[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 24, 2006
No. 05-16031 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00045-CR-4-SPM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD L. HALL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 24, 2006)
Before DUBINA, WILSON and PRYOR , Circuit Judges.
PER CURIAM:
Appellant Richard L. Hall (“Hall”) appeals his conviction and sentence
following a jury trial for conspiracy to distribute and possess with the intent to
distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(iii) and
846. On appeal, Hall argues that the district court erred as a matter of law when it
denied his motion to suppress a firearm and money seized during a May 1, 2001,
investigatory stop of his vehicle. The investigatory stop occurred after a
confidential informant (“CI”) told police that persons in a vehicle matching the
description of Hall’s vehicle would be traveling to a particular location to sell
drugs. Hall asserted that there was no evidence from which the court could
determine whether the CI was reliable, or even if the CI existed, because the officer
who testified at the suppression hearing could not identify the CI. Further, the
police could not produce the name or any documentation concerning the CI.
“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 review the district
court’s application of the law to those facts de novo. Id. These factual findings
include the district court’s credibility determinations, to which we will “accord
considerable deference.” United States. v. Ramirez-Chilel, 289 F.3d 744, 749
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(11th Cir. 2002) (citation and internal quotation marks omitted). “[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).
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. The Fourth Amendment’s
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).
For brief investigatory stops, the Fourth Amendment is satisfied if the police
officer has a “reasonable suspicion” to believe that criminal activity “may be
afoot.” Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968)). “Reasonable suspicion” on the part of the officers is more than a hunch
and requires at a minimum some objective justification for the investigatory stop.
United States v. Lee, 68 F.3d 1267, 1271 (11th Cir. 1995). 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 suspecting legal wrongdoing. Arvizu, 534 U.S. at 273, 122 S.
Ct. at 750.
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Reasonable suspicion, however, does not exist based solely on anonymous
telephone tips, absent sufficient corroboration, including whether the informant
callers had the ability to predict the defendant’s future actions. Lee, 68 F.3d at
1271. For example in Lee, “[t]he fact that the officers found a car precisely
matching the caller’s description” is only a presently observable fact. Id. Anyone
could have “predicted” that fact, but the informant caller’s ability to predict future
behavior demonstrated inside information. See id.
We conclude from a review of the record that the totality of the
circumstances in this case supports the district court’s finding that the officers
conducting the traffic stop had a “particularized and objective basis” for suspecting
legal wrongdoing. The district court did not err in denying Hall’s motion to
suppress because (1) the officer at the suppression hearing testified that the CI was
reliable because the CI had previously made at least three successful controlled
drug buys; (2) it was reasonable to conclude that the testifying officer would be
unable to recall the identity of the CI because the suppression hearing took place
more than four years after the stop; (3) the CI provided detailed information about
the make, model, color, and license plate number of Hall’s vehicle and accurately
described its occupants; (4) the CI’s information predicted Hall’s future behavior;
and (5) law enforcement officers were able to corroborate the information before
initiating the stop. Accordingly, we affirm Hall’s conviction.
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Hall also argues that district court erred in imposing a two-level firearm
enhancement for the firearm found in his car at the time of the investigatory stop
because Hall did not possess the firearm at the site of any crime, and it was not
connected with the offense. Hall further argues that it was clearly improbable that
he used the firearm in the offense because he did not know that his co-conspirator
left the gun in the car.
We review for clear error the district court’s findings of fact when it
enhances a defendant’s sentence in cases involving U.S.S.G. § 2D1.1(b)(1), and
review the application of the sentencing guidelines de novo. United States v.
Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999).
Section 2D1.1(b)(1) provides a two-level enhancement “[i]f a dangerous
weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The
enhancement “should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,
comment. (n.3). Once the government has shown that a firearm was present at the
site of the charged conduct, ‘“the evidentiary burden shifts to the defendant to
show that a connection between the firearm and the offense is clearly
improbable.”’ United States v. Fields, 408 F.3d 1356, 1359 (11th Cir. 2005), cert.
denied, 126 S. Ct. 221( 2005) (quoting United States v. Hall, 46 F.3d 62, 63 (11th
Cir. 1995)).
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In United States v. McClain, 252 F.3d 1279, 1288 (11th Cir. 2001), we held
that a defendant possessed a firearm “in connection with” the offense of check
counterfeiting when he kept a gun in the vehicle that he used to drive co-
conspirators to the banks at which they negotiated counterfeit checks. (applying
former U.S.S.G. § 2F1.1(b)(7)(B)). Similarly, in United States v. Rhind, 289 F.3d
690, 694-96 (11th Cir. 2002), we concluded that the firearms found in the
defendant’s car with the counterfeit money were used “in connection with” the
counterfeiting offense because the firearm’s presence “protected the counterfeit
money from theft” while the defendants executed the felony. (applying U.S.S.G. §
2K2.1(b)(5)).
In the instant case, the district court enhanced Hall’s sentence based on his
own possession of the firearm, not his co-conspirator’s possession. First, we
conclude that the district court did not clearly err in finding that Hall possessed a
firearm at the site of the charged conduct because (1) one of Hall’s co-conspirators
testified that the firearm had been on the console, and, as soon as the patrol car
began flashing its blue lights, Hall tried to push the firearm under his seat; (2) the
firearm was found in Hall’s vehicle, which he used to deliver drugs that same day;
and (3) the money seized during the investigatory stop was proceeds from drug
sales. Accordingly, we are persuaded that the fact that Hall had a firearm in his
vehicle, which he had used to deliver drugs and collect the proceeds that same day,
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is sufficient to show his possession of the firearm at the site of the charged
conduct.
Second, the burden then shifted to Hall to establish that it was clearly
improbable that the firearm was connected to his drug sales earlier in the day.
Although Hall claims that he did not know that the gun was in the vehicle, the
court did not clearly err in discrediting this assertion because (1) Hall knew that the
gun was in his car before he was stopped by the police because Hall placed the gun
under his seat when the police stopped his car; (2) officers on the scene confirmed
that they saw Hall making movements as if he was placing something under his
seat; and (3) even if Hall’s co-conspirator left the gun in the vehicle earlier in the
day, Hall did not establish that it was clearly improbable that the gun had been in
the vehicle when Hall was selling drugs earlier in the day. Accordingly, Hall did
not meet his burden of showing that it was clearly improbable that the gun was
connected with his drug trafficking activities.
For the above-stated reasons, we affirm Hall’s conviction and sentence.
AFFIRMED.
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