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.