United States v. Clifford B. Wilbur ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 21, 2012
No. 11-11396
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 3:09-cr-00079-MMH-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD B. WILBUR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 21, 2012)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Clifford Wilbur appeals his convictions of two counts of distributing
cocaine base, 21 U.S.C. § 841(a)(1), and one count of possessing with intent to
distribute cocaine base, id. Wilbur challenges the denials of his motions for
suppression and for a mistrial. We affirm.
The district court did not err when it denied Wilbur’s motion to suppress.
Because Deputy Russell Martin noticed that Wilbur’s vehicle had “extremely dark
tinted windows,” Martin was entitled to stop Wilbur to determine if his windows
were darker than permitted under Florida law, Fla. Stat. §§ 316.2953, 316.2954.
See United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999). After Martin
stopped his vehicle, Wilbur appeared to be nervous and “overly apologetic” about
the windows. Martin determined that the windows were too dark and requested
Wilbur’s driver’s license to prepare a warning citation. When Deputy Gene
Tolbert arrived as a backup officer, he recognized Wilbur’s name as that of a local
drug dealer. Without consulting Martin, Tolbert requested that a canine unit be
sent to the scene. Wilbur argues that the officers prolonged the stop unreasonably,
but the evidence established that the canine unit arrived within ten to fifteen
minutes while Martin was completing a background search and writing the
citation. See Illinois v. Caballes, 543 U.S. 405, 409, 125 S. Ct. 834, 838 (2005);
see also United States v. Holloman, 113 F.3d 192, 196 (11th Cir. 1997). The drug
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dog alerted to the presence of drugs in Wilbur’s vehicle, which gave the officers
probable cause to search the vehicle without a warrant, United States v. Banks, 3
F.3d 399, 402 (11th Cir. 1993), where they discovered in the center console of the
vehicle a prescription bottle containing what appeared to be crack cocaine.
The district court also did not abuse its discretion when it denied Wilbur’s
request for a mistrial. Agent Ryan Johnson of the Drug Enforcement
Administration, an expert witness regarding video enhancement and analysis,
testified on cross-examination that a video recording of a undercover drug
purchase made by a confidential informant that depicted a distinctive mark on the
seller’s arm and shoulder had the same shape and form as a tattoo depicted in a
photograph of Wilbur taken after his arrest. Johnson’s testimony was not “so
highly prejudicial as to be incurable.” United States v. Perez, 30 F.3d 1407, 1410
(11th Cir. 1994). The district court twice instructed the jury to disregard
Johnson’s testimony, and we presume that the jury followed those instructions.
United States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011). Our decision is
“further bolstered” by the “significant evidence” that identified Wilbur as the
seller. Perez, 30 F.3d at 1411. The confidential informant identified Wilbur
unequivocally as the individual who sold the cocaine base, and the confidential
informant testified that Wilbur stored the drugs inside a pill bottle that he kept in
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the center console of his car. Detective John Brush, who testified that he had
known Wilbur for about 18 years, also identified Wilbur’s voice on an audio
recording of the drug sale.
We AFFIRM Wilbur’s convictions.
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