USCA11 Case: 22-10489 Document: 33-1 Date Filed: 12/27/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10489
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD H. SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cr-00122-RAH-JTA-1
____________________
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2 Opinion of the Court 22-10489
Before JORDAN, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, Richard Smith appeals the district court’s
denial of his motion to suppress evidence (cocaine and a gun)
seized from his person during a traffic stop conducted as part of a
larger investigation into a drug trafficking organization.
After careful review and based on the totality of the
circumstances, we conclude that the officer had sufficient evidence
supporting a reasonable suspicion that Smith was transporting
drugs to a dealer in the area, warranting the extension of the traffic
stop and detention of Smith. We thus affirm the district court’s
denial of Smith’s motion to suppress.
I. FACTS
A federal grand jury charged Smith and two codefendants,
Mellissa Stacy Ann Smith and Ronnie White, in a superseding
indictment. 1 Smith was charged with (1) conspiracy to distribute
and possess a controlled substance with intent to distribute, in
violation of
21 U.S.C. § 846 (Count 1); (2) possession of a controlled
substance with intent to distribute, in violation of
21 U.S.C.
§ 841(a)(1) (Count 2); (3) possession of a firearm during and in
relation to a drug trafficking crime, in violation of
21 U.S.C.
§ 924(c)(1)(A)(i) (Count 3); (4) conspiracy to launder money, in
violation of
18 U.S.C. § 1956(a)(1)(B)(i) and (h) (Count 4); and
1 Neither of Smith’s codefendants is a party to this appeal.
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(5) use of a communication facility to further the conspiracy, in
violation of
21 U.S.C. § 843(b) (Count 9).
On May 15, 2020, Smith moved to suppress the cocaine and
gun found on Smith’s person during a traffic stop.
On June 17, 2020, a magistrate judge held a hearing on the
motion to suppress. We recount the facts from (1) the testimony
and wiretap evidence presented at the motion-to-suppress hearing
and (2) the dashboard camera video from the traffic stop.
A. Evidence from the Suppression Hearing and Dashboard
Camera
This was not a routine traffic stop. Rather, it was a
coordinated drug interdiction operation.
In 2016, the Drug Enforcement Administration (“DEA”)
began investigating Ronnie White for his involvement in a drug
trafficking organization in Montgomery, Alabama. As part of that
investigation, the DEA task force obtained three 30-day orders
authorizing the interception of wire and electronic
communications on White’s telephone. After monitoring calls and
conducting surveillance for weeks, agents suspected Defendant
Smith was supplying cocaine to White regularly.
On December 16, 2017, agents listened to two intercepted
calls between Smith and White. In the first call, White told Smith,
“I’m looking ugly boy . . . I need ya. . . . I said I need it!” Smith
replied, “I know, I know, I know. See you soon this afternoon
when I get back in.” In the second call, Smith told White, “I’ll hook
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4 Opinion of the Court 22-10489
you up in the morning alright?” After hearing that call, agents
believed Smith planned to deliver narcotics to White at White’s
home in Montgomery the next day.
On December 17, 2017, agents heard two more intercepted
calls between Smith and White. In the first call, White informed
Smith that he was “at the crib” and Smith responded that he had
“like two stops to make then” he would “come holla at [White].”
In the second call, Smith asked White, “You got the credit?” and
White responded, “Yea.” Smith replied, “I’m on my way.”
In anticipation of the meeting between Smith and White,
agents conducted surveillance at the homes of Smith and White, as
well as locations in between, to locate Smith’s vehicle. Agents
agreed that if Smith’s vehicle was located, Lieutenant Scott Dunn
of the Montgomery Police Department would conduct a traffic
stop of Smith.
Lieutenant Dunn had participated in the DEA investigation
by monitoring intercepted calls. Indeed, Lieutenant Dunn was in
the DEA’s “wire room” when the first December 17th call was
intercepted. Lieutenant Dunn left the wire room and parked on a
road in east Montgomery to await Smith’s vehicle. Although the
planned traffic stop was part of the DEA’s drug trafficking
investigation, Lieutenant Dunn testified that he was instructed to
establish independent probable cause for a traffic stop of Smith.2
2 Lieutenant Dunn explained that the DEA task force asked him to get
independent probable cause to stop Smith’s vehicle in case they had to charge
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At approximately 2:42 p.m., Lieutenant Dunn spotted Smith
traveling toward White’s residence. Consistent with his
instructions, Lieutenant Dunn stopped Smith’s car for both
suspected drug trafficking and a window tint violation.
According to Lieutenant Dunn, Smith was overly friendly
but appeared extremely nervous. Lieutenant Dunn noted that,
based on his training and experience, people who displayed
extreme friendliness during traffic stops often had drugs on them.
Lieutenant Dunn also observed that Smith was shaking and
breathing very fast, his neck veins were extended, his heart was
beating in his throat, and Smith got more nervous as time passed.
Lieutenant Dunn told Smith that he was going to write him
a warning for the tint violation and asked him to come to
Lieutenant Dunn’s car. When Smith exited his car, Lieutenant
Dunn asked if he had any weapons. Smith replied that he had a
gun on his person and had a license for it. Lieutenant Dunn took
the gun and conducted a quick pat-down for weapons. During that
pat-down, Lieutenant Dunn found a cell phone. Lieutenant Dunn
placed the cell phone and gun in Smith’s car. Lieutenant Dunn
then asked Smith to sit in the police car while Lieutenant Dunn
typed up the warning.
As he prepared the window tint warning, Lieutenant Dunn
made general conversation with Smith. Lieutenant Dunn testified
Smith in state court because the wire case targeting White was sealed at the
time.
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that during traffic stops he would engage people in conversation
“to try to alleviate some of [their] nervousness” so “[t]hat way [he]
can rule out people that are involved in criminal activity versus
people who are just committing traffic violations.” Lieutenant
Dunn observed that Smith did not become less nervous from the
general conversation or after being told he was only receiving a
warning. Lieutenant Dunn also noticed the smell of chemicals that
typically emit from cocaine.
Lieutenant Dunn then asked Smith where he lived, and
Smith provided his address in Wetumpka. Lieutenant Dunn then
asked what Smith was doing in the Montgomery area. Smith said
he was on his way home from a local movie theater, although he
had not seen a movie. That statement struck Lieutenant Dunn as
odd because he did not “know too many people that go to the
theater and not watch a movie.” Lieutenant Dunn also observed
that Smith was traveling in the direction of White’s house.
After Lieutenant Dunn issued the warning, he held Smith
for additional questioning. At the hearing, Lieutenant Dunn
explained that Smith was not free to leave at that time because of
(1) the intercepted calls indicating that Smith would be delivering
drugs to White, (2) Smith’s driving toward White’s home,
(3) Smith’s behavior during the stop (e.g., overly friendly, nervous,
breathing rapidly, visibly shaking, noticeable neck veins, dubious
answers to simple questions), and (4) the smell of cocaine.
Lieutenant Dunn asked Smith if his car contained any dead
bodies, marijuana, or heroin. Smith said no. Then Lieutenant
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Dunn asked if he had any cocaine. In response, Smith laughed
nervously, said no, licked his lips, and swallowed “real hard.”
Lieutenant Dunn believe that Smith became more nervous when
asked about cocaine based on his change in demeanor.
Lieutenant Dunn asked if he could search Smith’s car. Smith
asked if he needed to call an attorney. Lieutenant Dunn responded
that he was going to have a dog smell around the car, and if the dog
did not smell anything, Smith would be free to go, but if the dog
smelled something, Lieutenant Dunn would search the car.
Lieutenant Dunn called a K-9 unit. Because it was a Sunday,
the K-9 unit (Corporal Payton D. Williams and his drug-trained
canine, Sadie) arrived 37 minutes later. Sadie alerted for the
presence of narcotics near the driver’s door. 3
Lieutenant Dunn searched Smith’s car for about an hour but
did not find any drugs. Based on the intercepted phone
conversations with White, Lieutenant Dunn suspected that the car
had a hidden compartment for storing drugs. Because it was
raining and the car was on the road near White’s house, Lieutenant
3 Corporal Williams testified that Sadie “gave a positive indication on the
vehicle.” Corporal Williams explained that Sadie is trained to be “passive,” so
when she sits, that means she has smelled narcotics. He also explained that
Sadie would alert if (1) “narcotics have been in th[e] vehicle or [(2)] someone
has touched narcotics and [then] touched that [door] handle with residual
odor.”
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Dunn decided to move the car to a safer location to search it
“better.”
In preparation for transporting Smith and his vehicle,
Lieutenant Dunn conducted a second, more thorough pat-down
search of Smith for safety. Lieutenant Dunn asked Smith if he had
anything on his person and instructed Smith to put his hands up
and spread his legs. According to Lieutenant Dunn, he gave these
instructions because Smith seemed to be protecting his coat from
Lieutenant Dunn’s hands. Noticing that Smith’s evasive
movements caused the scent of cocaine to leave his body,
Lieutenant Dunn suspected the cocaine was on Smith’s body.4
Lieutenant Dunn found the cocaine inside the left breast pocket of
Smith’s coat, and Smith was arrested.
B. Magistrate Judge’s Report and Recommendation
Following the suppression hearing, the magistrate judge
issued a report and recommendation (“R&R”), recommending that
Smith’s motion to suppress be denied.
The magistrate judge concluded that the traffic stop was not
unlawfully prolonged because Lieutenant Dunn had reasonable
suspicion to investigate drug trafficking based on the totality of the
4 Lieutenant Dunn testified that the “various chemicals that are used to process
cocaine emit[] a very distinct odor.” In addition, Officer Thompson testified
that he was familiar with the odor of cocaine and that the chemicals used to
process cocaine cause the cocaine to emit “a very distinct and pungent
chemical smell that is very, very noticeable.”
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circumstances, including the investigation, the wiretaps, Smith’s
nervous attitude and behavior, the odor of chemicals used to
prepare cocaine, and the canine alert. The magistrate judge
specifically “credit[ed] Lieutenant Dunn’s testimony that he
‘periodically’ smelled the odor of chemicals relating to cocaine.”
The magistrate judge also concluded that the second search
of Smith’s person was lawful. Specifically, the magistrate judge
found that (1) the second search was reasonable because the first
search was a cursory pat down of Smith’s lower body and a more
thorough second pat down was needed to ensure safety; and
(2) Lieutenant Dunn had probable cause to believe that searching
Smith would yield evidence of a crime because of the cocaine odor,
the K-9 alert on the car, fruitless search of the car, intercepted
communications, travel of Smith near White’s residence, and
questionable responses from Smith regarding his travel plans. 5
Smith objected to the R&R.
C. District Court’s Order
On February 24, 2021, the district court overruled Smith’s
objections, adopted the magistrate judge’s R&R, and denied
Smith’s motion to suppress. The district court found, inter alia,
that (1) the traffic stop was not unlawfully prolonged, (2) the record
supported the magistrate judge’s finding that the totality of the
5At one point, the R&R mistakenly refers to the defendant as Richard White,
using his co-defendant’s last name, but we know from context that the
magistrate judge meant defendant Richard Smith.
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circumstances justified the extension of the stop, and (3) the record
supported the magistrate judge’s acceptance of Lieutenant Dunn’s
testimony about Smith’s behavior and the smell of cocaine.
D. Jury Trial and Sentence
Following the court’s ruling, Smith proceeded to trial. A
jury found Smith guilty on Counts 1, 2, 3, and 9 and not guilty on
Count 4. The district court sentenced Smith to 145 months’
imprisonment followed by 3 years of supervised release.
Smith appeals the district court’s denial of his pretrial
motion to suppress. 6
II. STANDARD OF REVIEW
A district court’s ruling on a motion to suppress presents
mixed questions of law and fact. United States v. Ransfer,
749 F.3d
914, 921 (11th Cir. 2014). We review the district court’s factual
determinations for clear error and the application of the law to
those facts de novo.
Id.
III. DISCUSSION
As an initial matter, while Smith challenged the lawfulness
of the second pat-down of his person in the lower court, he
abandoned any challenge to the district court’s ruling on that issue
by failing to adequately brief it on appeal. 7 Additionally, Smith
6 On appeal, Smith raises no issues as to his trial or sentence.
7 Smith does not provide any law or analysis on the issue of whether the
second pat-down was proper and only refers to it in passing in his argument
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now concedes that the initial traffic stop was valid. Thus, we need
only address the district court’s determination that the traffic stop
was not unlawfully prolonged.
Once an officer makes a traffic stop, he does not have
unfettered authority to detain a person indefinitely, and instead,
the detention is “limited in scope and duration.” Florida v. Royer,
460 U.S. 491, 500,
103 S. Ct. 1319, 1326 (1983).
To prolong a stop, an officer “must have a reasonable,
articulable suspicion based on objective facts that the person has
engaged in, or is about to engage in, criminal activity.” United
States v. Lindsey,
482 F.3d 1285, 1290 (11th Cir. 2007) (quotation
marks omitted). An officer unlawfully prolongs a traffic stop when
he, “without reasonable suspicion, diverts from the stop’s purpose
and adds time to the stop in order to investigate other crimes.”
United States v. Campbell,
26 F.4th 860, 884 (11th Cir.) (en banc),
cert. denied,
143 S. Ct. 95 (2022). When “each answer to the
[officer’s] investigative questions fail[s] to allay his concerns, the
[officer’s] reasonable suspicion [is] bolstered, thus justifying” the
continued detention of the defendant. United States v. Hernandez,
418 F.3d 1206, 1211 (11th Cir. 2005).
section. See United States v. Corbett,
921 F.3d 1032, 1043 (11th Cir. 2019)
(explaining that an appellant abandons a claim on appeal when he “raises it in
a perfunctory manner without supporting arguments and authority” and
when he “makes only passing references to it that are background to other
arguments or are buried within other arguments, or both” (quotation marks
omitted)). Therefore, Smith has abandoned the issue.
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In determining whether reasonable suspicion exists, courts
must review the “totality of the circumstances of each case to
[decide] whether the detaining officer ha[d] a particularized and
objective basis for suspecting legal wrongdoing.” United States v.
Arvizu,
534 U.S. 266, 273,
122 S. Ct. 744, 747 (2002) (quotation
marks omitted).
Here, the district court did not err in determining the traffic
stop was not unlawfully prolonged.
First, Smith argues that he was “detained for over two hours
for a suspected window tint violation.” That is factually incorrect.
According to the evidence presented at the suppression hearing,
Lieutenant Dunn’s purpose in conducting the traffic stop was
twofold: He sought to investigate (1) a possible window tint
violation and (2) whether Smith was delivering narcotics to White.
It was this latter purpose that extended Smith’s detention after
Lieutenant Dunn had issued Smith a warning for the window tint
violation.
We conclude Lieutenant Dunn had ample reasonable
suspicion to extend Smith’s detention to investigate whether Smith
was engaged in drug trafficking based on the totality of the
circumstances: (1) the intercepted calls indicating Smith would be
delivering drugs to White that day, (2) Smith’s behavior during the
stop (e.g., overly friendly, nervous, breathing rapidly, visibly
shaking, noticeable neck veins, dubious answers to simple
questions), (3) Smith’s traveling toward White’s home, (4) the
smell of cocaine, and (5) the canine drug alert.
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Smith argues that the stop became unlawful once
Lieutenant Dunn’s first pat-down and subsequent search of Smith’s
car turned up no drugs. Smith contends that at that point the smell
of cocaine was insufficient to support reasonable suspicion because
(1) cocaine has no odor and (2) the chemical odor Lieutenant Dunn
claimed to have smelled is not distinctive of an illegal substance.
But, as noted above, Lieutenant Dunn’s reasonable suspicion was
not based on the smell of cocaine alone. In addition to the smell of
cocaine, Lieutenant Dunn’s other information and observations—
the intercepted calls indicating Smith would be delivering drugs to
White, Smith’s traveling toward White’s home, Smith’s nervous
behavior during the traffic stop, and the canine drug alert—all gave
rise to ample reasonable suspicion that cocaine was hidden in
Smith’s car. Therefore, Smith’s continued detention so that
Lieutenant Dunn could move Smith’s car and safely conduct a
better search was justified.
Smith contends officers cannot rely on the smell of cocaine
to support reasonable suspicion because it does not have a
distinctive odor. However, we have regularly considered an
officer’s testimony about the smell of cocaine in a variety of
contexts. See United States v. Coronel,
750 F.2d 1482, 1488 (11th
Cir. 1985) (the smell of cocaine “was discernible”); United States v.
Rackley,
742 F.2d 1266, 1268 (11th Cir. 1984) (special agent
“noticed a strong acidic smell which he recognized to be the smell
of cocaine”). Here, Lieutenant Dunn and Officer Thompson both
testified that the chemicals used to process cocaine emit a very
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distinct odor.8 More importantly, the smell of cocaine was only
one of many observations that gave rise to reasonable suspicion.
IV. CONCLUSION
For these reasons, we affirm the district court’s denial of
Smith’s motion to suppress.
AFFIRMED.
8 To the extent that Smith challenges the credibility determination as to
Lieutenant Dunn’s testimony that he could smell cocaine, Smith has not
shown that the officer’s testimony, which was corroborated by another officer
who smelled cocaine on Smith’s clothing, was incredible as a matter of law.
See United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002)
(“Credibility determinations are typically the province of the fact finder
because the fact finder personally observes the testimony and is thus in a better
position than a reviewing court to assess the credibility of witnesses. . . . In
other words, we must accept the evidence unless it is contrary to the laws of
nature, or is so inconsistent or improbable on its face that no reasonable fact
finder could accept it.” (cleaned up)).
