UNITED STATES of America v. Melvin E. WATERS, Appellant, 254 F. App'x 930

OPINION OF THE COURT STAPLETON, Circuit Judge: Appellant Melvin E. Waters moved to suppress a handgun. The District Court held an evidentiary hearing at which the only witness was Andrew Cooper, a probation officer. Following the hearing, the District Court made the following findings of fact: Officer Cooper began supervising the Defendant in September 2004. During that time, he saw the Defendant once or twice a month at either Waters’ work, his home, or at Cooper’s office. On May 23, 2005, Cooper observed the Defendant on a street corner and decided to speak with him.

Because Cooper rarely saw Waters outside his job or home, he believed that this would be a good opportunity to determine that the Defendant was in compliance with his probation restrictions. He exited his car and proceeded to engage Waters in what he termed a “regular probation conversation.” Toward the end of the conversation, Officer Cooper asked the Defendant if he was in possession of any contraband. Waters did not respond to the question and dropped his head. Officer Cooper then asked the Defendant if he could search him for contraband and Waters failed to respond. The Defendant then turned and ran.

Cooper attempted to stop him by grabbing Waters’ jacket and shirt but the Defendant was able to rip out of his clothing and continue to flee. Officer Cooper chased the Defendant and Waters eventually stopped and surrendered to Officer Cooper. Prior to his stopping, the probation officer witnessed the Defendant throw an object that he believed to be a gun. A gun was found on the flat roof of a garage near the point at which Cooper saw the Defendant throw something. App. at 9-10.

Waters concedes that a probationer may be searched and/or seized by his probation officer if the latter has a “reasonable suspicion” of improper conduct. Waters insists, however, that “Cooper had no reasonable suspicion that Waters was engaged in any improper activity.” Appellant’s Br. at 11.

The District Court found as facts that before any search or seizure occurred Waters (1) declined to respond and dropped his head, thereby avoiding eye contact, when asked by his probation officer whether he was in possession of contraband, (2) declined to respond when then asked for consent to a search, and (3) “turned and ran.” At that point, we agree with the District Court that a probation officer in Cooper’s position would have a reasonable suspicion that Waters might be in possession of something that violated the terms of his probation. Accordingly, we will affirm the judgment of the District Court.