United States v. Tony Jermaine Neely

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 8, 2007
No. 06-13651 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00083-CR-DF-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY JERMAINE NEELY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(February 8, 2007)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Tony Jermaine Neely appeals his convictions of possession with intent to
distribute crack cocaine and possession of a firearm in furtherance of a drug
trafficking crime. Neely argues that the district court erroneously denied his
motion to suppress evidence obtained after an investigatory stop of his automobile.
We affirm.
On April 8, 2005, Detective Brian Hargrove saw Neely and Daren Saunders
in a drug trafficking area. Saunders was known to Detective Hargrove as a
narcotics dealer. After Saunders saw Hargrove, Saunders hastily entered a car,
which sped away with Neely driving.
Hargrove decided to conduct an investigatory stop. During the stop, both
men were sitting low in their seats and moving nervously. Saunders was unable to
explain why he had fled. Neely had difficulty lighting a cigarette and repeatedly
reached under his seat. The two men admitted that they were on probation and
subject to search at any time as a condition of their probation. Detective Hargrove
asked the men to exit the car, and he searched the inside of the car. Hargrove
discovered a handgun under the driver’s seat and arrested Neely. Police later
searched Neely’s person and found a bag of crack cocaine.
Neely was charged in a three-count indictment with possessing with intent to
distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), possessing a firearm
in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1), and being a felon
in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Neely filed a motion
2
to suppress the drug and firearm evidence, which the district court denied after
finding that the investigatory stop was based on reasonable suspicion. Neely then
pleaded guilty to counts one and two, and the government agreed to dismiss count
three. The district court imposed a sentence of imprisonment for 84 months for the
drug offense and 60 months for the firearm offense, to be served consecutively.
We review the denial of a motion to suppress under a mixed standard of
review. We review findings of fact for clear error and the application of the law to
those facts de novo, and we construe the facts in the light most favorable to the
government. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).
Neely argues that the district court erred when it denied the motion to
suppress because Detective Hargrove lacked reasonable suspicion to conduct the
investigatory stop. We disagree. Reasonable suspicion is more than an “‘inchoate
and unparticularized suspicion or “hunch,”’” but is “considerably less than proof of
wrongdoing by a preponderance of the evidence” and less than probable cause,
which is “‘a fair probability that contraband or evidence of a crime will be found.’”
United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quoting
Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968)).
A combination of objective factors established a reasonable suspicion. First,
Neely and Saunders were in an area known for criminal activity. See Illinois v.
Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000). Second, Saunders was a
3
known narcotics dealer. See United States v. Cruz, 909 F.2d 422, 424 (11th Cir.
1989). Third, Neely and Saunders fled without provocation when they saw
Detective Hargrove. See Wardlow, 528 U.S. at 124, 120 S. Ct. at 676. Neely
disputes that he or Saunders recognized Hargrove as a police officer, but we must
infer from Detective Hargrove’s testimony that Saunders saw and recognized his
vehicle.
Detective Hargrove had a reasonable suspicion that justified the
investigatory stop of the car in which Saunders was a passenger, and that
reasonable suspicion persisted. After questioning by Detective Hargrove, Saunders
was unable to account for his actions, and after Neely repeatedly reached under his
seat, Detective Hargrove reasonably believed that Neely was dangerous and might
have gained immediate control of a weapon. See Michigan v. Long, 463 U.S.
1032, 1049, 103 S. Ct. 3469, 3481 (1983). Hargrove was entitled to search the
vehicle to ensure his safety. Even if this automobile exception did not apply,
Neely’s diminished expectation of privacy as a probationer subject to a search
condition, along with the reasonable suspicion created by his flight, would render
the search reasonable. See United States v. Knights, 534 U.S. 112, 121, 122 S. Ct.
587, 593 (2001).
AFFIRMED.
4