[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11569 NOVEMBER 22, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 0:10-cr-60277-WPD-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CHRISTOPHER BROOKS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 22, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Christopher Brooks appeals his conviction for possessing a firearm and
ammunition after having been convicted of a crime punishable by imprisonment
for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). The sole
issue Brooks presents on appeal is whether the district court erred in denying his
motion to suppress the firearm and ammunition detectives of the Broward County,
Florida Sheriff’s Office seized from his person in patting him down following a
traffic stop. We find no error and affirm.
The district court denied Brooks’s motion to suppress following an
evidentiary hearing at which it heard the testimony of the detectives, Perez and
Gonazlez, who seized the firearm and ammunition, Goodwin, the driver of the car
that was stopped, and Brooks, Goodwin’s passenger. We accept the district
court’s findings of fact unless clearly erroneous. United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002). The facts the district court found, which we
recite below, are supported by the record; hence, we accept them.
On October 20, 2010, at about 5:00 P.M., Detective Perez,
Detective Gonzalez and Detective Anderson were traveling in an
unmarked police vehicle. They were experienced members of the
Broward Sheriff’s Office Street Crime Unit and were dressed in black
tactical uniforms. A blue 2009 Chevrolet Malibu was observed
traveling northbound on NW 27th Avenue in Pompano Beach, Florida.
The four-door Malibu had extremely dark colored tint on its windows
so that one could not see the occupants. The license tag was also
partially obscured; the last digit was partially covered so that it was
unclear whether the digit was a 5, 9 or S. Detective Gonzalez
activated his blue lights, and the Malibu, which was driven by
Goodwin, stopped about one block later.
Gonzalez approached the driver’s side of the Malibu; Perez and
Anderson approached the passenger side. The windows were up, and
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the deputies could not see into the Malibu. Perez yelled several times
to the occupants of the Malibu to lower the windows; they did not
comply. Gonzalez contacted Goodwin; Perez opened the front
passenger door and observed the [Brooks], who was not wearing a
seat belt. Both Gonzalez, on the driver’s side, and Perez, on
the passenger’s side, smelled a very strong odor of burnt marijuana
emanating from the Malibu, once the doors were opened. Both
Gonzalez and Perez are experienced narcotics detectives. Goodwin
consented to a search of his person and the car. Perez asked [Brooks]
for identification, and [Brooks], who was sweating and whose hands
were shaking, produced a criminal registrant card that he had received
two months earlier when he had been released from serving a prison
sentence for Possession with Intent to Deliver Cocaine, Aggravated
Assault and Possession of a Firearm in the Commission of a Felony. [
Brooks denied having anything illegal in the car, and he exited
upon Perez’s request. While exiting, [Brooks] held both arms up over
his head. He also consented to a search of his person and the car.
Perez then attempted to conducted a pat-down frisk, but [Brooks]
attempted to flee. Perez tripped him (or [Brooks] tripped over Perez’s
strategically placed foot), and as [Brooks] fell to the ground, a firearm
fell from his waistband. [Books] resist[ed] the efforts of the
detectives, as they were attempting to restrain him. Anderson’s
striking him did not curb [Brooks] resistance; a taser was used.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. However, the Fourth Amendment does not
prevent an officer from conducting a brief, investigatory stop, when the officer has
a reasonable, articulable suspicion that criminal activity is afoot. United States v.
Gordon, 231 F.3d 750, 754 (11th Cir. 2000). In a traffic stop, an officer may
temporarily detain an automobile and its occupants pending inquiry into a
vehicular violation. Arizona v. Johnson, 555 U.S. 323, ___, 129 S.Ct. 781, 784,
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172 L.Ed.2d 694 (2009). In the weighty interest of officer safety, once a motor
vehicle has been lawfully detained for a traffic violation, the officer may order the
driver, as well as the passengers, out of the car. Johnson, 555 U.S. at ___, 129
S.Ct. 786-787. Once outside the vehicle, the officer may pat down the driver or
the passengers if the officer reasonably believes they might be armed and
dangerous. Id. at ___, 129 S.Ct. at 787; see Michigan v. Long, 463 U.S. 1032,
1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (stating that during a Terry stop an
officer may take necessary measures to determine if a person is carrying a weapon,
when he has a reasonable belief that the person is armed and dangerous). During
the traffic stop, the officer can exercise “unquestioned command of the situation,”
including limiting the movement of occupants in ways that might jeopardize his
safety. Brendlin v. California, 551 U.S. 249, 258, 127 S.Ct. 2400, 2407, 168
L.Ed.2d 132 (2007) (quotations omitted).
In this case, the detectives had reasonable suspicion that criminal activity
was afoot after they stopped the car and smelled burnt marijuana. After Brooks
denied having anything in the car, he voluntarily got out, raised his arms over his
head and consented to a pat down. Then he fled and resisted arrest. At this point,
and once the firearm was discovered, the detectives had ample authority to arrest.
AFFIRMED.
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