking 

crime pursuant to 18 U.S.C. § 924(c)(1). 

On April 21, 2006, Smith filed a motion to suppress the 

handgun and the cocaine recovered during the search incident to 

his arrest. On August 24, 2006, the district court held an 
5

evidentiary hearing on the motion to suppress. Officer Sammons 

and Officer Hurst testified that they had reasonable suspicion 

to perform a Terry stop based upon their collective knowledge: 

the 9-1-1 call, the fact that the three individuals were 

observed running away from the disturbance and slowed when they 

saw the police car, they made no eye contact with the officers 

as they passed, as well as the fact that Brandon was wearing 

socks without shoes and had a swollen eye. 

Brandon and Byron testified that they did not slow their 

pace when they saw the officers and that the officers did not 

try to ask any questions upon exiting their vehicle. Instead,

the officers immediately went for Smith, who resisted detention. 

The district court credited the testimony of the officers over 

that of Brandon and Byron and denied the motion to suppress.

On December 16, 2008, Smith pleaded guilty to felony 

possession of a weapon. The Government dismissed the other two 

counts in the indictment. His plea was conditioned upon the 

outcome of his appeal from the district court’s denial of his 

motion to suppress. Smith was sentenced to 120 months in 

prison. He filed a timely appeal from the district court’s 

order denying his motion to suppress the evidence obtained 

during the search incident to his arrest. We have jurisdiction 

under 28 U.S.C. § 1291.
6

II

A

In its dismissal of the motion to suppress, the district 

court concluded that “the officer[s] had reasonable suspicion 

for a Terry stop after Mr. Smith turned to flee, and the 

officer’s physical contact with Mr. Smith did not elevate the 

Terry stop to an arrest.” (District Court Order dated September 

20, 2006) (internal citations omitted).

Smith argues that the district court erred in determining 

that the officers had reasonable suspicion to stop him and his 

companions. In reviewing the denial of a motion to suppress, 

this Court reviews a district court’s findings for clear error 

and its legal conclusions de novo. United States v. Perkins,

363 F.3d 317, 320 (4th Cir. 2004). The evidence is construed in 

the light most favorable to the Government. Id.

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held 

that

where a police officer observes unusual conduct which 

leads him reasonably to conclude in light of his 

experience that criminal activity may be afoot and 

that the persons with whom he is dealing may be armed 

and presently dangerous, where in the course of 

investigating this behavior he identifies himself as a 

policeman and makes reasonable inquiries, and where 

nothing in the initial stages of the encounter serves 

to dispel his reasonable fear for his own or others’

safety, he is entitled for the protection of himself 

and others in the area to conduct a carefully limited 

search of the outer clothing of such persons in an 

attempt to discover weapons which might be used to 
7

assault him. Such a search is a reasonable search 

under the Fourth Amendment, and any weapons seized may 

properly be introduced in evidence against the person 

from whom they were taken.

Id. at 30-31. 

An officer’s decision to detain a person must be based on 

more than just an “inchoate and unparticularized hunch.” Id. at 

27 (internal quotations omitted). The officer must be able to 

offer “some minimal level of objective justification for making 

the stop.” United States v. Sokolow, 490 U.S. 1, 7 (1989)

(internal quotation marks omitted). “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). Two elements 

must be satisfied in evaluating whether reasonable

particularized suspicion exists to conduct a Terry stop: 1) “the 

assessment must be based upon [a totality of] the 

circumstances;” and 2) the circumstances together “raise a 

suspicion that that particular individual being stopped is 

engaged in wrongdoing.” Id. at 418. The basis for an officer’s 

reasonable suspicion “can rest upon the collective knowledge of 

the police, rather than solely on that of the officer who 

actually makes the [stop].” United States v. Pitt, 382 F.2d 

322, 324 (4th Cir. 1967).
8

The Supreme Court has articulated the factors that may be 

weighed in considering the totality of the circumstances to 

determine whether reasonable suspicion exists. These factors 

include: whether the area is a high crime area, Adams v. 

Williams, 407 U.S. 143, 147 (1972); whether an individual 

exhibits evasive behavior, United States v. Brignoni-Ponce, 422 

U.S. 873, 885 (1975); and, whether there is unprovoked flight,

2

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). Any one of 

these factors may not suffice to establish reasonable suspicion. 

It is “the totality of the circumstances -- the whole picture --

[which] must be taken into account.” Cortez, 449 U.S. at 417.

Smith contends that the elements considered by the district 

court to support reasonable suspicion are insufficient. He

argues that an anonymous 9-1-1 tip cannot be relied upon. He 

also asserts that there were no bulges in their clothing and 

they did not behave in any way that might have indicated that 

 

2 While an “individual has a right to ignore the police and 

go about his business [and a] refusal to cooperate, without 

more, does not furnish the minimal level of objective 

justification needed for a detention or seizure, . . . 

unprovoked flight is simply not a mere refusal to cooperate 

. . . [and] is not going about one’s business; in fact, it is 

just the opposite.” Wardlow, 528 U.S. at 125 (internal 

quotation marks and citations omitted). See also United States 

v. Haye, 825 F.2d 32, 34 (4th Cir. 1987) (Defendants, instead of 

declining to answer questions and walking away, panicked and 

fled, giving officers “reasonable suspicion for a brief,

involuntary, investigative stop.”)
9

they were carrying weapons. Smith further argues that “[a] 

group of men walking at a fast pace in a high crime neighborhood 

near the location of a reported fight, who slow their pace and 

do not meet the gaze of the police upon seeing them is not 

sufficient to justify a Terry stop.” Appellant’s Brief at 16.

Terry “precludes this sort of divide-and-conquer analysis.” 

United States v. Arvizu, 534 U.S. 266, 274 (2002). Reasonable 

articulable suspicion of “ongoing criminal activity” is measured 

by a totality of the circumstances. Sokolow, 490 U.S. at 8. 

For example, in Florida v. J.L., 529 U.S. 266 (2000), the 

Supreme Court held that the police did not have reasonable 

suspicion based solely on an anonymous tip to the police. Id.

at 268 (“[A]n anonymous tip that a person is carrying a gun[], 

without more, [is in]sufficient to justify a police officer’s 

stop and frisk of that person.”). Here, the officers based 

their suspicions on the totality of the circumstances, including 

the anonymous tip. Similarly, whether someone looks at an 

officer or avoids looking at an officer may not be sufficient 

alone, but when considered with other factors may establish 

reasonable suspicion for a stop. See Arvizu, 534 U.S. at 276 (A

driver’s avoidance of eye contact with an officer was one of 

several factors that established reasonable suspicion to stop 

the vehicle). 
10

Here, in evaluating whether the totality of the 

circumstances created reasonable suspicion, the district court

credited the testimony of the officers at the suppression 

hearing. “When findings are based on determinations regarding 

the credibility of witnesses, Rule 52(a) demands [great] 

deference to the trial court’s findings.” Anderson v. Bessemer 

City, 470 U.S. 564, 575 (1985). “[T]he reviewing court must 

give due regard to the trial court's opportunity to judge the 

witnesses' credibility.” Fed. R. Civ. P. 52(a)(6). The 

district court did not clearly err in finding that the officers 

had reasonable suspicion to detain Smith.

B

Smith also contends that the officers lacked probable cause 

to arrest and search him after he tried to walk away from the 

officers’ attempt to detain and frisk him. We disagree. As 

discussed above, the officers had a right to detain him and pat 

him down for weapons based on their reasonable suspicion. 

When Smith resisted and struck both officers, they had 

probable cause to arrest him for the crime of assault. Police 

officers are entitled to use force in order to effectuate a 

Terry stop. See Graham v. Connor, 490 U.S. 386, 396 

(1989)(“[T]he right to make an arrest or investigatory stop 

necessarily carries with it the right to use some degree of 
11

physical coercion or threat thereof to effect it.”); Adams, 407 

U.S. at 146 (“So long as the officer is entitled to make a 

forcible stop, and has reason to believe that the suspect is 

armed and dangerous, he may conduct a weapons search limited in 

scope to this protective purpose.”). Accordingly, we are 

persuaded that the officers had probable cause to arrest and 

search Smith.

Conclusion

Accordingly we AFFIRM the denial of Smith’s motion to 

suppress the evidence obtained during the search incident to his 

arrest.

AFFIRMED