[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11883 ELEVENTH CIRCUIT
JANUARY 27, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-60312-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVIS L. WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 27, 2010)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Travis L. Williams appeals from his conviction for possession of a firearm
as a convicted felon. On appeal, he argues that the district court clearly erred by
crediting Detective Carlton Smith’s testimony that he saw the butt of a gun sticking
out of his jeans pocket, and thereby erred in denying his motion to suppress.
Williams asserts that Smith’s testimony lacked credibility because: (1) Williams
was wearing a long football jersey, which covered his jeans pockets and would
have prevented Smith from seeing a gun in his pocket; and (2) Smith did not
remove his gun from its holster when he chased Williams, but would have done so
if he had truly believed that Williams was armed. For the reasons set forth below,
we affirm.
I.
In October 2008, a federal grand jury charged Williams with: (1) possession
of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (“Count 1”); and (2) possession of marijuana, in violation of 21 U.S.C.
§ 844(a) (“Count 2”). Williams initially entered a plea of not guilty.
Thereafter, Williams filed a motion to suppress the firearm that was the
subject of Count 1. In his motion, Williams explained that, on February 20, 2008,
police officers stopped him, arrested him, and seized his gun. He asserted that the
seizure of the gun was not justified under the plain view doctrine because Smith
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could not have clearly seen a gun sticking out of his jeans pocket. Williams argued
that Smith’s assertion that he had clearly seen a gun in Williams’s pocket lacked
credibility because he had been wearing a long football jersey that would have
covered his jeans pockets.
The district court held a hearing regarding Williams’s motion to suppress.
At this hearing, Smith testified that he was a detective employed by the Fort
Lauderdale Police Department. At approximately 6:00 p.m. on February 20, 2008,
Smith and other officers were searching for a narcotics suspect on 27th Avenue.
During this search, Smith and Detective Joshua Mijal walked by the rear of a
recording studio located on 27th Avenue. They saw that the studio’s back door
had been left slightly open, and that an individual was inside the studio. Smith
pushed the back door further open, and saw that the individual was “standing in the
doorframe drinking something from a plastic cup.” Smith identified Williams as
the individual he had seen inside the studio.
Smith further testified that, when he first saw Williams, he observed that the
butt of a gun was sticking out of Williams’s right jeans pocket. Just as Smith
noticed the gun, Williams saw Smith, who was dressed in a police uniform. When
Williams saw Smith, he turned around and fled further inside the studio. Although
Williams was wearing a sports jersey, Smith was “clearly” able to see a weapon
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protruding from his pocket. After Williams began to run, Smith told Mijal that
Williams had a gun, and they chased him through the studio.
Smith further testified that, during the chase, Williams tripped and fell to the
floor. Smith jumped on top of Williams, who kept reaching toward his pocket and
moving his arms so that Smith and Mijal could not gain control of his wrists.
During this struggle, a third detective arrived on the scene. The three detectives
struggled with Williams for several minutes before a fourth detective, Richard
Rivera, arrived and subdued Williams with a taser. After the detectives subdued
Williams, but while he was still lying on the floor, the detectives spotted a handgun
lying on the floor next to Williams. The gun was lying “just outside” of
Williams’s right pocket. During a search incident to arrest, the detectives found
marijuana in Williams’s left pants pocket.
On cross-examination, Smith identified a football jersey as the jersey that
Williams was wearing on February 20, and the court admitted the jersey into
evidence. Smith could not remember how long the jersey was when he saw
Williams wearing it. When he first saw Williams, Smith had a gun in his holster.
He did not remove the gun from his holster as he chased Williams. On redirect
examination, Smith testified that he was sure that he saw the butt of a gun in
Williams’s jeans pocket.
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Mijal testified that he was employed as a detective by the Fort Lauderdale
Police Department. Mijal testified consistently with Smith regarding the events of
February 20. He explained, however, that he did not see a gun until after they
subdued Williams. As Williams was being placed into custody, Mijal saw a gun
lying on the floor.
On cross-examination, Mijal testified that Smith had a clear view inside the
record studio when he opened the studio’s rear door. Mijal had been standing
behind Smith at this time. Mijal heard Smith say, “The guy has got a gun,” and,
immediately after Smith made this statement, they entered the record studio and
chased Williams. Williams had been wearing an “oversized” football jersey. On
redirect examination, Mijal explained that the gun that he saw lying on the floor
was lying next to the area where Williams had been lying after he tripped and fell.
Rivera testified that he was also employed as a detective by the Fort
Lauderdale Police Department. On February 20, he had assisted with a narcotics
investigation near 27th Avenue. He had been assigned to sit in a police car and
ensure that suspects did not flee the area. While sitting in his police car, Rivera
received a message on his police radio that other detectives were chasing an armed
individual through the record studio on 27th Avenue. Rivera went to the studio
and entered it through its front door. Once inside, he saw three detectives
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wrestling with Williams on the floor. He overheard a detective state that Williams
was trying to reach for a weapon. Rivera instructed the other detectives to back
away and, after they did so, he stunned Williams with a taser. Thereafter, the other
detectives handcuffed Williams, and Rivera saw a weapon on the floor next to
Williams, who was wearing a football jersey.
Rivera further testified that, while he and Smith took Williams to jail in a
police car, Williams asked him if he could call his mother. Rivera dialed the
telephone number and held a telephone up to Williams’s ear so he could talk to his
mother. During this conversation, Rivera told his mother that he had been holding
a gun for someone while he was at the record studio, and that the police had caught
him with the gun and some marijuana.
John Leahy, a special agent, testified that he had conducted a background
investigation into Williams’s case. During this investigation, he spoke with Alex
Cruz, who managed the business unit that housed the record studio. Cruz had been
present at the record studio on February 20, and, although he had seen Williams on
that day, he did not see Williams with a gun.
On cross-examination, Leahy testified that he had also interviewed Selvyn
Blair, who owned the record studio. Blair had been present at the studio on that
day, and remembered that Williams’s aunt, Stacey McCall, had dropped Williams
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off at the studio. Leahy explained that, based on its investigation, the police
department had determined that the gun found at the record studio on February 20
was owned by McCall.
On redirect examination, Leahy clarified that Cruz had told him that he saw
Williams walk toward the back door of the record studio just before he was chased
by the police. Cruz did not see a gun until after Williams’s arrest.
Georgia Williams, Williams’s mother, testified that Williams had been
wearing jeans and a football jersey on February 20. She remembered what
Williams was wearing on that day because it was his father’s birthday. The jersey
came down to Williams’s knees.
On cross-examination, Georgia testified that when Williams called her on
February 20, he told her that a gun had been inside the record studio, and that the
police had tried to “blame it on him.” He told her that the gun belonged to a girl.
Joe Williams, Williams’s brother, testified that Williams was wearing a long
football jersey on February 20. The jersey came down to Williams’s knees and
was a size 3X. Joe explained that he was familiar with the jersey because he and
Williams wore the same size, and often wore each other’s clothes.
After the conclusion of the evidence, Williams argued that Smith could not
have seen a gun in his pocket because he had been wearing a long football jersey
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that would have covered the pockets of his jeans. The court noted that it would not
make sense for Smith to tell Mijal that he saw a gun, and request back-up, if he had
not actually seen a gun. The court reasoned that, in order to grant the motion to
suppress, it had to find that several officers had lied when they testified that Smith
had announced that Williams had a gun.
The district court denied the motion to suppress. The court made the
following factual findings. Smith saw the butt of a gun sticking out of the right
pocket of Williams’s jeans. The court noted that Smith could have seen the gun
through the mesh of the football jersey, or that perhaps the jersey had been tucked
into Williams’s jeans or hiked above his jeans pocket. The court further found that
Williams fled from Smith, and that Smith informed Mijal that Williams had a gun.
After his arrest, Williams called his mother and told her that he had been caught by
the police while he was holding a gun for someone. The gun was eventually traced
to Williams’s aunt. Based on these facts, the court found that, upon seeing the butt
of the gun in Williams’s pocket, Smith had probable cause to arrest Williams for
carrying a concealed firearm, in violation of Fla. Stat. § 790.01. In the alternative,
the court found that Smith had a well-founded suspicion to conduct a Terry1 stop of
Williams and, once lawfully stopped, he could seize Williams’s gun because it was
1
Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).
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in plain view.
Williams and the government subsequently entered into a plea agreement,
whereby Williams agreed to plead guilty to Count 1 of the indictment.
At his guilty plea hearing, Williams pled guilty to Count 1, and the
government stated that it would move to dismiss Count 2 at sentencing. The court
confirmed with the parties that Williams’s entry of a guilty plea was conditional on
his being able to appeal the district court’s denial of his motion to suppress.
The court sentenced Williams to 37 months’ imprisonment.
III.
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir.1999).
We review the district court’s factual findings for clear error, and its application of
the law to the facts de novo. Id. “[A]ll facts are construed in the light most
favorable to the prevailing party below.” United States v. Bervaldi, 226 F.3d 1256,
1262 (11th Cir.2000). “The individual challenging the search has the burdens of
proof and persuasion.” United States v. Cooper, 133 F.3d 1394, 1398 (11th
Cir.1998). We will defer to the district court’s credibility determination unless the
court credited testimony that was “unbelievable.” United States. v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002) (quotation omitted).
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“The Fourth Amendment protects individuals from unreasonable searches
and seizures by government officials, and its protections extend to brief
investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,
273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (quotation omitted). For brief
investigatory stops, “the Fourth Amendment is satisfied if the officer’s action is
supported by reasonable suspicion to believe that criminal activity may be afoot.”
Id. (quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85). When determining
whether reasonable suspicion exists, courts must consider the totality of the
circumstances to determine whether the police officer had a “particularized and
objective basis for suspected legal wrongdoing.” Arvizu, 534 U.S. at 273, 122
S.Ct. at 750. Under the plain view doctrine, an officer may seize an object for
which he does not have a warrant if: (1) he is lawfully in an area where the object
is in his plain view; and (2) the incriminating nature of the object is immediately
apparent. United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). Under
Florida law, it is illegal for anyone to carry a concealed firearm unless they possess
a license to do so. Fla. Stat. § 790.01(2) and (3).
Finally, we note that arguments not raised on appeal are abandoned. United
States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998)
Here, the district court did not clearly err in crediting Smith’s testimony that
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he saw the butt of a gun sticking out of Williams’s jeans pocket. While there was
ample testimony that Williams wore a long football jersey on February 20, the
court determined that it was possible that Smith saw the butt of the gun through the
mesh material on Williams’s jersey. The court also noted that it was possible that
Williams’s jersey had been tucked into his pants or hiked above his right pocket,
leaving the gun exposed. Furthermore, Smith consistently testified that he was
certain that he saw the butt of a gun in Williams’s pocket.
Moreover, even though none of the other detectives saw a gun in Williams’s
pocket, they corroborated Smith’s testimony by testifying that: (1) Smith warned
Mijal that Williams had a gun; (2) a gun was lying on the floor of the recording
studio next to the area where Williams had been lying after he tripped and fell; (3)
the police radio system relayed a message that back-up assistance was needed at
the recording studio because an armed individual had fled from detectives;
(4) Williams told his mother that the police had caught him with a gun; and (5) the
gun found next to Williams at the recording studio was owned by his aunt, who
had dropped him off at the studio that morning. Because it was not improbable
that Smith could have seen a gun in Williams’s pocket even though he was wearing
a long football jersey, and Smith’s testimony was corroborated by the testimony of
the other detectives, the court did not clearly err in crediting Smith’s testimony that
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he saw a gun in Williams’s pocket. While Williams argues that Smith would have
removed his gun from its holster for protection if he had truly believed that
Williams was armed, the fact that Smith did not remove his gun from its holster
does not render his testimony improbable.
Because Smith saw the butt of a gun in Williams’s pocket, he possessed
reasonable suspicion to suspect that Williams was carrying a concealed weapon, in
violation of § 709.01. Thus, Smith’s stop of Williams was lawful. Moreover,
during the stop, Williams’s gun was plainly visible to Smith, and its incriminating
nature was apparent. Williams does not argue on appeal that Smith and Mijal
acted unlawfully when they approached the recording studio and opened its rear
door. Accordingly, Williams has abandoned any argument that Smith was not in
an area where he lawfully could be when he saw the gun in Williams’s pocket.
Because it is not disputed that Smith and Mijal acted lawfully when they
approached the recording studio and opened its rear door, and the district court did
not clearly err in finding that a gun was in Smith’s plain view, the seizure of
Smith’s gun was justified under the plain view doctrine. As a result, the court did
not err in denying Williams’s motion to suppress.
AFFIRMED.
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