[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12871 ELEVENTH CIRCUIT
November 20, 2008
Non-Argument Calendar
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-00166-CR-W-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WEBSTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 20, 2008)
Before CARNES, BARKETT, and KRAVITCH, Circuit Judges.
PER CURIAM:
John Webster appeals his convictions for unlawful possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1), and possession of marijuana, in
violation of 21 U.S.C. § 844(a). In particular Webster challenges the district
court’s denial of his motion to suppress the firearm and marijuana, which was
discovered when Webster was searched after being pulled over because a police
officer believed that Webster’s car matched a “be on the look out” warning
(“BOLO”) issued earlier that day.
I.
On March 28, 2008, the Montgomery Police Department issued a BOLO for
dark-colored vehicle with something to the effect of “Down South Customs”
written on the rear window, which had been allegedly involved in a shooting
earlier that day. Approximately one and a half to two hours later Officer Gerald
Manora saw Webster driving down Eastern Boulevard in Montgomery, Alabama.
Webster was driving a blue Pontiac Grand Am with a decal on the rear window
advertising his sister’s business, “Down and Dirty Customs.” Although Officer
Manora could not recall where the earlier shooting had occurred, he believed that
Webster’s car matched the description in the BOLO. He began to follow Webster
and called for backup to assist him in making a stop.
After following Webster for several minutes Officer Manora pulled Webster
over in the Wal Mart parking lot off of Eastern Boulevard, approached the car, and
2
asked Webster for his license and proof of insurance. Officer Manora also told
Webster that he had pulled him over because his vehicle matched the description
of a car involved in a shooting earlier that day and asked Webster to submit to a
pat-down search. Webster consented. During the search, Officer Manora found a
nine-millimeter pistol in the waistband of Webster’s pants. Officer Manora
secured the weapon, placed Webster under arrest, and searched Webster more
thoroughly, discovering marijuana in Webster’s pocket.
After arresting Webster, Officer Manora radioed in to dispatch to confirm
whether Webster’s car was the one that had been involved in the shooting.
Dispatch provided Webster with an updated BOLO description and told Manora
that Webster’s vehicle did not match the vehicle involved in the shooting.
Webster was indicted for possession of a handgun by a felon, in violation of
18 U.S.C. § 922(g)(1), and possession of marijuana, in violation of 21 U.S.C. §
844(a). Webster filed a motion to suppress the handgun and marijuana,
contending that Officer Manora’s stop violated his Fourth Amendment rights. At
the suppression hearing, Officer Manora testified that Webster had not committed
any traffic violations and that he had pulled Webster over solely because he
believed that Webster’s car matched the description in the BOLO. Officer Manora
could not recall whether the BOLO specified a particular make and model of car,
3
but he believed that the description was “a dark-colored vehicle, unknown make
and model” with “something to the effect of Down South Customs” written on the
rear window. He also testified that BOLOs based on witness descriptions often
lead to “general lookout[s]” because witnesses are “unsure of the make and
model.” When the court asked Officer Manora whether he could have called in to
dispatch to confirm whether Webster’s car matched the BOLO, he admitted that he
could have but “[i]t would have been kind of difficult on a motorcycle.”
After the hearing the magistrate judge issued a report recommending that
the district court deny Webster’s motion to suppress and finding that Officer
Manora was able to “articulate a minimal objective justification” for the search
due to “the unique similarities of Webster’s car to the BOLO.” The district court
adopted the magistrate judge’s recommendation, finding that Officer Manora had
been “operating on information provided by the police department to be on the
look-out for ‘a dark-colored vehicle, unknown make and model’” with “something
to the effect of Down South Customs” on the rear window and that the similarities
between that description and Webster’s car justified the stop. Webster entered a
conditional guilty plea to the charges, preserving the right to appeal the denial of
his motion to suppress.
4
II.
Webster contends that the initial stop of his car violated his Fourth
Amendment rights because Officer Manora did not have a reasonable suspicion
that Webster had been involved in the earlier shooting. “We review for clear error
a district court’s findings of fact on a motion to suppress” and “review de novo its
application of law to those facts.” United States v. Hunter, 291 F.3d 1302, 1305
(11th Cir. 2002) (citation omitted).
The Supreme Court has established that police officers may conduct
warrantless investigatory searches without violating the Fourth Amendment where
there is a reasonable suspicion of criminal wrongdoing. See Terry v. Ohio, 392
U.S. 1, 30, 88 S. Ct. 1868, 1884 (1964). This includes the right to stop a moving
vehicle, see United States v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 678, 680
(1984), and also includes investigations of past crimes. See id. at 229, 105 S. Ct.
at 680. In our review of whether there was reasonable suspicion, we look at the
totality of the circumstances. See United States v. Arvizu, 534 U.S. 266, 273, 122
S. Ct. 744, 750 (2002). Reasonable suspicion is a somewhat abstract standard that
“is not readily, or even usefully, reduced to a neat set of legal rules.” United
States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (internal citation
and quotation marks omitted). What we do know are the bounds. Reasonable
5
suspicion demands “considerably less” than probable cause, but “the police are
required to articulate some minimal, objective justification for the stop.” United
State v. Mikell, 102 F.3d 470, 475 (11th Cir. 1996). That justification may be
based on the information available to the officer at the time. See Arvizu, 534 U.S.
at 273, 122 S. Ct. at 750–51; cf. United States v. Gonzalez, 969 F.2d 999, 1003
(11th Cir. 1992) (probable cause determination considers “whether the objective
facts available to the officers at the time of arrest were sufficient to justify a
reasonable belief that an offense was being committed”) (emphasis added). In
forming reasonable suspicion, an officer may rely on information provided by a
police bulletin to justify a Terry stop. See United States v . Hensley, 469 U.S. 221,
232, 104 S. Ct. 675, 682 (1985).
Webster contends that the BOLO description was too vague to provide a
minimal, objective justification for the Terry stop because there are too many
vehicles that could have matched the description. Although we agree that the
BOLO description was far from a model of clarity, we do not agree that it was
prohibitively vague. This is not a case where the BOLO described only the color
of the vehicle. Instead, the BOLO described a dark-colored vehicle with writing
on the rear window to the effect of “Down South Customs.” We are convinced
that such a description sufficiently narrows the field of suspected vehicles so as to
6
support reasonable suspicion for a Terry stop. Webster’s attempt to distinguish
the BOLO description of “Down South Customs” from his vehicle’s “Down and
Dirty Customs” is unpersuasive, and we conclude that the BOLO description
received by Officer Manora was sufficiently similar to Webster’s car to justify the
Terry stop.
We must also reject Webster’s argument that Officer Manora lacked an
objective justification for the stop because he failed to call in to dispatch to
confirm the BOLO before the stop. It is true that if Officer Manora had called in
to confirm the BOLO, he would have been told that Webster’s car did not match
the car driven by the suspect in the shooting. Had Officer Manora done so, it may
well be true that he would not have stopped Webster’s car and Webster would not
have been arrested. But our review of reasonable suspicion is based on the
information available to the officer at the time of the stop, see Arvizu, 534 U.S. at
273, 122 S. Ct. at 750–51, and Officer Manora was not aware of the updated
BOLO description when he stopped Webster. Although it might have been better
for Officer Manora to call in to confirm the BOLO before stopping Webster, we
cannot say that it was unreasonable for him not to do so. Under the totality of the
circumstances, the similarity of Webster’s car to the BOLO description provided a
minimal, objective justification to establish reasonable suspicion to justify an
7
investigatory stop of Webster’s car. Thus the district court properly denied
Webster’s motion to suppress. Because the stop was legal, it follows that the
handgun and the marijuana discovered as a result of that stop were admissible.
AFFIRMED.
8