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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11101
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL HOWARD,
a.k.a. Sam,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:18-cr-00021-WLS-TQL-1
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2 Opinion of the Court 21-11101
____________________
Before NEWSOM, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Samuel Howard was convicted of two counts of possessing
with intent to distribute methamphetamine. He now challenges
the district court’s denial of his motion to suppress, its exclusion of
evidence, and the sufficiency of the evidence to convict him. We
affirm.
FACTUAL BACKGROUND
On October 11, 2016, deputies from the narcotics division of
the Thomas County Sheriff’s Office received a tip from a confiden-
tial informant that a young African American male with dreadlocks
and driving a blue Buick would be delivering methamphetamine
that afternoon near 2050 Church Street in Meigs, Georgia. Agent
Keith Newman established surveillance from a nearby street, and
other agents observed the surrounding roads to monitor incoming
traffic. Around 5:00 p.m., Agent Newman saw a blue Buick, whose
driver matched the confidential informant’s description, approach
2050 Church Street and slow to a near-stop before continuing onto
the next street and stopping.
Agent Newman and his partner pulled up and stopped in
front of the Buick, turned their lights on, and approached the car.
Inside the car were Howard and a passenger, Tokesha Bailey. As
Agent Newman approached, he smelled an “overwhelming” odor
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21-11101 Opinion of the Court 3
of burnt marijuana emanating from the Buick. The deputies in-
structed Howard and Ms. Bailey to get out of the car, then searched
it. Inside they found a digital scale with methamphetamine residue
on it, over eighty grams of methamphetamine ice in the center con-
sole, some eighteen-hundred dollars in cash, and two cell phones.
A later forensic analysis of the phones showed text messages with
a contact named “Ice Cory” setting up a cash purchase on October
11 at 2050 Church Street. Another text to “Ice Cory” read, “Come
to Moultrie an[d] bring ounce of ice.”
In April 2018, the Georgia Bureau of Investigation launched
another investigation into Howard’s drug dealing activities. Agent
Stripling Luke had begun an investigation into a methampheta-
mine distributor named Kim Wesley and eventually arrested him.
Mr. Wesley, after he was arrested, agreed to cooperate with the
government to find his drug source. Agent Luke showed Mr. Wes-
ley a picture of Howard, whom Mr. Wesley knew as “Jerome
Cruze,” his drug supplier. Mr. Wesley sent several text messages
to Howard and set up an April 28 meeting at McDonald’s to pur-
chase eight ounces of methamphetamine.
On the evening of April 28, Howard arrived at the McDon-
ald’s in a blue Buick, then left his vehicle to go inside the restaurant.
Mr. Wesley, observing the scene from across the street, again iden-
tified Howard as his dealer. Once Howard exited the McDonald’s,
Agent Luke and his partner got out of their car, ordered Howard
to the ground, and handcuffed him. When Howard was on the
ground, Agent Luke asked him where his car keys were. Howard
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denied having a vehicle in the parking lot, but Agent Luke imme-
diately found the keys clutched in Howard’s hand. Agent Luke
pried Howard’s car keys from his hand and searched the car, where
Agent Luke found eight ounces of crystal methamphetamine in a
box in the front seat.
PROCEDURAL HISTORY
The government obtained a two-count indictment against
Howard for possessing with intent to distribute more than fifty
grams of methamphetamine in violation of
21 U.S.C. section
841(a)(1). Count one related to the October 2016 arrest and also
named Ms. Bailey as a codefendant. Count two related to the 2018
arrest.
Howard filed a motion to suppress the evidence gathered
from both arrests. He argued that the confidential informant’s tip
in 2016 did not give law enforcement reasonable suspicion needed
to pull him over. He also argued there was no probable cause to
search his car because although Agent Newman claimed he
smelled marijuana, the police never found any when they searched
the car. As to the 2018 incident, Howard argued there was no prob-
able cause to arrest him or search his car because law enforcement
had approached him “before any illegal or even suspicious behav-
ior had occurred.” He also argued that any statements he had
made after his arrest should be suppressed under Miranda v. Ari-
zona,
384 U.S. 436, 444 (1966).
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The district court held a hearing on the motion to suppress
and later denied it. It found that the confidential tip in 2016 pro-
vided reasonable suspicion for law enforcement to stop Howard’s
vehicle. It also credited Agent Newman’s testimony that he had
smelled marijuana coming from Howard’s car, which established
probable cause to search the vehicle for contraband. As to the 2018
arrest, the district court held that Mr. Wesley’s identification of
Howard as his drug dealer and the agents’ observing Howard ar-
rive at the McDonald’s at the time arranged for the drug deal cre-
ated probable cause to arrest Howard and search his car. And, the
court explained, any statements Howard made “were not obtained
in violation of his constitutional rights.”
His motion to suppress having been denied, Howard elected
for a bench trial on both counts of the indictment. The govern-
ment introduced essentially the same evidence from the suppres-
sion hearing at the bench trial. Howard introduced Ms. Bailey,
who had pleaded guilty to misprision of a felony in exchange for
the dismissal of count one of the indictment, as his sole witness.
Ms. Bailey testified that, after the 2016 incident, she had ini-
tially told law enforcement officers that the phones and drugs in
Howard’s car belonged to her. But, she testified, after she was fed-
erally indicted, she told Agent Newman that the drugs and phones
belonged to Howard and that she hadn’t known about the drugs
until they were pulled over. On cross-examination, Ms. Bailey re-
iterated that she had initially lied to the police by saying the drugs
and phones were hers.
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Once Ms. Bailey was excused, Howard moved to recall
Agent Newman and introduce a video of Ms. Bailey’s initial state-
ments to Agent Newman where she claimed ownership over the
drugs in the 2016 arrest. The government objected that the testi-
mony was cumulative and hearsay, but Howard argued that the
video would be admissible under Federal Rule of Evidence 613(b)
to show Ms. Bailey’s body language as she “emphatic[ally]”
claimed ownership of the drugs. The district court excluded the
evidence as cumulative.
After the trial, the district court convicted Howard on both
counts. In its order detailing findings of fact and conclusions of law,
the district court found that the government’s witnesses were cred-
ible. It also credited Ms. Bailey’s testimony that the drugs and cell
phones belonged to Howard and that she had initially lied to the
police. The district court sentenced Howard to 168 months’ im-
prisonment on each count, to be served concurrently. Howard ap-
pealed his convictions.
STANDARD OF REVIEW
We review the denial of a motion to suppress evidence for
clear error as to the district court’s findings of fact and de novo as
to the district court’s application of law to those facts. See United
States v. Barber,
777 F.3d 1303, 1304 (11th Cir. 2015). We view the
evidence in the light most favorable to the party that prevailed be-
fore the district court—here, the government. See
id. And we re-
view the district court’s evidentiary rulings under an abuse of dis-
cretion standard, “which is to say we defer to its decisions to a
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21-11101 Opinion of the Court 7
considerable extent.” See United States v. Brown,
415 F.3d 1257,
1264–65 (11th Cir. 2005).
“We review sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government and draw-
ing all reasonable inferences and credibility choices in favor of the
[district court’s] verdict.” United States v. Trujillo,
146 F.3d 838,
845 (11th Cir. 1998). We will uphold the verdict if “any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”
Id. (quoting United States v. Suba,
132
F.3d 662, 671 (11th Cir. 1998)).
DISCUSSION
Howard raises three issues on appeal. First, he argues that
the district court erred in denying his motion to suppress evidence
obtained from the two searches of his car in 2016 and 2018. Second,
he contends the district court erred by excluding video evidence of
Ms. Bailey’s police interview at trial. Third, he asserts the evidence
was insufficient to convict him beyond a reasonable doubt. We
address each issue in turn.
A.
Howard first argues that the district court erred when it de-
nied his motion to suppress the drugs and cell phones from his 2016
arrest and the drugs from his 2018 arrest. He also claims the district
court should have suppressed any custodial statements he made
following his arrest. We disagree.
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8 Opinion of the Court 21-11101
The Fourth Amendment protects citizens against “unrea-
sonable searches and seizures.” U.S. Const. amend. IV. A traffic
stop is “unreasonable” unless there exists reasonable suspicion—
“some objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity.” United States v. Cortez,
449 U.S. 411, 417 (1981). “Reasonable suspicion, while dependent
upon the ‘totality of the circumstances,’ . . . ‘can arise from infor-
mation that is less reliable than that required to show probable
cause.’” United States v. Heard,
367 F.3d 1275, 1279 (11th Cir.
2004) (quoting Alabama v. White,
496 U.S. 325, 330 (1990)). Once
law enforcement agents have lawfully stopped a vehicle, they may
conduct a warrantless search if there is probable cause—that is, if
an officer under the circumstances could reasonably conclude—
that the vehicle contains contraband. See United States v. Ross,
456 U.S. 798, 809 (1982). The search may extend to “every part of
the vehicle and its contents that may conceal the object of the
search.”
Id. at 825.
Here, the officers had reasonable suspicion to stop Howard’s
car during the 2016 arrest. Law enforcement agents had received
information from a confidential informant that a man matching
Howard’s description and driving a blue Buick would be dealing
methamphetamine near 2050 Church Street on October 11. They
then saw Howard drive up to the address in a blue Buick and slow
down in front of it, stopping on a street nearby. “Even an anony-
mous tip can . . . give rise to reasonable suspicion, as long as the
information provided contains ‘sufficient indicia of reliability to
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21-11101 Opinion of the Court 9
justify the investigatory stop.’” Heard,
367 F.3d at 1278 (quoting
White,
496 U.S. at 332). Here, the tip was not anonymous, but
from a known source. And the source’s account was largely cor-
roborated. That’s enough, we’ve said, for reasonable suspicion.
Cf. Heard,
367 F.3d at 1280 (holding that an anonymous, face-to-
face tip created reasonable suspicion that defendant possessed a
weapon).
The officers also had probable cause to search Howard’s car
for marijuana. Agent Newman testified that as he approached
Howard’s stopped car, he smelled the “overwhelming” odor of
burnt marijuana. “[T]he smell of burnt marijuana emanating from
a vehicle is sufficient probable cause to search a vehicle,” Merricks
v. Adkisson,
785 F.3d 553, 560 (11th Cir. 2015); accord United States
v. Tobin,
923 F.2d 1506, 1512 (11th Cir.1991) (en banc), even if the
marijuana was not ultimately found in the car.
Probable cause also existed to arrest Howard and search his
car in 2018. Mr. Wesley, cooperating with police officers, had pos-
itively identified a picture of Howard as his drug dealer, although
he knew Howard as “Cruze.” Mr. Wesley then arranged a meth-
amphetamine purchase from Howard in a phone call that was
monitored by police. Howard arrived on time at the pre-arranged
location, and Mr. Wesley again identified Howard as his drug
dealer. This information created a “fair probability” that Howard
was engaged in criminal activity. See United States v. Goddard,
312 F.3d 1360, 1363 (11th Cir. 2002) (quoting Illinois v. Gates,
462
U.S. 213, 238 (1983)) (explaining that an informant’s tip, combined
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10 Opinion of the Court 21-11101
with “[o]bservations and other information supplied by officers”
can give rise to probable cause). For the same reasons, there was
also probable cause to search Howard’s vehicle for the meth he
agreed to bring to the drug deal. See United States v. Lanzon,
639
F.3d 1293, 1299–1300 (11th Cir. 2011). Howard thus has not shown
that the drugs should have been suppressed.
Finally, Howard argues that the district court should have
suppressed testimony about any statements he made after his ar-
rest under Miranda. At trial, the government introduced only one
post-arrest statement of Howard’s: he denied having a car in the
McDonald’s parking lot when Agent Luke asked where his keys
were. But Agent Luke had lawfully detained Howard at that point,
and he did not violate Miranda by asking where Howard’s keys
were during his search. Cf. United States v. Jones,
543 F.2d 1171,
1173 (5th Cir. 1976) (explaining that “routine inquiries into the
ownership of a stopped vehicle, the identity of its driver or occu-
pants, and other such matters by law enforcement personnel do
not constitute custodial interrogation” under Miranda).
B.
Howard next argues that the district court abused its discre-
tion when it declined to admit a video of Ms. Bailey’s police inter-
view as extrinsic evidence that Ms. Bailey lied at trial when she said
the phones were Howard’s. Howard argues that the video could
have disproved Ms. Bailey’s trial testimony and “create[d] a reason-
able doubt that [he] was not the possessor.”
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Extrinsic evidence of a witness’s prior statement that is in-
consistent with her trial testimony may be admissible under Fed-
eral Rule of Evidence 613(b). But for two reasons, the district court
didn’t abuse its discretion in excluding the video.
First, the video was not a prior inconsistent statement under
rule 613(b). Ms. Bailey’s testimony was consistent with the video:
she initially told the agents that the cell phones and drugs in How-
ard’s car were hers. But Ms. Bailey explained at trial why her initial
statements were lies, the phones belonged to Howard, and she
hadn’t known about the drugs before Ms. Bailey and Howard were
pulled over. “Exclusion of prior consistent testimony is proper un-
der [rule] 613.” United States v. Jones,
913 F.2d 1552, 1565 (11th
Cir. 1990).
Second, the video was cumulative of Ms. Bailey’s testimony.
The video showed what Ms. Bailey testified to at trial—that she
initially claimed the phones and drugs were hers. “District courts
are well within their discretion to exclude even relevant evidence
for undue delay, waste of time, or needless presentation of cumu-
lative evidence.” United States v. Dohan,
508 F.3d 989, 993 (11th
Cir. 2007) (quoting Fed. R. Evid. 403).
C.
Howard finally challenges the sufficiency of the evidence.
Though “we review de novo a district court’s denial of a judgment
of acquittal,” we must “consider the evidence in the light most fa-
vorable to the Government, drawing all reasonable inferences and
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12 Opinion of the Court 21-11101
credibility choices in the Government’s favor. If a reasonable [fact-
finder] could conclude that the evidence establishes guilt beyond a
reasonable doubt, we will affirm the verdict.” United States v.
Browne,
505 F.3d 1229, 1253 (11th Cir. 2007) (internal citations and
footnote omitted).
Here, a reasonable factfinder could have determined that
Howard was guilty of the 2016 offense beyond a reasonable doubt.
To convict Howard, the district court had to find that he (1) had
knowingly (2) possessed over fifty grams of methamphetamine and
(3) had intended to distribute it. See United States v. Gamboa,
166
F.3d 1327, 1331 (11th Cir. 1999). The evidence at trial showed that
Howard possessed distribution quantities of methamphetamine—
over eighty grams—in his center console. Text messages on How-
ard’s phone evidenced an intent to distribute the methampheta-
mine, which also supported the finding that he knowingly pos-
sessed it. The district court also chose to credit Ms. Bailey’s testi-
mony that she had initially lied to police and that the drugs in fact
belonged to Howard. This evidence, viewed in a light most favor-
able to the government, would allow a factfinder reasonably to
conclude that Howard was guilty beyond a reasonable doubt of the
2016 offense.
Howard argues that some of the evidence was consistent
with Ms. Bailey owning the drugs and thus reasonable doubt ex-
isted as to his conviction. But that is not enough to show insuffi-
ciency of the evidence. Because a factfinder “‘is free to choose be-
tween or among the reasonable conclusions to be drawn from the
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21-11101 Opinion of the Court 13
evidence presented at trial,’ our sufficiency review requires only
that a guilty verdict be reasonable, not inevitable, based on the ev-
idence presented at trial.” Browne,
505 F.3d at 1253 (quoting
United States v. Starrett,
55 F.3d 1535, 1541 (11th Cir. 1995)).
A reasonable factfinder could also have convicted Watson
for the 2018 offense. The evidence at trial, viewed in the govern-
ment’s favor, showed that Mr. Wesley had previously known
Howard under the name “Cruze” and was able to identify Howard
as “Cruze.” After Mr. Wesley arranged over the phone for Howard
to deal methamphetamine at McDonald’s, Howard arrived at the
appointed time. When officers retrieved keys off of Howard and
used them to unlock his car, they found methamphetamine inside
on the passenger seat in an amount consistent with distribution but
inconsistent with personal use. A reasonable factfinder certainly
could have found Howard guilty from this evidence.
AFFIRMED.
