United States v. Lee Rodger Larson

USCA11 Case: 22-12031 Document: 29-1 Date Filed: 08/25/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12031
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE RODGER LARSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:21-cr-00026-AW-GRJ-1
____________________
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2 Opinion of the Court 22-12031
Before BRANCH, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Lee Larson conditionally pleaded guilty to two charges
relating to the unlawful possession of a short-barreled shotgun. As
part of his plea, he reserved his right to challenge the district court’s
denial of his motion to suppress evidence. He now exercises that
right, appealing that denial to this Court. Because Larson was not
detained until after the arresting officer had reasonable suspicion
that he was in possession of stolen property, we affirm.
I.
At about 10:30 p.m. on May 31, 2021, Lieutenant Rebecca
Butscher saw Larson sitting next to a wheelchair and multiple bags
on the side of West Newberry Road in Gainesville, Florida. Larson
was eating food from a free food pantry that a church kept nearby.
Butscher pulled over and turned on her vehicle’s spotlight and
emergency lights. She and Larson talked, and she asked him for
identification. When Larson opened his bag to look for his
identification, Butscher shone her flashlight into his bag and saw a
sheathed knife.1 Larson was unable to find his identification.
1 Larson testified that he had already disclosed the existence of this knife before
opening his bag—a detail that, if true, Butscher omitted from her testimony.
The district court did not decide whether this disclosure occurred.
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Butscher was not particularly concerned about the knife, but
she did ask Larson to move in front of her car while she ran his
name and birthdate through the teletype. She discovered that he
had an outstanding, non-extraditable Minnesota warrant for
having received stolen property.
Two or three more officers arrived on the scene, and they
also pulled over and turned on their emergency lights. One of their
vehicles had a dashcam video that Larson introduced into the
record. Butscher and Larson continued talking about Larson’s
homelessness, his recent arrival in Gainesville, and his criminal
history including convictions for burglary and dealing in stolen
property.
Butscher then noticed that Larson had a stack of twenty-to-
thirty vinyl records with him, which she suspected were stolen. 2
She proceeded to pat him down, and he told her that he had a
pocketknife, marijuana, and marijuana paraphernalia. He also
volunteered that he had a sawed-off shotgun in one of his bags.
Butscher immediately arrested Larson.
Larson was indicted on two charges, possession of a firearm
and ammunition as a felon and possession of an unregistered short-
barreled shotgun. He pleaded not guilty and moved to suppress
the evidence seized during the stop, arguing that he had been
detained unconstitutionally from the beginning of his interaction
2 Butscher later verified that the vinyl albums were not stolen.
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4 Opinion of the Court 22-12031
with Butscher and, in the alternative, that he was detained
unconstitutionally at some later point. He specifically disclaimed
any challenge to the search of his bag. The United States argued
that the encounter was consensual until some point after Butscher
developed reasonable suspicion and/or probable cause sufficient to
justify any detention that occurred.
After a hearing at which both Larson and Butscher testified,
the court denied Larson’s motion to suppress. It reasoned that the
encounter was consensual at least until Butscher saw the knife and
that, at all points after that, she had reasonable suspicion to detain
Larson—first due to the possession of the knife, and then due to
the possibility that the vinyl records were stolen. Larson then
changed his plea to a conditional guilty plea, and he now appeals
the denial of the motion to suppress.
II.
“In reviewing the denial of a motion to suppress, we uphold
the district court’s findings of fact unless they are clearly erroneous
and review its application of law to those facts de novo.” United
States v. Woodson, 30 F.4th 1295, 1302 (11th Cir. 2022). “We may
affirm on any ground supported by the record.” Waldman v.
Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).
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III.
A.
Larson first argues that he was unlawfully detained—either
because he was detained without reasonable suspicion or because
his detention was unlawfully prolonged.
The Fourth Amendment protects against unreasonable
searches and seizures. U.S. Const. amend. IV. Consistent with the
Fourth Amendment, an officer may perform a limited
investigatory detention of someone whom she reasonably suspects
has committed criminal activity. United States v. Bruce, 977 F.3d
1112, 1116 (11th Cir. 2020) (citing Terry v. Ohio, 392 U.S. 1, 30
(1968)). Such stops may last only as long as is necessary to achieve
their limited investigatory purpose. See United States v. Campbell,
26 F.4th 860, 882 (11th Cir. 2022) (en banc). Additionally, with or
without reasonable suspicion, an officer may approach an
individual and ask him questions, so long as a “reasonable person
would feel free to terminate the encounter.” United States v.
Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (quotation omitted).
Working backward from the moment of Larson’s arrest, we
first have no difficulty in determining that Butscher had reasonable
suspicion to detain Larson from the moment she learned about the
vinyl records until the moment she arrested him. Butscher knew
that Larson had an outstanding warrant and prior conviction for
dealing in stolen property. It is out-of-the-ordinary for a homeless
man to be traveling with twenty-to-thirty antique vinyl records and
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6 Opinion of the Court 22-12031
no record player or apparent reason for possessing the records.
And the duration of any investigatory detention after Butscher
became aware of the records was no longer than necessary for its
investigatory purpose; after Butscher learned about the records,
she asked to pat Larson down, and then he quickly admitted to
possessing marijuana and the shotgun, giving Butscher probable
cause to arrest him.
Before Butscher learned about the vinyl records, we
conclude that Larson had not been detained, because a reasonable
person would have felt free to terminate the encounter. See
Jordan, 635 F.3d at 1186. To determine whether an individual has
been detained, we consider the following factors as part of a
holistic, totality of the circumstances analysis: (1) “whether a
citizen’s path is blocked or impeded”; (2) “whether identification is
retained”; (3) “the suspect’s age, education and intelligence”; (4)
“the length of the suspect’s detention and questioning”; (5) “the
number of police officers present”; (6) “the display of weapons”; (7)
“any physical touching of the suspect”; and (8) “the language and
tone of voice of the police.” Id. (quotations omitted). Our
consideration of the factors is not rigid, because the “ultimate
inquiry remains whether a person’s freedom of movement was
restrained by physical force or by submission to a show of
authority.” Id.In this case, we consider factors (6), (7), and (8) to be
particularly instructive. During the entire conversation with
Larson before Butscher became aware of the vinyl records, no
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22-12031 Opinion of the Court 7
officer used any coercive means to indicate that Larson was not
free to leave. As the district court specifically found, no weapon
was drawn. No one touched Larson.3 And the interaction
remained cordial; Larson and Butscher joked with each other, and
Butscher did not curse, yell, threaten Larson, or otherwise engage
in coercive speech.
“There is nothing in the Constitution which prevents a
policeman from addressing questions to anyone on the streets.”
Jordan, 635 F.3d at 1186 (quotation omitted). “Even when law
enforcement officers have no basis for suspecting a particular
individual, they may pose questions, ask for identification, and
request consent to search luggage—provided they do not induce
cooperation by coercive means.” United States v. Drayton, 536
U.S. 194, 201 (2002). That is all that occurred here. Butscher, and
then other officers, pulled over and asked Larson questions. But,
at least prior to the patdown, they did not obtain Larson’s
cooperation through any coercive force. Accordingly, Larson’s
movement was not “restrained by physical force or by submission
to a show of authority.” See Jordan, 635 F.3d at 1186.
Larson counters by arguing that he was detained from the
moment that Butscher asked for his identification on a deserted
road late at night when he had no means to leave the situation
3 Larson testified it was possible one of the officers besides Butscher touched
his arm, but he was uncertain, and Larson was not touched in any extensive
capacity prior to the pat down.
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other than by walking away. And he claims he subjectively did not
believe he was free to leave. But when an officer asks for
identification, that alone does not turn an encounter into a
detention. Drayton, 536 U.S. at 201. Nor does Larson’s subjective
sense of whether he was free to leave affect what is an objective
inquiry. United States v. Knights, 989 F.3d 1281, 1286 (11th Cir.
2021). The fact remains that, up until his patdown, the officers
asked Larson questions without any display of coercive power.
Such questions simply do not, on their own, amount to a detention
under the Fourth Amendment.
At all times prior to his arrest, Larson either was not
detained or any detention was supported by reasonable suspicion.
The district court therefore correctly denied Larson’s motion to
suppress on this ground.
B.
Larson also argues that an illegal search occurred when
Butscher shone her flashlight into his bag. But before the district
court, he specifically disclaimed any challenge to the search of the
bag. We therefore review the challenge to the search of the bag
only for plain error.4
4 Larson seeks to avoid plain error review by arguing that, once he raised a
federal claim below, he may make any and all arguments in support of that
claim on appeal. See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379
(1995); Yee v. City of Escondido, 503 U.S. 519, 534–35 (1992). And he claims
that his federal “claim” is that the evidence was obtained in violation of the
Fourth Amendment. If we allowed Larson to define his claim at this high of a
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22-12031 Opinion of the Court 9
“When the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there
is no precedent from the Supreme Court or this Court directly
resolving it.” United States v. Kushmaul, 984 F.3d 1359, 1363 (11th
Cir. 2021) (quotation omitted). Larson points to no precedent of
this Court or the Supreme Court that establishes that shining a
flashlight into an unzippered backpack constitutes a “search,” nor
does the plain text of the Fourth Amendment resolve the question.
This challenge thus fails plain error review.
* * *
Larson’s Fourth Amendment rights were not violated, and
the district court therefore correctly denied his motion to suppress
evidence. We AFFIRM.
level of generality, we would be making a mockery of our forfeiture caselaw.
Because Larson did not challenge the search of the bag, the district court never
analyzed the discrete issues posed by that search. That is why a defendant
must specifically articulate an objection and the legal theory supporting it to
preserve an issue for this Court’s review. United States v. Corbett, 921 F.3d
1032, 1043 (11th Cir. 2019).