United States v. Tavon Graham

Case: 11-14988 Date Filed: 11/14/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14988
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20300-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
TAVON GRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 14, 2012)
Before BARKETT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Case: 11-14988 Date Filed: 11/14/2012 Page: 2 of 4
Tavon Graham appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), arguing that the district
court erred in denying his motion to suppress firearms and ammunition evidence
found on his person. According to Graham, law enforcement agents had no legal
basis to either stop or frisk him after he began to walk away when they
encountered him on the corner of Northwest 58 Street and Northwest 5 Court
(“58th and 5th”) in Miami during a drug identification sweep.
“Because rulings on motions to suppress involve mixed questions of fact and
law, we review the district court’s factual findings for clear error, and its
application of the law to the facts de novo.” United States v. Bervaldi, 226 F.3d
1256, 1262 (11th Cir. 2000). We construe all facts related to the motion to
suppress in the light most favorable to the party that prevailed before the district
court—in this case the government. Id. Additionally, the district court, as
factfinder, is entitled to substantial deference in reaching credibility determinations
with respect to witness testimony. United States v. McPhee, 336 F.3d 1269, 1275
(11th Cir. 2003).
An officer does not violate the Fourth Amendment by conducting a “brief,
warrantless, investigatory stop of an individual when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” United States v. Hunter, 291
F.3d 1302, 1305–06 (11th Cir. 2002). When determining whether reasonable
2
Case: 11-14988 Date Filed: 11/14/2012 Page: 3 of 4
suspicion exists, courts must review the “totality of the circumstances” to ascertain
whether the officer had some minimal level of objective justification to suspect
legal wrongdoing. Id. Reasonable suspicion analysis is not concerned with “hard
certainties, but with probabilities,” and an officer may rely on “inferences and
deductions that might well elude an untrained person.” United States v. Cortez,
449 U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981). A suspect’s
conduct might be ambiguous and susceptible of an innocent explanation, but an
officer equipped with articulable suspicion is entitled to resolve that ambiguity in
favor of an investigatory stop. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct.
673, 676, 145 L. Ed. 2d 570 (2000). The subjective intent of the investigating
officer “does not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.” Whren v. United States, 517 U.S. 806, 813, 116
S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).
Once an officer has legitimately stopped an individual, the officer can frisk
the individual so long as “a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.” Hunter, 291
F.3d at 1307. Neither this Court nor the Supreme Court has adopted a per se rule
allowing frisks attendant to narcotics stops; indeed, categorical rules are generally
eschewed in the Fourth Amendment context. United States v. Drayton, 536 U.S.
3
 Case: 11-14988 Date Filed: 11/14/2012 Page: 4 of 4
194, 201, 122 S. Ct. 2105, 2111, 153 L. Ed. 2d 242 (2002) (“[F]or the most part per
se rules are inappropriate in the Fourth Amendment context.”).
In this case, the following facts were presented through testimony at the
motion hearing and credited by the district court: (1) the corner of 58th and 5th
where the encounter took place is situated in a high-crime area and the police had
recently received several reports of shots fired in the area; (2) the encounter took
place at night; (3) Graham was one of six to ten individuals standing at the corner;
(4) the immediate vicinity smelled strongly of marijuana; (5) several of Graham’s
associates disregarded the police officers’ order to stop and fled; (6) Graham took
two to three steps away from the agents and stopped only when Agent Thomas
ordered him, at gunpoint, to stop; (7) Graham wore baggy pants that could conceal
a weapon; (8) when his shirt was lifted as part of a general safety pat down by
officers who testified they were doing so to assure their safety, a firearm was
plainly visible in his rear pocket and another firearm was felt in his front pocket.
In light of these facts, we cannot say the district court erred in concluding that the
stop and the ensuing pat down were justified.
AFFIRMED.
4