United States v. Smith ( 2023 )

Case: 22-50045 Document: 00516805147 Page: 1 Date Filed: 06/29/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
June 29, 2023
No. 22-50045 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Jordan Ray Smith,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-218-1
______________________________
Before Higginbotham, Graves, and Douglas, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge: *
Midland Police Officer Jeremy Renforth searched Jordan Ray Smith
and found a firearm. Charged as a felon-in-possession, Smith moved to
suppress. The district court denied the motion, finding that the conversation
leading to the search and the search were consensual, or alternatively
supported by reasonable suspicion. We AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50045
I.
A.
On July 13, 2021, MPD Officer Renforth was “dispatched” to follow
up on a “suspicious person-call . . . at the Candlewood Suites motel.” The
anonymous call had come to the Midland Police Department
Communications Center, relaying “a description of the subject[s]”—“a
black male with a blue shirt . . . as well as another black male with no
description”—and a location “at [the motel’s] rear parking lot area.”
According to Renforth, the caller “was approached by these people and they
had offered to sell him drugs or a gun.” Renforth was in the area and quickly
arrived on scene.
According to Renforth, upon arriving at the motel area, he noticed a
Black male with a blue shirt—later identified as Jordan Ray Smith—“look[]
over, s[ee] my patrol unit, which it’s a marked patrol unit, then start[]
walking away.” Given that response, Renforth “believe[d] that this [was]
going to be the person [he] probably need[ed] to talk to.” After circling the
area “to make sure that there[] [was] not anybody else . . . that matche[d]
those descriptions there,” Renforth got out of his car and approached Smith
without activating his emergency lights or sirens. 1 Finding Smith was on the
phone with his wife, Renforth requested that he hang up the phone so that
they could speak, saying “you could talk to her later.” Smith put the phone
down, but did not disconnect the call.
When Renforth told Smith that the police received a call regarding
someone in the area selling drugs and a firearm, Smith stated unequivocally
that he was not doing so. Complying with Renforth’s request, Smith gave
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1
Renforth’s body camera footage, which began here, confirms this. The remainder
of the factual recitation is gleaned from this footage.
2
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Renforth his personal information, including his name, address, and phone
number. Renforth then asked whether Smith had any weapons on his person.
Smith said “no, sir.” Renforth also asked if Smith was carrying drugs or
anything illegal. Again, Smith said “no, sir.” Renforth sought Smith’s
consent to search his “person to make sure.” Smith granted Renforth
permission, saying “Yes sir,” but quickly added, “The only thing I do have,
because I just picked it up is [my wife’s] pistol, I got her pistol, I just went
and got it.”
Renforth asked if it was on his person. Smith said yes. Renforth said:
“Without pointing at it, where is it?” Smith raised his hands, jutted his left
hip out, and said it was in his pocket. Smith raised his hands further and
offered Renforth the opportunity to retrieve the pistol himself. Instead,
Renforth placed Smith in handcuffs, explaining that it was necessary to
retrieving the pistol safely. Once Smith was secured, Renforth confirmed
which pocket the firearm was in and then retrieved it from his jeans pocket.
Renforth escorted Smith to his cruiser and asked for consent to complete his
search, which Smith permitted. Indeed, Renforth then said, “I appreciate
you being honest and working with me.” The subsequent portion of the
search found a pocketknife, a “meth pipe,” a torch lighter, and a flip phone
(not the phone on which Smith was speaking). Following the search,
Renforth placed Smith in the back of his vehicle to secure him.
With Smith in the cruiser, Renforth obtained Smith’s driver’s license
information from a database search on his mobile laptop and radioed in to
request further investigation of Smith’s background. Renforth also requested
a check on Smith’s pistol, submitting the make, model, and serial number.
While waiting on this information, Renforth called the anonymous tipster,
asking to describe again what the gun seller was wearing. The tipster stated
that the purported seller was wearing a “blue and black shirt I think.”
Renforth asked the tipster to confirm if the seller was Black—the tipster so
3
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confirmed—and, then, what the seller’s skin tone was—dark, medium, or
light. The tipster stated “Medium.” The tipster said he was unsure of the
seller’s height and other clothing because the seller was sitting down. In the
conversation, Renforth noted, “I actually have the guy, I’m just trying to see
if you can describe him to me, make sure I got the right guy.” The tipster
then estimated the seller’s age to be 35 and described him as skinny with
scruffy short hair. Finally, Renforth urged the tipster to disclose his identity,
but the tipster refused, fearing police involvement and retaliation.
B.
In July 2021, Smith was indicted on a single count of possession of a
firearm by a convicted felon. Two months later, the district court heard
Smith’s motion to suppress the firearm. Renforth was the only witness
questioned, and both the Parties and the court questioned him about
everything from the dispatch to his arrival on the scene and his training.
Four days after the hearing, the district court issued a 16-page opinion
denying the motion. The district court found that both the initial encounter
and the pat down search were consensual. The court also held that even
absent Smith’s consent, “the Government succeeded in carrying its burden
of proof by showing, based on the totality of the circumstances, which
included a credible tip and [Smith]’s evasive behavior during an encounter in
a high crime area, that Officer Renforth had reasonable suspicion to execute
a Terry stop and pat down on [Smith] after [Smith] initially consented to the
search.”
Following the suppression hearing, the district court found Smith
guilty in a bench trial facilitated by the Parties’ stipulation of facts, which
“la[id] out some recommendations concerning the denial of the Defendant’s
motion to suppress as well as what the [P]arties’ recommendation [would]
be concerning acceptance of responsibility at sentencing.” Smith was
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ultimately sentenced to 37 months’ imprisonment, the top of the Guidelines
range.
Smith timely appealed.
II.
“When examining a district court’s ruling on a motion to suppress,
[this Court] review[s] questions of law de novo and factual findings for clear
error.” 2 The evidence is viewed in the light most favorable to the party that
prevailed in the district court. 3 “The district court’s ruling on a motion to
suppress will be upheld if there is any reasonable view of the evidence to
support doing so.” 4
III.
A.
The Fourth Amendment safeguards “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” 5 “Warrantless searches and seizures are per se
unreasonable unless one of the recognized exceptions applies.” 6 “The
Government bears the burden of showing that a warrantless search or seizure
fits within one of the exceptions.” 7
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2
United States v. Wise, 877 F.3d 209, 215 (5th Cir. 2017) (quoting United States v.
Hearn, 563 F.3d 95, 101 (5th Cir. 2009)).
3
United States v. Toussaint, 838 F.3d 503, 507 (5th Cir. 2016).
4
United States v. Thomas, 997 F.3d 603, 609 (5th Cir. 2021) (citing United States v.
Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc)), cert. denied 142 S. Ct. 828 (2022).
5
U.S. CONST. amend. IV.
6
Thomas, 997 F.3d at 609 (citing Cotropia v. Chapman, 978 F.3d 282, 286 (5th Cir.
2020)).
7
Id. (citing United States v. Monsivais, 848 F.3d 353, 357 (5th Cir. 2017)).
5
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As we have explained:
There are three recognized types of encounters between law
enforcement officers and citizens, including: 1) a consensual
encounter during which an individual voluntarily agrees to
communicate with the police; 2) a limited investigatory stop
based upon less than probable cause; and 3) an arrest which
constitutes a seizure under the Fourth Amendment. 8
As for voluntary or consensual encounters, “[t]he Fourth
Amendment permits police officers to approach [individuals] at random to
ask questions and to request their consent to searches, provided a reasonable
person would understand that he or she is free to refuse.” 9
This [C]ourt considers six factors when evaluating the
voluntariness of consent:
(1) the defendant’s custodial status;
(2) the presence of coercive police procedures;
(3) the extent and level of the defendant’s cooperation
with the police;
(4) the defendant’s awareness of his right to refuse
consent;
(5) the defendant’s education and intelligence[;] [and]
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8
United States v. Williams, 365 F.3d 399, 403–04 (5th Cir. 2004) (citing United
States v. Cooper, 43 F.3d 140, 145–46 (5th Cir. 1995)).
9
United States v. Drayton, 536 U.S. 194, 197 (2002) (citing generally Florida v.
Bostick, 501 U.S. 429 (1991)).
6
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(6) the defendant’s belief that no incriminating
evidence will be found. 10
Consensual encounters “may be initiated by the police without any
objective level of suspicion,” 11 and during such encounters, officers “may
ask questions of the person, ask for identification, and request permission to
search” an individual or one’s personal effects. 12
“A district court’s determination that an exchange with a police
officer constitutes a consensual encounter, rather than a seizure implicating
Fourth Amendment protections, is a factual finding reversible only for clear
error.” 13 This Court “examines the following non-exclusive factors for
determining whether a consensual encounter occurred: ‘(1) the threatening
presence of several police officers; (2) the display of a weapon by an officer;
(3) physical touching of the person of the citizen; and (4) the use of language
or tone of voice indicating that compliance with an officer’s request was
compelled.’” 14
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10
Cooper, 43 F.3d at 144 (citing United States v. Ruigomez, 702 F.2d 61, 65 (5th Cir.
1983)).
11
Id. at 145.
12
Williams, 365 F.3d at 404 (citing Drayton, 536 U.S. at 200–01).
13
United States v. Gurrola, 301 F. App’x 337, 340 (5th Cir. 2008) (unpublished)
(per curiam) (citing United States v. Butler, 988 F.2d 537, 541 (5th Cir. 1993); and then
citing United States v. Mask, 330 F.3d 330, 334 (5th Cir. 2003)); see also United States v.
Muniz, 340 F. App’x 192, 196 (5th Cir. 2009) (unpublished) (per curiam) (“A district
court’s determination that an exchange with a police officer constitutes a consensual
encounter, rather than a seizure implicating Fourth Amendment protections, is a factual
finding reversible only for clear error.” (citing Mask, 330 F.3d at 334)).
14
United States v. Guevara, 448 F. App’x 453, 456 (5th Cir. 2011) (unpublished)
(per curiam) (quoting Mask, 330 F.3d at 337).
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Relatedly, we “review fact-findings as to the voluntariness of consent
to search for clear error.” 15 And “whether a consent to a search was in fact
‘voluntary’ or was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the circumstances.” 16
B.
Here, the record supports the district court’s factual determinations
that Renforth’s initial discussion with Smith and subsequent search were
consensual. We review each separately.
i.
First, there is no evidence that Renforth was a “threatening
presence.” At no point did Renforth “block[]” Smith’s “path.” 17 To the
contrary, Renforth “permitted [Smith] to keep his cell phone” throughout
the interaction, even allowing Smith to continue a call to his wife (Smith
stated she was on the line). 18 The brevity of the discussion also evidences a
voluntary encounter—that he was not “subject to a lengthy interrogation.” 19
Moreover, this Court has repeatedly referenced the number of officers
engaging in an interaction as relevant in consent analysis, reflecting the
obvious fact that more officers can create an air of coercion. 20
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15
United States v. Glenn, 931 F.3d 424, 428 (5th Cir. 2019).
16
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
17
Tyson v. Sabine, 42 F.4th 508, 516 (5th Cir. 2022) (quoting United States v. Berry,
670 F.2d 583, 597 (5th Cir. Unit B 1982)).
18
United States v. Wilson, 306 F. App’x 871, 873 (5th Cir. 2009) (unpublished) (per
curiam).
19
United States v. Brown, 567 F. App’x 272, 280 (5th Cir. 2014) (unpublished).
20
See Guevara, 448 F. App’x at 456 (“Furthermore, only two officers talked with
him; most of the remaining officers were inventorying the store.”); United States v.
Colunga-Perez, 124 F.3d 193 (5th Cir. 1997) (unpublished) (per curiam) (“Although
8
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Second, the bodycam footage suggests that at no point did Renforth
reach for or “brandish a weapon or make any intimidating movements,” 21
nor does Smith suggest such actions occurred. Similarly, during the initial
encounter, Renforth never placed his hands on Smith.
Third, Renforth never told Smith that he was the individual suspected
of criminal activity. This Court “ha[s] recognized that statements by an
officer indicating that an individual is suspected of illegal activity are
persuasive evidence that an objectively reasonable person would not feel free
to leave.” 22 By contrast, disclosing a generalized suspicion about a crime to
an individual “is insufficient to effect a seizure.” 23
Renforth’s statements fall into the latter category, beginning the
conversation with Smith with an explanation that “we just got some calls
from some people about, I guess, some Black male trying to sell people drugs
and guns.” Smith responded: “Nah, not I,” and the two pivoted the
conversation to Smith’s presence in the area. 24
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approximately ten officers were on the property, only two were near the defendant when
he consented to the search.”).
21
Wise, 877 F.3d at 221 (5th Cir. 2017).
22
Sabine, 42 F.4th at 516 (collecting cases).
23
Id.
24
See Berry, 670 F.2d at 597 (“Statements which intimate that an investigation has
focused on a specific individual easily could induce a reasonable person to believe that
failure to cooperate would lead only to formal detention.”); United States v. Gonzales, 79
F.3d 413, 420 (5th Cir. 1996) (noting that officers’ statement “that the car [the defendant]
was driving was suspected of being used to transport drugs . . . may have pushed the
encounter, which was initially consensual, to being a Terry stop”); United States v. Zukas,
843 F.2d 179, 182 (5th Cir. 1988) (holding that “when the police officers . . . informed [the
defendant] . . . that he was suspected of smuggling drugs” a seizure occurred (emphasis
added)); United States v. Hanson, 801 F.2d 757, 761 (5th Cir. 1986) (“[W]hen [the officer]
9
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Finally, Renforth’s “use of language [and] tone of voice” suggest that
the search was consensual. Upon review of the bodycam footage, at no point
did Renforth raise his voice or yell at Smith. He was instead calm and spoke
to Smith respectfully throughout the encounter (both the initial encounter
and the frisk), supporting a finding of no coercion or compulsion. 25
So, then, Smith’s contention that the initial interaction was not
consensual largely rests on two issues: (1) Renforth’s driving “so close” to
Smith; and (2) Renforth’s telling Smith “[y]ou can talk to [your wife, with
whom you are currently on the phone] in a minute.” Neither argument
persuades.
In Michigan v. Chesternut, a defendant started to run upon noticing a
police cruiser, which prompted the driver, an officer, to follow the defendant
and “dr[i]ve alongside him for a short distance.” 26 A unanimous Supreme
Court offered relevant signals of intimidation—here absent—including
activating flashers or sirens, brandishing firearms, commanding the
defendant to halt, or driving the cruiser “in an aggressive manner to block
[his] course or otherwise control the direction or speed of his movement,”
and “[w]hile the very presence of a police car driving parallel to a running
pedestrian could be somewhat intimidating, this kind of police presence does
not, standing alone, constitute a seizure.” 27 If the defendant in Chesternut
was not seized, neither was Smith.
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. . . informed [the defendant] that he . . . [was] suspected of carrying drugs, a reasonable
person would not have believed that he was free to go.”).
25
See, e.g., United States v. Abdenbi, 361 F.3d 1282, 1292 (10th Cir. 2004) (noting
that an interaction was consensual where, inter alia, the officer “did not raise his voice”).
26
486 U.S. 567, 569 (1988).
27
Id. at 575.
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Upon initially approaching, the encounter proceeded as follows:
Renforth: Hey partner.
Smith: Yes sir.
Renforth: Do you mind hanging up the phone and talking
to me real quick?
Smith: Huh?
Renforth: Do you mind hanging up and talking to me real
quick?
Smith: It’s my wife.
Renforth: Ok, [sigh] well, you can talk to her in a minute.
All the while, Smith remained on the phone, having only dropped the phone
from his ear while keeping the phone in his hand and the call connected, with
Renforth raising his generalized suspicion with Smith. And given Smith’s
cooperative response to Renforth, it is fair to conclude that if Smith thought
“compliance with [Renforth’s] request [to hang up] was compelled,” 28 he
would have complied. Regardless, this alone cannot overcome the deference
due to the district court’s decisive review.
ii.
This analysis carries into the search, as the initial encounter provides
vital context to the search itself. Indeed, the only additional fact to add is the
discussion undertaken just before the search. Renforth, after speaking with
Smith for approximately one minute to obtain Smith’s identifying
information, asked Smith if he had “any weapons on [him]” and whether
Smith had any “drugs or anything illegal.” Smith immediately and
unequivocally answered no to both questions. Thereafter, Renforth calmly
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28
Guevara, 448 F. App’x at 456 (quoting Mask, 330 F.3d at 337).
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asked, “May I search your person to make sure?” Smith answers “Yes Sir,”
but then immediately reverses course and states that he does have a pistol on
him. Without touching Smith, Renforth asks where it is on Smith’s body, and
Smith lifts his arms and sticks his hip out. Renforth says “Can I have you --”
when Smith cuts him off, says “Yes, sir, you can get it” and raises his arms
further. In these questions, Renforth is expressly asking for permission to
proceed with an action pursuant to a search, and in both instances, Smith
answers affirmatively and without qualification.
Again, Renforth did not present an overwhelming show of force with
multiple officers in tow nor did he use inappropriately demanding language
or an intimidating tone of voice, which could suggest compliance is required.
He did not brandish his weapon, nor did he take any other escalatory action.
Rather, he calmly requested permission to search Smith. In sum, there is
more than enough record evidence to affirm the district court’s finding of
fact that the search was conducted with Smith’s consent. 29
*****
AFFIRMED.
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29
Upon finding that the district court did not clearly err with respect to its factual
finding that Smith consented to the initial discussion as well as the searches, we need not
review the district court’s alternative holding that Renforth also had reasonable suspicion
to search Smith even in the absence of consent.
12