[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 5, 2008
No. 08-10792 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00122-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN HAMILTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 5, 2008)
Before BIRCH, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Shawn Hamilton appeals his convictions for possession with intent to
distribute ecstasy and five or more grams of cocaine, possession of a firearm by a
felon, and using and carrying a firearm during a drug trafficking crime, in violation
of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A), and 21 U.S.C. §§ 841(a)(1), (b)(1).
Hamilton contends that (1) the police lacked probable cause to execute the traffic
stop which led to his arrest; (2) the subsequent search of his vehicle was illegal; (3)
the evidence supporting his conviction for possession with intent to distribute
cocaine and ecstasy was insufficient; and (4) the evidence supporting his firearm
convictions was likewise insufficient. Hamilton’s arguments do not persuade.
Accordingly, we AFFIRM.
I. BACKGROUND
At about 7:37 P.M. on 13 October 2007, Officer Sylvester Brown of the
Savannah-Chatham Metropolitan Police Department, and his partner, Officer Judd
West, were traveling east on 31st Street when they observed a Mercury Grand
Marquis traveling in the opposite direction. R2 at 3-4. West then saw the Mercury
make a right turn, proceed northbound for about half of a block, stop, and then
head back south again while in reverse. The Mercury continued to back out onto
31st Street and then resumed its westbound travel. Id. at 6-7. There were several
parked vehicles and light traffic on 31st Street at the time. Id. at 18. West and
Brown executed a traffic stop of the Mercury.
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The Mercury pulled over and stopped in response to the patrol car’s
emergency lights and siren. West approached the driver’s side of the vehicle while
Brown covered the passenger’s side. Id. at 7. Hamilton was in the Mercury’s
driver’s seat and Tarik Bentley was in the passenger seat. Id. at 8, 11. There were
no other passengers in the vehicle.
West tapped on the driver’s side window and instructed Hamilton to roll the
window down. Hamilton did not respond but instead began to manipulate
something next to his right leg in an apparent attempt to conceal the object. Id. at
8. West again instructed Hamilton to roll down his window. After about five
seconds, Hamilton complied. Once the window was rolled down, West
immediately smelled the strong odor of burnt marijuana. Brown also smelled the
odor from his position on the opposite side of the Mercury. Id. at 9, 31. West
asked if Hamilton had been smoking marijuana. Hamilton admitted to smoking
some earlier. West then instructed Hamilton to exit the car. Id. at 9.
As Hamilton was getting out of the car, he again attempted to conceal
something near his right leg. West responded by grabbing Hamilton’s wrist and
placing Hamilton’s hands on top of the Mercury. Id. at 10. West then asked
Hamilton for consent to search the vehicle. Hamilton consented, responding that
“[t]here is nothing in here. You can search [it.]” Id. at 21. Hamilton was not
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handcuffed at that point.
While West spoke with Hamilton, Brown instructed Bentley, Hamilton’s
passenger, to exit the Mercury as well. Bentley immediately attempted to flee on
foot, but Brown apprehended him after a few seconds, handcuffed him and placed
him under arrest. During the altercation, a clear bag containing crack cocaine and
ecstasy fell from Bentley’s waistband. A subsequent patdown of Bentley yielded a
9 millimeter pistol. Id. at 30.
Hearing the commotion on Brown’s side of the vehicle, West handcuffed
Hamilton and placed him in the patrol car. Id. at 10. West and Brown then
searched the Mercury, recovering a .45 caliber semi-automatic pistol that was
tucked into a crack on the right side of the driver’s seat. Id. at 12. They also found
a small amount of marijuana residue on the floorboard between the two front seats.
Id. at 25. Hamilton and Bentley were arrested and transported to the local precinct
for processing.
Before trial, Hamilton filed a motion to suppress, followed by an amended
motion to suppress. R1-15; R1-26. Hamilton claimed that the police lacked
probable cause for the initial traffic stop and that the subsequent search of his car
was illegal. Consequently, the fruits of that search – the drugs and the pistol –
were inadmissible. R1-26 at 2-4. A magistrate judge held an evidentiary hearing
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after which he recommended that Hamilton’s motion to suppress be denied. The
district court adopted the magistrate judge’s report and recommendation and the
case proceeded to trial. R1-36.
At trial, Bentley testified against Hamilton. Bentley acknowledged on direct
examination that he hoped to receive a more lenient sentence as a result of his
cooperation. R3 at 45. He then stated that he began purchasing drugs from
Hamilton in 2006 and that he had, on three previous occasions, purchased a
quarter-ounce of powder cocaine from him. Bentley denied ever purchasing crack
cocaine or ecstasy from Hamilton. Bentley then testified that just after they were
pulled over by the police on 13 October 2007, Hamilton handed him the clear bag
of drugs (cocaine and ecstasy) which ultimately fell from Bentley’s waistband
during his attempt to flee. R3 at 51-52. Bentley also confirmed that the .45 caliber
pistol found during the search of the Mercury belonged to Hamilton although
Hamilton asked Bentley to claim it as his. R3 at 55. Hamilton was ultimately
convicted on all counts and sentenced to 157 months of imprisonment. R1-78 at 1-
2.
Hamilton now appeals his convictions. Hamilton contends that (1) the
police lacked probable cause to execute the traffic stop which led to his arrest; (2)
the subsequent search of his vehicle was illegal; (3) the evidence supporting his
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conviction for possession with intent to distribute cocaine and ecstasy was
insufficient; and (4) the evidence supporting his firearm convictions was likewise
insufficient. We address each argument in turn.
II. DISCUSSION
A. Probable Cause Argument
“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 accept the district court’s findings of fact to be true, unless shown to be clearly
erroneous, and review the district court’s application of the law to those facts de
novo. See id. Factual findings extend to the district court’s credibility
determinations, to which we accord considerable deference. See United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Additionally, “all facts are
construed in the light most favorable to the prevailing party” on the motion to
suppress before the district court. United States v. Bervaldi, 226 F.3d 1256, 1262
(11th Cir. 2000).
The Fourth Amendment protects individuals from “unreasonable searches
and seizures” by government officials, “and its protections extend to brief
investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 750 (2002). It is well settled, however, that a decision to stop
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a vehicle is reasonable under the Fourth Amendment when an officer has “probable
cause to believe that a traffic violation [has] occurred.” United States v. Simmons,
172 F.3d 775, 778 (11th Cir. 1999); see also United States v. Strickland, 902 F.2d
937, 940 (11th Cir. 1990) (holding that “a police officer may stop a vehicle when
there is . . . probable cause to believe that a driver is violating any one of the
multitude of applicable traffic and equipment regulations relating to the operation
of motor vehicles”) (quotation marks and citation omitted). We have held that the
standard for determining whether probable cause exists “is met when the facts and
circumstances within the officer’s knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)
(quotation marks and citation omitted).
Georgia law provides that “[a] driver shall not back a vehicle unless such
movement can be made with safety and without interfering with other traffic.”
O.C.G.A. § 40-6-240(a). This traffic code provision prohibits unsafe backing
whether or not the maneuver results in accident or injury. See Collier v. State, 639
S.E.2d 405, 408 (Ga. App. 2006). In this case, the officers stopped Hamilton after
observing him reverse his direction of travel by backing his vehicle down a city
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street for half of a block and then into an intersecting street. Hamilton executed
this maneuver at night and on a street with parked cars and light traffic. Given
these facts and the magistrate judge’s assessment of the officers’ testimony as
“highly credible,” R1-33 at 4, we conclude that probable cause existed for West
and Brown to effect the traffic stop.
B. Illegal Search Argument
Hamilton’s second argument appears to challenge the jury’s findings as to
the validity of the search conducted by West and Brown. Because the district court
addressed this issue when it ruled on Hamilton’s motion to suppress, we consider
Hamilton’s illegal search argument as a challenge to the district court’s denial of
his motion to suppress rather than as a challenge to the jury’s verdict. As such, we
apply the same standard of review as that which we have previously outlined in the
context of Hamilton’s probable cause argument.
Consensual searches do not violate the Fourth Amendment’s general
prohibition on warrantless searches. See Schneckloth v. Bustamonte, 412 U.S.
218, 219, 90 S. Ct. 2041, 2043 (1973); United States v. Purcell, 236 F.3d 1274,
1281 (11th Cir. 2001) (holding that a “consensual search is constitutional if it is
voluntary”). In this case, the record indicates that Hamilton consented to a search
of his vehicle. When asked by West for his consent, Hamilton responded “Yes, sir,
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you can search, there is nothing in here.” R3 at 14. We conclude that because
Hamilton consented to the search of his vehicle, the search withstands
constitutional scrutiny.
We note that grounds for a warrantless search also existed. Both West and
Brown smelled a strong odor of burnt marijuana as soon as Hamilton rolled down
his window. We have held that “the recognizable smell of marijuana gives rise to
probable cause supporting a warrantless search.” United States v. Lueck, 678 F.2d
895, 903 (11th Cir. 1982). In addition, West witnessed Hamilton attempt to
conceal what later turned out to be a .45 caliber pistol in the cushion of the driver’s
seat and Brown was forced to physically detain Bentley as he attempted to flee.
These events would lead any reasonable officer to recognize the development of a
potentially dangerous situation. We have long acknowledged that “officers
conducting a traffic stop may take such steps as are reasonably necessary to protect
their personal safety . . . includ[ing] conducting a protective search of the driver,
the passengers, and the vehicle.” Purcell, 236 F.3d at 1277 (quotation marks and
citations omitted).
C. Sufficiency Argument (Drug Conviction)
Hamilton argues that the evidence was insufficient to support his conviction
for possession with intent to distribute crack cocaine and ecstasy because the only
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evidence linking the drugs to Hamilton was the uncorroborated testimony of
Bentley, his passenger. He contends that Bentley’s testimony was not credible
(given his stated interest in receiving a lighter sentence) and was inconsistent with
his previous statements.
We review a claim of insufficient evidence to convict de novo.1 See United
States v. Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000) (per curiam). We view the
evidence in the light most favorable to the government and affirm the conviction if,
based on this evidence, “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quotation marks and
citation omitted).
In order to obtain a conviction under 21 U.S.C. § 841(a)(1), “the government
had to prove three elements: (1) knowledge; (2) possession; and (3) intent to
distribute.” United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per
curiam). Each of these elements may be proven by direct or circumstantial
evidence. See id. at 1391-92.
We have held that the “uncorroborated testimony of an accomplice is
1
Hamilton did not file a motion for a judgment of acquittal with the district court. He
did, however, timely file a motion for a new trial. Accordingly, Hamilton preserved his
insufficient-evidence claim. See United States v. Williams, 144 F.3d 1397, 1401 (11th Cir.
1998). By filing a motion for a new trial, Hamilton preserved his challenge to the sufficiency of
the evidence.
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sufficient to support a conviction in the Federal Courts if it is not on its face
incredible or otherwise insubstantial.” United States v. LeQuire, 943 F.2d 1554,
1562 (11th Cir. 1991). Testimony is incredible or insubstantial only if it is
“testimony as to facts that [the witness] physically could not have possibly
observed or events that could not have occurred under the laws of nature.” Id. at
1562 (quotation marks and citation omitted) (alteration in the original). In
reviewing witness testimony, “[t]he jury gets to make any credibility choices, and
we will assume that they made them all in the way that supports the verdict.”
United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006), cert. denied,
127 S. Ct. 2155 (2007). “It is emphatically not within the province of an appellate
court to reweigh the evidence and the credibility of the witnesses at trial.” United
States v. Hernandez, 141 F.3d 1042, 1052 (11th Cir. 1998).
We conclude that sufficient evidence supports the jury’s finding that the
government proved each element of § 841 beyond a reasonable doubt. Bentley’s
testimony was not incredible or insubstantial and from it, a rational trier of fact
could conclude that Hamilton had knowledge of and possession of the drugs in
question and the intent to distribute them.
D. Sufficiency Argument (Gun Convictions)
Hamilton contends that the evidence was insufficient to support his
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convictions for knowingly possessing (18 U.S.C. § 922(g)(1)) and carrying a
firearm (18 U.S.C. § 924(c)(1)(A)). He argues that he had no actual or
constructive knowledge of the .45 caliber pistol found by West and Brown in his
vehicle and asserts that the relevant evidence only proves that he was in close
proximity to the weapon – not that he owned or possessed the pistol or that he was
even aware of its existence.
“Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a
firearm.” United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). To
establish a violation of § 922(g), the government must prove beyond a reasonable
doubt three elements: (1) that the defendant was a convicted felon; (2) that the
defendant was in knowing possession of a firearm; and (3) that the firearm was in
or affecting interstate commerce. 18 U.S.C. § 922(g)(1); Wright, 392 F.3d at 1273.
Possession can be actual or constructive, and can be shown by circumstantial or
direct evidence. Wright, 392 F.3d at 1273. In Wright, we found that there was
sufficient evidence that the defendant knowingly possessed the gun, because (1) it
was found under the driver’s seat, in his car; (2) the defendant was driving his car
at the time of his arrest; (3) the gun was next to an open bottle of cold beer; and (4)
the defendant resisted arrest. Id. at 1273-74.
Under 18 U.S.C. § 924(c)(1)(A), it is unlawful to use or carry a firearm
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during or in relation to a drug trafficking crime. To establish a violation of
§ 924(c)(1), the government must demonstrate beyond a reasonable doubt that the
defendant used or carried a firearm during and in relation to a drug trafficking
crime. See 18 U.S.C. § 924(c)(1)(A); Smith v. United States, 508 U.S. 223, 227-
28, 113 S. Ct. 2050, 2053 (1993). We have found sufficient evidence to support a
§ 924(c) conviction when a gun belonging to the defendant was found in the glove
compartment of a car in which the defendant was a backseat passenger, as the jury
could “find that the firearm was being carried by [the defendant] in the vehicle.”
United States v. Farris, 77 F.3d 391, 395-96 (11th Cir. 1996).
In this case, we conclude that sufficient evidence supports the jury’s finding
that Hamilton violated § 922(g)(1). Hamilton stipulated to his status as a felon, R3
at 68-69, and does not challenge the gun’s interstate nexus on appeal, so the only
issue is whether he knowingly possessed a firearm. As in Wright, the gun was
found near the driver’s seat of the car that the defendant was driving at the time of
his arrest. Wright, 392 F.3d at 1273-74. Moreover, West testified that he
repeatedly saw Hamilton trying to conceal an object (later confirmed as the .45
caliber pistol in question) before he exited the vehicle, and Bentley testified that
Hamilton owned the gun although he asked Bentley to claim it. Given the
testimony of West and Bentley, in conjunction with the location in which the pistol
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was found, a rational trier of fact could conclude that Hamilton knowingly
possessed the weapon.
The same evidence supports the jury’s conclusion that Hamilton violated
§ 924(c). The issue here is whether he used or carried a firearm. As in Farris, the
defendant, the gun, and the drugs were all located in the same vehicle from which
he conducted drug deals. See Farris, 77 F.3d at 395. In this case, Hamilton owned
the car, and the gun was found next to the seat in which he was sitting immediately
prior to his arrest. In light of this evidence, a rational juror could conclude that
Hamilton carried a gun in relation to his drug deals. See Nolan, 223 F.3d at 1314.
Accordingly, we conclude that sufficient evidence supports Hamilton’s conviction
under § 924(c).
III. CONCLUSION
Hamilton appeals his convictions for possession with intent to distribute
ecstasy and five or more grams of cocaine, possession of a firearm by a felon, and
using and carrying a firearm during a drug trafficking crime. We conclude that the
police had probable cause to execute the traffic stop which led to Hamilton’s arrest,
the subsequent search of his vehicle was legal, and the evidence was sufficient to
support his drug and weapon convictions. Accordingly, the judgment of the
district court is AFFIRMED.
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