United States v. Frederick Oliver Durrah , 384 F. App'x 970 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15161 ELEVENTH CIRCUIT
JUNE 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00471-CR-1-BBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK OLIVER DURRAH,
a.k.a. Frederick Durrah,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 30, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Frederick Oliver Durrah appeals his conviction for being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1). Durrah entered a conditional plea
of guilty, reserving his right to appeal the denial of his motion to suppress. On
appeal, Durrah contends the district court erred in concluding officers had a
reasonable suspicion to conduct an investigative stop of a Range Rover in which he
was a passenger and, even if the initial stop was valid, the officers violated the
Fourth Amendment by conducting a pat-down search of his person. Durrah
additionally asserts statements he made at the arrest site should have been
suppressed because he was not read his rights under Miranda v. Arizona, 86 S. Ct.
1602 (1966), until after he made those statements. After review, we affirm
Durrah’s conviction.
I.
Durrah contends the officers did not have a reasonable suspicion to stop the
Range Rover because: (1) there had not been time for Luis Palacious, Jr., the target
of the officer’s surveillance, to enter; (2) Palacious and Durrah did not look alike;
and (3) officer testimony conflicted regarding the vehicle’s passengers. Durrah
asserts his pat-down violated the Fourth Amendment because it was not reasonably
related to the justification for the stop or to protect officer safety.1
1
With the denial of a motion to suppress, we review the district court’s factual findings
for clear error, and its legal determinations de novo. United States v. White, 593 F.3d 1199, 1202
2
Law enforcement officers may make an investigative stop of a vehicle if
they have a reasonable suspicion the occupants of the vehicle are engaged in
criminal conduct. United States v. Lopez-Garcia, 565 F.3d 1306, 1313 (11th Cir.),
cert. denied, 130 S. Ct. 1012 (2009). Reasonable suspicion exists where, under the
totality of the circumstances, the officers have a particularized and objective basis
for suspecting legal wrongdoing. United States v. Arvizu, 122 S. Ct. 744, 750
(2002).
When officers conduct an investigative stop of a vehicle, they may order the
driver and any passengers to get out of the vehicle in order to protect officer safety.
Maryland v. Wilson, 117 S. Ct. 882, 884-86 (1997). In addition, the Supreme
Court has held, in the context of a lawful traffic stop, officers may perform a
pat-down search of any passenger whom they believe to be armed and dangerous,
even if the officers do not have reason to believe the passenger is involved in
criminal activity. Arizona v. Johnson, 129 S. Ct. 781, 784 (2009). To conduct a
pat-down search, an officer “need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger.” Terry v.
Ohio, 88 S. Ct. 1868, 1883 (1968).
(11th Cir. 2010).
3
We conclude the officers had reasonable suspicion to justify an investigative
stop of the Range Rover because they had information the driver was assisting
Palacious in his attempts to launder drug proceeds. Since the officers could
conduct an investigative stop of the Range Rover based solely on their suspicions
concerning the driver, we need not address whether it was reasonable for the
officers to believe Palacious himself was in the vehicle.
The officers had reason to believe Durrah was armed and dangerous, as
Durrah made a furtive movement with his right hand towards his hip and did not
immediately comply with Officer De Stefano’s orders to show his hands.
Therefore, it was permissible for the officers to order Durrah out of the vehicle and
to conduct a pat-down search of his person for weapons. Accordingly, the district
court properly concluded the items found on Durrah’s person and the statements
Durrah made while being frisked did not need to be suppressed as the fruit of an
illegal search.
II.
Durrah argues his statements at the arrest site should be suppressed because
the questioning was the functional equivalent of a custodial interrogation.2
2
Whether a defendant was in custody and entitled to Miranda warnings is a mixed
question of law and fact with clear error review of factual findings and de novo review of legal
conclusions. United States v. McDowell, 250 F.3d 1354, 1361 (11th Cir. 2001).
4
The Supreme Court has explained a suspect is interrogated within the
meaning of Miranda when he is subjected to express questioning or its functional
equivalent. Rhode Island v. Innis, 100 S. Ct. 1682, 1689 (1980). The functional
equivalent of questioning is “words or actions on the part of the police . . . that the
police should know are reasonably likely to elicit an incriminating response from
the suspect.” Id. at 1689-90. The focus is primarily on the perceptions of the
suspect, rather than the intent of the police. Id. at 1690. The Supreme Court has
recognized a “public safety” exception to the Miranda rule, under which police
may question a suspect before giving Miranda warnings when the questioning is
necessary to protect the officers’ safety or the safety of the general public. New
York v. Quarles, 104 S. Ct. 2626, 2631-32 (1984).
In this case, Durrah’s statements at the arrest site were not made in response
to custodial interrogation. Accordingly, Durrah’s statements were not obtained in
violation of Miranda. Thus, the district court did not err in denying Durrah’s
motion to suppress and we affirm his conviction.
AFFIRMED.
5