United States v. Martino Dameco Allen , 447 F. App'x 118 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10953 ELEVENTH CIRCUIT
NOVEMBER 18, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 1:09-cr-00094-TCB-GGB-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MARTINO DAMECO ALLEN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 18, 2011)
Before BARKETT, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Martino Allen appeals his conviction for possessing a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Allen contends that the
district court erred in denying his motion to suppress evidence obtained during an
encounter with the police, including the firearm underlying his conviction. In
essence, Allen maintains that the firearm was discovered following an
investigatory stop that was not properly supported by reasonable suspicion of
wrongdoing.
A district court’s denial of a motion to suppress presents a mixed question
of law and fact. United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir. 2011).
We review a district court’s factual findings for clear error, construing all facts in
the light most favorable to the prevailing party below, and its application of the
law to those facts de novo. Id. Moreover, “we may affirm the denial of a motion
to suppress on any ground supported by the record.” United States v. Caraballo,
595 F.3d 1214, 1222 (11th Cir. 2010).
The Fourth Amendment protects individuals from unreasonable searches
and seizures. U.S. Const. amend. IV. There are three broad categories of
encounters between police and citizens for purposes of the Fourth Amendment:
“(1) police-citizen exchanges involving no coercion or detention; (2) brief seizures
or investigatory detentions; and (3) full-scale arrests.” United States v. Perez, 443
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F.3d 772, 777 (11th Cir. 2006). The first type of encounter, commonly referred to
as a consensual encounter, does not constitute a “seizure” sufficient to implicate
the Fourth Amendment. Id. at 777-78. “Law enforcement officers do not violate
the Fourth Amendment’s prohibition of unreasonable seizures merely by
approaching individuals on the street or in other public places and putting
questions to them if they are willing to listen.” United States v. Drayton, 536 U.S.
194, 200, 122 S. Ct. 2105, 2110, 153 L.Ed.2d 242 (2002). Even when the police
have no basis for suspecting an individual of wrongdoing, they may pose
questions and ask for identification, provided that they do not induce cooperation
by coercive means. Id. at 201, 122 S. Ct. at 2110. If a reasonable person would
feel free to terminate the encounter, then he has not been seized. Id.Factors relevant to determining whether a police-citizen encounter was
consensual or amounted to a seizure include, among other things: “whether a
citizen’s path is blocked or impeded; whether identification is retained; the
suspect’s age, education and intelligence; the length of the suspect’s detention and
questioning; the number of police officers present; the display of weapons; any
physical touching of the suspect, and the language and tone of voice of the
police.” Perez, 443 F.3d at 778. An officer’s display of his badge and the
presence of a uniform and holstered firearm are accorded little weight in the
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analysis, as the public knows that most officers are armed and are often required to
wear uniforms. Id. at 778 n.2 (citing Drayton, 536 U.S. at 204-05, 122 S. Ct. at
2112). Ultimately, a Fourth Amendment “seizure” only occurs when a person’s
freedom of movement is restrained by means of physical force or by submission to
a show of authority. Id. at 778; Jordan, 635 F.3d at 1185.
In contrast, an investigatory stop “involves reasonably brief encounters in
which a reasonable person would have believed that he or she was not free to
leave.” Perez, 443 F.3d at 777 (quoting United States v. Espinosa-Guerra, 805
F.2d 1502, 1506 (11th Cir. 1986)). In order to justify an investigatory seizure,
“the government must show a reasonable, articulable suspicion that the person has
committed or is about to commit a crime.” Id. Although reasonable suspicion is a
less demanding standard than probable cause, it requires “at least a minimal level
of objective justification for making the stop.” Jordan, 635 F.3d at 1186. When
determining whether reasonable suspicion exists, we consider “the totality of the
circumstances in light of the officer’s own experience” to ascertain whether the
officer had an objectively reasonable basis for suspecting wrongdoing. Caraballo,
595 F.3d at 1222. In connection with an investigatory stop, an officer who has
reason to believe that he is dealing with an armed and dangerous individual may
also conduct a pat-down search for weapons for his own protection and that of
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others. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L.Ed.2d 889(1968). The search may continue when an officer feels a concealed object that he
reasonably believes may be a weapon. United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007).
Allen’s initial encounter with the police officers did not rise to the level of a
seizure implicating the Fourth Amendment. During the initial encounter, which
lasted a matter of seconds, the two officers did not block or impede Allen’s path,
demand identification, brandish their weapons, physically touch him, or otherwise
attempt to induce his cooperation by coercive means. Nor did the officers
command Allen to stop, notify him that he was being detained, or expressly
indicate that a citation was forthcoming. Since the officers did not restrain Allen’s
freedom of movement by means of physical force or a sufficient show of authority,
the initial encounter was consensual in nature. Even assuming arguendo that it
was not, the officers had a reasonable and articulable suspicion that Allen had just
violated Atlanta’s ordinances by crossing a street in front of oncoming traffic. See
Atlanta, Ga., Code of Ordinances ch. 150, § 150-266 (“No person shall stand or be
in any street or roadway in such manner as to obstruct or impede the normal and
reasonable movement of traffic.”); see also Perez, 443 F.3d at 777.
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As the officers approached Allen, he reached down and grabbed his right
pants pocket. When one of the officers asked him what was in the pocket, Allen
admitted to the officers that he had a gun, and the officers patted down his pocket.
At this point, the encounter undoubtedly escalated into an investigatory search and
seizure, but Allen’s admission to having a firearm gave the officers the requisite
reasonable suspicion to believe that he was presently armed, thereby permitting a
pat-down. Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Once the gun was found,
Allen was arrested. At no point did the encounter exceed the bounds of the Fourth
Amendment, and the district court did not err in denying the motion to suppress.
Upon review of the record and the parties’ briefs, we therefore affirm.
AFFIRMED.1
1
Allen’s request for oral arguments is DENIED.
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