United States v. Antonio De La Rosa

USCA11 Case: 21-11923 Date Filed: 05/17/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11923
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO DE LA ROSA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00042-CG-B-1
____________________
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2 Opinion of the Court 21-11923
Before JILL PRYOR, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Antonio De La Rosa appeals his conviction for
possessing a firearm in relation to a drug trafficking offense, in vio-
lation of 18 U.S.C. § 924(c)(1)(A), challenging only the district
court’s denial of his motion to suppress. He argues that the district
court erred in denying that motion because officers did not possess
reasonable suspicion to initiate their encounter with him and per-
form a brief, investigatory detention. After reviewing the record
and reading the parties’ briefs, we affirm the district court’s order
denying De La Rosa’s motion to suppress.
I.
“A district court’s ruling on a motion to suppress presents a
mixed question of law and fact.” United States v. Zapata, 180 F.3d
1237, 1240 (11th Cir. 1999). We review de novo the district court’s
factual findings for clear error and its application of the law to the
facts. Id. The court construes the facts in the light most favorable
to the party who prevailed below. United States v. Bervaldi, 226
F.3d 1256, 1262 (11th Cir. 2000).
“Typically, issues not raised in the initial brief on appeal are
deemed abandoned.” United States v. Campbell, 26 F.4th 860,
871 (11th Cir. 2022) (en banc). “Abandonment of an issue can also
occur when passing references appear in the argument section of
an opening brief, particularly when the references are mere
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21-11923 Opinion of the Court 3
‘background’ to the appellant’s main arguments or when they are
‘buried’ within those arguments.” Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014) (citations omitted).
II.
The Fourth Amendment prohibits unreasonable searches
and seizures. U.S. Const. amend. IV. In determining whether a
search or seizure is reasonable, we examine the totality of the cir-
cumstances. United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir.
2012).
Law enforcement may “seize a suspect for a brief, investiga-
tory . . . stop where (1) the officers have a reasonable suspicion that
the suspect was involved in, or is about to be involved in, criminal
activity, and (2) the stop [is] reasonably related in scope to the cir-
cumstances which justif[y] the interference in the first place.” Id.(quotation marks and citations omitted). Reasonable suspicion
must be more than an inchoate or unparticularized suspicion or
hunch. United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000)
(citations omitted). “While ‘reasonable suspicion’ is a less demand-
ing standard than probable cause and requires a showing consider-
ably less than preponderance of the evidence, the Fourth Amend-
ment requires at least a minimal level of objective justification for
making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct.
673, 676-76 (2000). Reasonable suspicion need not involve obser-
vation of illegal conduct, however. Lewis, 674 F.3d at 1303.
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4 Opinion of the Court 21-11923
The existence of reasonable suspicion depends on probabili-
ties, not hard certainties. United States v. Cortez, 449 U.S. 411, 418,
101 S. Ct. 690, 695 (1981). An assessment of the whole picture must
yield a particularized suspicion. Id. In some cases, “the smell of
marijuana alone may provide a basis for reasonable suspicion for
further investigation of possible criminal conduct.” United States
v. White, 593 F.3d 1199, 1203 (11th Cir. 2010); see also United
States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc) (not-
ing that an officer’s suspicions “rose to the level of probable cause
when, as the door stood opened, he detected what he knew from
his law enforcement experience to be the odor of marijuana”). In
other cases, “[a] person’s proximity to a person whom officers have
probable cause to believe is committing a crime may be considered
as a factor in assessing reasonable suspicion.” United States v. Gon-
zalez, 70 F.3d 1236, 1238 (11th Cir. 1995); see also United States v.
Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (approving the brief
detention of an individual standing next to another who was gam-
bling illegally).
Generally, “reasonable suspicion of criminal activity must
attach to the particular person stopped.” Lewis, 674 F.3d at 1305.
Nonetheless, “as the Supreme Court has . . . made crystal clear,
individualized suspicion is not an absolute prerequisite for every
constitutional search or seizure.” Id. at 1305-06.
Police officers may also briefly detain individuals not sus-
pected of wrongdoing to control a situation or promote officer
safety. See United States v. Clark, 337 F.3d 1282, 1288 (11th Cir.
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21-11923 Opinion of the Court 5
2003) (holding that the officer “did not violate the Fourth Amend-
ment in briefly detaining [the defendant] after learning that he was
not a mere bystander but, instead and notably, had been . . . an
associate of two persons being investigated for criminal activities”);
see also Lewis, 674 F.3d at 1308 (holding that an officer may briefly
detain individuals not suspected of wrongdoing to promote officer
safety). Moreover, detaining an individual who locates himself
such that he would naturally be detained as part of a police investi-
gation does not violate the Fourth Amendment, particularly where
officers are uncertain of the perpetrator’s identity. See United
States v. Gibbs, 917 F.3d 1289, 1297 (11th Cir. 2019).
Importantly, we note that Alabama law criminalizes the pos-
session of marijuana, whether for personal use or otherwise. See
Ala. Code §§ 13A-12-213, 13A-12-214. Driving under the influence
of marijuana is also illegal in Alabama. See id. § 32-5A-191(a)(3).
III.
As an initial matter, De La Rosa has abandoned the argu-
ment that the initial encounter constituted an arrest without prob-
able cause because he does not argue on appeal that the initial en-
counter was tantamount to an arrest. Thus, we do not consider
that argument.
As to the issue of reasonable suspicion, the totality of the cir-
cumstances indicate that the officers had reasonable suspicion to
detain De La Rosa because they possessed an objectively reasona-
ble suspicion that he had engaged, or was about to engage, in
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6 Opinion of the Court 21-11923
criminal activity. Thus, we conclude, from the record, that the dis-
trict court properly denied De La Rosa’s motion to suppress. Here,
officers did not violate De La Rosa’s Fourth Amendment rights by
performing a brief, investigatory detention when he exited a hotel
room from which an officer observed smoke and detected a strong
odor of marijuana emanating from De La Rosa.
Furthermore, the officers testified at the suppression hearing
before the district court that they were involved in a marijuana in-
vestigation that targeted two individuals at the same hotel where
De La Rosa had parked his vehicle. When De La Rosa left the hotel
room, from which marijuana smoke emanated, and got into a ve-
hicle with several other individuals, the officers acted reasonably in
stopping the vehicle to locate the suspects involved in the mariju-
ana investigation. At that point, the officers had corroborated the
primary suspects’ descriptions, their vehicle, and their destination,
to some extent. Thus, when De La Rosa exited the hotel room
alongside the primary suspects, the officers had reasonable suspi-
cion that De La Rosa was engaged in criminal activity. These facts,
coupled with De La Rosa’s proximity to the primary suspects of an
ongoing marijuana investigation, justified the brief, investigatory
detention. See Gonzalez, 70 F.3d at 1238. Accordingly, based on
the aforementioned reasons, we affirm the district court’s order
denying Da La Rosa’s motion to suppress.
AFFIRMED.