United States v. Griffin

United States Court of Appeals,

Eleventh Circuit.

No. 95-4985

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward Denorris GRIFFIN, a.k.a. Chuck Griffin, Ricky Eugene
Patterson, a.k.a. Alvin Patterson, Defendants-Appellants.

April 8, 1997.

Appeals from the United States District Court for the Southern
District of Florida. (No. 94-14060-CR-NCR), Norman C. Roettger,
Jr., Chief Judge.

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

Ricky Patterson and Edward Denorris Griffin challenge their

convictions for conspiracy and possession with intent to distribute

cocaine, 21 U.S.C. §§ 841(a)(1) and 846. Patterson also appeals

his sentence. We affirm.

The drug seizure and arrests in this case occurred after

Patterson and Griffin were pulled over by Deputy Christopher

Gregory, on patrol with the Indian River County Sheriff's

Department, for driving at seventy miles per hour on a section of

the interstate where the speed limit was sixty-five miles per hour.

Griffin was driving the car; Patterson sat in the back seat and

another individual, Victor Ingram, sat in the passenger side of the

front seat. In response to Gregory's request for identification,

Griffin provided his driver's license and a rental agreement for

the car which he had borrowed from a friend. Gregory subsequently

inquired of Griffin where he was going; Griffin responded that he
was visiting friends in Melbourne. While writing a warning ticket,

Gregory asked Griffin if he knew "how to get there." R4-55.

Griffin stated that he had directions. According to Gregory's

testimony both at a suppression hearing and at trial, the fact that

Griffin said he had directions to a place he had previously been

made Gregory "feel a little suspicious." id.; R5-91. Gregory

asked his partner to finish writing the ticket and walked to the

passenger-side of the car to speak with Patterson and Ingram.

Gregory smelled a strong odor of marijuana as he approached the

car. In response to Gregory's question as to their destination,

Patterson and Ingram both stated that they were going to Atlanta

for a funeral. While this conversation transpired, another police

car arrived with a police dog. Gregory had the dog sniff the

exterior of car and the dog "alerted" to the presence of drugs.

Griffin subsequently consented to a search of the car. The police

found marijuana on the floor of the front seat. After arresting

Griffin, Patterson, and Ingram, the police also found crack cocaine

in Ingram's pants.

Griffin and Patterson both moved to suppress the evidence

seized as a result of the search of the car and the district court

denied the motions. On appeal, Griffin contends that the initial

stop by the police was without probable cause and must be

reevaluated in light of the Supreme Court's recent decision in

Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d

89 (1996). Patterson argues that, although the initial stop may

have been justified, the police exceeded the scope of permissible

conduct by continuing to detain the defendants beyond that which
was necessary to write a traffic citation. We address these

arguments seriatim.

First, although the district court did not have the benefit

of Whren at the time it rendered its decision to deny the motions

to suppress, we are convinced that the Supreme Court's holding in

that case dictates precisely the result reached by the district

court here. In Whren, the Court held that where there is a finding

that the police had probable cause to believe that the defendant

had committed a traffic code violation, that renders the stop

"reasonable" under the Fourth Amendment. See Whren, --- U.S. at --

--, 116 S.Ct. at 1776. In reiterating "the traditional common-law

rule that probable cause justifies search and seizure," id., the

Court rejected an analysis based on an inquiry into the subjective

state-of-mind of the individual police officer to determine whether

the stop was pretextual; instead, the Court looked solely to the

objective factor of whether the district court had found probable

cause to justify a detention based on a traffic violation. In this

case, the defendants do not dispute the district court's finding

that they were travelling at seventy miles per hour in a

sixty-five-miles-per-hour zone. Although Gregory informed Griffin

that the speed at which he was travelling was not "absolutely

unreasonable," R4-53, Gregory further noted that this speed was

excessive in light of the inclement weather and, accordingly,

issued Griffin a "warning" ticket. The record thus reveals that

(1) there was a finding of a traffic violation and (2) this

violation, particularly in light of the weather on that day,

justified Gregory's decision to stop Griffin's car, issue a
warning, and ask him to drive more slowly. Whren serves to confirm

the district court's determination that these factors gave Gregory

probable cause to stop the car in which Griffin, Patterson, and

Ingram were driving.

Second, the record indicates that Gregory's search of the car

was based on a reasonable suspicion that these defendants were

engaged in criminal activity. According to the principles set

forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968), police may stop persons and detain them briefly in order to

investigate a reasonable suspicion that such persons are involved

in criminal activity. In justifying such an intrusion, the

"reasonableness" standard requires that the officer "be able to

point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant the

intrusion." United States v. Tapia, 912 F.2d 1367, 1370 (11th

Cir.1990) (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1879

(footnote omitted)). Here, Gregory testified consistently that he

approached the vehicle in which Patterson and Ingram sat while his

partner prepared the traffic citation for Griffin; as he

approached, he smelled a strong odor of marijuana; and, in

response to his inquiry regarding their planned destination,

Patterson and Ingram provided responses entirely inconsistent with

that given by Griffin.1 These factors, in combination, provided

1
We are underwhelmed by the government's suggestion that
Gregory's "suspicion" regarding the fact that Griffin needed
directions to drive to a location to which he admittedly had been
before might constitute the type of reasonable suspicion needed
to justify the detention of these defendants and search of their
vehicle.
Gregory with a particularized basis to reasonably suspect that the

defendants might be engaged in criminal activity. Accordingly, we

conclude that the district court did not err in denying the

defendants' motions to suppress.

Patterson's argument regarding his sentence warrants brief

discussion. Patterson argues that he was improperly sentenced as

a career offender because the two prior felony convictions on which

the court relied in enhancing his sentence occurred six days apart

and were consolidated for sentencing. Our decision in United

States v. Rice, 43 F.3d 601, 603 (11th Cir.1995), however, suggests

that two drug transactions occurring on different days—albeit

within the same week and in the same general location—constitute

separate, unrelated offenses for purposes of sentencing under 21

U.S.C. § 841(b)(1)(A), the same statute pursuant to which Patterson

was sentenced. In addition, we explicitly declined to hold that

"the mere fact that separate courts choose to set sentences to run

concurrently creates a presumption that the underlying convictions

were associated for the purposes of [the statute]." Rice, 43 F.3d

at 607. Accordingly, we conclude that Patterson's sentence was

properly enhanced under the applicable statutory provision. We

also conclude that Patterson's suggestion that he was entitled to

a downward reduction as a minimal participant is without merit.

Patterson was sentenced to a statutory mandatory minimum term.

Sentencing Guideline provisions regarding role reductions thus do

not apply.

AFFIRMED.