Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Gruender, Circuit Judge.
Submitted: October 14, 2008
Before MELLOY, BEAM and GRUENDER, Circuit Judges.
After police officers found a gun in his vehicle, William Brown, Jr., was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He pled guilty to the charge, and the district court*fn1 sentenced Brown to 37 months' imprisonment. Brown appeals, arguing that the district court erred in denying his motion to suppress and in finding that Brown's previous conviction for aiding a felon in the commission of an aggravated robbery was a crime of violence under the advisory sentencing guidelines. For the reasons discussed below, we affirm.
On June 6, 2007, Detectives Gary Knapp, Rod Gentry and Doug Roberts were in a Kansas City, Missouri gun shop called Denny's Guns when they observed William Brown, Jr., enter the store. Brown approached the store clerk and asked for a magazine or a clip for a "Tec 9," which referred to an Intertec 9 millimeter, a semiautomatic firearm. After the store clerk gave Brown a magazine, Brown removed a gun from his pants' pocket to check if the magazine would fit. The magazine did not fit the gun, so Brown put the gun back into his pants' pocket. Brown then left the store and got into a vehicle.
All three officers believed Brown appeared to be too young to have a permit to carry a concealed weapon. Missouri law requires individuals to be at least twenty-three years of age to obtain a concealed weapons permit. The officers followed the vehicle in which Brown was traveling while they called to ask another police officer to check the vehicle for the gun. The officers did not pull Brown's vehicle over themselves because they were traveling in an undercover car. Detective Knapp testified that he and the other detectives knew the gun must still be in Brown's vehicle because they did not see the gun thrown out of the vehicle as they followed it. Another police officer responding to the detectives' call pulled over Brown's vehicle, and the gun was found in the vehicle's trunk. At the time of the stop, Brown was twenty-two years old.
A grand jury charged Brown with possessing a firearm after being convicted of a felony in violation of §§ 922(g)(1) and 924(a)(2).*fn2 Brown filed a motion to suppress the evidence resulting from the search of his vehicle. He argued that both the initial stop and the search of the trunk violated the Fourth Amendment. The district court denied the motion, finding that no constitutional violation occurred in either the initial stop or the subsequent search. Brown entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress.
At sentencing, the district court determined that Brown's 2005 Kansas conviction for aiding a felon in the commission of an aggravated robbery qualified as a crime of violence under United States Sentencing Guidelines § 2K2.1(a)(4)(A), resulting in a base offense level of 20. The district court granted Brown a three-level reduction for acceptance of responsibility and determined that his criminal history category was IV, resulting in an advisory guidelines range of 37 to 46 months' imprisonment. The district court sentenced Brown to 37 months' imprisonment. Brown appeals the district court's denial of his motion to suppress and its determination of his advisory guidelines range.
We first address Brown's argument that the district court erred by denying his motion to suppress. When reviewing a district court's denial of a motion to suppress, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Stevens, 439 F.3d 983, 987 (8th Cir. 2006).
Brown contends that the officers violated his Fourth Amendment rights because they lacked reasonable suspicion to make the initial stop of the vehicle. An officer may conduct an investigative stop of a vehicle if he has "a reasonable suspicion the vehicle or its occupants are involved in criminal activity." United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007). We consider the totality of the circumstances when determining whether the particular facts known to the officer supplied an "objective and particularized basis for a reasonable suspicion of criminal activity." United States v. Maltais, 403 F.3d 550, 554 (8th Cir. 2005).
The record in this case establishes that Detectives Knapp, Gentry and Roberts observed Brown pull a gun out of his pants' pocket and that, based on their law enforcement training and experience and their observation of Brown, they believed Brown was too young to obtain a permit to carry a concealed weapon. See Mo. Rev. Stat. § 571.101.2(1) (requiring concealed weapon permit holders to be at least twenty-three years of age). Thus, because the officers believed that Brown was too young to obtain a permit to carry a concealed weapon, they suspected that he was committing the Missouri crime of unlawful use of a weapon. See Mo. Rev. Stat. § 571.030.4. Based on the particular facts known to the officers at the time of the initial stop of the vehicle, we conclude that they had reasonable suspicion that Brown was engaged in criminal activity. See United States v. Arvizu, 534 U.S. 266, 273-74 (2002) (providing that when making a reasonable suspicion determination, courts must give due weight to officers' inferences based on their own experiences and training). Therefore, the officers did not commit a constitutional violation in stopping the vehicle.
Brown next contends that because reasonable suspicion did not support the stop of the vehicle, the search of the vehicle's trunk also violated his Fourth Amendment rights. The automobile exception to the Fourth Amendment allows police officers to conduct a warrantless search of a vehicle if, at the time of the search, "they have probable cause to believe that the vehicle contains contraband or other evidence of a crime." United States v. Kennedy, 427 F.3d 1136, 1140-41 (8th Cir. 2005). "Probable cause sufficient to justify a search exists where, in the ...