Case: 17-15148 Date Filed: 08/14/2018 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15148
Non-Argument Calendar
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D.C. Docket No. 3:17-cr-00022-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD GARRETTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 14, 2018)
Before MARTIN, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Donald Garrette appeals his conviction for possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Specifically, Garrette challenges the district court’s denial of his motion
to suppress evidence found pursuant to a car search, including a firearm and
ammunition. After review,1 we affirm.
The question is whether Deputy Smith had reason to suspect Garrette, the
occupant of the car he stopped, was involved in criminal activity. 2 In answering
this question we must consider the “totality of the circumstances” and determine
for ourselves whether Deputy Smith had a “particularized and objective basis for
suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(quotation omitted). Reliance on a hunch cannot justify a stop; however, “the
likelihood of criminal activity need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the evidence
standard.” Id. at 274.
1
We apply a mixed standard of review to the district court’s rulings on a motion to
suppress, accepting the district court’s factual findings as true unless they are clearly erroneous
and reviewing de novo the district court’s application of the law to those facts. United States v.
Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007).
2
As an alternative ground for denying suppression, the district court concluded Garrette
had not been “seized” within the meaning of the Fourth Amendment during the initial stop. The
district court noted that, rather than submitting to Deputy Smith’s show of authority, Garrette
paused only a moment before pulling away as Deputy Smith approached his vehicle on foot. See
Brendlin v. California, 551 U.S. 249, 254 (2007) (noting that without actual submission to police
authority, there is no seizure). We need not address this alternative ground because, assuming
arguendo that Garrette had been “seized” within the meaning of the Fourth Amendment during
the initial stop, we agree with the district court that Deputy Smith had reason to suspect Garrette
was involved in criminal activity.
2
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The district court concluded the totality of the circumstances known to
Deputy Smith when he initially pulled Garrette over provided a particularized and
objective basis for believing Garrette was violating § 320.261, Florida Statutes,
which makes it a second degree misdemeanor to knowingly attach a license plate
to a vehicle to which that plate is not lawfully assigned. Garrette was driving a
Ford Explorer with an orange transporter license plate. Transporter license plates
may be authorized to “any applicant who, incidental to the conduct of his or her
business, engages in the transporting of motor vehicles which are not currently
registered to any owner and which do not have license plates,” and are only valid
for use “on any motor vehicle in the possession of the transporter while the motor
vehicle is being transported in the course of the transporter’s business.”
§ 320.133(1), Fla. Stat.
Deputy Smith suspected misuse of the transporter tag based on the totality of
several circumstances. First, Deputy Smith had knowledge that the residential
area where the stop occurred was a high crime area known for vehicle thefts. See
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that “the fact that [a] stop
occurred in a ‘high crime area’ [is] among the relevant contextual considerations”
in a Fourth Amendment analysis). Second, when Deputy Smith ran the license
plate number on his in-car computer, the search revealed it was registered to a local
automotive detailing business called Willie G’s. He suspected the transporter plate
3
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was not being validly used in the course of the transporter’s business because
Willie G’s was not located in the residential neighborhood where Deputy Smith
encountered the Explorer and it was improbable that a local automotive detailing
business would be transporting a motor vehicle in the course of its business after
midnight on a weekend night (indeed, the only open business in the area at the time
of the stop was a bar). Finally, in his year of patrolling, Deputy Smith had never
seen a transporter license used in the area. Considered together, these
circumstances support the conclusion that Deputy Smith had a particularized,
objective basis for suspecting that Garrette was committing a second-degree
misdemeanor. 3 Thus, the initial stop was lawful.
As Deputy Smith made his way over to the stopped vehicle, Garrette pulled
back onto the road and drove away at approximately ten miles per hour. Deputy
Smith returned to his patrol car, activated its emergency lights and sirens, and
followed behind the Explorer, which drove forward for about a minute, its
taillights illuminating sporadically, until it pulled into a residential driveway and
parked. Because the initial stop was lawful, Garrette’s continual driving gave
3
Garrette asserts Deputy Smith could not have had reasonable suspicion to suspect a
violation of § 320.261 because Deputy Smith did not see Garrette attach the transporter license
plate to the vehicle. The case Garrette cites for this proposition is, however, inapplicable. In
Weaver v. State, 233 So. 3d 501 (Fla. 2d DCA 2017), a Florida appellate court invalidated a
warrantless arrest for a misdemeanor tag violation because the officer did not observe the
defendant committing the offense. But this case concerns reasonable suspicion, not probable
cause. See Arvizu, 534 U.S. at 274 (noting that, for purposes of a reasonable suspicion analysis,
“the likelihood of criminal activity need not rise to the level required for probable cause.”).
4
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Deputy Smith probable cause to arrest him for fleeing or eluding a police officer in
violation of § 316.1935(1), Florida Statutes, which makes it a felony for a driver,
after stopping his vehicle in response to a law enforcement directive, to willfully
flee in an attempt to elude the officer. Garrette contends his alleged fleeing and
eluding cannot be used against him because the initial stop was unlawful. As
explained above, we disagree with Garrette’s premise that the initial stop was
unlawful. Accordingly, we reject the argument that his continual driving could not
have provided probable cause to arrest him for fleeing or eluding a police officer in
violation of § 316.1935(1), Florida Statutes.
We agree with the district court that the initial stop of Garrette’s vehicle was
lawful and, therefore, affirm its decision to deny Garrette’s motion to suppress.
AFFIRMED.
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United States v. Donald Garrette
Combined Opinion