United States v. Ezra Mostowicz

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11900 ELEVENTH CIRCUIT
JUNE 14, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 0:10-cr-60249-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EZRA MOSTOWICZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 14, 2012)
Before EDMONDSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Ezra Mostowicz appeals his convictions for possession with intent to
distribute controlled substances, 21 U.S.C. § 841(a)(1), and for possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i), for
which he was sentenced to 90 months’ imprisonment. Mostowicz pleaded guilty
pursuant to a written plea agreement in which he reserved the right to appeal the
district court’s denial of his motion to suppress evidence. No reversible error has
been shown; we affirm.
During a face-to-face meeting, a confidential source (“CS”) told Officer
Patrick Keegan that Mostowicz often sold cocaine and ecstacy at a local bar. The
CS described Mostowicz, Mostowicz’s car, Mostowicz’s usual parking spot, and
the time of day that Mostowicz was generally at the bar. The CS also said that
Mostowicz carried a gun either on his person or in the center console of his car.
After their initial meeting, Officer Keegan spoke with the CS a couple of
times on the phone about Mostowicz’s drug activities. During one of these calls,
the CS told Officer Keegan that Mostowicz would arrive at the bar in about ten
minutes. Officer Keegan and Detective Wadel Romero drove immediately to the
bar and, moments later, saw Mostowicz’s car arrive and park in its usual spot. As
Mostowicz left the driver’s seat, Detective Romero ordered Mostowicz to stop and
handcuffed him. Meanwhile, Officer Keegan removed a female passenger from
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the car; and the officers directed both Mostowicz and his passenger to sit on a
nearby curb.
Detective Romero then had his K-9 partner, Cody, conduct a sniff of the
outside of the car. As Cody approached the driver’s side door -- which Mostowicz
had left open -- she began showing behavioral signs that she detected the scent of
illegal drugs. Cody jumped immediately into the driver’s seat, sniffed the center
console area, and alerted, indicating that she was as close as possible to the source
of the odor. Officer Keegan searched the car and found a gun between the driver’s
seat and the center console and a bag of drugs hidden inside the center console.
Officer Keegan read Mostowicz his Miranda1 rights, and Mostowicz admitted that
the gun and the drugs in the car belonged to him.
On appeal, Mostowicz challenges the district court’s denial of his motion to
suppress evidence. He argues (1) that the officers lacked reasonable suspicion to
perform an investigatory detention; (2) that the investigatory detention amounted
to an arrest that was not supported by probable cause; and (3) that the dog sniff of
the inside of his car violated his Fourth Amendment rights.2 In considering the
1
Miranda v. Arizona, 86 S. Ct. 1602 (1966).
2
Mostowicz also argues that the district court violated his due process rights when it adopted
the magistrate judge’s report and recommendation -- over Mostowicz’s objections -- without
conducting a second evidentiary hearing to resolve various credibility issues. This argument has
been foreclosed by the United States Supreme Court’s decision in United States v. Raddatz, 100
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district court’s denial of a motion to suppress, we review the district court’s
findings of fact for clear error and its application of the law to the facts de novo.
United States v. Nunez, 455 F.3d 1223, 1225 (11th Cir. 2006). We also construe
the facts in the light most favorable to the prevailing party. Id.To justify an investigatory detention, “the government must show a
reasonable, articulable suspicion that the person has committed or is about to
commit a crime.” United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006).
When determining whether reasonable suspicion exists, we must consider the
totality of the circumstances to ascertain whether the officer had a “particularized
and objective basis” for suspecting criminal activity. United States v. Arvizu, 122
S. Ct. 744, 750 (2002). Reasonable suspicion may be based on information
supplied to an officer by another person, if that information bears sufficient indicia
of reliability. Adams v. Williams, 92 S. Ct. 1921, 1923-24 (1972).
Officer Keegan met face-to-face with the CS for almost an hour and -- based
on the CS’s demeanor -- believed the CS to be credible. Such a face-to-face tip “is
presumed to be inherently more reliable than an anonymous telephone tip because
the officers receiving the information have an opportunity to observe the
S. Ct. 2406, 2413-15 (1980), which concluded that a district court does not violate the Due
Process Clause when it makes a de novo determination on credibility issues without hearing live
testimony.
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demeanor and perceived credibility of the informant.” See United States v. Heard,
367 F.3d 1275, 1279 (11th Cir. 2004).
We have also determined that an informant’s tip is sufficiently reliable to
create a reasonable suspicion of criminal activity when -- as in this case -- officers
corroborate both “presently observable facts and the prediction of future conduct.”
See United States v. Lee, 68 F.3d 1267, 1272 (11th Cir. 1995). Officers
corroborated “presently observable facts,” including Mostowicz’s physical
description, the make and model of Mostowicz’s car, and that Mostowicz’s car
was parked one evening in the location specified by the CS.
In addition, the CS predicted Mostowicz’s future conduct, telling Officer
Keegan precisely when Mostowicz would arrive at the bar on the night of the
arrest. Given the totality of the circumstances, we conclude that the CS’s tip
provided Officers Keegan and Romero with reasonable suspicion to conduct an
investigatory detention of Mostowicz’s car.
Mostowicz next argues that, even if the officers had reasonable suspicion to
detain him, the investigative detention amounted to an arrest requiring probable
cause. In determining whether a detention rises to the level of an arrest, we
consider these four factors: (1) “the law enforcement purposes served by the
detention”; (2) “the diligence with which the police pursue the investigation”; (3)
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“the scope and intrusiveness of the detention”; and (4) “the duration of the
detention.” United States v. Acosta, 363 F.3d 1141, 1146 (11th Cir. 2004).
In examining the first factor, “the most important consideration is whether
the police detained the defendant to pursue a method of investigation that was
likely to confirm or dispel their suspicions quickly, and with a minimum of
interference.” Id. (quotations omitted). Here, the officers ordered Mostowicz and
his passenger out of the car and initiated a dog sniff of Mostowicz’s car within
minutes of the stop. We have said that such a dog sniff “is the kind of brief,
minimally intrusive investigation technique” that supports an investigative
detention. United States v. Hardy, 855 F.2d 753, 759 (11th Cir. 1988). Thus, this
factor weighs in favor of the legality of the detention. The second and fourth
factors also weigh in favor of the detention’s legality because nothing evidences --
and Mostowicz does not argue -- that the police delayed the investigation or that
the duration of the detention was unreasonable.
Under the third factor, “officers may take reasonable steps to ensure their
safety so long as they possess ‘an articulable and objectively reasonable belief that
the suspect is potentially dangerous.’” Acosta, 363 F.3d at 1146. Thus, “an
investigatory stop does not necessarily ripen into an arrest because an officer
draws his weapon, handcuffs a suspect, [or] orders a suspect to lie face down on
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the ground.” Id. at 1147 (citations omitted). Based on the CS’s tip that
Mostowicz carried a gun, for the officers to believe that Mostowicz was dangerous
and that they needed to protect themselves was reasonable. Thus, we are not
convinced that the officers’ acts -- which included activating their emergency
lights, wearing tactical uniforms, drawing their weapons, and handcuffing
Mostowicz -- converted the detention into an arrest.
We next address Mostowicz’s argument that Cody’s entry into his car
violated his Fourth Amendment rights because it constituted a search without
probable cause.3 The four circuit courts that have addressed this issue have each
concluded that a trained dog’s instinctive acts -- performed without police
encouragement or facilitation -- do not violate the Fourth Amendment. See United
States v. Pierce, 622 F.3d 209, 213-14 (3rd Cir. 2010) (concluding that no Fourth
Amendment violation occurred when a dog jumped instinctively through an open
car door “without facilitation by his handler”); United States v. Vazquez, 555 F.3d
923, 930 (10th Cir. 2009) (stating that “we have upheld the legality of [a dog] sniff
during a lawful detention when, as here, (1) the dog’s leap into the car was
instinctual rather than orchestrated and (2) the officers did not ask the driver to
3
Mostowicz does not challenge the dog sniff of the exterior of his car. See United States v.
Holloman, 113 F.3d 192, 194 (11th Cir. 1997) (concluding that a dog-sniff of the outside of a car
does not constitute a “search” within the meaning of the Fourth Amendment).
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open the point of entry . . . used by the dog”); United States v. Lyons, 486 F.3d
367, 373 (8th Cir. 2007) (seeing no Fourth Amendment violation when a dog
stuck his head instinctively through a van’s open window without being directed
to do so by officers); United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998)
(stating that “absent police misconduct, the instinctive acts of trained canines . . .
do[] not violate the Fourth Amendment”); United States v. Stone, 866 F.2d 359,
363-64 (10th Cir. 1989) (seeing no Fourth Amendment violation when a dog
jumped instinctively into defendant’s open hatchback and when the officers did
not ask defendant to open the hatchback for purposes of the dog sniff); cf. United
States v. Winningham, 140 F.3d 1328, 1330-31 (10th Cir. 1998) (concluding that a
dog sniff of the inside of a van was unlawful when the officers opened the van’s
door and unleashed the dog as it neared the open door).
Mostowicz contends that the officers facilitated Cody’s search when they
handcuffed him before he had an opportunity to close his door. But nothing
evidences that the officers instructed Mostowicz to leave open his door. And, as
we have discussed, the officers handcuffed Mostowicz based on their reasonable
belief that he was armed and dangerous, not to facilitate the dog sniff. Because
Cody jumped instinctively into the car without encouragement or facilitation from
the officers, we see no Fourth Amendment violation.
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AFFIRMED.
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