United States v. Talley ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4734
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLIFTON THOMAS TALLEY,
Defendant - Appellant.
No. 09-4873
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLIFTON THOMAS TALLEY,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:08-cr-00030-sgw-1; 5:09-cr-00024-sgw-1)
Submitted: July 20, 2010 Decided: August 9, 2010
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
Andrea L. Harris, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Roanoke,
Virginia, Nancy S. Healey, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Clifton Thomas Talley appeals the denial of his motion to
suppress evidence obtained as a result of what he claims was an
illegal seizure of his person. He also appeals the revocation
of a term of supervised release imposed in a prior case as well
as the sentence he received as the result of the revocation.
Finding no error, we affirm.
I.
On the afternoon of July 5, 2008, a woman speaking in
broken English called 911 to report that a man was viewing child
pornography on a computer in the Staunton Public Library.
Staunton Police Officers Robert Hildebrand and Ray Murray, both
dressed in their police uniforms, responded to the call within
17 minutes. The 911 dispatcher informed the officers that the
suspect was described as a white male, 40 to 50 years old, with
brown hair, shorts, and slip-on shoes and that he was in the
library’s computer area, straight back from the front door. The
dispatcher had a call-back number for the 911 caller although
the caller had not provided her name.
Upon their arrival at the library, the officers did not
find anyone matching the description in the library’s actual
computer room. Hildebrand therefore asked the dispatcher to
have the 911 caller meet them somewhere in the library. The
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officers then proceeded to another area of the library that was
also straight back from the main entrance. There, they were
able to find a person, later identified as Clifton Talley,
fitting the caller’s description. Talley, a white male, looked
to the officers to be “around 50,” and he was wearing shorts and
flip-flops and using a laptop computer. J.A. 146. Hildebrand
made eye contact with Talley three times and testified that
Talley seemed to be “logging off the laptop, nervously.” J.A.
90-91. As the officers walked past Talley, it appeared to them
that there were no applications running on his computer.
When the officers went to speak with a library employee,
Talley got up and left the library. Hildebrand followed him,
approached Talley, and told him that he matched a description of
a suspect who had been identified as looking at child
pornography. Hildebrand asked Talley if he had been looking at
child pornography, and Talley denied doing so. Hildebrand asked
for consent to look at Talley’s laptop, but Talley refused.
Talley did, however, provide his driver’s license when asked by
Hildebrand for identification. For safety purposes, Hildebrand
also took a backpack that Talley was carrying. Hildebrand then
returned to his patrol car to run Talley’s license, leaving
Talley’s backpack on the hood of the car. Officer Murray, who
had also exited the library, remained with Talley.
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When he processed the license, Hildebrand learned that
Talley had prior child pornography convictions, was registered
as a sexually violent predator, and was on probation.
Hildebrand testified that when he returned to Talley and asked
him if he was on probation, Talley became “very nervous.” J.A.
94. Around the same time, the 911 dispatcher told Hildebrand
that the 911 caller was “going to be by the entrance” and that
“[s]he stated she believes you have the wrong person.” J.A.
236. Approximately 30 seconds later, as Hildebrand continued to
question Talley, Talley told Hildebrand, “I am sick.” J.A. 95
(internal quotation marks omitted). When Hildebrand asked
whether he was physically sick or mentally sick, Talley
responded, “I can’t stop looking at porn.” J.A. 95 (internal
quotation marks omitted). He nevertheless asked Hildebrand to
“give him a break and let him go.” J.A. 95. Hildebrand
arrested Talley instead.
Officer Murray had not heard the dispatcher’s statement
that the caller believed they had the wrong person. However, he
had heard that the caller was at the library’s entrance, and he
therefore had gone to find her. When he found her, she
described in broken English the images that prompted her 911
call. She said that she saw a nude girl, “approximately 10
years of age or so” with what looked like paper covering her
eyes and face. J.A. 150. She made no mention of believing that
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the officers had the wrong person. After Talley’s arrest,
Murray again spoke in person with the caller and obtained her
personal information. She also described the area in which she
had seen the images that prompted her call, and it was the same
area in which the officers had first seen Talley.
After Talley was placed under arrest, Murray searched his
backpack and found a notebook containing a list of suggestive
web addresses, like “youngboys.com.” J.A. 154. Hildebrand had
looked through the backpack for officer safety and observed that
there was a laptop computer and perhaps a notebook. Hildebrand
advised Talley of his Miranda rights and transported him to the
Staunton Police Department. Talley subsequently waived his
Miranda rights and admitted to having images of naked minors on
his computer and accessing websites depicting naked minors.
Murray later obtained a search warrant for Talley’s laptop
computer, the execution of which revealed several images that
appeared to be child pornography. Arrest warrants were
thereafter obtained for Talley for possession of child
pornography, and a second search warrant was obtained for
Talley’s home. The execution of the search warrant yielded a
disk containing child pornography.
A Charlottesville federal grand jury subsequently returned
an indictment against Talley charging him with two counts of
knowingly possessing material containing images of child
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pornography. See 18 U.S.C. § 2252A(a)(5)(B) and 2252(b)(2).
Talley moved to suppress the evidence as fruit of his initial
detention and arrest, both of which he claimed were
unconstitutional. Following a hearing, the district court
denied the motion. The court ruled that Officer Hildebrand
reasonably suspected Talley of possession of child pornography
when he initially detained him and that the reasonable suspicion
was not dissipated by the dispatcher’s statement that the caller
believed they had the wrong man. The court further found that
probable cause existed to arrest Talley when, in the context of
Hildebrand’s investigation of the child pornography crime,
Talley asked Officer Hildebrand to “give him a break and let him
go” because he could not stop himself from looking at
pornography. The court found that it would have been reasonable
for Hildebrand to conclude that Talley had admitted to
committing the crime he was investigating.
Talley entered a conditional plea to the charges, reserving
the right to appeal the denial of his suppression motion. At
the sentencing hearing, the government argued for an upward
variance or departure primarily based on Talley’s prior criminal
history, his pattern of recidivism, and the nature of his
offenses. The government emphasized that he had been on
supervised release for a prior federal child pornography crime
when he committed the present offenses and that he had committed
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the prior crime when on supervised release for an earlier child
pornography offense. Talley argued for a sentence at the
enhanced statutory minimum of 10 years. In the end, the
district court varied upward based on the 18 U.S.C. § 3553(a)
factors, including Talley’s offense history and recidivism, and
the need for the sentence to afford adequate deterrence,
sentencing Talley to 160 months’ imprisonment on each count, to
be served concurrently, as well as lifetime supervision.
A federal probation officer assigned to supervise Talley
petitioned to revoke Talley’s supervised release, contending
that he had violated three conditions of his supervision,
including the condition that he would not commit further crimes.
At the revocation proceeding the district court found that
Talley’s crimes did in fact constitute a Grade B supervised
release violation. See U.S.S.G. § 7B1.1(a)(2). Because Talley
had a Category II criminal history, he faced a statutory maximum
custody range of up to three years, and his advisory revocation
sentencing range was six to twelve months. The government
requested that the district court consider sentencing Talley up
to a consecutive maximum of three years’ imprisonment based on
the arguments the government had presented at the sentencing
proceeding for the crimes underlying the revocation. Talley
argued for a concurrent sentence within the advisory range.
Concluding that that Talley had shown himself to be “very
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difficult to supervise,” the district court found the advisory
range inappropriate and imposed a 30-month consecutive term.
J.A. 422.
II.
On appeal, Talley first argues that the officers never had
a sufficient basis to detain him and, alternatively, that any
reasonable suspicion they had immediately dissipated when they
were told the 911 caller had stated that she believed they had
the wrong person. Talley argues that all of his statements made
after that point should be suppressed as fruit of the illegal
seizure of his person. He also contends that the officers
lacked probable cause to arrest him at the time they took him
into custody and argues for the suppression of the fruit of that
seizure. Finally, he maintains that because his convictions
were obtained as the result of these illegal seizures of his
person, the district court also erred in utilizing them as the
basis for revoking his term of supervised release. We disagree
with all of these arguments, however, and hold that the district
court correctly ruled that Talley’s constitutional rights were
not infringed.
We conclude that, under the totality of the circumstances,
the officers were legally justified in detaining Talley prior to
arresting him and that probable cause supported Talley’s arrest.
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Under Terry v. Ohio, 392 U.S. 1 (1968), “an officer may conduct
a brief investigatory stop where the officer has reasonable
suspicion that criminal activity may be afoot.” United States
v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004). Such a stop
requires only “a minimal level of objective justification,” and
it need not rise to the level of probable cause. Illinois v.
Wardlow, 528 U.S. 119, 123 (2000). “In cases where an
informant’s tip supplies part of the basis for reasonable
suspicion, we must ensure the tip possesses sufficient indicia
of reliability.” Perkins, 363 F.3d at 323.
In this case, several factors supported the reliability of
the information the caller provided. First, although the 911
caller did not initially provide her name, the dispatcher had a
phone number at which the officers could contact her. See
United States v. Reaves, 512 F.3d 123, 127 (4th Cir. 2008)
(“When an unidentified tipster provides enough information to
allow the police to readily trace her identity, thereby
subjecting herself to potential scrutiny and responsibility for
the allegations, a reasonable officer may conclude that the
tipster is credible.”). Second, her description of the suspect
and his location in the library, along with the nature of the
conduct reported strongly suggested that she had observed that
conduct first-hand. See Perkins, 363 F.3d at 325 (“The caller
in this case was clearly in a position to know about the
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reported activity that gave rise to [the officer’s]
suspicion.”). Third, when the officers found a man generally
fitting the caller’s description, he appeared to act evasively.
See United States v. Sims, 296 F.3d 284, 287 (4th Cir. 2002)
(holding that suspect’s evasive behavior sufficiently supported
reliability of tip to authorize Terry stop). When seeing the
police, he appeared to nervously sign off his computer and
promptly exit the library. Thus, by the time Hildebrand first
spoke with Talley, he was already authorized to conduct a Terry
stop. *
Once Hildebrand obtained Talley’s license and processed it,
he learned of Talley’s prior child pornography convictions.
And, the nervousness Talley exhibited during questioning gave
him further basis to suspect that Talley was the person the
caller had described. Talley nevertheless suggests that the
dispatcher’s statement that the caller believed they had the
wrong person negated any reasonable suspicion that the officers
had. We disagree. Talley not only generally fit the caller’s
description, he was the only person the officers found who did.
*
Talley argues that it is possible that what the caller
believed to be “child pornography” actually did not satisfy the
legal definition of that term. While Talley is correct that the
caller could have made such a mistake, that possibility did not
prevent the officers from at least reasonably suspecting that
Talley was engaging in criminal activity, particularly
considering his furtive behavior.
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Based on this fact, Talley’s furtive behavior, and Talley’s
prior child pornography crimes, the officers had reason to
believe either that the caller was mistaken about them having
the wrong man or that the dispatcher had misunderstood her
broken English in reporting that statement. Thus, Hildebrand
was at least authorized to briefly continue his questioning of
Talley, which at that point, had lasted no more than two
minutes.
Within 30 seconds of the dispatcher telling the officers
that the caller believed they had the wrong person, Talley had
admitted to Hildebrand that he could not stop looking at
pornography and asked Hildebrand to give him a break and let him
go. In the context of Hildebrand’s questioning regarding the
possible child pornography offense, Hildebrand had reason to
believe that Talley had just admitted his guilt. He therefore
had probable cause to arrest him. See Devenpeck v. Alford, 543
U.S. 146, 152 (2004) (“[W]arrantless arrest . . . is reasonable
. . . where there is probable cause to believe that a criminal
offense has been or is being committed.”).
III.
Talley also maintains that his 30-month sentence upon
revocation of his supervised release term was plainly
unreasonable. We disagree.
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A court imposing a revocation sentence “ultimately has
broad discretion to . . . impose a term of imprisonment up to
the statutory maximum.” United States v. Crudup, 461 F.3d 433,
439 (4th Cir. 2006) (internal quotation marks omitted).
Recommended sentencing ranges for violations of supervised
release are not true guidelines but rather “‘policy statements
only’ to give courts ‘greater flexibility’ in devising
revocation sentences.” Id. at 435 (quoting U.S.S.G., Ch. 7, pt.
A, introductory cmts. 1, 3(a)).
Talley argues that in imposing the 30-month sentence, the
district court “failed to give weight to Talley’s age (59), poor
health (cardiac and gastric chronic conditions), and the high,
over-guideline sentence he had already received for the same
conduct.” Brief of Appellant at 26. Talley also notes that
“[t]he record does not reflect any consideration of 3553(a)
factors other than Talley’s recidivism and the need to ‘protect
the public.’” Id. We conclude, however, that the sentence
imposed was not even unreasonable, let alone plainly
unreasonable.
In imposing the 30-month sentence, the district court
stated that it had concluded that the revocation guideline range
was not an appropriate range under the specific circumstances of
this case because Talley had proven himself to be “very
difficult to supervise.” J.A. 421. Given that the crimes
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underlying the sentence Talley challenges marked the second time
Talley had committed such crimes during a term of supervised
release, the district court’s assessment was certainly correct.
We conclude the sentence imposed, which was six months below the
maximum allowed by statute, was a reasonable one. Cf. Crudup,
461 F.3d at 440 (holding that 36-month revocation sentence was
reasonable when defendant had repeatedly violated conditions of
supervised release). The explanation of the sentence was also
sufficient. See id. at 439 (holding that “a court’s statement
of its reasons for going beyond non-binding policy statements in
imposing a sentence after revoking a defendant’s supervised
release term need not be as specific as has been required when
courts departed from guidelines that were, before Booker,
considered to be mandatory” (internal quotation marks omitted)).
IV.
For the foregoing reasons, we affirm Talley’s convictions
and revocation sentence.
AFFIRMED
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