United States v. Gerald Therone Lawson ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13272
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD THERONE LAWSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:18-cr-00052-WLS-TQL-1
____________________
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2 Opinion of the Court 21-13272
Before ROSENBAUM, JILL PRYOR, and HULL, Circuit Judges.
PER CURIAM:
Defendant Gerald Lawson appeals his conviction for being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Lawson argues that the district court erred in denying his motion
to suppress because the officers did not have reasonable suspicion
to detain him, and it was not immediately apparent that he was
engaged in any criminal activity. He also argues that he has
standing to challenge any Fourth Amendment violations because
he did not abandon the Nissan that the officers searched and the
key to that vehicle. After review, we affirm.
I. FACTS
Defendant Lawson filed a motion to suppress “any and all
evidence obtained as a result of his illegal detention, the illegal
seizure of his keys, and the illegal search of his car.” The district
court held a hearing on the motion to suppress. We recount the
facts primarily from the testimony presented at the motion-to-
suppress hearing and the police bodycam videos.
A. Evidence from Suppression Hearing
On July 18, 2018, Lawson’s girlfriend, Kesha Fountain,
rented a gray Nissan. Fountain gave Lawson the key to the Nissan
and permission to drive the Nissan. Lawson drove the Nissan to
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21-13272 Opinion of the Court 3
Wisenbaker Lane.1 Property owner Illinois Freelove gave Lawson
permission to park the Nissan in his driveway, which Lawson did.
Then, Lawson walked to a nearby vacant lot. At the lot, Lawson
sat and played cards with three of his friends—Vinnie Pierce,
Emory Carter, and Richard Crawford. Lawson placed his
cellphone and the key to the Nissan on the table approximately six
or seven inches away from him.
Meanwhile, officers from the Lowndes County Sheriff’s
Office were patrolling the area because there had been a shooting
on Wisenbaker Lane. One of the officers, Rob Picciotti, knew the
area around Wisenbaker Lane was prone to violent crime,
distribution of narcotics, and gang activity. When Officer Picciotti
approached the vacant lot, he noticed several men, which he
thought was unusual given that it was about 9:00 or 10:00 a.m.
Officer Picciotti recognized three of the four men present,
whom he identified as Carter, Pierce, and Lawson. Officer Picciotti
previously had arrested Carter for distribution of narcotics,
probation violations, and related crimes. Officer Picciotti was
aware of Pierce’s involvement in some gang-related activities and
some crimes that Officer Picciotti had investigated. And Officer
Picciotti was aware that Lawson had a criminal history and was on
probation for a felony sentence.
1 The record refers to this location as both Wisenbaker Lane and Wirebaker
Lane. For the sake of consistency, we refer to this address as Wisenbaker
Lane.
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When the officers first approached the vacant lot, Officer
Picciotti spotted (1) a cellophane wrapper that he believed
contained drugs and was later determined to have crack cocaine;
(2) a clear bag with narcotic residue near Pierce; and (3) the men
playing cards, which Officer Picciotti took to mean gambling was
occurring, in violation of Georgia law and Lawson’s probation. At
that point, Officer Picciotti believed he had a “dope investigation.”
When Officer Picciotti inquired about the key on the table,
Lawson denied any association with it. Lawson first ignored
Officer Picciotti’s questioning about the key. When Officer
Picciotti asked a second time about the key, Lawson said he was
“not aware” who owned the key and looked at a nearby woman
named Darlene Clark. Clark then responded that the key belonged
to Mika.
Officer Picciotti picked up the key, and no one objected.
Officer Picciotti activated the key to see if he could locate the car.
A gray Nissan on a neighboring property alerted in response.
Officer Picciotti put the key back on the table.
Officer Picciotti asked the men who owned “all th[e] stuff”
on the table. The video shows Officer Picciotti point to a black
plastic bag, a cellphone, the key, and some bug spray. Lawson
claimed ownership of the cellphone but denied ownership of the
rest of the items.
Officer Picciotti asked Lawson if he had anything illegal on
him. Lawson said, “No sir.” Officer Picciotti replied, “I’d like to
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check you real quick.” Lawson consented to a search of his person,
and an officer searched him.
Officer Picciotti asked Lawson if it was okay to look in
Lawson’s black plastic bag on the table. Lawson denied ownership
of the bag. The bag contained beer and cigarettes.
Officer Picciotti asked to search Lawson’s cellphone.
Lawson unlocked his cellphone and handed it to Officer Picciotti.
Officer Picciotti picked up the key again and decided to hold
onto it. Officer Picciotti asked Lawson to sit down in one of the
nearby chairs.
Officer Picciotti was suspicious of the fact that the two
people closest to the key, Lawson and Pierce, both said they arrived
on foot from different locations. He believed that the key could be
linked to them and to a criminal act.
At that point, however, Officer Picciotti decided that, based
on the proximity of the key and cocaine to Pierce and the denial of
the men as to whom the key belonged, Lawson was not involved
in criminal activity, so he told Lawson he was “free to go.”
Lawson left the scene without the Nissan or the key. At no
point during Officer Picciotti’s encounter with Lawson did he
claim ownership or possession of the key.
Officer Picciotti walked to Freelove’s property, where the
Nissan was parked. Officer Picciotti noticed that the driver’s seat
in the Nissan was tilted further back than what would have been
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typical for someone of Pierce’s size. He thought the positioning of
the seat was more consistent with someone of Lawson’s height.
Freelove told Officer Picciotti that the Nissan belonged to “G,”
which Officer Picciotti knew to be Lawson’s nickname.
Based on all the circumstances surrounding the events of
that morning—the discovery of cocaine at the scene, the location
of the key on the table near Pierce and Lawson, and the fact that
no one had claimed ownership of the key to the Nissan—he
believed that the Nissan likely contained contraband. Officer
Picciotti called a narcotics dog to the scene. The K9 gave a positive
alert for contraband. The officers conducted a search of the Nissan
and found a firearm in the Nissan’s glovebox. To be clear, at the
time of the K9’s presence and the officers’ search, Lawson had left
the area.
B. District Court’s Order
After the suppression hearing, the district court issued a
written order denying Lawson’s motion to suppress. The court
reasoned that, while Lawson initially may have maintained an
objective expectation of privacy in the Nissan and key, he
abandoned that expectation when he voluntarily walked away
from the scene after denying ownership of the car and key and
failing to assert a connection to either. The court further found
that, because Lawson abandoned any expectation of privacy in the
car and key, he also lacked standing to challenge the search of the
Nissan on Fourth Amendment grounds.
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Regarding Lawson’s detention, the district court found that
officers had reasonable, articulable suspicion to detain Lawson
briefly based on the circumstances surrounding the encounter,
including the fact that (1) officers arrived at the lot to follow up on
a recent shooting; (2) the lot and its surrounding area were known
for drug and gang-related activity; (3) Officer Picciotti was aware
that some of the men at the lot, including Lawson, had criminal
histories and were on probation; and (4) as Officer Picciotti
approached the men, he saw a cellophane wrapper with what he
suspected to be cocaine and a bag with narcotic residue. The
district court also reasoned that its finding that Lawson’s detention
was based on reasonable suspicion was further supported by the
fact that Lawson consented to having his phone searched, his brief
detention was not unreasonably extended, he was never forced to
remain at the scene, and he never stated that he was unwilling to
speak with the officers.
The district court also found that adequate probable cause
existed to search and seize the key and evidence within the Nissan
pursuant to the automobile exception and the totality of
circumstances, including the K9’s positive alert.
C. Lawson’s Guilty Plea and Sentence
Following the court’s ruling, Lawson pled guilty. In his plea
agreement, Lawson expressly reserved his right to appeal the
district court’s denial of his motion to suppress the search of the
Nissan that led to the discovery of the gun.
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The final presentence investigation report provided for an
advisory guidelines range of 77 to 96 months based on a total
offense level of 22 and a criminal history category of V. The district
court reduced the offense level to 20, applying the two-level
COVID-19 reduction. Lawson’s new advisory guidelines range
was 63 to 78 months based on a total offense level of 20 and a
criminal history category of V. Ultimately, the district court
sentenced Lawson to 72 months’ imprisonment followed by 3
years of supervised release. 2
II. STANDARD OF REVIEW
A district court’s ruling on a motion to suppress presents a
mixed question of law and fact. United States v. Pierre, 825 F.3d
1183, 1191 (11th Cir. 2016). We review the district court’s factual
findings for clear error and its application of the law to the facts de
novo. Id. All facts are construed in the light most favorable to the
party that prevailed below. United States v. Bervaldi, 226 F.3d
1256, 1262 (11th Cir. 2000). Abandonment involves factual issues
and is thus ordinarily reviewed for clear error. United States v.
Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001).
III. DISCUSSION
A. Detention
Lawson argues that he was unlawfully detained because the
officers seized him based on a hunch rather than an objective,
2 Lawson does not appeal his sentence.
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reasonable suspicion that he was engaged in criminal activity. The
government counters that the totality of the circumstances
supports a finding of reasonable suspicion that Lawson was
involved in, or was about to be involved in, criminal activity.
The Fourth Amendment prohibits unreasonable seizures.
U.S. Const. amend. IV. A seizure under the Fourth Amendment
occurs “when the officer, by means of physical force or show of
authority, terminates or restrains [a person’s] freedom of
movement, through means intentionally applied.” Brendlin v.
California, 551 U.S. 249, 254 (2007) (cleaned up).
In determining whether a search or seizure is reasonable,
this Court examines the totality of the circumstances. United
States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). “[L]aw
enforcement officers may seize a suspect for a brief, investigatory
stop where (1) the officers have a reasonable suspicion that the
suspect was involved in, or is about to be involved in, criminal
activity, and (2) the stop [is] reasonably related in scope to the
circumstances which justif[y] the interference in the first place.”3
Id. (cleaned up). Reasonable suspicion “must be more than an
inchoate and unparticularized suspicion or hunch.” United States
v. Powell, 222 F.3d 913, 917 (11th Cir. 2000) (quotation marks
omitted).
3 Consistent with the evidence and both parties’ arguments on appeal, we
analyze Lawson’s initial encounter with police as a brief, investigatory
detention.
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“While ‘reasonable suspicion’ is a less demanding standard
than probable cause and requires showing considerably less than
preponderance of the evidence, the Fourth Amendment requires
at least a minimal level of objective justification for making the
stop.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “[T]he
reasonableness of the stop must be judged on the facts known to
the officer at the time of the stop.” United States v. Martin, 636
F.2d 974, 976 (5th Cir. Unit B 1981). And “[r]easonable suspicion
need not involve the observation of illegal conduct.” Lewis, 674
F.3d at 1303.
The existence of reasonable suspicion depends on
probabilities, not hard certainties. United States v. Cortez, 449 U.S.
411, 418 (1981). An assessment of all the circumstances must yield
a particularized suspicion. Id. “[N]o single factor is dispositive in
determining whether reasonable suspicion exists in any particular
context.” United States v. Lopez-Garcia, 565 F.3d 1306, 1314 (11th
Cir. 2009).
Here, the officers had a reasonable suspicion of criminal
activity sufficient to detain Lawson briefly based on the totality of
the circumstances: (1) drugs were discovered at the scene; (2) the
area where Lawson was stopped is a high crime area; (3) Lawson
and the other men had known criminal histories; and (4) Lawson
and some of the other men were playing cards, which Officer
Picciotti thought suggested gambling. See United States v. Bishop,
940 F.3d 1242, 1249 n.4 (11th Cir. 2019) (explaining that knowledge
of an individual’s criminal history may be considered as a relevant
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factor in determining reasonable suspicion); Lopez-Garcia, 565
F.3d at 1314 (holding that a defendant’s presence in a “high-crime
area” can contribute to a finding of reasonable suspicion); United
States v. Gonzalez, 70 F.3d 1236, 1238 (11th Cir. 1995) (“A person’s
proximity to a person whom officers have probable cause to
believe is committing a crime may be considered as a factor in
assessing reasonable suspicion.”); see also United States v. Hunter,
291 F.3d 1302, 1306 (11th Cir. 2002) (reasoning that an individual’s
proximity to another who was gambling illegally was one of
several relevant factors in assessing reasonable suspicion).
B. Seizure of the Keys and Search of the Nissan
1. Abandonment
Even if he was lawfully detained, Lawson argues that he still
had a property interest and reasonable expectation of privacy in the
Nissan and its key and that there was an insufficient basis to search
the Nissan. The government asserts that Lawson abandoned any
property interest in the Nissan and key when he disclaimed any
knowledge of the key and left the Nissan and key behind at the
scene.
“The [Fourth] Amendment’s protections extend to any
thing or place with respect to which a person has a reasonable
expectation of privacy.” United States v. Ross, 963 F.3d 1056, 1062
(11th Cir. 2020) (en banc) (quotation marks omitted). A Fourth
Amendment claim will not lie if a defendant abandons the searched
property. See United States v. Ramos, 12 F.3d 1019, 1023–24 (11th
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Cir. 1994). Indeed, a party does not have Fourth Amendment
standing to pursue claims regarding property he has voluntarily
abandoned because, as with the property, he abandons any
reasonable expectation of privacy. United States v. Pirolli, 673 F.2d
1200, 1204 (11th Cir. 1982); United States v. Colbert, 474 F.2d 174,
176 (5th Cir. 1973) (en banc).
This Court “take[s] an objective, common-sense approach
to assessing abandonment, focusing on whether the prior
possessor voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question in light of his
statements, acts, and other facts.” United States v. Green, 981 F.3d
945, 956 (11th Cir. 2020) (quotation marks omitted), cert.
denied, 141 S. Ct. 2690 (2021). Evidence may be deemed
abandoned upon an individual’s denial of its ownership or
relinquishment of possession or control over it. Cofield, 272 F.3d
at 1306–07; United States v. McKennon, 814 F.2d 1539, 1546 (11th
Cir. 1987). If an individual abandons or denies ownership of
property, he may not contest the constitutionality of its subsequent
acquisition by the police. Cofield, 272 F.3d at 1306.
Here, the district court did not err in finding Lawson
abandoned any expectation of privacy in the Nissan and its key.
Lawson abandoned any interest in the Nissan and key when he
repeatedly disclaimed ownership of the key and voluntarily walked
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away from the Nissan and the key.4 See, e.g., United States v.
Hastamorir, 881 F.2d 1551, 1559–60 (11th Cir. 1989) (holding a
defendant who repeatedly denied any knowledge of a car where
drugs were discovered abandoned any reasonable expectation of
privacy in the car); United States v. Canady, 615 F.2d 694, 697 (5th
Cir. 1980) (holding the defendant lacked a privacy interest in a
suitcase when he repeatedly disclaimed ownership of it).
Lawson argues abandonment of a Fourth Amendment right
in property requires an affirmative act demonstrating a person’s
intent to abandon the property. This argument lacks merit.
Neither this Court nor the Supreme Court has ever held that an
affirmative act is required to show abandonment in this context.
But, even if an affirmative act was required, Lawson’s argument
still fails because he denied ownership of the key and deliberately
walked away from the vacant lot, leaving the Nissan and key
behind. Those are affirmative acts.
In sum, Lawson lost standing to raise a Fourth Amendment
claim regarding the seizure of the key and the search of the Nissan.
4 To be clear, Lawson initially had a property interest in the Nissan and key
when Fountain gave him permission to drive the car. See Byrd v. United
States, 138 S. Ct. 1518, 1524 (2018) (“[A]s a general rule, someone in otherwise
lawful possession and control of a rental car has a reasonable expectation of
privacy in it even if the rental agreement does not list him or her as an
authorized driver.”).
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2. Merits
Lastly, Lawson argues that the officers illegally seized the
key to the Nissan and then searched the Nissan without probable
cause because the K9 was not properly trained or reliable. Having
agreed with the district court that Lawson lost standing to
challenge the seizure of the key and the search of the Nissan, we
need not address these arguments.
IV. CONCLUSION
We affirm the district court’s denial of Lawson’s motion to
suppress and Lawson’s conviction for being a felon in possession in
violation of 18 U.S.C. § 922(g)(1).
AFFIRMED.