United States v. Ronald Thompson, Jr. ( 2019 )


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  •      Case: 18-30861      Document: 00515068580         Page: 1    Date Filed: 08/08/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-30861                          FILED
    August 8, 2019
    UNITED STATES OF AMERICA,                                              Lyle W. Cayce
    Clerk
    Plaintiff–Appellee,
    v.
    RONALD THOMPSON, JR.,
    Defendant–Appellant.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:17-CR-225-1
    Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
    PER CURIAM:*
    Ronald Thompson, Jr., appeals his conviction under 21 U.S.C. § 841(a)(1)
    and (b)(1)(C) of possession with intent to distribute cocaine, possession with
    intent to distribute cocaine base, and possession with intent to distribute
    heroin. He contends that the district court erred in denying his motion to
    suppress evidence obtained following a traffic stop. We affirm the district
    court’s judgment.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 18-30861     Document: 00515068580      Page: 2   Date Filed: 08/08/2019
    No. 18-30861
    I
    On July 27, 2017, investigators were conducting surveillance at a
    convenience store in an area known for illegal drug activity. At approximately
    4:15 p.m., Detective Jason Tiliakos observed a black Infiniti pull into the
    parking lot. According to the incident report, the investigators had received
    an anonymous tip approximately five months earlier, in February 2017, that
    Thompson conducted drug sales from a black Infiniti. After a short time,
    Detective Tiliakos observed a man, later identified as Thompson’s cousin
    Emanuel Harris, ride a bicycle up to the Infiniti, put his head through the
    driver’s side window, and converse with the vehicle’s occupant.            Shortly
    thereafter, a second man approached the Infiniti and entered the vehicle
    through the passenger’s side door. Seconds later, the unidentified man exited
    the Infiniti and left the area. Harris also left the area on the bicycle. Detective
    Tiliakos relayed his observations to assisting investigators as the Infiniti left
    the parking lot.
    Detective Daniel April and Sergeant Brad Walsh began to follow the
    Infiniti and observed the vehicle cross the center line of the roadway several
    times. At approximately 4:59 p.m., the investigators activated their emergency
    lights and stopped the Infiniti. Detective April approached the driver’s side,
    and the driver identified himself as Ronald Thompson.            Sergeant Walsh
    approached the passenger’s side and identified the passenger as Darryl
    Bourgeois. Detective April informed Thompson of the traffic violation and
    requested his driver’s license and vehicle documents. According to one police
    report, “Detective April observed that Thompson was sweating heavily about
    the forehead and his body was visibly shaking while he produced his driver’s
    license and vehicle documents.” When Detective April asked Thompson where
    he was going, “Thompson stuttered while attempting to answer, clearing his
    2
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    No. 18-30861
    throat several times and eventually stated he was just driving around with no
    known destination.”
    Following a “name check,” Detective April learned that Thompson’s
    driver’s license was in good standing.          Rather than concluding the
    investigation, Detective April asked Thompson about his heavy sweating,
    stuttering, and body shakes. Thompson indicated that he was nervous because
    he was on parole for prior drug violations.      The investigators then asked
    Bourgeois to exit the vehicle. Bourgeois told the investigators that Thompson
    was taking him to Des Allemands and that “he was unsure why Thompson was
    unable to provide that information upon being asked by Detective April,”
    although the district court found that Bourgeois’s statements were made after
    the computer checks had been completed.
    At approximately 5:05 p.m., six minutes after the traffic stop was
    initiated, the investigators requested the assistance of a K-9 unit. Thompson
    was then asked to exit the vehicle and was placed in handcuffs. The canine
    unit arrived at 5:17 p.m., the dog alerted to the presence of drugs and officers
    searched the vehicle. Officers did not find any drugs in Thompson’s vehicle.
    Thompson was then placed in the back of a police vehicle.      When Thompson
    was later removed from the police vehicle officers found a clear plastic bag
    containing cocaine, cocaine base, ecstasy, and heroin.
    Thompson was indicted under 21 U.S.C. § 841(a)(1) and (b)(1)(C) on three
    counts of possession with intent to distribute. Thompson filed a pre-trial
    motion to suppress but did not request an evidentiary hearing. Thompson
    argued that officers lacked reasonable suspicion to extend the traffic stop while
    they waited for a drug detection dog. The trial court made detailed findings of
    fact and found that officers had reasonable suspicion to extend the stop. The
    case proceeded to trial, and a jury convicted Thompson on all three counts. The
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    district court sentenced Thompson to 262 months of imprisonment, followed by
    six years of supervised release. Thompson appeals.
    II
    Thompson does not challenge the validity of the initial traffic stop.
    Instead, he contends that Detective Daniel April and Sergeant Brad Walsh
    lacked reasonable suspicion to extend the stop beyond the time reasonably
    required to address the traffic violation, and therefore that he should not have
    been detained after the investigators learned that his driver’s license was in
    good standing.
    When reviewing the denial of a motion to suppress, we review factual
    findings for clear error and the ultimate constitutionality of law enforcement’s
    actions de novo. 1 In addition to deferring to the district court’s factual findings,
    we must view the evidence in the light most favorable to the prevailing party,
    in this case, the Government. 2 We may affirm the district court’s decision on
    any grounds supported by the record. 3
    “The stopping of a vehicle and detention of its occupants constitutes a
    ‘seizure’ under the Fourth Amendment.” 4 The legality of a traffic stop is
    examined under the two-pronged analysis described in Terry v. Ohio. 5 The
    court must first examine whether the initial official action was justified. 6
    Second, the court determines whether the subsequent action was “reasonably
    related to the circumstances that justified the stop, or to dispelling [the]
    reasonable suspicion developed during the stop.” 7 As a general rule, once all
    1 United States v. Robinson, 
    741 F.3d 588
    , 594 (5th Cir. 2014).
    2 See United States v. Pack, 
    612 F.3d 341
    , 347 (5th Cir. 2010) (citation omitted).
    3 United States v. Charles, 
    469 F.3d 402
    , 405 (5th Cir. 2006) (citation omitted).
    4 United States v. Brigham, 
    382 F.3d 500
    , 506 (5th Cir. 2004) (en banc).
    5 
    392 U.S. 1
    (1968); 
    Brigham, 382 F.3d at 506
    .
    6 
    Brigham, 382 F.3d at 506
    .
    7 
    Id. at 507.
    4
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    computer checks reveal no violations or reason for further detention, then
    reasonable suspicion disappears and the driver and passengers must be
    released. 8 “[I]f additional reasonable suspicion arises in the course of the stop
    and before the initial purpose of the stop has been fulfilled, then the detention
    may continue until the new reasonable suspicion has been dispelled or
    confirmed.” 9 “Reasonable suspicion exists when the detaining officer can point
    to specific and articulable facts that, when taken together with rational
    inferences from those facts, reasonably warrant the search and seizure.” 10
    Reasonable suspicion to justify continued detention may not be based on
    hunches and doubts but rather must be based “upon objective evidence of
    specific criminal activity, interpreted by an officer experienced or educated in
    detecting that particular sort of activity.” 11 In assessing the proffered bases
    for continuing the detention, the court should not examine each factor in
    isolation but instead give due regard to the totality of the circumstances. 12
    The question we must answer is whether officers had reasonable
    suspicion to prolong Thompson’s traffic stop beyond the time the computer
    check was concluded.
    A
    Thompson takes issue with the district court’s factfinding only in one
    respect: he urges that the unknown man who entered his vehicle at the
    convenience store could not have actually entered and sat in the passenger seat
    because Bourgeois was seated in the passenger seat at all times. The record is
    8 See United States v. Jenson, 
    462 F.3d 399
    , 404 (5th Cir. 2006) (citing United States
    v. Lopez-Moreno, 
    420 F.3d 420
    , 431 (5th Cir. 2005)).
    9 
    Lopez-Moreno, 420 F.3d at 431
    (citing 
    Brigham, 382 F.3d at 507
    ; United States v.
    Grant, 
    349 F.3d 192
    , 196 (5th Cir. 2003)).
    10 United States v. Estrada, 
    459 F.3d 627
    , 631 (5th Cir. 2006) (citation omitted).
    11 United States v. Cavitt, 
    550 F.3d 430
    , 438 (5th Cir. 2008) (citation omitted).
    12 United States v. Arvizu, 
    534 U.S. 266
    , 274-75 (2002).
    5
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    somewhat contradictory on this point. Because Thompson did not request an
    evidentiary hearing, the only narrative in the record describing the incident is
    a police report. That report does not explain how the man could have entered
    Thompson’s vehicle and sat in the passenger seat while Bourgeois was seated
    there. But that inconsistency does not leave us with the definite and firm
    conviction that a mistake has been made. 13 One page of narrative describes
    the events from when Thompson was first observed at 4:15 p.m. until he was
    stopped at 4:59 p.m. There may be an explanation that was not recorded in
    the officer’s report. Moreover, Thompson did not bring this alleged discrepancy
    to the attention of the trial court.
    Prior to initiating the traffic stop, Detective April and Sergeant Walsh
    knew that the driver of the black Infiniti had just engaged in activity which, in
    their training and experience, was consistent with drug trafficking. Detective
    April and Sergeant Walsh also knew that the activity had taken place in a
    high-drug-crime area. Thompson does not challenge the factual accuracy of
    these statements. Officers and the district court properly considered these
    factors as part of the reasonable-suspicion analysis. 14
    B
    Thompson argues that the anonymous tip lacked specificity and
    reliability, was never corroborated by a subsequent investigation, and was
    stale. Five months prior to the stop, investigators had received an anonymous
    tip that Thompson was distributing drugs from a black Infiniti.
    13  See United States v. Hearn, 
    563 F.3d 95
    , 101 (5th Cir. 2009) (citation omitted).
    14  See Ornelas v. United States, 
    517 U.S. 690
    , 700 (1996) (citation omitted) (“[A] police
    officer may draw inferences based on his own experience in deciding whether probable cause
    exists.”); Illinois v. Wardlow, 
    528 U.S. 119
    , 124 (2000) (citation omitted) (“[T]he fact that the
    stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a
    Terry analysis.”).
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    No. 18-30861
    We consider several factors in assessing the reliability of an informant’s
    tip:
    the credibility and reliability of the informant, the specificity of the
    information contained in the tip or report, the extent to which the
    information in the tip or report can be verified by officers in the
    field, and whether the tip or report concerns active or recent
    activity, or has instead gone stale. 15
    As we have noted, the Supreme Court views an anonymous tip with “strong
    distrust.” 16 Merely describing the person’s appearance is insufficient to create
    reasonable suspicion; it must “show that the tipster has knowledge of concealed
    criminal activity . . . [and is] reliable in its assertion of illegality, not just in its
    tendency to identify a determinate person.” 17                Nevertheless, “there are
    situations in which an anonymous tip, suitably corroborated, exhibits
    sufficient indicia of reliability to provide reasonable suspicion.” 18                  The
    staleness of a tip is determined on the facts of each case. 19
    During the course of the stop, and prior to learning that Thompson’s
    driver’s license was in good standing, Detective April learned that the black
    Infiniti was driven by Thompson.              Further, Detective Tiliakos observed
    Thompson engage in behavior that was consistent with drug trafficking. That
    corroborated the substance of the tip, including its assertion that Thompson
    was engaged in illegal drug transactions.                    Taken together, officers
    demonstrated that the tip was reliable in its ability to identify Thompson as a
    driver of a black Infiniti and reliable in its assertion of illegal activity.
    15United States v. Martinez, 
    486 F.3d 855
    , 861 (5th Cir. 2007) (citations omitted).
    16Id. at 862.
    
    17 Fla. v
    . J.L., 
    529 U.S. 266
    , 272 (2000) (citation omitted).
    18 
    Martinez, 486 F.3d at 863
    (citation and internal quotation marks omitted).
    19 United States v. Webster, 
    734 F.2d 1048
    , 1056 (5th Cir. 1984) (citing United States
    v. Freeman, 
    685 F.2d 942
    (5th Cir. 1982)).
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    Nor was the tip stale. Thompson counts a generous six-months between
    the tip and the stop. But our cases do not mechanically count the time between
    events alleged and the time of the Fourth Amendment activity. 20 Rather, our
    opinions consistently bear out that information describing “a long-standing,
    ongoing pattern of criminal activity, even if fairly long periods of time have
    lapsed between the information” and subsequent detention or search is not
    considered “stale.” 21 The anonymous tip described open-ended activity—that
    Thompson was using the black Infiniti for drug transactions—not that he
    would act in a certain way or use the vehicle on a particular occasion. 22 Law
    enforcement officers witnessed activity consistent with the drug trafficking
    reported by the tip.
    C
    Detective April observed that Thompson was sweating heavily and that
    his body was visibly shaking while he produced his driver’s license and vehicle
    documents.      When Detective April asked Thompson where he was going,
    Thompson stuttered and cleared his throat several times before eventually
    stating that he was driving around with no known destination.
    Although Thompson provides innocent explanations for his activities and
    nervousness, “factors which by themselves may appear innocent, may in the
    aggregate rise to the level of reasonable suspicion.” 23                Further, although
    Thompson’s possible drug trafficking in a high-drug-crime area, the
    anonymous tip, and Thompson’s nervousness, considered in isolation from one
    another, may not have been sufficient to establish the requisite reasonable
    20 
    Id. 21 United
    States v. Craig, 
    861 F.2d 818
    , 822-23 (5th Cir. 1988) (citations omitted).
    22 See United States v. Gonzalez, 
    190 F.3d 668
    , 673 (5th Cir. 1999) (affirming denial of
    motion to suppress in which officers detained defendant two months after informant had
    given an open-ended tip that defendant was engaged in smuggling).
    23 United States v. Ibarra-Sanchez, 
    199 F.3d 753
    , 759 (5th Cir. 1999) (citation omitted).
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    suspicion, based on the totality of the circumstances and viewing the evidence
    in the light most favorable to the Government, the district court did not err in
    concluding that Detective April and Sergeant Walsh had reasonable suspicion
    to believe that Thompson was engaged in illegal drug activity, justifying their
    decision to prolong his detention until the K-9 unit arrived. 24
    We note that the Government urges that we may affirm on an alternative
    basis. The Government points to statements by Harris that allegedly confirm
    that Thompson sold drugs at the convenience store. However, the district court
    expressly found that Detective April and Sergeant Walsh were not informed of
    Harris’s statements until after the search of Thompson’s car. Accordingly we
    do not rely on the Government’s proposed alternative ground. 25
    *        *        *
    The district court properly denied Thompson’s motion to suppress. Its
    judgment is AFFIRMED.
    24  See United States v. Arvizu, 
    534 U.S. 266
    , 273-78 (2002); United States v. Pack, 
    612 F.3d 341
    , 347, 361-62 (5th Cir. 2010).
    25 See United States v. Massi, 
    761 F.3d 512
    , 521 (5th Cir. 2014) (citation omitted) (“The
    facts leading to a finding of reasonable suspicion do not have to be based on a law enforcement
    officer's personal observation, but can also arise from the ‘collective knowledge’ of law
    enforcement entities, so long as that knowledge gives rise to reasonable suspicion and was
    communicated between those entities at the time of the stop.”).
    9