United States v. Benjamin Carlton Davis

                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                      MARCH 27, 2008
                                                    THOMAS K. KAHN
                              No. 07-12015
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                   D. C. Docket No. 06-00270-CR-01-CC-1

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                    versus

BENJAMIN CARLTON DAVIS,
a.k.a. Herbert Leo Green,

                                                    Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                               (March 27, 2008)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     After pleading guilty, defendant Benjamin Davis appeals his conviction for
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and

924(e). After review, we affirm.

                                I. BACKGROUND

       While conducting a roadblock at night, Atlanta police officers observed

defendant Davis driving his car erratically by swerving and approaching the

roadblock at a high rate of speed without headlights on. Before Davis’s car

reached the roadblock, officers ordered Davis to stop, and he did so. As one

officer approached Davis’s car, he saw Davis reach underneath the floorboard of

the car. The officer asked Davis to extend his hands and exit the vehicle. Once

Davis complied, officers observed a loaded automatic handgun on the floor of the

car.

       Davis was arrested, charged under Georgia law with unlawful possession of

a firearm and given a traffic citation for driving without his headlights on. In a

Georgia state court, Davis was arraigned on the state firearm charge. During the

arraignment on January 3, 2006, Davis invoked his right to counsel and was

represented by counsel.

       Meanwhile, Special Agent Eric Degree from the federal Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF”) was assigned to investigate the Atlanta

Police Department’s report of Davis’s gun possession. On January 19, 2006, about



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two weeks after Davis’s state arraignment, Special Agent Degree went to Davis’s

last known address in an attempt to interview Davis. Davis was not home, so

Special Agent Degree left his cellular phone number with Davis’s sister. Ten

minutes later, Davis called Special Agent Degree and agreed to meet. Special

Agent Degree returned to Davis’s residence to interview him.

      At the beginning of the interview, Special Agent Degree told Davis that he

was with the ATF and wanted to talk to Davis about the incident at the roadblock

and, more specifically, where Davis got the gun found in his possession. Special

Agent Degree told Davis that his cooperation was voluntary. Davis agreed to talk

with Special Agent Degree and told Special Agent Degree that the firearm was his,

that he was a convicted felon, that he knew he should not have had the gun, but

that he kept it for his personal protection. Because Special Agent Degree was

conducting a non-custodial interview, he did not give Davis a warning pursuant to

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), or advise Davis of his

right to counsel.

      Subsequently, Davis was charged in federal court with one count of

possessing a firearm as a convicted felon. Davis initially pled not guilty. Davis

filed (a) a motion to suppress the firearm found during the search of his car; and

(b) a motion to suppress the statements he made to Special Agent Degree. After an



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evidentiary hearing, a magistrate judge entered a report and recommendation

(“R&R”) recommending the denial of Davis’s suppression motions. Over Davis’s

objections, the district court adopted the findings in the R&R and denied Davis’s

motions to suppress.

       Davis entered a conditional guilty plea, reserving his right to appeal the

denial of his motions to suppress. Davis was sentenced to 180 months’

imprisonment. Davis timely appealed.

                                       II. DISCUSSION 1

A.     Motion to Suppress Davis’s Firearm

       On appeal, Davis argues that the district court should have suppressed the

firearm found in his car because the roadblock was unconstitutional. We need not

address whether the roadblock was unconstitutional because the officers stopped

Davis based on individualized suspicion not as part of the roadblock. See City of

Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S. Ct. 447, 457 (2000) (“When law

enforcement authorities pursue primarily general crime control purposes at

checkpoints . . ., stops can only be justified by some quantum of individualized



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         “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 the district court’s application of the law to the facts
de novo. Id. All 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).

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suspicion.”); Delaware v. Prouse, 440 U.S. 648, 663, 99 S Ct. 1391, 1401 (1979)

(holding that there must be articulable and reasonable suspicion to stop a motorist

when conducting discretionary license and registration checks); United States v.

Holloman, 113 F.3d 192, 195 (11th Cir. 1997) (“The Supreme Court has never

intimated that the Fourth Amendment prohibits automobile stops when officers

have probable cause to believe that a violation of traffic regulations has

occurred.”).

      The facts, taken in the light most favorable to the government, show that

Davis was driving erratically at an excessive rate of speed and without his

headlights on although it was dark outside. Given Davis’s driving, officers had an

articulable and reasonable suspicion that Davis was violating state traffic laws.

Thus, Davis’s erratic and dangerous driving provided the officers with ample

reason to stop Davis regardless of the presence of the roadblock. Therefore, the

district court did not err in denying Davis’s motion to suppress the firearm.

B.    Motion to Suppress Davis’s Statements

      Davis argues that the district court should have suppressed his statements to

ATF Special Agent Degree because that interrogation violated Davis’s Sixth

Amendment right to counsel. Because Davis was charged with essentially the

same offense in both state court and federal court, Davis argues that his invocation



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of the right to counsel on the state firearm charge should apply to the federal

firearm charge as well.

      This Court has recently addressed this issue and concluded that “where

conduct violates laws of separate sovereigns, the offenses are distinct for purposes

of the Sixth Amendment right to counsel.” United States v. Burgest, ___ F.3d ___,

No. 06-11351, slip op. at 6 (11th Cir. Mar. 13, 2008). Thus, when the two

comparable charges originate in state and federal court, the “dual sovereignty

doctrine” applies and the two offenses are different for Sixth Amendment

purposes. See id. at 6-7. Under such circumstances, a defendant’s invocation of

his right to counsel in the state criminal proceedings does “not attach to the

uncharged federal . . . offenses at the time of the interview.” Id. at 7.

      Accordingly, under Burgest, Davis’s invocation of his right to counsel in the

state court proceedings on the state firearm offense did not attach to the uncharged

federal firearm offense at the time he agreed to speak with Special Agent Degree.

Accordingly, the district court did not err in denying Davis’s motion to suppress

his statements made to Special Agent Degree.

      For all these reasons, we affirm Davis’s firearm conviction and sentence.

      AFFIRMED.




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