United States v. Lawrence W. Blessinger

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12805
Non-Argument Calendar
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D.C. Docket No. 4:16-cr-10017-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAWRENCE W. BLESSINGER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 2, 2018)
Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
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Lawrence W. Blessinger appeals his conviction for smuggling foreign
citizens into the United States. He argues the evidence against him was obtained in
violation of the Fourth Amendment. After careful review, we affirm.
I. BACKGROUND
A. FACTUAL BACKGROUND
On December 5, 2014, Sergeant Joel Slough of the Monroe County
Sherriff’s Office was driving on Coco Plum Drive in Marathon, Florida, in the
Florida Keys. Coco Plum Drive is a spur off of US-1, the only road connecting the
Florida Keys to the mainland. A number of short, dead-end roads connect to Coco
Plum Drive, including Pescayo Avenue. Other than three vacation rental homes
near the end of the street, no other properties are located on Pescayo Avenue.
As he was driving by Pescayo Avenue, Sergeant Slough saw a black truck
parked at the far end of street, past the rental houses. He patrolled the area every
day, but rarely saw any vehicles parked on Pescayo Avenue. Sergeant Slough
suspected the truck might be illegally dumping trash or other debris. He turned his
vehicle around and pulled onto Pescayo Avenue.
At that point the black truck was traveling up Pescayo Avenue toward Coco
Plum Drive. As he passed the truck, Sergeant Slough saw the driver of the truck—
Blessinger—waive to him. Once Sergeant Slough passed the truck, he drove until
he was 100 to 150 feet from the end of Pescayo Avenue. From there he saw a six-
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foot tall pile “of green vegetation where the truck [had been] parked and it was
surrounded by brown or dehydrated vegetation.” Sergeant Slough suspected the
vegetation was recently cut yard clippings. The pile was on land Sergeant Slough
believed was private property.
Sergeant Slough turned his car around and followed the black truck. He
activated his lights and caught up to the truck at the intersection of Coco Plum
Drive and US-1. He easily identified the truck based on a distinctive orange stripe
and the presence of a Harley-Davidson logo on the rear tailgate. The truck pulled
over. As Sergeant Slough approached the truck on foot, he saw small pieces of
fresh green vegetation on the tailgate and in the truck bed.
Blessinger was driving the truck and had one passenger, Maria Ortega.
Sergeant Slough asked both for identification, believing they were both involved in
the illegal dumping. Ortega did not have any identification. She spoke only
Spanish, so Sergeant Slough called for a translator from Border Patrol, believing
them to be the closest available assistance. When the translator arrived, Ortega
confessed to helping Blessinger dump the yard waste. She also indicated that she
might be in the United States illegally, but the Border Patrol agent stopped her
before she could make any further incriminating statements. Sergeant Slough
arrested Blessinger for illegal dumping.
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A few months after the stop, Sergeant Slough learned that Blessinger had
earlier been stopped by Border Patrol while at sea on suspicion of illegally
travelling to Cuba. Based on this information, and the fact that Ortega was in
Blessinger’s truck when it was pulled over, Sergeant Slough suspected Blessinger
might be involved in human trafficking, and he contacted the Department of
Homeland Security (“DHS”).
DHS Agent Todd Blyth interviewed Ortega. She told him that Blessinger
had illegally transported her and two others into the United States.
B. PROCEDURAL HISTORY
Blessinger was charged with seven immigration-related offenses, including
illegally bringing aliens into the United States, inducing aliens to unlawfully enter
the United States, and conspiring to do the same, all in violation of 8 U.S.C.
§ 1324(a). He moved to suppress the evidence, arguing Sergeant Slough lacked
justification to pull him over, and that all evidence against him was tainted by that
unlawful stop.
The district court held a suppression hearing. Sergeant Slough testified that
the Sheriff’s Office had received reports in November 2014 of illegal dumping
nearby, and that illegal dumping was an enforcement priority for the office. He
explained his initial belief that the truck may have been illegally dumping on
Pescayo Avenue was based on “[t]he specific location being as isolated as it is,”
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the fact that the truck was backed into the end of the street, the fact that it was a
large vehicle, and his knowledge of recent reports of illegal dumping nearby. He
also testified that he thought Blessinger’s wave to him was a sign of nervousness,
and that he believed Blessinger sped away from the scene and drove erratically at
the intersection with US-1. Agent Blyth testified at the hearing that he opened the
DHS investigation into Blessinger after Sergeant Slough told him about his
encounter with Blessinger and Ortega.
The magistrate judge issued a report and recommendation (R&R)
recommending the motion to suppress be denied. The magistrate judge found
Sergeant Slough had reasonable suspicion that Blessinger had committed a crime,
and therefore the traffic stop was valid.1 She also found the evidence discovered
by DHS was sufficiently removed from the traffic stop to attenuate any taint. Over
Blessinger’s objections, the district court adopted the R&R and denied the motion
to suppress.
Blessinger then pled guilty to two counts of bringing an alien into the United
States at a location other than a designated port of entry. As part of his plea,
Blessinger admitted he smuggled two Paraguayan citizens into the United States on
his boat so they could work as domestic servants in his home. In his plea
1
The magistrate judge also found she was not bound by the state court in Blessinger’s
parallel illegal dumping case, which had found the stop was unlawful and had suppressed all
evidence against Blessinger. See United States v. Perchitti, 955 F.2d 674, 675–677 (11th Cir.
1992).
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agreement he retained the right to appeal the denial of the motion to suppress. The
district court sentenced Blessinger to twelve months and one day in prison.
This appeal followed.
II. LEGAL STANDARD
“In reviewing a district court’s ruling on a motion to suppress evidence, we
review factual findings for clear error and the court’s application of law to those
facts de novo.” United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002).
Facts are construed “in the light most favorable to the prevailing party.” Id. An
evidentiary error based on an incorrect application of the constitution warrants
reversal unless “it was harmless beyond a reasonable doubt.” Harrington v.
California, 395 U.S. 250, 251, 89 S. Ct. 1726, 1727 (1969) (quotation marks
omitted).
III. ANALYSIS
Blessinger challenges the denial of his motion to suppress, arguing Sergeant
Slough illegally stopped his truck, such that all the evidence discovered against
him—including in the subsequent DHS investigation—was tainted by the illegal
stop. We turn first to his argument regarding the validity of the traffic stop.
A. FACTUAL FINDINGS
Blessinger begins by asserting the district court clearly erred in making three
specific factual findings: 1) there had been reports of illegal dumping nearby; 2)
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Sergeant Slough knew debris had been dumped before in that area; and 3)
Blessinger drove quickly away as soon as Sergeant Slough approached. “A fact
finding is clearly erroneous when, after reviewing all the evidence, the court is left
with the definite and firm conviction that a mistake has been committed.” United
States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam) (quotation
marks omitted).
Sergeant Slough testified that the Sheriff’s Office received a report of
dumping on Avenue L or Avenue K, which abut Coco Plum Drive, in November
2014. Since that report, the Sheriff’s Office had been conducting extra patrols
specifically to look for dumping. Blessinger argues that the report referenced
dumping that occurred weeks earlier, approximately a mile away. But this does
not render clearly erroneous the district court’s finding that “there had been a
report of illegal dumping in the neighborhood which included Coco Plum Drive
and Pescayo Avenue.” The “neighborhood” surrounding Coco Plum Drive and
Pescayo Avenue is confined on a small island. Avenue K and Avenue L, which
are about a mile from Pescayo Avenue are not so far away as to render the district
court’s observation clearly erroneous. Neither did the district court clearly err in
referring to the report as “recent”: the report was received in “late November,” and
Sergeant Slough’s interaction with Blessinger occurred on December 5.
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Sergeant Slough also testified to his personal experience with illegal
dumping, explaining that he had previously found garbage, including yard waste,
littered in the area around Coco Plum Drive. Blessinger argues there was only one
prior report of dumping at the end of Pescayo Avenue, and Sergeant Slough did not
know of it. By this argument, Blessinger seeks to narrow the extent to which the
Sheriff’s Office could respond to the information it had about dumping: Sergeant
Slough knew dumping had occurred off of Coco Plum Drive, but not at Pescayo
Avenue in particular. Because we review the district court’s findings of fact for
clear error, we reject Blessinger’s argument that the district court clearly erred in
finding Sergeant Slough knew of dumping “in the same location.” The district
court was reasonable in using “in the same location” broadly to mean in the
vicinity of Coco Plum Drive.
Finally, Sergeant Slough testified the truck left Pescayo Avenue when he
arrived and it sped down Coco Plum Drive away from him. Blessinger argues it
took Sergeant Slough “approximately 27 seconds to turn his police car around and
return to Pescayo Avenue,” meaning there is no support for a finding that he took
off as soon as he saw Sergeant Slough. But the district court did not find that
Blessinger drove away instantaneously. Instead it found Blessinger drove away
“as soon as Sergeant Slough turned his police car around to investigate.”
Blessinger’s truck was stationary when Sergeant Slough first passed Pescayo
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Avenue, but when Sergeant Slough returned seconds later, Blessinger was driving
out toward Coco Plum Drive. That Blessinger took action during the 27 seconds it
took for Sergeant Slough to turn his car around is consistent with a finding that it
happened “as soon as Sergeant Slough turned his police car around to investigate.”
Blessinger also argues that, based on dash cam footage, his truck was travelling at
no more than 29 miles per hour. But the district court acknowledged that
“Sergeant [Slough] conceded that the Defendant may have been travelling at the
posted speed limit.” Finding that Blessinger drove “quickly” does not mean he
must have been speeding, and there was sufficient evidence—based on the speed
with which Sergeant Slough had to travel to catch up to the truck—to support a
finding that Blessinger did not drive slowly, but instead moved quickly.
Thus, while Blessinger has pointed to some inconsistencies in the evidence,
we are not left with the “definite and firm conviction that a mistake has been
committed.” Philidor, 717 F.3d at 885. These findings were not clearly erroneous.
B. REASONABLE SUSPICION FOR THE STOP
Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), “the police can stop
and briefly detain a person for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal activity ‘may be afoot.’”
United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quoting
Terry, 392 U.S. at 30–31, 88 S. Ct. at 1884–85). This standard is less onerous than
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demonstrating probable cause for an arrest. United States v. Dunn, 345 F.3d 1285,
1289 (11th Cir. 2003). To justify an investigatory stop, the officer must “show a
reasonable, articulable suspicion that the person has committed or is about to
commit a crime.” United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th
Cir. 1986). An officer’s reasonable beliefs are judged by the “totality of the
circumstances,” taking into account the officer’s “experience and specialized
training.” United States v. Arvizu, 534 U.S. 266, 273–74, 122 S. Ct. 744, 750–51
(2002) (quotation marks omitted).
Blessinger challenges whether Sergeant Slough had reasonable suspicion to
believe he had illegally dumped yard clippings on Pescayo Avenue. Under
Florida’s “Litter Law,” it is unlawful to “dump litter in any manner or amount . . .
[i]n or on private property, unless prior consent of the owner has been given.” Fla.
Stat. § 403.413(1), (4)(c). Litter is defined as “any garbage; rubbish; trash; refuse;
. . . or substance in any form resulting from domestic, industrial, commercial,
mining, agricultural, or governmental operations.” Id. § 403.413(2)(f).
Blessinger argues Sergeant Slough did not know whether he had permission
to dump yard waste on the private property. But reasonable suspicion does not
require proof that every element of the offense has been met. Cf. Jordan v.
Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007) (“No officer has a duty to prove
every element of a crime before making an arrest.”). Sergeant Slough observed
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that the six-foot high pile of vegetation was green, while the surrounding
vegetation was brown and dehydrated, indicating the pile had been brought from
another site and recently placed there. The fact that this pile had been placed in a
particularly remote location—at the far end of a dead-end street that rarely had any
vehicle traffic—increased the likelihood that it had been surreptitiously secreted,
rather than lawfully placed. And Blessinger left the scene at the same time
Sergeant Slough arrived. From these facts Sergeant Slough could reasonably
suspect the vegetation had been placed there without permission. See District of
Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 587 (2018) (holding police
could reasonably infer partygoers lacked permission to be at a home based on the
totality of the circumstances and “common-sense conclusions about human
behavior” (quotation marks omitted)).
Blessinger also challenges Sergeant Slough’s belief that he drove nervously
or erratically. However, even accepting Blessinger’s arguments on these factors,
there was still a valid basis for Sergeant Slough to stop Blessinger’s truck. Taking
account of all the known circumstances, Sergeant Slough saw a large pile of fresh
yard clippings at the dead end of a remote street—strong evidence of illegal
dumping. He knew illegal dumping had occurred recently nearby, and he knew
from experience it was unusual to see vehicles parked at the end of Pescayo
Avenue. He had personally seen Blessinger’s truck parked near the dumping area
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and watched him leave just moments before. Finally, Blessinger’s truck was
capable of holding the amount of illegally dumped waste Sergeant Slough
observed. These facts—even excluding any disputed allegations of speeding,
erratic driving, or other nervous driving behavior—were sufficient for Sergeant
Slough to reasonably suspect that a crime had been committed and that Blessinger
was the person who committed it.
This means Sergeant Slough had sufficient justification to detain Blessinger
in accordance with Terry. See Espinosa-Guerra, 805 F.2d at 1506. Blessinger
does not question the manner in which Sergeant Slough conducted the stop, nor
does he point to any other potential violations of his Fourth Amendment rights.
Thus, the stop was valid, and the evidence that flowed from that stop was
admissible against Blessinger. 2 The district court did not err in denying his motion
to suppress.
AFFIRMED.
2
Because we conclude there was no Fourth Amendment violation, we need not address
Blessinger’s arguments on whether later-discovered evidence was sufficiently attenuated from
the traffic stop.
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