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w . v i l l a no v a . e du/thir dc ir c uit_2011/231NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 10

- 3348

_______________ UNITED STATES OF AMERICA

v. ERIC WALLACE, a/k/a Marshall Gilmore Eric Wallace, Appellant

_______________ On Appeal from the Un ited States District Court F or the Eastern District of Pennsylvania (D.C. C rimina l Action No. 2

- 0 9

- c r - 00 534

- 00 1 ) District Judge: Honorable Eduardo C. Robreno

_______________ Submitted Under Third Circuit LAR 34.1(a) September 19, 20 11

_______________ Before: AMBRO , CHAGARES, and ROTH , Circuit Judges (Opinion filed: November 10, 2011 )

_______________ OPINION

_______________ AMBRO, Circuit Judge Appellant Eric Wallace appeals the District Court’s denial of his motion to
suppress evidence of a firearm found in his possession

. We affirm the judgment of the2 District Court. As we write solely for the parties, we recite only those facts necessary to our decision. On February 18, 2009, at approximately 7:30 p.m., Philadelphia Police Officers Paul Gimbel and John Leinmiller were on a routine patrol when they observed a van illegally parked at an intersection in the Germantown neighborhood of Philadelphia . The

van was in a high

- crime area known for drug trafficking activity

. Officer Gimbel approached the driver ’s side of the van while shining his flashlight into the van. H e identified four people, one in the front passenger seat and three in the rear seat. Wallace was sitting in the middle position of the rear s eat. As he approached the van, Officer Gimbel observed Wallac e reaching toward his

“ waist band area , ” as though he either was going into or adjusting his waist band . Gimbel immediately told everyone in the van to stop moving. After issuing the command, he observed Wallace move briefly. Gimbel notified Office r Leinmiller, who was approaching the passenger side of the van, that Wallace was reaching for something. Because he believed Wallace was ignoring his command, Gimbel opened th e driver’s side door of t he van and entered the van. Wallace’s hands were at his waist and the other two passengers sitting in the rear seat both had their hands up

. W hile ordering the passengers to keep their hands still , Gimbel placed his hands on top of Wallace’s hands and li fted them away from the waist area

. Gimbel patted down Wallace’s waist area around the belt line and immediately felt a hard, metal object

. H e recovered a revolver loaded with six live rounds of ammunition.3 Wallace was indicted for possession of a firear m by a convicted f elon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)

. After losing his motion to suppress the revolver, h e pled guilty to the indictment while preserving his right to appeal the denial of his suppression motion

. The District Court se ntenced Wallace to 180 months’ imprisonment, five years of supervised release, a $500 fine, and a $100 special assessment. Wallace then filed a timely notice of appeal. 1 On appeal, Wallace argues that Officer Gimbel lacked reasonable suspicion to justify a frisk for weapons under Terry v. Ohio , 392 U.S. 1 (1968). Terry allows an officer to “conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow , 528 U.S. 119, 123 (2000) (citing Terry , 392 U.S. at 30). 2

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction un der 28 U.S.C. § 1291. We review “the District Court’s denial of a motion to suppress for clear error as to the underlying factual findings and exercise[] plenary review of the District Court’s application of the law to those facts.” United States v. Pere z , 280 F.3d 318, 336 (3d Cir. 2002). 2 Before the District Cou rt, Wallace contended that the o fficers did not have a valid legal basis to approach the van because a parking violation does not constitute a traffic violation for purposes of a Terry stop. Wa llace has not pursued this claim on appeal. The scope of a valid Terry stop includes a pat

- down search for weapons when a n officer has a reasonable belief that a person is armed and dangerous. Terry , 392 U.S. at 27. The officer does not need to be certain t hat the person is armed. Rather, “ the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others [is] in danger .” Id. The determination is based on a totality of the ci rcumstances , recognizing that a n officer may have more experience and training “to make inferences4 from and deductions about the cumulative information available ” than an untrained
person . United States v. Arvizu , 534 U.S. 266, 273 (2002)

. We have held th at when an officer observes suspicious behavior he reasonably believe s is intended to conceal a weapon, he is justified in searching for the weapon. See United States v. Robertson , 30 5 F.3d 164, 170

- 71 (3d Cir. 2002 ). For example , in United States v. Moo refield , 111 F.3d 10 (3d Cir. 1997) , officers ordered the defendant to remain in the car with his hands visible, after which he appeared to shove something toward his waist. Id. at 11

- 12. W e held that the defendant’s “furtive hand movements and refusal t o obey the officers’ orders constituted suspicious behavior. ” Id. at 14. We stated that the defendant’s “behavior embodied the kind of specific, articulable facts that Terry contemplates and, therefore, warranted a pat

- down search for weapons.” Id. Wal lace’s behavior likewise warranted Officer Gimbel ’s pat

- down search for
weapons . As he approached the van, Gimbel observed Wallace reaching for something near his waist, prompting him to instruct Wallace and the other three passengers to stop moving

. Whe n Wallace did not do so, Gimbel reasonably could have believed Wallace was concealing a weapon. In addition , the van was parked illegally in a high

- crime area known for drug trafficking. See Wardlow , 528 U.S. at 124

. It was dark outside , limiting Gimbel ’s ability to observe Wallace’s movements and heightening his sensitivity to Wallace’s behavior

. The van was occupied by four passengers, outnumbering Officer s Gimbel and Leinmiller two to one. In this context, any doubt disappears that Gimbel reasonably could have suspected that Wallace was armed and dangerous, justifying a pat

- down search of Wallace.5 For these reasons, w e affirm the judgment of the District Court.