United States v. Freeman

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 25, 2011
No. 10-15338 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 9:09-cr-80104-KLR-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
BOBBY LEE FREEMAN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 25, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Bobby Lee Freeman, who conditionally pleaded guilty to being a felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(e), appeals the denial of his
motion to suppress. Freeman argues that he was “stopped, detained and arrested in
direct contravention of the Fourth Amendment.” We affirm.
In an appeal from a motion to suppress, we review findings of fact for clear
error and the application of law to those facts de novo. United States v. Spoerke,
568 F.3d 1236, 1244 (11th Cir. 2009). We construe all facts in the light most
favorable to the United States, id., and defer to the findings of the district court,
including those involving the credibility of witnesses, unless “‘we are left with a
definite and firm conviction that a mistake has been committed,’” United States v.
Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006) (quoting United States v. Hogan,
986 F.2d 1364, 1372 (11th Cir. 1993)).
Freeman argues that agents lacked probable cause to stop and detain him,
but his argument fails. Officer Anthony Grillo had probable cause to stop
Freeman’s van because it was speeding. See Spoerke, 568 F.3d at 1248. The
driver refused to stop after Grillo activated his blue lights and his siren. In the
light of information that Freeman and the two other occupants of the van were
armed and for hours had been casing several convenient stores, Grillo and agents
of the Federal Bureau of Investigation acted reasonably by approaching the van
with their guns drawn, removing all three occupants, handcuffing them, and
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placing them in patrol cars. See id. The agents’ actions did not transform their
traffic stop into an arrest. See United States v. Blackman, 66 F.3d 1572, 1576
(11th Cir. 1995). The agents were entitled to extend the traffic stop based on their
reasonable suspicion that Freeman intended to commit an armed robbery. See
United States v. Hardy, 855 F.2d 753, 759–60 (11th Cir. 1988). Officer Grillo
requested a drug detection dog while he was pursuing the van, and the agents
reasonably detained Freeman about 45 minutes for the dog to arrive and examine
the van.
Freeman argues that the agents lacked probable cause to search the van, but
Freeman consented to the search. We examine several factors to determine
whether a defendant consented voluntarily,“including the presence of coercive
police procedures, the extent of the defendant’s cooperation with the officer, the
defendant’s awareness of his right to refuse consent, the defendant’s education and
intelligence, and the defendant’s belief that no incriminating evidence will be
found.” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001). Freeman
argues that he was coerced into giving consent and he cites as evidence his refusal
to sign a written waiver form, but Freeman has not established that the district
court clearly erred when it found that Freeman consented voluntarily. See United
States v. Pineiro, 389 F.3d 1359, 1362–63, 1366 (11th Cir. 2004). Freeman
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consented verbally and was read a written waiver that stated he had the right to
refuse consent. Freeman stated later in recorded telephone calls that he had
consented to the search because he had been confident that agents would not
discover the gun. Agents testified at the suppression hearing that Freeman
consented after he had been freed from handcuffs, had left repeatedly the patrol
car in which he was waiting, and had offered to conduct undercover drug
transactions for the Bureau.
The agents also had independent probable cause to search Freeman’s van.
During two separate inspections, the drug detection dog entered the rear passenger
door of the van that had been left open by its occupants and alerted to the presence
of marijuana, which gave the agents probable cause to search for additional
contraband. See United States v. Watts, 329 F.3d 1282, 1286 (11th Cir. 2003).
The agents also had been told by a confidential informant that a gun was stored
above the glove compartment. During the search, an agent tapped the glove
compartment and heard a rattling noise, removed the glove compartment, and
discovered inside the dash an Amadeo Rossi .38 caliber revolver.
We AFFIRM the denial of Freeman’s motion to suppress.
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