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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14689
Non-Argument Calendar
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D.C. Docket No. 2:16-cr-00451-VEH-TMP-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
DANA MICHELLE FLIPPO,
Defendant–Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(January 7, 2019)
Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.
PER CURIAM:
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Dana Flippo appeals her convictions for one count of conspiracy to possess
with intent to distribute more than 50 grams but less than 500 grams of
methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and two counts of
possession with intent to distribute 50 grams or more of methamphetamine,
id.
§ 841(a)(1), 841(b)(1)(B). Flippo challenges the denial of her motion to suppress,
the sufficiency of the evidence to support her convictions, and the denial of her
motion for a judgment of acquittal. We affirm.
Four standards of review govern this appeal. On denial of a motion to
suppress, we review findings of fact for clear error and the application of law to
those facts de novo. United States v. Touset,
890 F.3d 1227, 1231 (11th Cir. 2018).
We construe all facts in the light most favorable to the government.
Id. When a
defendant fails to renew her motion for judgment of acquittal at the close of the
evidence, we will reverse a conviction only if “the record is devoid of evidence of
an essential element of the crime or . . . the evidence on a key element of the
offense is so tenuous that a conviction would be shocking.” United States v. Fries,
725 F.3d 1286, 1291 (11th Cir. 2013) (internal quotation marks and citation
omitted). We review for plain error issues not presented to the district court. United
States v. Hunerlach,
197 F.3d 1059, 1068 (11th Cir. 1999).
Traffic stops are seizures under the Fourth Amendment. United States v.
Spoerke,
568 F.3d 1236, 1248 (11th Cir. 2009). A traffic stop is constitutional if it
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is based on probable cause to believe that a traffic violation has occurred or is
justified by reasonable suspicion that the person is engaged in a criminal activity.
United States v. Harris,
526 F.3d 1334, 1337 (11th Cir. 2008). When an officer
“possesse[s] probable cause to believe that a traffic violation ha[s] occurred, the[]
seizure of [a defendant] and his vehicle comports with the Fourth Amendment
notwithstanding the[ officer’s] subjective desire to intercept any narcotics being
transported . . . .” United States v. Holloman,
113 F.3d 192, 194 (11th Cir. 1997).
The existence of probable cause or reasonable suspicion is viewed from the
standpoint of an objectively reasonable police officer. United States v.
Chanthasouxat,
342 F.3d 1271, 1276 (11th Cir. 2003).
The district court did not err by denying Flippo’s motion to suppress based
on an allegedly unlawful traffic stop. On June 14, 2016, Flippo, while under
surveillance as a suspected drug dealer, was stopped by Deputies Brandon Streit
and Darrius Black of the Jefferson County Sheriff’s Department after she violated
a traffic law by making a left turn “without giving an appropriate signal” within at
least “100 feet . . . before turning,” Ala. Code § 32-5A-133. Sergeant Jason Mize
instructed the deputies to stop Flippo’s white Cadillac Escalade if they observed
her commit any traffic violation. It matters not that the stop was pretextual.
Because the officers had probable cause to stop Flippo for a traffic violation, their
“motive in making the traffic stop [did] not invalidate what [was] otherwise
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objectively justifiable behavior under the Fourth Amendment,”
Harris, 526 F.3d at
1337 (quoting United States v. Simmons,
172 F.3d 775, 778 (11th Cir. 1999)).
Flippo challenges as incredible the deputies’ testimonies that they observed
her commit a traffic violation after having trailed her and Mize “for approximately
fifteen to twenty minutes without incident,” but Flippo omits intervening events
that explain the deputies’ conduct. Mize testified that he followed Flippo “fifteen
to twenty miles” from Center Point to Gardendale, during which time Streit and
Black separately joined the caravan as backup officers. During the trip, the
deputies were not in a vantage point to observe Flippo violate a traffic law. As the
caravan entered Gardendale, Mize instructed the two deputies to drive ahead and to
park their vehicles in the parking lot of a church near the intersection of Highway
31 and Snow Rogers Drive. Mize continued to follow Flippo until she entered a
trailer park in Gardendale, and then Mize radioed Streit and Black to be on the
lookout for Flippo and to stop her if they observed her commit a traffic violation.
The district court did not clearly err in crediting the deputies’ testimony that they
stopped Flippo for a traffic violation.
Flippo also argues that inconsistencies in the deputies’ testimonies about
when she activated her turn signal made their stories “dubious,” but we give
substantial deference to the finding that the officers observed a traffic violation, see
United States v. Pineiro,
389 F.3d 1359, 1366 (11th Cir. 2004). We cannot say the
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officers’ testimonies were “contrary to the laws of nature, or [were] so inconsistent
or improbable on its face that no reasonable factfinder could accept it.”
Id. (quoting
United States v. Ramirez–Chilel,
289 F.3d 744, 749 (11th Cir. 2002)). Both
deputies testified that they observed Flippo approach the intersection and move
into the turn lane without activating her turn signal. Deputy Streit also testified that
he saw Flippo activate her signal right before she made a left turn. It is not
inconceivable that the deputies would observe different events from their
respective vantage points in their two patrol cars.
The district court also did not err by denying Flippo’s motion to suppress. A
strong odor of raw marijuana wafted out the driver’s side window of Flippo’s
vehicle as Streit spoke with her and out the passenger’s side window as Black
talked to Flippo’s boyfriend, Donain Rodriguez. That odor provided probable
cause for the deputies to conduct a warrantless search of the vehicle. See United
States v. Tobin,
923 F.2d 1506, 1512 (11th Cir. 1991). Black instructed Rodriguez
to exit the vehicle and, during a pat down, Rodriguez reached under his jacket into
a breast pocket on his shirt. When Black grabbed Rodriguez’s hand to thwart him
from obtaining a weapon, a baggie of marijuana fell out of his hand and landed on
the ground. Black handcuffed Rodriguez and discovered a baggie of
methamphetamine in another pocket. In the meantime, Flippo also exited her
vehicle. Three to five minutes later, Deputy Anthony Sanford of the K-9 unit
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arrived at the scene and his dog alerted to the presence of drugs in Flippo’s vehicle.
See United States v. Dunkley,
911 F.2d 522, 527 (11th Cir. 1990). Deputies
searched the vehicle and seized two sets of drug scales stored inside the console,
$3,400 of currency from Flippo’s purse, and one set of drug scales and 178 grams
of methamphetamine concealed inside a zebra-striped tote located behind the
passenger seat.
Flippo argues that the officers’ accounts were untrustworthy because they
provided inconsistent reasons why Sanford conducted the canine search, but we
disagree. Mize recorded on his incident report that he sent Sanford to the scene
after learning from Streit that Flippo and Rodriguez were acting nervously. Streit
did not recall reporting any nervousness and testified that Sanford’s canine sniffed
the vehicle “[j]ust to be sure about ourselves and just let him, since he was there, to
do it.” These statements are not inherently inconsistent. See
Pineiro, 389 F.3d at
1366. In any event, it makes no difference why Sanford went to the scene. The
officers did not need a positive alert from the canine to search the vehicle. The
officers’ suspicions about the presence of drugs ripened into “probable cause [to
search Flippo’s vehicle] when, . . . [through its opened windows, the officers]
detected what [they] knew . . . to be the odor of marijuana” and discovered two
different packages of drugs in Rodriguez’s possession. See
Tobin, 923 F.2d at
1512.
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The government presented sufficient evidence that Flippo and Rodriguez
knowingly conspired to distribute methamphetamine through testimony from the
officers who discovered incriminating evidence inside Flippo’s vehicle after the
traffic stop, from Zachary Smith, a confidential informant, who made a controlled
purchase of methamphetamine from Flippo on June 7, 2016, and from officers who
executed a warrant to search Flippo’s home in Gardendale one week later. See 21
U.S.C. § 841. On the day of the traffic stop, after officers discovered contraband in
Flippo’s vehicle and purse, she admitted to Mize that she knew there were drugs in
her car and that she routinely served as a translator for Rodriguez during drug
transactions. See United States v. Brown,
587 F.3d 1082, 1089 (11th Cir. 2009) (“If
‘a defendant’s actions facilitated the endeavors of other co-conspirators, or
facilitated the venture as a whole,’ a single conspiracy is established.”). Smith
testified that, in January 2016, he began buying drugs to resell from Flippo at her
homes in Gardendale and in Center Point. Smith observed drugs and drug scales in
Flippo’s kitchen, he watched Flippo weigh methamphetamine, he ordinarily bought
drugs from either Flippo or Rodriguez, and both of them were present during four
or five drug transactions. Corporal Neal Owings testified that he obtained a warrant
to search Flippo’s home after Smith returned from his controlled purchase in her
Gardendale home with 1.9 grams of methamphetamine. Owens also testified that
the search of Flippo’s house resulted in the discovery of 235 grams of
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methamphetamine; a bill of sale, correspondence from Alabama Power, and a pass
to Six Flags in Flippo’s name; a wallet containing two of Flippo’s means of
identification and drug scales in the master bedroom; a young man’s clothing in a
guest bedroom; and food and medicine inside cabinets in the kitchen. Officer Joel
Gaston, who collected evidence inside Flippo’s home, testified that she and
Rodriguez returned home in her truck during the search and that officers seized
from her truck a billfold containing about $1,000 in cash that was sitting next to a
black leather purse. A jury reasonably could have found based on this evidence
that Flippo and Rodriguez conspired to distribute methamphetamine.
The government also presented sufficient evidence to support Flippo’s
convictions for distributing methamphetamine. Smith’s testimony about
purchasing methamphetamine from Flippo on multiple occasions, Flippo’s
admission to Mize after the traffic stop that she knew of the 178 grams of
methamphetamine in her vehicle, and the discovery of more than $3,000 in cash in
her purse could have supported the jury’s finding that Flippo possessed
methamphetamine with the intent to distribute it on January 14, 2016. See 21
U.S.C. § 841(a); United States v. Capers,
708 F.3d 1286, 1297 (11th Cir. 2013).
The jury also reasonably could have found that Flippo distributed
methamphetamine on June 14, 2016, based on the contraband the officers
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discovered inside her residence and the large amount of cash she had inside her
truck when she returned home. See
id.
Flippo argues, for the first time, that the district court erred in denying her
motion for an acquittal for distributing methamphetamine on June 14, 2016, on the
ground that the evidence seized from her home should have been suppressed as the
fruits of an invalid search warrant. Because Flippo made a motion for a judgment
of acquittal based on the insufficiency of the evidence after the government rested
its case, “our review of the district court’s decision to deny the motion for
judgment of acquittal on [the specific ground that officers illegally seized property
from her home is] only for ‘plain error.’”
Hunerlach, 197 F.3d at 1068. To prevail,
Flippo must prove that an error occurred that is plain and that affects her
substantial rights.
Id.
No plain error occurred. Flippo argues that Corporal Owings “falsely
misrepresented” in his affidavit for the search warrant that Smith “has given
information in [the] past which has proved to be true and correct and has led to
narcotics cases being made.” But when Flippo asked Owings at trial whether his
affidavit was false, Owings responded that Smith previously provided reliable
information by “t[elling] a previous informant that he could sell marijuana and sold
him marijuana.” Owens provided a rationale for the statement he made in his
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affidavit and Flippo did not pursue the matter further. Without more, we discern no
error.
We AFFIRM Flippo’s convictions.
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