United States v. Reginald Wayne Gibbs , 917 F.3d 1289 ( 2019 )

Case: 17-12474 Date Filed: 03/06/2019 Page: 1 of 16
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12474
________________________
D.C. Docket No. 1:16-cr-20927-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD WAYNE GIBBS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 6, 2019)
Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.
MARCUS, Circuit Judge:
*
Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
Case: 17-12474 Date Filed: 03/06/2019 Page: 2 of 16
Reginald Gibbs appeals the district court’s denial of his motion to suppress
evidence -- a firearm recovered from his person by police -- after conditionally
pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Since Gibbs’s encounter with the police was part of a lawful traffic
stop, and the seizure of the firearm from his pocket was likewise lawful, we affirm
the judgment of the district court.
I.
The essential facts are these. Around 5:40 p.m. on the evening of November
30, 2016, Detective Erick Lopez of the Miami-Dade Police Department was on
patrol in the area of 62nd Street and Northwest 17th Avenue in Miami, Florida.
According to Lopez, this was a “high crime area” “known to have a high
inciden[ce] of shootings.” Detective Lopez has been a member of the Crime
Suppression Team and was assigned to that team for some six years. Lopez
recounted that he had investigated two shootings in the area. Along with Detective
Jonathan Dweck, Lopez also had investigated an incident in which a person pulled
a handgun on several other individuals but ultimately did not shoot anyone.
Detective Lopez was traveling eastbound in his unmarked police car on 62nd
Street -- a two-lane street with one lane going east and one going west. Lopez saw
a black Audi sedan that was traveling westbound pull into the oncoming traffic of
the eastbound lane and come to a stop. The black Audi was thus parked head-on to
2
Case: 17-12474 Date Filed: 03/06/2019 Page: 3 of 16
the oncoming traffic and obstructed the flow of traffic in the eastbound lane. After
stopping in the middle of the street, the driver of the Audi exited the vehicle.
Lopez, who was in the eastbound lane, passed the Audi, continued
eastbound to the end of the block, made a U-turn, and parked his car behind the
Audi. Before turning around, Lopez radioed to see if other officers were in the
neighborhood to assist him in stopping the driver of the Audi and issuing a citation
for obstructing the flow of traffic. Lopez called for backup because, he said, he
was concerned that there might be an altercation when he cited the driver, offering
that traffic stops sometimes escalate when people become upset. Detective
Jonathan Dweck responded that he was “just a couple of seconds away” and agreed
to assist. Dweck, also in an unmarked police car, pulled up and parked in front of
the Audi. Both officers were in plain clothes, both wore tactical vests with the
word “police” on the front, and both officers activated the lights on their unmarked
cars as they pulled up.
It is undisputed that, when the detectives exited their vehicles, the black
Audi’s engine was still running, its headlights were on, and it was blocking traffic.
No one was in the Audi. JD Jones, the driver of the Audi, was standing just
outside, between the Audi and another car parked on a gravel shoulder area next to
the road. The space between the two cars was just wide enough for two people to
stand there. The appellant, Reginald Wayne Gibbs, was standing next to the
3
Case: 17-12474 Date Filed: 03/06/2019 Page: 4 of 16
driver, Jones, and both men stood right next to the black Audi. Gibbs was never a
passenger in the Audi, but approached Jones just after he stopped his vehicle and
joined Jones in the space between the two cars. When Officers Lopez and Dweck
approached, Jones and Gibbs were “basically channeled between the[] two cars.”
Lopez approached from the back of the Audi and Dweck approached from the
front. Thus, Jones and Gibbs would not have been able to leave without going
through Lopez or Dweck or vaulting over one of the vehicles. Lopez agreed that
they effectively blocked Gibbs from leaving.
Detective Lopez, who had observed the Audi’s traffic violation, was aware
that Jones was the driver of the Audi, and thus focused his attention on Jones.
Dweck did not know which of the two men -- Gibbs or Jones -- had been the driver
of the Audi. He testified that neither of them was free to leave until he determined
who was the owner or driver of the Audi and issued a traffic citation. Both
detectives testified that they were not investigating Gibbs for anything else when
they arrived at the scene.
Dweck approached Gibbs first because Gibbs stood closest to him. As he
approached, Gibbs put his hands up over his head. Dweck testified that, when he
first pulled up in his vehicle, he noticed Gibbs looking around to the left and right
and explained that, in his experience, the way Gibbs was looking around suggested
that he might be preparing to flee. Before he was asked anything by the detectives,
4
Case: 17-12474 Date Filed: 03/06/2019 Page: 5 of 16
and almost immediately upon seeing Dweck, Gibbs said this: “Officer, I’m going
to be honest. I have a gun on me.” The district court found that the entire
encounter from the moment Lopez and Dweck exited their vehicles, to the time
Gibbs made his statement, took just a matter of seconds.
After Gibbs said he had a gun, Dweck asked Gibbs whether he had a permit
for the firearm; Gibbs responded “No, I don’t.” Gibbs informed Dweck that the
gun was in his back pocket. Dweck alerted Lopez to the presence of the firearm,
handcuffed Gibbs and directed Lopez to get a camera and gloves. Lopez retrieved
those items and photographed the loaded .22 caliber Jimenez Arms pistol in
Gibbs’s back pocket. The officers arrested Gibbs for carrying a concealed weapon
without a permit.
Witnesses Javari Irving and Markedia Johnson, both relatives of Gibbs,
testified at the suppression hearing that the officers exited their vehicles with their
weapons drawn. Irving and Johnson were standing a short distance away from the
Audi, outside a nearby apartment complex where they both lived. Irving was
standing between the apartment’s dumpster and a wooded area, talking to a friend,
and Johnson was located just outside her front door watching her children play.
Irving said that he saw an officer approaching Gibbs with his gun drawn. Johnson
added that she saw two officers approach Gibbs with their weapons drawn and yell
“get down.” Lopez and Dweck denied drawing their weapons when they exited
5
Case: 17-12474 Date Filed: 03/06/2019 Page: 6 of 16
their vehicles, or, indeed, at any time during the entire encounter. Both detectives
testified that they did not fear for their safety during the encounter. Dweck also
testified that he did not give Jones and Gibbs any commands as he approached.
II.
A federal grand jury in the Southern District of Florida charged Gibbs in a
single count with being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1). Gibbs pled not guilty and moved to suppress
the firearm and the statements he had made to the police during the encounter --
specifically, that he had a gun but he did not have a concealed carry permit. Gibbs
argued that the police did not have reasonable suspicion to detain him, that his
statements were not spontaneous admissions, and that the police violated his
Miranda rights.
The district court conducted a suppression hearing, at which Lopez, Dweck,
Irving, and Johnson all testified. Following the hearing, the trial court issued an
order denying in part and granting in part Gibbs’s motion to suppress. The district
court credited (1) Irving and Johnson’s testimony that the officers approached with
their weapons drawn and issued commands, but also credited (2) Detective
Dweck’s testimony that Gibbs had raised his hands and spontaneously exclaimed
that he possessed a gun. The district court added that under the circumstances of
this case -- namely the evening hour and the number of people present in a high
6
Case: 17-12474 Date Filed: 03/06/2019 Page: 7 of 16
crime area -- the officers did not violate the Constitution by drawing their weapons
for their own safety. The district court made a factual finding that the officers had
legitimate concerns for their own safety, given the “evening hour, [and] the
number of people in a high crime area.” The district court explained that once the
firearm was seized, Gibbs was in custody, but prior to that his detention was brief
and wholly consistent with Terry v. Ohio, 391 U.S. 1 (1968) and the Fourth
Amendment. 1 The motion to suppress the loaded .22 caliber firearm and Gibbs’s
statements that he had a gun in his back pocket was denied, but Gibbs’s statement
that he did not have a permit was suppressed.
Thereafter, Gibbs entered a conditional guilty plea to being a felon-in-
possession, and pursuant to Federal Rule of Criminal Procedure 11(a)(2) reserved
the right to appeal the denial of his motion to suppress the loaded firearm. The
plea agreement read this way:
The plea to the Indictment is a conditional plea, which would allow
the defendant to appeal the following issue and only the following
issue from the district court’s order (DE 35): whether the denial of the
motion to suppress the firearm was proper. It is further agreed, that
the conditional plea does not grant the defendant the right to appeal
the denial of the motion to suppress the defendant’s statements.
1
On appeal, Gibbs also argues that the district court applied the wrong legal standard in
evaluating his Fourth Amendment claim, pointing to the district court’s citation of United States
v. Luna-Encinas, a Fifth Amendment Miranda warnings case. 603 F.3d 876, 881 (11th Cir.
2010). But Gibbs’s suppression motion raised both Fourth and Fifth Amendment challenges to
his seizure and the admissibility of his statements to Dweck about the gun. The district court’s
citation to Luna-Encinas is fairly read as referring to Gibbs’s Fifth Amendment claim. In any
event, we may affirm on any ground supported by the record. See Beeman v. United States, 871
F.3d 1215, 1221 (11th Cir. 2017).
7
Case: 17-12474 Date Filed: 03/06/2019 Page: 8 of 16
The district court sentenced Gibbs to a 46-month term of imprisonment, to be
followed by a three-year term of supervised release.
III.
We review the denial of a motion to suppress as a mixed question of law and
fact. United States v. Valerio, 718 F.3d 1321, 1323 n.3 (11th Cir. 2013). The trial
court’s factual findings are reviewed through the prism of clear error and its
application of the law to those facts de novo. Id. In doing so, we construe the facts
in the light most favorable to the prevailing party and afford substantial deference
to the factfinder’s credibility determinations. United States v. Lewis, 674 F.3d
1298, 1303 (11th Cir. 2012).
Under the Fourth Amendment, a police officer generally may lawfully detain
an individual without a warrant if (1) there is probable cause to believe that a
traffic violation has occurred (a traffic stop), or (2) there is reasonable suspicion to
believe the individual has engaged or is about to engage in criminal activity (an
investigative or Terry stop). See United States v. Harris, 526 F.3d 1334, 1337
(11th Cir. 2008). While there are obvious differences between a traffic stop and a
Terry stop, the Supreme Court has recognized that the two are “analogous” both in
their “duration and atmosphere.” E.g. Berkemer v. McCarty, 468 U.S. 420, 439
n.29, 104 S. Ct. 3138, 3150 n.29 (1984). Of course, a “traffic stop supported by
8
Case: 17-12474 Date Filed: 03/06/2019 Page: 9 of 16
probable cause” may “exceed the bounds set by the Fourth Amendment on the
scope of a Terry stop.” See id.
In evaluating both traffic and Terry stops, we examine (1) whether the
officer’s action was justified at its inception -- that is, whether the officer had
probable cause or reasonable suspicion to initiate the stop, and (2) whether the stop
was reasonably related in scope to the circumstances that justified it in the first
place. United States v. Acosta, 363 F.3d 1141, 1144–45 (11th Cir. 2004); United
States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). “In a traffic-stop setting,
the first [of these] condition[s] -- a lawful investigatory stop -- is met whenever it
is lawful for police to detain an automobile and its occupants pending inquiry into
a vehicular violation.” Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 784
(2009). Therefore, “police need not have, in addition, cause to believe any
occupant of the vehicle is involved in criminal activity.” Id.
The Supreme Court has held that “an officer making a traffic stop may order
passengers to get out of the car pending completion of the stop.” Maryland v.
Wilson, 519 U.S. 408, 415, 117 S. Ct. 882, 886 (1997). The Court explained in
Wilson that “traffic stops may be dangerous encounters” due to the risk that
“evidence of a more serious crime might be uncovered during the stop,” prompting
the occupants of the vehicle “to employ violence to prevent apprehension of such a
crime.” Id. at 413–14, 117 S. Ct. at 885–86. Indeed, this risk may be “every bit as
9
Case: 17-12474 Date Filed: 03/06/2019 Page: 10 of 16
great” from a passenger as from a driver and, thus, ordering a passenger to exit the
vehicle reduces this risk by denying him “access to any possible weapon that might
be concealed in the interior of the passenger compartment.” Id. at 414, 117 S. Ct.
at 886; see also Johnson, 555 U.S. at 330, 129 S. Ct. at 786 (“[T]he Court has
recognized that traffic stops are especially fraught with danger to police officers.
The risk of harm to both the police and the occupants of a stopped vehicle is
minimized, we have stressed, if the officers routinely exercise unquestioned
command of the situation.” (citations, brackets, and internal quotations omitted)).
Following Wilson, this Court has consistently held that “[d]uring a lawful
traffic stop, officers also may take steps that are reasonably necessary to protect
their personal safety . . . including requiring the driver and passengers to exit the
vehicle ‘as a matter of course.’” United States v. Spoerke, 568 F.3d 1236, 1248
(11th Cir. 2009) (emphasis added) (citation omitted) (quoting Wilson, 519 U.S. at
410, 117 S. Ct. at 884); see also, e.g., Terrell v. Smith, 668 F.3d 1244, 1252 (11th
Cir. 2012). We have further held that, “in some circumstances, a police officer
conducting a traffic stop may properly direct passengers . . . to walk a reasonable
distance away from the officer.” Hudson v. Hall, 231 F.3d 1289, 1297 (11th Cir.
2000). Moreover, in contexts other than traffic stops, we have cited Wilson for the
more general proposition that an officer conducting a lawful stop or search may, in
an appropriate setting, properly control the movements of persons at the scene in
10
Case: 17-12474 Date Filed: 03/06/2019 Page: 11 of 16
order to ensure officer safety. See United States v. Holloway, 290 F.3d 1331, 1340
(11th Cir. 2002) (citing Wilson in support of the principle that officers may
temporarily secure persons present on a premises being searched in the interest of
officer safety); see also Lewis, 674 F.3d at 1306–09 (holding that, in the interest of
their safety, officers lawfully may detain an associate or companion of a person
being investigated for criminal activities, without particularized suspicion of any
wrongdoing as to that associate); United States v. Clark, 337 F.3d 1282, 1283,
1288 (11th Cir. 2003) (same).
As a preliminary matter, we have little difficulty in concluding that both
Jones and Gibbs were detained, albeit briefly, within the meaning of the Fourth
Amendment from the moment Detectives Lopez and Dweck exited their police
vehicles and approached the black Audi to the time, only seconds later, when
Gibbs blurted out that he had a weapon. The detectives parked in front of and
behind the Audi while Jones and Gibbs were standing between the Audi and the
other parked car. The detectives effectively boxed them in and blocked them from
leaving as the detectives made their approach. Thus, regardless of whether the
detectives had their weapons drawn, Jones and Gibbs were detained from the
outset of the stop for the few seconds before Gibbs said that he had a gun. See
United States v. Street, 472 F.3d 1298, 1310 (11th Cir. 2006) (“[A] person is
seized when a reasonable person would [not] feel free to terminate the encounter
11
Case: 17-12474 Date Filed: 03/06/2019 Page: 12 of 16
with the police.” (internal quotations omitted)). We must answer then two
essential questions: whether the detectives had a lawful basis to detain Jones and
Gibbs; and, whether the detectives, by drawing their weapons, somehow converted
what was a brief and lawful stop into an unlawful detention or arrest. See Acosta,
363 F.3d at 1144–45.
Although the district court analyzed this case as a Terry stop, we think it
more accurate to describe the encounter as having arisen out of a lawful traffic
stop. This case presents some differences from the typical traffic stop. Generally,
the traffic stop involves an encounter that arises when a law enforcement officer
stops a vehicle travelling on the roadways, pulls the car over, and may direct the
driver and any passenger to exit the car. See, e.g., Johnson, 555 U.S. at 330, 129 S.
Ct. at 784; Wilson, 519 U.S. at 410, 117 S. Ct. at 884; Whren v. United States, 517
U.S. 806, 808–09, 116 S. Ct. 1769, 1772 (1996); see also, e.g., Spoerke, 568 F.3d
at 1241; Harris, 526 F.3d at 1337; Hudson, 231 F.3d at 1292. But, in this case
Jones, the driver of the Audi, exited the vehicle briefly, just before the stop
occurred, and Gibbs quickly joined him at the side of the car. Undisputedly,
however, the officers pulled up to the black Audi, which was wrongfully stopped
in the middle of the traffic lane, and initiated the encounter precisely in order to
cite the vehicle for a traffic violation. The traffic violation occurred in front of
Detective Lopez, who was himself blocked from proceeding down the street by the
12
Case: 17-12474 Date Filed: 03/06/2019 Page: 13 of 16
Audi. Lopez immediately took steps to issue the citation upon seeing the violation.
Moreover, the traffic violation was ongoing at the time of the stop because the
Audi was still parked in the middle of the roadway. Finally, Jones and Gibbs were
standing in arms reach of the Audi, the vehicle’s engine continued to run, and its
headlights were still on. This encounter had the essential trappings of a traffic
stop.
We also have little difficulty in finding that the traffic stop was justified.
Plainly, Detectives Lopez and Dweck had probable cause to believe that Jones, the
driver of the black Audi, had committed a traffic violation. Lopez saw Jones drive
into the oncoming traffic lane and illegally stop his car in the middle of the street,
thereby obstructing the flow of traffic in that single lane. Unquestionably, this was
a vehicular violation under Florida law, Fla. Stat. § 316.081(1),2 one that posed a
palpable safety risk facing head-on into the oncoming traffic. Detectives Lopez
and Dweck were entitled to detain Jones for the purpose of issuing him a citation
for his traffic violation. Harris, 526 F.3d at 1337.
2
The relevant part of the statute mandates that “[u]pon all roadways of sufficient width, a
vehicle shall be driven upon the right half of the roadway.” There are exceptions which are not
applicable here. See Fla. Stat. § 316.081(1). Jones’s conduct violated other traffic statutes,
including Fla. Stat. § 316.1945(1)(a)(1), which prohibits “stop[ping], stand[ing], or park[ing] a
vehicle . . . [o]n the roadway side of any vehicle stopped or parked at the edge or curb of a
street,” which Jones violated by double-parking next to another vehicle already parked on the
side of the street. Fla. Stat. § 316. 195(1) was also violated. (“Except as otherwise provided in
this section, every vehicle stopped or parked upon a two-way roadway shall be so stopped or
parked with the right-hand wheels parallel to and within 12 inches of the right-hand curb or edge
of the roadway.”).
13
Case: 17-12474 Date Filed: 03/06/2019 Page: 14 of 16
Moreover, under the peculiar facts of this case, the detectives were also
justified in briefly detaining Gibbs while conducting the traffic stop and citing
Jones. Gibbs had obviously located himself in such a way that detaining Jones
would naturally cause Gibbs to be detained as well -- both individuals were
standing in the same narrow channel between the Audi and the car parked on the
side of the road. In fact, the only way for the detectives to approach the two men
was to effectively block any exit from either side of the narrow space between the
two cars. And the detention itself lasted only seconds before Gibbs spontaneously
said “Officer, I’m going to be honest. I have a gun on me.” Finally, it’s worth
observing that Dweck did not know at the time of the seizure whether Jones or
Gibbs was the actual driver of the vehicle and needed to determine who should be
cited for the violation. Under these circumstances, it was not unreasonable for
Detectives Lopez and Dweck to briefly detain Gibbs in order to maintain control of
the situation, cite the vehicle, and ensure the detectives’ safety. See Johnson, 555
U.S. at 327, 330, 129 S. Ct. at 784, 786; Wilson, 519 U.S. at 415, 117 S. Ct. at 886.
Again, our courts have repeatedly recognized the danger inherent in traffic stops,
particularly when persons other than the driver are present, and the concomitant
need to exercise “unquestioned command of the situation.” See Johnson, 555 U.S.
at 330, 129 S. Ct. at 786; Wilson, 519 U.S. at 413–14, 117 S. Ct. at 885–86. The
law is abundantly clear that the “command of the situation” during a traffic stop
14
Case: 17-12474 Date Filed: 03/06/2019 Page: 15 of 16
may include the brief detention of a passenger or others present. See, e.g., Wilson,
519 U.S. at 415, 117 S. Ct. at 886; Hudson, 231 F.3d at 1297.
Having determined that the detectives had a lawful basis to briefly detain
both Jones and Gibbs, we turn to whether the detectives somehow converted what
was a lawful stop into an unlawful one merely by drawing their weapons. The
antecedent basis for this traffic stop -- probable cause to believe the parked Audi
violated Fla. Stat. § 316.081 and other traffic statutes -- was in no way vitiated or
undermined because Detectives Lopez and Dweck drew their firearms. The
appellant has cited us to no case (and we can find none) that even remotely
suggests that an officer who simply drew his weapon somehow converted a lawful
detention into an unlawful one. To the contrary, we have repeatedly held that the
mere fact that an officer drew his weapon does not transform an otherwise lawful
stop into an unlawful detention. See United States v. Blackman, 66 F.3d 1572,
1576 (11th Cir. 1995); see also United States v. Diaz-Lizaraza, 981 F.2d 1216,
1221 (11th Cir. 1993); United States v. Aldridge, 719 F.2d 368, 371–72 (11th Cir.
1983); United States v. Roper, 702 F.2d 984, 985–86, 988–89 (11th Cir. 1983).
Thus, the presence of drawn firearms here did nothing to denude the stop of its
lawfulness.
Indeed, during oral argument Gibbs’s counsel was asked: “It wasn’t the
weapons that caused the detention. It wasn’t the weapons that converted a lawful,
15
Case: 17-12474 Date Filed: 03/06/2019 Page: 16 of 16
brief detention into an unlawful one, was it,” to which he replied: “No your honor,
but I think any time weapons are drawn this court should be careful of the idea that
what is being fashioned is a new, blanket, officer-safety exception to the warrant
requirement.” (emphases added). Oral Argument at 31:10, United States v. Gibbs,
___ F.3d ___ (2019) (No. 17-12474), http://www.ca11.uscourts.gov/oral-
argument-recordings. The long and short of it is that the firearm issue is a red
herring here. As we see it, the lawfulness of the encounter and the brief seizure of
Jones and Gibbs turn on the validity of the stop. The traffic stop was lawful and
the district court properly denied the motion to suppress the loaded .22 caliber
firearm found in Gibbs’s pocket only seconds after the detectives came onto the
scene. Accordingly, we affirm the judgment of the district court.
AFFIRMED.
16