United States v. Roderick Randolph Lester , 477 F. App'x 697 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14783 ELEVENTH CIRCUIT
JUNE 11, 2012
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:10-cr-00296-TJC-JBT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERICK RANDOLPH LESTER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 11, 2012)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Roderick Lester appeals his conviction for being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
challenges the district court’s denial of his motion to suppress the gun and
ammunition found on his person, arguing that: (1) although the initial detention was
justified at its inception, it went too far and matured into arrest before there was
probable cause; and (2) the district court erred in its alternate ruling that the search
was justified as a search incident to arrest. After careful review, we affirm.
We review a district court’s denial of a motion to suppress under a mixed
standard, reviewing the district court’s findings of fact for clear error, and its
application of the law to those facts de novo. United States v. Bervaldi, 226 F.3d
1256, 1262 (11th Cir. 2000). “Further, when considering a ruling on a motion to
suppress, all facts are construed in the light most favorable to the prevailing party
below.” Id. We “allot substantial deference to the factfinder, in this case, the district
court, in reaching credibility determinations with respect to witness testimony.”
United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003) (quotation omitted);
see United States v. Floyd, 281 F.3d 1346, 1348 (11th Cir. 2002) (holding that we
also credit implicit credibility determinations made by a district court). We may
affirm the denial of a motion to suppress on any ground supported by the record.
United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
“[A]n officer may conduct a brief, warrantless, investigatory stop of an
individual when the officer has a reasonable, articulable suspicion that criminal
2
activity is afoot, without violating the Fourth Amendment.” United States v. Hunter,
291 F.3d 1302, 1305-06 (11th Cir. 2002). The reasonable suspicion of criminal
activity “may be formed by observing exclusively legal activity, even if such activity
is seemingly innocuous to the ordinary citizen.” United States v. Lindsey, 482 F.3d
1285, 1290 (11th Cir. 2007) (citation and quotation omitted). Further, we examine
“the totality of the circumstances to determine whether the police had a particularized
and objective basis for suspecting legal wrongdoing.” Id. (quotation omitted). The
police may “draw on their own experience and specialized training to make inferences
from and deductions about the cumulative information available to them.” Id. at
1290-91 (quotation omitted).
“An investigatory stop must be justified at its inception, and its scope must be
reasonably related to the circumstances that permitted the intrusion at the outset.”
United States v. Kapperman, 764 F.2d 786, 792 (11th Cir. 1985) (quotation omitted).
An investigatory stop that exceeds its scope may mature into an arrest for which
probable cause is required. United States v. Acosta, 363 F.3d 1141, 1145-46 (11th
Cir. 2004). The difference, “is one of extent, with the line of demarcation resulting
from the weighing of a ‘limited violation of individual privacy involved against the
opposing interest in crime prevention and detection and in the police officer’s
safety.’” Id. at 1146 (quoting Dunaway v. New York, 442 U.S. 200, 209 (1979)). To
3
more objectively draw the line between a Terry stop and an arrest, we use these four
non-exclusive factors: “the law enforcement purposes served by the detention, the
diligence with which the police pursue the investigation, the scope and intrusiveness
of the detention, and the duration of the detention.” Id. (quotation omitted).
Here, Lester concedes that the initial stop was justified at its inception, and the
record reflects that the district court did not err in finding that the stop did not mature
into an arrest until there was probable cause. As the record shows, the officer first
encountered Lester while patrolling in a violent area, where the officer had previously
made arrests for gun violence, drug activity, and gang activity. The officer saw
Lester, walking in the middle of the street even though there were sidewalks
available, and carrying something over his shoulder, which the officer at first thought
was a firearm. When the officer was approximately two blocks away from Lester, he
turned on his high beams and saw that Lester was carrying a manufactured piece of
wood, which reminded the officer that he had heard a be-on-the-lookout call
(“BOLO”) over his radio regarding a robbery that had recently taken place nearby and
that the robbery had involved a black male suspect or suspects, one of whom was
armed with a bat.
At that point, the officer approached in his car, then exited and instructed
Lester to place the wooden piece on the ground. The officer asked Lester what he
4
was doing, and Lester responded that he was returning to his home around the corner
after buying a soda, but the officer knew that the convenience store Lester referred
to was half a mile away, Lester was not carrying a soda at the time, and Lester
appeared “very agitated.” The officer attempted to verify that Lester lived in the area,
but Lester did not have identification with him. Lester provided the officer with his
name and date of birth, and the officer confirmed Lester’s identity by comparison to
a database photograph and that he lived on that street. Lester’s arrest history
indicated that he was a convicted felon, and that he had been arrested for numerous
felonies, including burglary, homicide, and weapons violations. Upon seeing the
arrest history, and given the circumstances of the stop, the officer immediately called
for backup because he was concerned for his safety.
Two additional officers arrived in about five minutes but no more than ten
minutes. The original officer explained the circumstances to the other officers while
Lester was seated on the car. All three of the officers approached Lester and began
questioning him. Lester was confrontational and agitated, and when one officer
asked Lester what was in his pockets, Lester got even more agitated. He raised his
fists, reared back, and told the officers that they didn’t have any right to search him,
even though none of the officers had mentioned searching him. It appeared that
Lester was either going to fight or run. At the moment Lester raised his fists, two of
5
the officers grabbed his arms and told him to put them behind his back and relax.
Lester struggled with them for the better part of a minute before they were able to
handcuff him. Once the handcuffs were secure, Lester sighed deeply and told the
officers, without solicitation, that he had a gun in his pocket. The officers searched
Lester and found a loaded .380 caliber semi-automatic pistol in his front right pocket.
The officers then verified that Lester was, in fact, a convicted felon.
Turning to our application of the four-factor Terry test, the first factor requires
a determination of whether the officer utilized “brief, minimally intrusive
investigation techniques appropriate under Terry.” Id. (brackets omitted). Here, the
initial stop was based on Lester’s walking down the middle of the street in violation
of state law, and his presence in a high-crime area late at night while carrying what
appeared to be a wooden weapon. The detaining officer was also mindful of a BOLO
concerning a recent nearby robbery at which a black male had carried a bat. Given
these circumstances, the fact that Lester was not carrying identification, and his
suspicious reason for being there (that he had walked to a distant convenience store
for a soda even though he was carrying no soda), the officer was entitled to briefly
detain Lester to investigate whether his behavior was innocent or involved criminal
activity. See United States v. Harris, 928 F.2d 1113, 1117 (11th Cir. 1991) (“Where
6
. . . the initial stop was legal, the officer had the duty to investigate suspicious
circumstances that then came to his attention.” (quotation and brackets omitted)).
As for the second factor, the officer immediately acted to verify Lester’s
identify and address, and to access Lester’s criminal history. Contrary to Lester’s
argument, merely learning that Lester was truthful about his name and residence was
not sufficient to allay the officer’s reasonable suspicion. He remained concerned with
Lester’s dubious claim that he had walked to get a soda and with the fact that Lester
appeared to be carrying a wooden weapon. Upon learning of Lester’s criminal
history, the officer reasonably let Lester wait outside the officer’s car for the five to
ten minutes it took for backup officers to arrive so that he could safely continue
questioning Lester. See United States v. Purcell, 236 F.3d 1274, 1278 (11th Cir.
2001) (“Many courts have recognized that knowledge of the criminal histories . . .
will often be relevant to [an officer’s] safety.”). Once other officers arrived, they
immediately questioned Lester about his suspicious conduct.
Under the third factor, we ask “whether the scope and intrusiveness of the
detention exceeded the amount reasonably needed by police to ensure their personal
safety.” Acosta, 363 F.3d at 1146. Because officers may take reasonable steps to
ensure their safety so long as they possess an articulable and objectively reasonable
belief that the suspect is potentially dangerous, an investigatory stop does not ripen
7
into an arrest simply because an officer handcuffs a suspect. See United States v.
Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989). Here, it was not until the officer
deemed it necessary to check Lester’s information on the computer, because Lester
had no identification, that the officer asked him to sit on the officer’s car with his
hands in view. This was not overly intrusive and was reasonable to ensure the
officer’s safety. Lester was not handcuffed until after he had taken a threatening
posture, by raising his fists and rearing back, and appeared to the officers that Lester
was either going to fight or run. Lester’s conduct confirmed the officers’ suspicions
that he was potentially dangerous, and they were entitled to take reasonable steps to
ensure their safety. See id. The scope of the detention remained the same, and
according to the district court’s fact finding, the officers only questioned Lester until
he, unsolicited, said that he had a gun in his pocket.
As for the last factor, we consider “whether the police diligently pursued a
means of investigation likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.” Acosta, 363 F.3d at 1147. As
discussed above, “each investigatory act logically led to the next act which was done
without delay.” Id. at 1146. There is no rigid time limitation regarding the
permissible duration of a Terry stop. Acosta, 363 F.3d at 1147. In fact, we have held
that a detention of approximately 75 minutes did not exceed that allowed by Terry.
8
United States v. Gil, 204 F.3d 1347, 1350-51 (11th Cir. 2000). Here, the district court
found that the total duration of the detention was thirty to forty minutes, and the only
delay in the investigation was the five to ten minutes that it took for backup to arrive.
Under the circumstances, this wait was reasonable to ensure the officer’s safety. See
Michigan v. Long, 463 U.S. 1032, 1052 (1983) (“we have not required that officers
adopt alternate means to ensure their safety in order to avoid the intrusion involved
in a Terry encounter”). The brief amount of time actually spent questioning Lester
was also reasonable. See United States v. Street, 472 F.3d 1298, 1306 (11th Cir.
2006) (agents who stopped defendant to question him for a valid purpose could
pursue questioning “throughout the period leading up to the existence of probable
cause, which was established no more than an hour after the stop was made”).
Considering the totality of the circumstances, the scope of the detention did not
exceed that allowed under Terry. The district court made no clear error in its factual
determinations of the incident, and no error in applying the facts to the law governing
an investigatory detention.
Moreover, the district court was also correct in its alternative holding that the
search was a lawful search incident to arrest, since by the time the officers handcuffed
Lester, he was subject to arrest for resisting. Under Florida law, when a defendant
resists detention during a Terry stop by struggling with the officer, the officer is
9
justified in arresting the defendant for resisting an officer without violence. Fla. Stat.
§ 843.02 (2010); Jacobson v. State, 476 So.2d 1282, 1287 (Fla. 1985) (physically
restraining someone seeking to escape a legal Terry stop is the lawful execution of
a legal duty, and resistence violates § 843.02). Thus, when Lester raised his fists
toward the officers and then physically resisted them as they tried to restrain him, the
officers had probable cause to arrest him under § 843.02. The subsequent search and
discovery of the gun would have been valid as a search incident to a lawful arrest.
See United States v. Lyons, 403 F.3d 1248, 1253 (11th Cir. 2005).1
AFFIRMED.
1
Finally, we reject Lester’s argument -- raised for the first time on appeal -- that the
search could not have been subsequent to arrest because the officers already had discovered the
gun by a “virtual frisk” before Lester resisted, when the officers asked Lester what was in his
pockets. Because Lester failed to assert this theory in the district court, we review the theory
only for plain error. United States v. Young, 350 F.3d 1302, 1305 (11th Cir. 2003). However,
Lester’s argument fails under any standard of review because the Supreme Court has “held
repeatedly that mere police questioning does not constitute a seizure.” Muehler v. Mena, 544
U.S. 93, 101 (2005) (quotation omitted).
10