United States v. Robert Lamar Gerald , 696 F. App'x 980 ( 2017 )

Case: 16-15903 Date Filed: 08/24/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15903
Non-Argument Calendar
________________________
D.C. Docket No. 3:15-cr-00061-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LAMAR GERALD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 24, 2017)
Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 16-15903 Date Filed: 08/24/2017 Page: 2 of 4
Robert Gerald appeals his conviction for possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and 924(e).
Prior to Gerald’s guilty plea, the district court denied a motion to suppress, finding
that Deputy Burt Craft had probable cause, and at least reasonable suspicion, for
Craft’s initial investigatory stop. On appeal, Gerald argues that Deputy Craft’s
initial detention occurred without reasonable suspicion of criminal activity.
When reviewing the denial of a motion to suppress, we review the district
court’s factual determinations for clear error, and the application of the law to
those facts de novo. United States v. Ransfer, 749 F.3d 914, 921 (11th Cir. 2014).
Further, all facts are construed in the light most favorable to the prevailing party
below. Id.The Fourth Amendment guarantees the right against unreasonable searches
and seizures. U.S. Const. amend. IV. Under the Supreme Court’s decision in
Terry, 1 law enforcement officers may seize a suspect for a brief investigatory stop
when (1) the officers have a reasonable suspicion that the suspect was involved in,
or about to be involved in, criminal activity, and (2) the stop was reasonably
related in scope to the circumstances which justified the interference in the first
place. United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). A court must
examine the totality of the circumstances to determine whether a police officer had
1
Terry v. Ohio, 392 U.S. 1 (1968).
2
Case: 16-15903 Date Filed: 08/24/2017 Page: 3 of 4
reasonable suspicion to conduct a Terry stop. Id. Reasonable suspicion is a less
demanding standard than probable cause, but the Fourth Amendment requires at
least a minimal level of justification for making the stop. Id. However, the Fourth
Amendment is not implicated when a police officer simply approaches an
individual and asks a few questions. Id. Accordingly, a police officer’s approach
to a stopped vehicle does not constitute a seizure. United States v. Baker, 290 F.3d
1276, 1278-79 (11th Cir. 2002).
The smell of marijuana alone may provide a basis for reasonable suspicion
for further investigation of possible criminal conduct. United States v. White, 593
F.3d 1199, 1203 (11th Cir. 2010). See also United States v. Griffin, 109 F.3d 706,
708 (11th Cir. 1997) (noting that the odor of marijuana detected during a traffic
stop furnished reasonable suspicion justifying further detention and investigation
of suspect); United States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982) (noting that
the recognizable smell of marijuana gave rise to probable cause supporting a
warrantless search).
In this case, the district court did not err in denying the motion to suppress.
Deputy Craft’s initial approach does not implicate the Fourth Amendment because
police officers are free to approach individuals and ask questions. Lewis, 674 F.3d
at 1303; Baker, 290 F.3d at 1278-79. After his approach, the record indicates that
Deputy Craft smelled marijuana before he started issuing commands to Gerald.
3
Case: 16-15903 Date Filed: 08/24/2017 Page: 4 of 4
That provided reasonable suspicion for further investigation. White, 593 F.3d at
1203. Thus, Deputy Craft had reasonable suspicion when he started issuing
commands to Gerald. Because we hold that reasonable suspicion existed, we reject
Gerald’s summary argument that the fruits of the subsequent search should be
suppressed because no reasonable suspicion existed to stop him. Accordingly, the
district court did not err in denying the motion to suppress.
AFFIRMED.
4