United States v. Patrick D. Turner ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11836
Non-Argument Calendar
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D.C. Docket No. 9:15-cr-80160-RLR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK D. TURNER,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 5, 2017)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Patrick Turner appeals the district court’s denial of his motion to suppress
evidence and the court’s decision to sentence him as an armed career criminal.
After careful consideration, we find no reversible error and therefore affirm.
Police seized a firearm from Turner during a warrantless investigatory
detention. He contends that the district court should have suppressed evidence
about the firearm because the police officers created the circumstances giving rise
to the reasonable suspicion that supported his investigatory detention. But absent
improper provocation, police officers are entitled to form reasonable suspicion
based on a suspect’s reaction to their arrival. Here, another man’s reaction gave
rise to reasonable suspicion and justified Turner’s investigatory detention.
At sentencing, the district court determined that Turner was an armed career
criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and
therefore sentenced him to a mandatory minimum 15 years in prison. Turner
contends that the district court erred in finding that three of his prior criminal
convictions were each a serious drug offense sufficient to qualify him as an armed
career criminal. He argues that to qualify as a “serious drug offense” under
ACCA, a state crime must have as an element knowledge of the illicit nature of the
drugs and that his Florida convictions lacked this element. This argument is
foreclosed, however, by our Court’s precedent.
I. FACTS
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After West Palm Beach Police officers discovered a firearm on Turner, he
was arrested and indicted for, as a convicted felon, possessing a firearm and
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Turner filed a
motion to suppress the firearm and ammunition, as well as statements he made in
connection with their seizure, arguing that this evidence was the fruit of an
unlawful warrantless search and seizure in violation of the Fourth Amendment. A
magistrate judge held a hearing on this motion, and the following facts were
elicited.
Officer Jerrel Negron testified that he and two colleagues were patrolling a
25 block area of West Palm Beach in the early morning. The officers focused on
this area in response to recent homicides and shootings and considered it to be a
high crime area. They patrolled in a black, unmarked police vehicle and were
dressed in tactical vests that said “Police” on the front and back in white letters.
Negron was seated in the rear passenger seat while one of his colleagues drove.
Around one o’clock in the morning, the officers noticed three people standing in a
parking area off an alley. The alley was accessible to the public. The officers
drove into the alley with their headlights illuminated, and they observed three cars
in a row in the parking area parked perpendicular to the alley. The officers
observed that three men were gathered around the car that was the farthest away.
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Of the three men, Cornelius Daniels, Wesley Hicks, and Turner, Turner was the
closest to the alley and the officers.
The officers parked their vehicle at the edge of the parking area and got out.
As the officers walked toward the three men, they observed Hicks drop down
toward the ground behind the third car. Negron pulled out his flashlight and
illuminated Hicks while his two colleagues both pulled out their firearms. The
officers ordered Hicks to stand up, which he did. After another officer patted
Hicks down, Negron turned to search the area and noticed the butt of a firearm
protruding from Turner’s pocket. Turner stated that he had a firearm on him, and
when Negron asked if he had a permit, Turner admitted that he did not. Turner
also stated that he was a convicted felon. After confirming this information,
Negron arrested Turner.
Officer Stephen Mooney, the officer driving the unmarked police vehicle
that night, testified to the same sequence of events as Negron. He added that
seeing Hicks duck down raised his level of concern in light of the recent homicides
in the area.
Daniels testified for the defense. He stated that the parking area where these
events took place was behind his apartment. Turner had just gotten off work, and
the three men were talking together around Daniels’s mother’s car. During the 30
to 40 minutes while they talked, Hicks did not see a firearm. As the men talked,
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the police officers drove slowly into the alley with no headlights on. The officers
pulled up to the parking area and exited their vehicle with their guns drawn. As
they exited, Hicks fidgeted, moving his shoulders from left to right. Daniels
denied that Hicks ever dropped between the cars. In response, the officers told the
men not to move again or they would be shot. The officers then grabbed Turner,
frisked him, and retrieved a firearm. During this time, Turner did not say anything
to the officers about having a firearm or being a convicted felon.
After hearing this testimony, the magistrate judge found that the events
occurred much as Negron described them. He made the following specific
findings of fact about the incident.1 First, the headlights on the officers’ vehicle
were illuminated as they drove into the alley. Second, the officers did not draw
their firearms until after Hicks moved. Third, Negron observed the firearm in
Turner’s pocket, and Turner spontaneously stated that he had a firearm. The
magistrate judge credited all three witnesses’ descriptions of Hicks’s activity,
concluding that whether Hicks ducked or flinched, “[i]t was enough of a move to
be noticed by all concerned.” Report Recommending That Def.’s Mot. to Suppress
be Denied 5 (Doc. 35). 2 After setting out these facts, the magistrate judge
concluded that the officers reasonably detained Turner, Daniels, and Hicks to
1
The magistrate judge resolved additional inconsistencies relating to the precise location
of all the individuals in question and the number of officers on the scene, but neither of these
factual disputes is relevant to the outcome of this case.
2
Citations to “Doc.” refer to docket entries in the district court record in this case.
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neutralize the potential threat of physical harm and that Negron discovered
Turner’s firearm during the course of this permissible detention. Accordingly, the
magistrate judge recommended that Turner’s motion to suppress be denied. The
district court adopted this recommendation over Turner’s objections.
Turner pled guilty. His Presentence Investigation Report classified him as
an armed career criminal subject to a 15 year minimum sentence based on several
prior convictions for violent felonies and serious drug offenses. The prior offenses
included three convictions under Florida law for selling cocaine within 1,000 feet
of a church or school. Turner objected to this classification. At Turner’s
sentencing hearing, the United States stipulated that it would rely on only the three
Florida cocaine distribution convictions for purposes of arguing that Turner should
be sentenced as an armed career criminal. The district court determined that these
Florida convictions qualified as serious drug offenses under ACCA and sentenced
Turner to 15 years in prison. This appeal followed.
II. STANDARD OF REVIEW
In reviewing the district court’s denial of a motion to suppress, we review
the district court’s findings of fact for clear error and the application of law to
those facts de novo. United States v. Epps, 613 F.3d 1093, 1097 (11th Cir. 2010).
A district court’s choice between two permissible views of the evidence cannot be
clear error. United States v. Ndiaye, 434 F.3d 1270, 1305 (11th Cir. 2006). All
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facts are construed in the light most favorable to the prevailing party below; here,
the government. United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012).
We also review de novo whether a conviction qualifies as a serious drug
offense under ACCA. United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir.
2009).
III. DISCUSSION
A. Motion to Suppress
Turner appeals the district court’s denial of his motion to suppress the
firearm seized from his person during the warrantless search. He argues that the
officers were responsible for creating the circumstances that justified this seizure
and therefore should not have been allowed to benefit from it. But a person’s
reaction to police presence can serve as the basis for an investigatory stop, as it did
here. Turner’s firearm was seized as the result of a legitimate investigatory
detention, so we uphold the district court’s denial of his motion to suppress the
firearm.
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. Not all interactions
between law enforcement and private citizens implicate this Amendment. See
United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006). “Only when the
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officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may [a court] conclude that a ‘seizure’ has
occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). We have categorized
encounters between police and citizens into three types: “(1) police-citizen
exchanges involving no coercion or detention; (2) brief seizures or investigatory
detentions; and (3) full-scale arrests.” Perez, 443 F.3d at 777. In this case,
Turner’s encounter with the police involved all three categories. On appeal,
however, he challenges only the investigatory detention that led to his later arrest,
so we confine our analysis below to the first two stages of the encounter.
First, the district court’s factual findings establish that the officers’ initial
approach did not implicate the Fourth Amendment.3 “[O]fficers may seek consent-
based encounters if they are lawfully present in the place where the consensual
encounter occurs.” Kentucky v. King, 563 U.S. 452, 463 (2011).
Here, the magistrate judge found that the three officers drove down the alley
toward Turner, Daniels, and Hicks with their unmarked police vehicle’s headlights
illuminated, came to a stop near the men, and got out of the vehicle. The record
reveals that the alley in question was accessible to the public, so the officers
lawfully were present there. And the officers had not yet done anything to restrain
3
While the evidence regarding the events on the night in question was conflicting in
some respects, the magistrate judge held an evidentiary hearing and had an opportunity to
observe the witnesses who testified. The magistrate judge’s choice to credit the officers’
testimony where it conflicted with Daniels’s testimony was not clearly erroneous.
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the men’s freedom of movement. Up to this point, therefore, the encounter
between the officers and the men was consensual.
What happened next transformed this consensual encounter into an
investigatory detention. The magistrate judge found that after alighting from their
vehicle, the officers saw Hicks make a sudden movement. In response, two of the
officers drew their weapons and ordered Hicks to stand up and show his hands.
The record does not reflect that any of the men ran or refused to comply, thus they
submitted to the show of authority by police officers. At that point, they had been
detained. See California v. Hodari D., 499 U.S. 621, 626 (1991).
Despite Turner’s argument to the contrary, we conclude that this detention
was legitimate. We determine whether an investigatory detention was legal under
the Fourth Amendment by asking two questions: (1) “whether the [detention] was
justified at its inception,” and (2) “whether the officer’s actions were reasonably
related in scope to the circumstances that justified the [detention] in the first
place.” United States v. Griffin, 696 F.3d 1354, 1358 (11th Cir. 2012). In this
case, we answer both questions in the affirmative.
The detention was justified at its inception. “[A]n officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop when the officer
has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v.
Wardlow, 528 U.S. 119, 123 (2000). Reasonable suspicion is a less demanding
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standard than probable cause, but the Fourth Amendment requires objective
justification for police to make an investigatory stop. Id. Reliance on a mere
hunch is insufficient. United States v. Arvizu, 534 U.S. 266, 274 (2002). When
determining whether reasonable suspicion exists, a court must examine the
“totality of the circumstances” to ascertain whether the officer had a particularized
and objective basis for suspecting legal wrongdoing. Id. at 273. The fact that the
stop occurred in a “high crime area” is among the relevant contextual
considerations to this analysis. Wardlow, 528 U.S. at 124.
In this case, the totality of the circumstances gave the officers reasonable
suspicion to detain the men. The magistrate judge found that the three men were
gathered around a parked car in an alley at one o’clock in the morning in an area
that had recently experienced shootings and homicides. The officers drove slowly
into an alley in an unmarked vehicle with its headlights illuminated. Hicks
flinched or ducked just after three officers wearing police vests exited an unmarked
vehicle. Importantly, the magistrate judge found the officers did not draw their
weapons until Hicks moved. Taken together, these facts gave the officers
reasonable suspicion that Hicks would engage in some sort of violence against the
officers, and the police were justified in temporarily detaining the three men until
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they could allay those fears.4 See United States v. Gibson, 64 F.3d 617, 624 n.8
(11th Cir. 1995) (listing a suspect’s reaching behind his back when confronted by
police among the circumstances that provided reasonable suspicion to detain him).
Turner contends that the ominous approach of the unmarked police vehicle
caused Hicks to make the unexpected movement that officers used to justify the
detention and that officers may not rely on reasonable suspicion created as a result
of their own actions. Although “officers cannot improperly provoke . . . a person”
in order to justify a stop, United States v. Franklin, 323 F.3d 1298, 1302 (11th Cir.
2003), they are otherwise entitled to rely on a suspect’s reaction to their presence.
Indeed, we have cited frequently a suspect’s reaction to police presence among the
factors supporting reasonable suspicion in a case. See, e.g., United States v.
Lindsey, 482 F.3d 1285, 1291 (11th Cir. 2007) (sudden movement of vehicle from
parked location to gas pump when officer came into view); United States v.
Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (turning and walking quickly away
from officers); United States v. Gordon, 231 F.3d 750, 756 (11th Cir. 2000)
4
Flinching or ducking when police officers exit a vehicle would not itself provide
reasonable suspicion for an investigatory detention. In fact, this Court has in the past suggested
that getting on the ground would be a reasonable response to the potential for violent
confrontation that can accompany police presence. See United States v. Franklin, 323 F.3d
1298, 1303 (11th Cir. 2003) (“While a reasonable person might have believed the [SWAT]
team’s arrival indicated some imminent violence . . . . [that] reasonable person might have
dropped to the ground.”). But here it was one o’clock in the morning, in an alley, in an area
where shootings had recently occurred, and there was a car between Hicks and the officers that
prevented them from seeing what he was doing. Given the totality of these circumstances, the
officers were justified in fearing for their safety.
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(making eye contact with officer, moving quickly toward an adjacent car, and
driving away). Put simply, in this case the officers were entitled to rely on Hicks’s
reaction to their arrival in forming reasonable suspicion to detain him and those
nearby, including Turner.
Because police were justified in detaining Hicks, they were also justified in
detaining Turner, who was standing nearby. See Lewis, 674 F.3d at 1306. “Case
precedent from both the Supreme Court and this Circuit has established that, for
safety reasons, officers may, in some circumstances, briefly detain individuals
about whom they have no individualized reasonable suspicion of criminal activity
in the course of conducting a valid [investigatory detention] as to other related
individuals.” Lewis, 674 F.3d at 1306. Here, a concern for their own safety
permitted the officers “to control the movements of nearby associates and exercise
command over the situation once the officers had reasonable suspicion of criminal
activity that warranted further investigation.” Id. at 1308. Thus, Turner was
legitimately detained alongside Hicks.
Having determined that Turner’s initial detention was legitimate to ensure
officer safety, we also conclude that the officers’ actions here were reasonably
related to this safety concern. The magistrate judge determined that Officer
Negron was merely walking behind Turner, who was the closest of the three men
to the officers. It was at this moment that Negron noticed Turner’s firearm, which
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was sticking out of his pocket. Walking up behind Turner and looking at his
pocket was well within the scope of ensuring officer safety, so Negron’s actions up
to discovering Turner’s firearm did not violate the Fourth Amendment.
Accordingly, we affirm the district court’s order denying Turner’s motion to
suppress his firearm.
B. Armed Career Criminal Enhancement
Turner also appeals the district court’s determination that three of his prior
convictions qualified as serious drug offenses sufficient to enhance his sentence
under ACCA. Turner contends that a state crime must have a mens rea element in
order to qualify as such a serious drug offense. Because the Florida cocaine
distribution statute he was convicted of violating required no mens rea regarding
the illicit nature of the controlled substance, Turner argues that it properly could
not serve to enhance his sentence. But binding prior panel precedent forecloses
this argument. Turner acknowledges this precedent but insists that it has been
undermined by Supreme Court case law. We disagree and conclude that the
district court properly enhanced Turner’s sentence under ACCA.
The district court ruled that Turner’s three prior Florida drug convictions
each constituted a “serious drug offense” and could serve as the basis for an
enhanced sentence under ACCA. 18 U.S.C. § 924(e). ACCA imposes a
mandatory minimum sentence of 15 years on a defendant convicted of being a
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felon in possession of a firearm who also has three prior state or federal
convictions for “a violent felony,” “a serious drug offense,” or both. Id.§ 924(e)(1). The term “serious drug offense” includes “an offense under State
law” that “involv[es] manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance” and that has “a maximum term
of imprisonment of ten years or more.” See id. § 924(e)(2)(A)(ii).
We agree with the district court’s determination that Turner’s three previous
convictions under Florida law for selling cocaine qualify as serious drug offenses
under ACCA. See Fla. Stat. § 893.13(1). Under Florida law, it is a crime to sell,
manufacture, or deliver (or possess with intent to sell, manufacture, or deliver)
cocaine. Fla. Stat. § 893.13(1)(a). An individual, like Turner, who is convicted of
selling cocaine within 1,000 feet of a school or place of worship faces up to 15
years’ imprisonment. Id. §§ 775.082(3)(d), 893.13(1)(c), (e).
We have held that violations of § 893.13(1) qualify as a serious drug offense
under ACCA, even though Florida law imposes no mens rea requirement with
respect to the illicit nature of the controlled substance. See United States v. Smith,
775 F.3d 1262 (11th Cir. 2014). Turner argues that Smith was wrongly decided
because the panel failed to consider Begay v. United States, 553 U.S. 137 (2008),
in which the Supreme Court held that strict liability crimes could not be violent
felonies under ACCA’s since-invalidated residual clause. See id., 553 U.S. at 147–
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48.5 But Smith was decided in 2014, well after Begay, and is binding Circuit law.
See Smith v. GTE Corp., 236 F.3d 1292, 1301–04 (11th Cir. 2001) (categorically
rejecting an “overlooked reason” exception to the prior panel precedent rule).
Turner argues that two post-Smith Supreme Court cases—Elonis v. United
States, 135 S. Ct. 2001 (2015), and McFadden v. United States, 135 S. Ct. 2298(2015)—have undermined Smith to the point of abrogation. We disagree. In
Elonis, the Supreme Court read a mens rea requirement into the federal statute
criminalizing interstate threats despite the absence of such a requirement from the
statute’s text. See 135 S. Ct. at 2012. In McFadden, the Court similarly read a
mens rea requirement into the federal law treating analogues of controlled
substances the same as controlled substances. 135 S. Ct. at 2305. But these
interpretations of substantive federal criminal law have no bearing on ACCA’s
scheme providing sentencing enhancements based on certain types of prior state
law convictions, and they do not abrogate our holding in Smith. Thus, we conclude
that the district court did not err in determining that Turner’s § 893.13(1)
convictions qualified as serious drug offenses sufficient to enhance his sentence
under ACCA.
5
Several years after Begay, the Supreme Court held that ACCA’s residual clause was
void for vagueness. See Johnson v. United States, 135 S. Ct. 2551 (2015) (holding ACCA’s
residual clause void for vagueness).
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IV. CONCLUSION
For all of the foregoing reasons, we affirm the district court’s denial of
Turner’s motion to suppress and his sentence.
AFFIRMED.
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