[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 5, 2009
No. 08-17030 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00313-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTIS LORENZO SALLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 5, 2009)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant Otis Lorenzo Salley (“Salley”) appeals the denial of his motion to
suppress evidence—specifically, over two kilograms of cocaine—seized from his
vehicle following a traffic stop on August 1, 2006. Following the denial of his
motion to suppress, Salley entered a guilty plea—conditioned on his ability to
appeal the denial of his motion to suppress—to the charge of possession with intent
to distribute 500 grams or more of cocaine hydrochloride, in violation of 21 U.S.C.
§ 841(a)(1). He was sentenced to 76 months in prison. On appeal, Salley argues
that the evidence was obtained in violation of his Fourth Amendment right to be
free from unreasonable searches and seizures. See U.S. Const. amend. IV. After
review, we affirm.
I. Factual Background
The magistrate judge conducted an evidentiary hearing and prepared a report
and recommendation (“report”), recommending denial of Salley’s motion to
suppress. In the report, the magistrate judge found these facts, which the testimony
in the hearing transcript supports.
At 11:52 p.m., on August 1, 2006, Lieutenant David Blige (“Officer Blige”)
of the Bryan County, Georgia Sheriff’s Department stopped Salley’s gold Chrysler
300 because the vehicle failed to remain in its lane and “weaved across the
dividing line several times.” Officer Blige asked Salley (the sole occupant) to get
out of the car and to provide his driver’s license and registration. Officer Blige
2
detected the strong odor of marijuana and asked Salley whether he was smoking
marijuana. Blige testified that Salley seemed “nervous,” was “sweating,” and did
not respond immediately when Blige asked him for his license and registration.
Blige had to ask again for the paperwork. Salley produced the license and
registration and denied the accusation of marijuana use.
After issuing a “verbal warning” for Salley’s improper lane usage, Officer
Blige asked Salley whether he would consent to a brief air scan by a drug dog.1
Blige testified that he requested the air scan because he detected the strong scent of
marijuana on Salley’s person. The magistrate judge found that Salley consented to
this procedure.
Corporal John Meachum (“Meachum”) arrived on the scene within eight or
nine minutes after Officer Blige initially stopped Salley’s vehicle and two to three
minutes after Salley consented to the air scan by the drug dog. Meachum had a
drug dog in his vehicle. The dog performed the air scan and signaled that narcotics
were present. A subsequent search of the vehicle revealed that a red cooler in the
trunk of Salley’s car contained over two kilograms of cocaine.
Salley moved to suppress the evidence of cocaine. He argued that Officer
Blige lacked “reasonable suspicion” to detain him for the two to three minutes it
1
An “air scan,” as the parties use the phrase, appears to be nothing more than directing a
drug dog to determine whether the scent of narcotics is present in a particular area.
3
took for the drug dog to arrive. The magistrate judge’s report recommended that
the motion to suppress be denied because the strong odor of marijuana, combined
with Salley’s nervous disposition and failure to immediately respond to Blige’s
request for license and registration, provided reasonable suspicion that warranted
the additional detention and air scan by the drug dog. The district court adopted
the report in full and denied Salley’s motion to suppress. Salley now appeals.
II. Discussion
Salley does not contest that Officer Blige had “probable cause” to stop his
vehicle based on his suspicion that Salley had violated traffic laws. See Whren v.
United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996) (“As a general
matter, the decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred.”). Rather, Salley
argues that Blige lacked “reasonable suspicion” to detain him for any additional
time after Blige issued the verbal warning. Specifically, Salley argues that Blige
impermissibly detained him during the two to three minutes while the drug dog
arrived and performed the air scan. Salley argues that: (1) the government offered
no evidence that he actually possessed or was using marijuana, and (2) the absence
of evidence that he actually used or possessed marijuana, combined with Blige’s
lack of credibility, means that “[j]ustice would not be served in allowing this
4
testimony to stand.”
The government argues that, in addition to the strong smell of marijuana,
Salley seemed “nervous” and “sweaty” and did not immediately respond to Blige’s
questions. Therefore, Blige’s decision to detain Salley for a few extra moments
was supported by “reasonable suspicion.”
When reviewing a district court’s denial of a motion to suppress, we review
the fact-findings for clear error and the application of law to fact de novo. United
States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). We construe all facts in
the light most favorable to the prevailing party—in this case, the government. Id.
at 1236.
“[W]e have consistently held that once an officer has briefly stopped a motor
vehicle operator for the purpose of issuing a traffic violation (i.e., a ticket), the
officer’s continuing detention of the vehicle’s occupants is authorized under the
Fourth Amendment only if the officer can point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
the intrusion.” United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999)
(citation and quotation marks omitted). Therefore, the issue on appeal is whether
the record, construed in the light most favorable to the government, supports the
district court’s conclusion that “reasonable suspicion” warranted the added
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intrusion—in this case the slightly prolonged detention after the verbal warning.
See United States v. Griffin, 109 F.3d 706, 707-08 (11th Cir. 1997). “When
making a determination of reasonable suspicion, we must look at the totality of the
circumstances of each case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing.” United States v. Perkins,
348 F.3d 965, 970 (11th Cir. 2003) (quotation marks and citations omitted).
Based on the totality of the circumstances, we cannot say that there is
reversible error in the district court’s denial of Salley’s motion to suppress. First,
Eleventh Circuit case law supports the district court’s legal conclusions. This
Court has found reasonable suspicion to support further detention based on, among
other things, the “strong odor of marijuana.” See Griffin, 109 F.3d at 708 (noting
that odor of marijuana detected during traffic stop furnished reasonable suspicion
justifying further detention and investigation of suspect).2 And Salley does not cite
any authority challenging the proposition that the strong scent of marijuana
furnishes “reasonable suspicion” for continued detention. For example, Salley
cites Perkins. 348 F.3d at 970. But Perkins says nothing about whether the smell
2
This Court has also found that the smell of marijuana has satisfied the higher “probable
cause” standard. See United States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982) (noting that it
is “clearly established that the recognizable smell of marijuana gives rise to probable cause
supporting a warrantless search”).
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of marijuana provides “reasonable suspicion.”3
Officer Blige’s testimony that Salley seemed “nervous” and “sweaty” and
that he failed to immediately respond to his questions would on its own be
insufficient to support the additional detention and air scan. See Perkins, 348 F.3d
at 971 (“In this Circuit, we have required more than the innocuous characteristics
of nervousness, a habit of repeating questions, and an out-of-state license for
giving rise to reasonable suspicion.”). However, the record evidence here—that
Blige smelled the strong odor of marijuana, combined with those
factors—adequately supports the district court’s conclusion that Blige had
“reasonable suspicion” to warrant the additional detention and the air scan. See
Griffin, 109 F.3d at 707-08.
Salley also implies that Officer Blige’s testimony about whether he actually
detected the scent of marijuana is not to be believed. But, on this record, we find
no clear error in the magistrate judge’s fact-finding, adopted by the district court,
that Blige smelled the strong odor of marijuana on Salley’s person. The magistrate
judge’s finding was based on Blige’s in-court testimony, where the magistrate
3
In Perkins, the “Government argue[d] that the totality of the following circumstances
gave rise to a reasonable suspicion of drug trafficking: (1) Perkins’ nervousness; (2) the ‘odd
behavior’ of Perkins in repeating the questions Colston asked him; (3) Perkins’ possession of a
Florida driver's license while claiming to live in Montgomery, Alabama; and (4) the
‘inconsistent’ statements from Perkins and Scott with regard to whom they were going to see in
Greenville, Alabama.” 348 F.3d at 970. None of these justifications had anything to do with the
smell of marijuana.
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judge had an opportunity to make a credibility determination and to gauge Blige’s
answers to what appears to have been a rigorous cross-examination conducted by
Salley’s counsel. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th
Cir. 2002) (“Credibility determinations are typically the province of the fact finder
because the fact finder personally observes the testimony and is thus in a better
position than a reviewing court to assess the credibility of witnesses.”); United
States v. Holland, 874 F.2d 1470, 1473 (11th Cir. 1989) (“Credibility
determinations made by the district court are entitled to deference by a reviewing
court.”). Therefore, the district court’s fact-findings are not clearly erroneous.4
After review, we affirm the district court’s denial of Salley’s motion to
suppress.
AFFIRMED.
4
On appeal, Salley points out that after issuing the ticket, Officer Blige first said that
Salley was free to go. Blige’s testimony was contradictory in this respect. On the one hand
Blige testified that he told Salley that he was free to go. At another point during the hearing, he
claims to have never made such a statement. But it does not appear that Salley raised the issue
of Officer Blige’s truthfulness with respect to whether Blige detected the strong odor of
marijuana either before the magistrate judge or in his objections to the report. Rather, Salley
argued that the absence of actual marijuana meant that Blige lacked “reasonable suspicion.” In
any event, to the extent Salley claims that Blige’s testimony lacked credibility as to the odor of
marijuana, we note that whether Blige’s testimony was credible was a decision for the fact-
finder. See, e.g., United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009) (noting that, even
in the face of contradictory testimony, a district court’s credibility determination in favor of the
contradicting party was “not clearly erroneous”); United States v. Ramirez-Chilel, 289 F.3d 744,
749 (11th Cir. 2002).
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