United States v. Michael Anthony Brown , 636 F. App'x 514 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 14-15602; 14-15707
Non-Argument Calendar
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D.C. Docket Nos. 1:14-cr-00025-DHB-BKE-1; 1:03-cr-00021-DHB-BKE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY BROWN,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
________________________
(January 11, 2016)
Before JULIE CARNES, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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After entering a conditional guilty plea, Michael Brown appeals the district
court’s denial of his motion to suppress evidence. Brown wished to suppress the
heroin police found in a backpack inside his car, which led to his conviction for
possession with intent to distribute heroin in this case and revocation of supervised
release from a prior case.1 Upon review of the record and consideration of the
parties’ briefs, we affirm.
I. FACTUAL BACKGROUND
The following facts were elicited at a magistrate judge’s hearing on Brown’s
motion to suppress. Richmond County Sherriff’s Office Sergeant William Leisey
testified that, on September 4, 2013, a “trusted friend” (the “informant”), whom he
had known for eight years, called him and reported that the informant had
witnessed Brown selling heroin out of his restaurant, the Eros Bistro. Suppression
Hr’g. Tr., Doc. 65 at 9. 2 The informant told Leisey that Brown lived in an
apartment above the restaurant and carried heroin in a backpack with him
everywhere he went. Leisey acknowledged that the tip neither predicted any future
criminal behavior nor relayed any information concerning the amount of drugs
Brown possessed, his comings and goings, or how the alleged sales transpired. But
1
We consolidated these cases for purposes of appeal.
2
“Doc.” refers to the docket entry in the district court record in this case.
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he testified that, based on his relationship with the informant, he “absolutely”
believed the information was truthful. Id. at 11.
Leisey explained that the informant was the spouse of a friend whom he had
known for fifteen years and that both were “dear family friends.” Id. at 20. Leisey
noted that he had entrusted the informant with his own child on numerous
occasions. According to Leisey, the informant never had provided him with
criminal tips in the past and did not receive any benefit or compensation for the tip.
He did not run a criminal history check on the informant.
Leisey testified that he relayed the tip to Investigator P.J. Hambrick.
According to Leisey, Hambrick advised that he had received similar information
from another person. Leisey testified that Hambrick asked if he could get more
information from the informant. Leisey contacted the informant, who sent him a
photograph of Brown’s car from Facebook and told him where Brown routinely
parked.
Jason Kennedy, the narcotics investigator in this case, testified that he drove
by Eros Bistro to confirm the description of Brown’s vehicle and location after
receiving details about the tip from Hambrick. Kennedy testified that, a few days
later, while conducting surveillance on Brown with another investigator, he
observed Brown exit his building with his wife and baby and a backpack.
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Kennedy decided not to approach Brown at that time because he did not want the
child involved.
Kennedy returned the next day and observed Brown drive up in his vehicle
outside the building. Kennedy and his fellow investigator approached the vehicle
to conduct an interview with Brown. During the evidentiary hearing, Kennedy
admitted that while surveilling Brown he never saw Brown engage in any drug
transaction, nor did he see any lookouts or drugs.
Nonetheless, according to Kennedy, Brown appeared very nervous upon
seeing the officers; his eyes were large, he took a deep breath, and he had a “look
of shock on his face like a deer in the headlights.” Id. at 38. Brown leaned
forward in his seat with his hands extended towards the floor of the car. Kennedy
testified that, based on his experience, he believed Brown may have been putting
something under the seat or reaching for a weapon. Kennedy observed a backpack
sitting in the passenger seat of the vehicle. He testified that, after seeing Brown
acting nervous with his backpack in the car, Kennedy “believe[d] that the tip had a
very strong possibility of being very true and . . . just wanted to further investigate
that.” Id. at 44. Kennedy also testified that he believed the tip, plus his
observations during the surveillance and his interaction with Brown when he
approached, gave him reasonable suspicion to detain Brown briefly to investigate
further.
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Kennedy asked Brown if he could speak with him outside the vehicle.
Kennedy then advised Brown of the tip the police had received and inquired
whether Brown had any narcotics or weapons on him. Brown replied that he had
none. Kennedy asked Brown if he could search the vehicle. When Brown asked
him why, Kennedy explained that the police were searching the car because of the
tip. Brown said nothing further, so Kennedy requested a canine unit to sniff for
drugs in the vehicle.
After the canine unit arrived and the dog “alerted” to the vehicle, the officers
searched the vehicle and discovered a .38 caliber revolver lying on the driver’s side
floorboard. The gun was located in the same general area Brown had been leaning
toward, positioned “like it had just been placed there,” according to Kennedy. Id.
at 40. The officers then arrested Brown for possession of a firearm by a convicted
felon.
At the evidentiary hearing, Brown agreed with the government that once the
narcotics dog alerted to the car, there was probable cause to search the car. After
placing Brown in custody, the officers also searched the backpack on the passenger
seat, revealing twenty-one aluminum foil packets of heroin, other plastic baggies
with heroin, several prescription bottles in Brown’s name containing various pills,
a digital scale, plastic tubing, a spoon, and syringes. After Brown gave the officers
permission to search his apartment, the officers discovered .38 caliber ammunition
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and several empty clear plastic baggies of the type commonly used to package
narcotics.
Brown was indicted on three counts: (1) possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1); (2) possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 942(c); and (3)
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)
and 924(a)(2). At the time of this offense, Brown was under a term of supervised
release for his 2003 convictions for possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). As a result of his
arrest in the heroin case, Brown was charged with violating the conditions of his
supervised release, and the parole officer initiated revocation proceedings.
Brown filed a motion to suppress all of the evidence seized on the ground
that the officers lacked reasonable suspicion to conduct the investigatory stop. He
argued that the informant’s tip was insufficient to create reasonable suspicion of
criminal activity and that the officers failed to observe anything that, in
conjunction with the informant’s tip, would give rise to reasonable suspicion of
criminal activity.
After supplemental briefing, the magistrate judge issued a report and
recommendation that the motion to suppress be denied. Over Brown’s objections,
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the district court adopted the report and recommendation in its entirety and denied
the motion to suppress.
Brown subsequently entered a conditional negotiated guilty plea to Count 1,
possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1),
expressly reserving the right to appeal the denial of his motion to suppress in
exchange for the government’s agreement to dismiss the remaining counts.
At sentencing, the district court addressed both the instant offense and the
revocation of Brown’s supervised release in the 2003 case. The district court
imposed within-guidelines sentences of 188 months’ imprisonment in the heroin
case and 41 months’ imprisonment in the revocation case, to be served
concurrently, followed by three years of supervised release. Brown now appeals.
II. STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its application of the law to those facts
de novo while construing the facts in the light most favorable to the prevailing
party below—here, the government. United States v. Lewis, 674 F.3d 1298, 1303
(11th Cir. 2012). A district court’s choice between two permissible views of the
evidence cannot be clear error. United States v. Ndiaye, 434 F.3d 1270, 1305 (11th
Cir. 2006).
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III. MOTION TO SUPPRESS
At the evidentiary hearing, the government acknowledged that the officers
detained Brown when they ordered him to speak with them outside of his car.
Brown agreed with the government that there was probable cause to search his car
once the narcotics dog alerted to the car. Although Brown challenges the entirety
of the search, the key issue is whether the officers had reasonable suspicion to
make the initial stop based on the informant’s tip and any information corroborated
by the officers.
A. Reliability of the Tip
Consistent with the Fourth Amendment, law enforcement may conduct a
brief warrantless investigatory stop of an individual “where (1) the officers have a
reasonable suspicion that the suspect was involved in, or is about to be involved in,
criminal activity, and (2) the stop was reasonably related in scope to the
circumstances which justified the interference in the first place.” Lewis, 674 F.3d
at 1303 (internal quotation marks omitted). Reasonable suspicion exists when an
officer has a “particularized and objective basis” for suspecting a person of
criminal activity, given the totality of the circumstances. United States v. Arvizu,
534 U.S. 266, 273 (2002). “Reasonable suspicion need not involve the observation
of illegal conduct, but does require more than just a hunch.” Lewis, 674 F.3d at
1303 (internal quotation marks omitted).
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When examining whether an informant’s tip was reliable enough to give rise
to an officer’s reasonable suspicion, the totality of the circumstances includes the
reliability of the informant and of the tip. The lower the reliability of the
informant, the higher the reliability of the tip must be, and vice versa. See
Alabama v. White, 496 U.S. 325, 330 (1990). Construing the evidence in the light
most favorable to the government, we conclude that the district court did not err in
denying Brown’s motion to suppress.
1. The Informant
First we evaluate the reliability of the informant. When an informant is
known to an officer personally, the officer may act “justifiably in responding to his
informant’s tip.” Adams v. Williams, 407 U.S. 143, 146 (1972). Sergeant Leisey
had known this informant for the better part of a decade and entrusted the
informant with his child. According to Leisey, the informant was trustworthy and
had never lied to him. As the magistrate judge noted, “it is difficult to imagine an
informant who could be better known to the police.” Doc. 40 at 9. Such a known
informant presents “a stronger case than . . . . in the case of an anonymous
telephone tip” and may alone be sufficient to justify an investigatory stop. Adams,
407 U.S. at 146.
It is true that Kennedy was unable to speak to the informant face-to-face—if
he had, it would make the informant even more reliable. See United States v.
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Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) (noting that face-to-face anonymous
tips demand less scrutiny “because the officers receiving the information have an
opportunity to observe the demeanor and perceived credibility of the informant”).
That said, we consider an officer’s ability to locate an informant at a later date to
be an indicator of reliability. See id. at 1279. Here, when Investigator Hambrick
requested more information, Leisey contacted the informant again and
subsequently received a picture of Brown’s car and the location where Brown
normally parked.
The informant does deserve some degree of scrutiny because he or she had
not given a tip to the police before. Officials may, without rigorous scrutiny, trust
tips from an “unquestionably honest citizen” who has previously provided tips that
“would subject [him or her] to criminal liability” if false. Illinois v. Gates, 462
U.S. 213, 233 (1983). Despite the fact that this was the informant’s first tip to the
police, we agree with the district court that the informant was reliable enough to
create reasonable suspicion, especially considering the reliability of the tip, which
we discuss next.
2. The Tip Itself
When an officer’s purported reasonable suspicion is based solely on a third
party’s tip, as was the case here, we determine whether the tip itself bore sufficient
indicia of reliability to support reasonable suspicion. White, 496 U.S. at 330-31.
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In this case, the tip was reliable enough despite consisting mainly of observable
facts and failing to predict future behavior because it described Brown’s usual
business practice and included an eyewitness account of the crime.
“[A] known, albeit unproven, informant coupled with subsequent
corroboration of the tip’s details can justify a reasonable suspicion of criminality.”
United States v. Kent, 691 F.2d 1376, 1380 (11th Cir. 1982). Here, Officer
Kennedy confirmed significant facts provided by the informant. The informant
correctly notified the police of the color, make, model, and location of Brown’s
car, that Brown always carried a backpack, and that Brown lived above Eros
Bistro.
Brown argues that the police lacked reasonable suspicion because they
corroborated the tip only via presently observable facts. A tip that relays only
presently observable facts “might not be sufficient in and of [itself] to lend the
necessary credence to the informant’s tip to create a reasonable suspicion of drug
trafficking.” United States v. Lee, 68 F.3d 1267, 1271 (11th Cir. 1995). In Lee, we
considered a tip that provided a description of an alleged drug dealer, where he was
staying, the car he drove, where the car would be parked, and that he would travel
with a woman and a child. Id. at 1269. The informant also disclosed that the
dealer’s “usual business practice” was to meet with local distributors and drive
their vehicles, rather than his own, to avoid suspicion. Id. Although the
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description and location of the car were “presently observable facts,” we concluded
that the tip was sufficiently reliable considering that it had also predicted the
dealer’s business routine. Id. at 1271-72.
Here, the police corroborated presently observable facts such as the
description and location of Brown’s car. Such information was “readily available
to many persons” and could “easily have been obtained from an offhand remark
heard at a neighborhood bar.” Kent, 691 F.2d at 1380 (internal quotation marks
omitted). In fact, the informant described the car based on a picture found on
Facebook. But, as in Lee, the informant’s tip also confirmed Brown’s usual
business practice. The tip correctly described that Brown sold heroin out of a
backpack he carried “everywhere he goes.” Doc. 65 at 29. And the backpack was
observed in the passenger seat. Accordingly, the tip was sufficiently reliable to
create reasonable suspicion.
The tip also exhibited reliability because the informant personally witnessed
Brown dealing drugs. “The courts have traditionally viewed information drawn
from an ordinary witness or crime victim with considerably less skepticism than
information derived from anonymous sources.” United States v. Martinelli, 454
F.3d 1300, 1307 (11th Cir. 2006). When an informant has personal knowledge of
the crime, including viewing the crime in progress, “[t]hat basis of knowledge
lends significant support to the tip’s reliability.” Navarette v. California, 134 S.
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Ct. 1683, 1689 (2014); see Gates, 462 U.S. at 234. Therefore the informant’s
claim of first-hand knowledge of Brown’s crime further indicates the reliability of
the tip.
We acknowledge that the tip failed to predict future behavior. Previously we
have held that an informant’s tip may be sufficiently reliable to create reasonable
suspicion when officers can corroborate the “prediction of future conduct”
contained within the tip. Lee, 68 at 1272. In J.L., the Supreme Court held that an
anonymous, “bare” report that a young black man in a plaid shirt at a bus stop had
a gun could not be reliable, in part because the tip failed to predict the alleged
criminal’s future conduct. Florida v. J.L., 529 U.S. 266, 271 (2000). In this case,
the tip did not predict Brown’s behavior; it only provided past or present
information. As such, the tip is less reliable than if it had predicted Brown’s future
actions. We do not suggest, however, that tips must always predict future behavior
to be reliable. Prediction is but one indicator of reliability.
Brown’s reliance on this Court’s decision in United States v. Valerio as a
basis for reversal is misplaced. 718 F.3d 1321 (11th Cir. 2013). In Valerio, a Drug
Enforcement Administration (“DEA”) agent witnessed Valerio shopping at a
hydroponics store and surmised, based on the circumstances, that Valerio likely
was growing marijuana. Id. at 1322. On Valerio’s second visit to the store, DEA
agents followed him to a warehouse suitable for growing marijuana. Id. DEA
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agents failed to observe any suspicious or criminal activity during one week of
surveillance over Valerio. Id. at 1322-23. A narcotics dog sniffed parts of the
warehouse, but only alerted to bays rented by people other than Valerio. Id. The
police subsequently conducted a “voluntary citizen encounter” with Valerio by
blocking his vehicle in the driveway, approaching his car with guns drawn, and
performing a pat down search before questioning him about the warehouse. Id. at
1323. Valerio then admitted to growing marijuana in the warehouse. Id. We
reversed the district court’s denial of Valerio’s motion to suppress evidence that
led to his arrest. Id. at 1325. The one-week delay between the agents’
observations of Valerio and his arrest “and the complete absence of any
contemporaneous observations of Mr. Valerio that would necessitate ‘swift’ law
enforcement action . . . made it entirely practicable for law enforcement officers to
proceed with their investigation in a manner consistent with the default
requirements of the Fourth Amendment.” Id. at 1325.
Contrary to Valerio, in this case the police acted on more than a hunch that
Brown was engaged in criminal activity. Rather, the police received a reliable tip
from an informant who witnessed Brown selling heroin from a backpack that he
always carried with him. Although the officers waited approximately one week
before conducting the investigatory stop, this is not a basis for per se reversal, even
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in the light of Valerio, because the police had reasonable suspicion that criminal
activity was afoot based on the tip and the presence of the backpack in the car.
Despite the tip’s lack of predictive power, the tip was reliable because the
informant witnessed Brown selling drugs and the police corroborated presently
observable facts, including Brown’s usual business practice.
***
Considering the totality of the circumstances and viewing the facts in the
light most favorable to the government, we conclude that the tip was sufficiently
reliable to give rise to reasonable suspicion.
B. Refusal to Consent to the Search
Brown further argues that he was detained in violation of the Fourth
Amendment solely because he refused to consent to the search of his car. Because
Brown failed to raise this argument below, it is subject to review for plain error.
United States v. Young, 350 F.3d 1302, 1305 (11th Cir. 2003). To prevail under
the plain error standard, Brown must demonstrate that there was error; the error
was plain; the error affected his substantial rights; and the error seriously affected
the fairness, integrity, or reputation of the judicial proceedings. United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
We previously held that “[t]he police cannot base their decision to prolong a
traffic stop on the detainee’s refusal to consent to a search.” United States v.
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Boyce, 351 F.3d 1102, 1110 (11th Cir. 2003). But, “when the police have already
observed, before asking for permission to search, facts sufficient to raise a
reasonable suspicion,” an officer may detain a suspect even after a refusal to
consent. Id.
Here we see no error, plain or otherwise. Although Brown argues that the
officers only searched the car after he attempted to leave, he has offered no
evidence to support his argument. As discussed above, the record demonstrates
that Brown was detained because the officers had reasonable suspicion that he had
heroin in his backpack. Thus, the district court did not err in denying Brown’s
motion to suppress.3 Accordingly, we affirm Brown’s conviction and sentence.
Consequently, we also affirm the revocation of his term of supervised release in
the 2003 case.
AFFIRMED.
3
Brown asserts that because the revocation of his supervised release in his 2003 case was
based on the underlying criminal charge stemming from the invalid search, this Court must
vacate the revocation. Because we conclude that the search was valid, we reject Brown’s
argument.
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