[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10397 OCT 22, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 6:09-cr-00034-JA-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTORELL REED,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(October 22, 2010)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Martorell Reed appeals his conviction for being a felon in knowing
possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). Reed argues that the district court erred by denying his motion to
suppress the firearm found on his person during a warrantless stop and frisk. He
contends that because the police lacked reasonable suspicion to justify the stop
and frisk, his Fourth Amendment rights were violated. Upon review of the record
and consideration of the parties’ briefs, we find no reversible error and affirm
Reed’s conviction.
“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. 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). This is true
regardless of whether the district court’s credibility determinations were made
explicitly or merely implied in its ruling. See United States v. Floyd, 281 F.3d
1346, 1348 (11th Cir. 2002). “[W]e may affirm the denial of a motion to suppress
on any ground supported by the record.” United States v. Caraballo, 595 F.3d
1214, 1222 (11th Cir. 2010).
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). A warrantless, investigatory stop is
constitutionally permissible if two conditions are met:
First, the investigatory stop must be lawful. That requirement is met
in an on-the-street encounter . . . when the police officer reasonably
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suspects that the person apprehended is committing or has committed
a criminal offense. Second, to proceed from a stop to a frisk, the
police officer must reasonably suspect that the person stopped is
armed and dangerous.
Arizona v. Johnson, --- U.S. ----, 129 S. Ct. 781, 784 (2009). “An investigatory
stop must be justified at its inception, and its scope must be reasonably related to
the circumstances that permitted the intrusion at the outset.” United States v.
Kapperman, 764 F.2d 786, 792 (11th Cir. 1985). Warrantless seizure of
contraband during a lawful protective frisk is constitutionally permissible, if the
“contour or mass makes [the contraband’s] identity immediately apparent” to the
searching officer. Minnesota v. Dickerson, 508 U.S. 366, 375–76, 113 S. Ct.
2130, 2137 (1993).
“[R]easonable suspicion, like probable cause, is not readily, or even
usefully, reduced to a neat set of legal rules.” United States v. Sokolow, 490 U.S.
1, 7, 109 S. Ct. 1581, 1585 (1989) (internal quotation marks omitted). On a level-
of-suspicion spectrum, “reasonable suspicion” is “considerably less than proof of
wrongdoing by a preponderance of the evidence,” and even falls below the
probable cause standard of “a fair probability that contraband or evidence of a
crime will be found.” Id. (internal quotation marks omitted). However, “[t]he
officer, of course, must be able to articulate something more than an ‘inchoate and
unparticularized suspicion or “hunch.”’” Id. (quoting Terry v. Ohio, 392 U.S. 1,
27, 88 S. Ct. 1868, 1883 (1968)).
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When determining whether reasonable 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. (internal
quotation marks omitted). “[A] series of acts, each of them perhaps innocent in
itself . . . taken together [can] warrant[] further investigation.” Terry, 392 U.S. at
22, 88 S. Ct. at 1880–81. Reasonable suspicion analysis is not concerned with
“hard certainties, but with probabilities,” and law enforcement officials may rely
on “inferences and deductions that might well elude an untrained person . . .
[because] the evidence thus collected must be seen and weighed not in terms of
library analysis by scholars.” United States v. Cortez, 449 U.S. 411, 418, 101 S.
Ct. 690, 695 (1981). Rather, “the determination of reasonable suspicion must be
based on commonsense judgments and inferences about human behavior.” Illinois
v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 676 (2000). In making these
commonsense judgments, “[t]he stopping officer is expected to assess the facts in
light of his professional experience and where there is at least minimal
communications between officers, we look to the ‘collective knowledge’ of all
officers in assessing this determination.” United States v. Kreimes, 649 F.2d
1185, 1189 (5th Cir. July 1981) (citations omitted).1
The Supreme Court has identified several factors that might affect officers’
reasonable suspicion calculus. For instance, “officers are not required to ignore
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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the relevant characteristics of a location in determining whether the circumstances
are sufficiently suspicious to warrant further investigation.” Wardlow, 528 U.S. at
124, 120 S. Ct. at 676. For that reason, “the fact that the stop occurred in a ‘high
crime area’ [is] among the relevant contextual considerations in a Terry analysis.”
Id. Additionally, “nervous, evasive behavior is a pertinent factor in determining
reasonable suspicion.” Id. So too, a bulge in one’s outer clothing might indicate
the presence of contraband or a weapon. See Pennsylvania v. Mimms, 434 U.S.
106, 112, 98 S. Ct. 330, 334 (1977) (“The bulge in the jacket permitted the officer
to conclude that Mimms was armed and thus posed a serious and present danger to
the safety of the officer.”).
At a hearing on the motion to suppress, Corporal John Park testified that he
encountered Reed in a known high crime area and initiated a Terry stop after
witnessing furtive “fight or flight” eye movement, as well as hand and body
movements and positioning that indicated to the seventeen-year veteran of the
Orange County Sheriff’s Office that Reed was attempting to conceal or discard
something as the officer approached. The district court credited Park’s testimony
and held that the stop was justified. Deferring to this credibility determination as
we must, we cannot say that the district court clearly erred in making its factual
findings or that it erred in reaching its legal conclusion. Park was able to
articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ of
criminal activity,” and did not violate the Fourth Amendment when he stopped
Reed. See Wardlow, 528 U.S. at 123–25, 120 S. Ct. at 676–77 (“Even in Terry,
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the conduct justifying the stop was ambiguous and susceptible of an innocent
explanation. . . . Terry recognized that the officers could detain the individuals to
resolve the ambiguity.” (citations omitted)).2
Reed also argues that his Fourth Amendment rights were violated when he
was frisked. Specifically, he contends that Park never personally reviewed the
be-on-the-lookout (“BOLO”) message, out of which this incident arose. The
BOLO message indicated that a shotgun and an AK-47 could be found in a car
similar to that in which Reed had been a passenger. Reed argues that if Park had
personally reviewed the BOLO message, his search would have been
constitutionally unreasonable, because “no reasonable law enforcement [officer]
would have believed that weapons of this type would be concealed in the
suspect[’]s waistband.”
However, this argument is unconvincing. The Fourth Amendment permits
officers to frisk lawfully stopped individuals if they “reasonably suspect that the
person stopped is armed and dangerous.” Johnson, --- U.S. at ----, 129 S. Ct. at
784. As the Supreme Court noted in Terry,
where nothing in the initial stages of the encounter serves to dispel
[an officer’s] reasonable fear for his own or others’ safety, he is
entitled for the protection of himself and others in the area to conduct
2
On appeal, Reed argues that because Park’s suspicion was based solely on an
uncorroborated and unreliable anonymous tip, the stop and frisk were constitutionally
impermissible. However, this argument fails because, as demonstrated above, several factors
gave rise to Park’s reasonable suspicion. Cf. Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375,
1378 (2000) (deeming unjustified a stop and frisk where “the officers’ suspicion that J.L. was
carrying a weapon arose not from any observations of their own but solely from a call made from
an unknown location by an unknown caller” (emphasis added)).
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a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.
392 U.S. at 30, 88 S. Ct. at 1884–85. Applying this logic, this Court has held that
an officer can justifiably frisk of an individual suspected of conspiring to
distribute narcotics, merely because “[d]rug dealing is known to be extremely
violent, and this was a reasonable way for the agents to protect themselves from a
possible concealed weapon.” United States v. Diaz-Lizaraza, 981 F.2d 1216, 1221
(11th Cir. 1993).
For the sake of argument, we accept Reed’s position that Park cannot claim
ignorance of the type of firearm reported in the BOLO message. In testimony
credited by the district court, Park explained that he frisked Reed because of the
suspect’s furtive behavior; his eye, hand, and body movements that indicated an
intent to hide or discard something; his presence in a high crime area; his loud and
uncooperative behavior; and a “puffy shirt in [his] waist line area.” These factors
alone are sufficient to justify a frisk. The possibility that Reed had just left a car in
which an AK-47 and shotgun were located certainly would not undermine, and
may even support, the conclusion that Park reasonably suspected Reed to be
dangerous and armed with some sort of weapon, even if not a rifle or shotgun.
In light of all of these circumstances and for the reasons set out above, the
district court did not err when it denied Reed’s motion to suppress. We affirm
Reed’s conviction.
AFFIRMED.
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