United States v. John Bunkley, III

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14111 June 13, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00339-CR-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN BUNKLEY, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 13, 2008)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
John Bunkley, III, was convicted of illegal possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g). Bunkley appeals the district
court’s denial of his motion to suppress the firearm seized after a pat-down search
of his person in front of his home. On appeal, Bunkley argues that because the
officers did not have the reasonable suspicion required to stop him under Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), the stop and resulting pat-down search
violated his Fourth Amendment right to be free from unreasonable searches and
seizures. For the foregoing reasons, we affirm the ruling of the district court.
I. FACTS
In May of 2005, an unknown assailant fired shots at U.S. Marshals while the
Marshals were arresting a fugitive in the Chamblee section of Atlanta. Subsequent
investigation of the shooting indicated that the Black Mafia Family gang, known
for cocaine trafficking and extreme violence, might have been involved. The
investigating officers executed a search warrant at a residence on Spalding Drive
in the Dunwoody section of Atlanta, where they found the firearm used against the
Marshals. The officers learned that this house had been rented in a “cash-for-
keys” transaction, in which the renter provides a large sum of cash in order to
avoid a credit check or having to produce identification. The realtors who rented
the Spalding Drive house informed the officers that they had rented a nearby
house, on Jett Ferry Road, in similar fashion but to different renters.
The similarity in rental arrangements led the investigating officers,
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including Special Agent John Harvey of the Drug Enforcement Administration, to
investigate the Jett Ferry Road house. When the officers arrived at the house,
there were moving vans in the driveways. Concerned that the occupants were
moving out and the officers might lose the chance to learn their identities, the
officers approached the house in order to speak with the occupants. Bunkley met
the officers, who were wearing jackets identifying them as law enforcement.
Bunkley was wearing shorts and a long, loose t-shirt that covered his waistband.
Harvey asked Bunkley if he had a weapon on him and Bunkley said that he did
not. Harvey then asked Bunkley some questions about the house and who owned
it. Bunkley answered that he did not know who owned the house, although he said
he had lived there for four months. Harvey described Bunkley’s demeanor as
nervous and defensive, but more upset that he had to answer questions than
nervous. Harvey again asked Bunkley if he had a weapon, reaching out to pat
down Bunkley’s left side as he did so. Bunkley then stated that he did have a gun
on him, which the officers retrieved from the waistband on Bunkley’s right side.
The gun’s serial number was obliterated. A records check revealed that Bunkley
was a convicted felon.
Bunkley was subsequently indicted for possessing a firearm as a convicted
felon. He pled guilty to the offense, reserving the right to appeal the district
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court’s denial of his motion to suppress the seized firearm.
II. DISCUSSION
“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 accept the district court’s factual findings as true unless the findings are shown
to be clearly erroneous. Id. All facts are construed in the light most favorable to
the prevailing party below. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th
Cir. 2000). The district court’s application of the law to the facts is reviewed de
novo. Id. We have made clear that “[t]he individual challenging the search has
the burdens of proof and persuasion.” United States v. Cooper, 133 F.3d 1394,
1398 (11th Cir. 1998).
In general, unless there is consent, police officers must obtain a warrant
supported by probable cause to justify a search under the Fourth Amendment.
United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). Warrantless
searches are presumptively unreasonable. United States v. Gordon, 231 F.3d 750,
754 (11th Cir. 2000). However, an officer may frisk or pat-down an individual in
order to conduct a limited search for weapons when the officer has reason to
believe that the individual is armed and dangerous. Terry, 392 U.S. at 27, 88 S Ct.
at 1883. “Once an officer has legitimately stopped an individual, the officer can
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frisk the individual so long as a reasonably prudent man in the circumstances
would be warranted in the belief that his safety of that of others was in danger.”
United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (internal quotations
omitted). The search must be reasonably limited in scope to protecting the officer
by disarming a potentially dangerous individual. Govt’ of Canal Zone v. Bender,
573 F.2d 1329, 1331 (5th Cir. 1978).1 In determining whether reasonable
suspicion exists, the courts must review the “totality of the circumstances” of each
case to ascertain whether the detaining officer had a “particularized and objective
basis” for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 750 (2002). As the Supreme Court made clear in Arvizu,
reviewing courts may not consider the facts supporting a conclusion of reasonable
suspicion in isolation. Id. at 274, 122 S. Ct. at 751. Even if each individual act is
innocent by itself, the facts taken together may provide an officer with reasonable
suspicion. Id. The totality of the circumstances inquiry is concerned not with
“hard certainties, but with probabilities,” and law enforcement officials may
therefore rely on “common sense conclusions.” United States v. Cortez, 449 U.S.
411, 418, 101 S. Ct. 690, 695 (1981). However, “the Fourth Amendment requires
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), this Court adopted as binding precedent all of the decisions of the former
Fifth Circuit handed down prior to the close of business on September 30, 1981.
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at least a minimal level of objective justification for making the stop.” Gordon,
231 F.3d at 754 (internal quotations omitted).
In this case, the totality of the circumstances indicates that Harvey had
reasonable suspicion to believe that Bunkley was armed and dangerous. The Jett
Ferry Road property was located around the corner from the house in which the
gun fired at the Marshals was found. Both houses were rented under a “cash-for-
keys” arrangement that allowed the renters to avoid producing identification or
submitting to a credit check. The investigating officers believed that the Black
Mafia Family, a gang known for its extreme violence, was involved in the
shooting. Bunkley was wearing a shirt that could conceal a weapon and was
behaving in a nervous and upset manner. He did not know whose house it was
despite having lived there for four months. Each of these facts may be innocent
when viewed individually, but taken together, they create an objective justification
for Harvey’s reasonable suspicion that Bunkley was armed and dangerous. As a
result, Harvey was authorized to perform a minimally intrusive pat-down search of
Bunkley. Accordingly, the district court’s denial of Bunkley’s motion to suppress
is
AFFIRMED.2
2
Appellant’s request for oral argument is DENIED.
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