Case: 20-30589 Document: 00515898599 Page: 1 Date Filed: 06/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 14, 2021
No. 20-30589
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kelvin Dwayne Broadway,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:19-CR-204-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Kelvin Dwayne Broadway entered a conditional guilty plea to
possession of firearms and ammunition by a convicted felon in violation of
18 U.S.C. § 922(g)(1), and he was sentenced to 57 months of imprisonment
and three years of supervised release. He appeals the district court’s denial
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30589
of his motion to suppress. Broadway argues that his motion to suppress
should have been granted because the traffic stop of the vehicle in which he
was a passenger was not justified at its inception. He contends that the
BOLO alert did not provide a lawful basis for the stop. He asserts that the
officer ignored the BOLO details that could have justified a traffic stop and
decided to stop every white sedan with black men inside. He further argues
that the information in the BOLO had gone stale, and that the officer was
unable to offer any particularized, reasonable suspicion that the occupants of
the Kia Rio were involved in illegal activity.
When reviewing a denial of a motion to suppress, we review factual
findings for clear error and conclusions of law de novo. United States
v. Andres, 703 F.3d 828, 832 (5th Cir. 2013). In reviewing findings of fact,
the evidence is viewed in the light most favorable to the prevailing party, in
this case, the Government. Id. The constitutionality of a traffic stop is
examined under the two-pronged analysis described in Terry v. Ohio,
392 U.S. 1 (1968). Andres, 703 F.3d at 832. At the first step, we must
“determine[s] whether the stop was justified at its inception.” Id. Broadway
challenges the first part of the analysis only.
“For a traffic stop to be justified at its inception, an officer must have
an objectively reasonable suspicion that some sort of illegal activity . . .
occurred, or is about to occur, before stopping the vehicle.” United States v.
Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). “[R]easonable suspicion
exists when the officer can point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant the . . .
seizure.” Id. In making a reasonable suspicion determination, a court “must
look at the ‘totality of the circumstances’ of each case to see whether the
detaining officer ha[d] a ‘particularized and objective basis’ for suspecting
legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002). A tip
from an informant, anonymous or otherwise, may provide reasonable
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No. 20-30589
suspicion. United States v. Hernandez, 477 F.3d 210, 214 (5th Cir. 2007). The
factors to be considered are (1) the credibility and reliability of the informant;
(2) the specificity of the information provided in the tip or BOLO; (3) the
ability of the officers in the field to verify the information; and (4) whether
the tip concerns active or recent activity. Id.
Officer Jackson testified that based on the BOLO from dispatch issued
after a 911 call reporting a shooting, he was looking for a white sedan similar
in appearance to the Chevy Cruze or Chrysler 200 with two black male
occupants coming from the direction of the shooting towards Viking Drive.
Officer Jackson explained why he determined that the vehicle he stopped
could have been the one described in the BOLO. He testified that he
observed a white, four-door sedan with two black males heading towards
Viking Drive from the direction of the shooting. The white sedan, the two
black male occupants, and the direction of travel matched the description in
the BOLO. Officer Jackson stopped the vehicle, which turned out to be a Kia
Rio. The Kia Rio, the Chevy Cruze sedan, Chevy Cruze hatchback and the
Chrysler 200, all compact four-door sedans, appear very similar. Officer
Jackson testified that if the vehicle had been travelling away from Viking
Drive and not coming from the direction of the shooting, he would not have
stopped the car. Although the driver and passenger were not wearing
clothing as described in the BOLO, Officer Jackson testified that when he saw
the vehicle pass in front of him, he could not see what the occupants were
wearing. He also testified that he was not necessarily looking for a car with
tinted windows, and he could not recall if the Kia Rio had tinted windows.
Officer Jackson verified the information in the BOLO to the best of his
ability based on his observations. See Hernandez, 477 F.3d at 214. The BOLO
was based on a shooting 20 minutes earlier one mile away. These facts were
specific, verifiable, and based on active or recent activity. Id.
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No. 20-30589
Broadway’s arguments focus on each individual fact in the BOLO as
not being completely verified by the officer. However, courts should not
examine and reject in isolation each of the factors that law enforcement relies
on as the basis for reasonable suspicion but should take into account the
“totality of the circumstances” with all factors taken together to determine
whether they collectively amount to reasonable suspicion of criminal activity.
See Arvizu, 534 U.S. at 274. Based on the totality of the circumstances, the
record supports the conclusion that Officer Jackson had a particularized and
objective basis for suspecting legal wrongdoing to justify the stop at its
inception. Id. The district court did not err in denying the motion to
suppress. See Andres, 703 F.3d at 832.
AFFIRMED.
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