United States v. Mario Jerome Bentley , 151 F. App'x 824 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11459 September 23, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00103-CR-J-32-MMH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO JEROME BENTLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 23, 2005)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Mario Jerome Bentley appeals his conviction and 180-month
sentence for being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e). On appeal, Bentley argues that the district court erred by
denying his motion to suppress evidence, i.e., a firearm found on his person.
Bentley claims that the magistrate judge’s credibility determinations were
erroneous. He also contends that the arresting officer exceeded the duration and
the scope of a constitutional traffic stop. Bentley claims that he did not consent to
the search of his person, and even if he gave equivocal and ambiguous consent, it
was later withdrawn. Bentley argues that Officer Edwards did not have a
reasonable suspicion that a crime had been committed or was about to be
committed when he ended the traffic stop. Finally, Bentley asserts that his drug
offenses committed on October 5, 1999, and October 23, 1999, constituted one,
and not two, offenses, and therefore, he did not qualify for a mandatory minimum
15-year sentence under 18 U.S.C. § 924(e).
I.
We review a district court’s denial of a motion to suppress under a mixed
standard, reviewing the district court’s findings of fact for clear error and its
application of law to those facts de novo. United States v. Gil, 204 F.3d 1347,
1350 (11th Cir. 2000). “When considering a ruling on a motion to suppress, all
facts are construed in a light most favorable to the successful party.” United States
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v. Behety, 32 F.3d 503, 510 (11th Cir. 1994).
A. Credibility findings
“Credibility determinations are typically the province of the fact finder
because the fact finder personally observes the testimony and is thus in a better
position than a reviewing court to assess the credibility of witnesses.” United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We have held that a
“trial judge's choice of whom to believe is conclusive on the appellate court unless
the judge credits exceedingly improbable testimony.” Id. (internal citations and
punctuation omitted) (emphasis in the original).
After reviewing the record, we conclude that the magistrate judge did not err
by generally crediting the testimony of Sergeant Daniel Janson and the arresting
officer, Matthew Edwards, over the testimony of Tyrone Griffin, the driver of the
car in which Bentley was a passenger. The record reveals that Edwards’s and
Janson’s testimony conflicted as to the timing of certain events, such as when the
initial traffic stop occurred, when the citations were issued, and when the sergeant
arrived at the scene. However, these inconsistencies were minor and the specific
times at which the events occurred, except for the duration of the traffic stop, were
not relevant. With regard to the duration of the traffic stop, all three witnesses
were generally consistent. Griffin’s testimony was in conflict with Edwards’s and
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Janson’s testimony in some material aspects: (1) the extent of the conversation
Edwards had with Bentley upon seeing him in the passenger seat, i.e., Bentley told
Edwards that he had been recently released from prison; (2) whether Bentley was
read his rights; and (3) whether Edwards asked for consent to the search and
whether Bentley agreed to the search. More importantly, Griffin’s testimony was
inconsistent and evasive. First, Griffin changed his testimony with regard to
whether he told Edwards that Bentley may have put something illegal in the car
and that Bentley was a drug dealer. Second, Griffin testified that his memory of
the incident was “messed up” and “sometimes good sometimes bad,” and that he
was stressed. Third, Griffin testified that he had been threatened by Bentley’s
friend regarding his testimony but was not able to provide any useful description of
the man. Thus, the record supports the magistrate judge’s credibility findings.
B. Continued Detention and Consent to the Search
An officer's investigation of a traffic stop must be "reasonably related in
scope to the circumstances which justified the interference in the first place."
Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968). In
addition, the traffic stop must be of a limited duration and “may not last any
longer than necessary to process the traffic violation.” United States v. Boyce, 351
F.3d 1102, 1106 (11th Cir. 2003) (internal quotation and citation omitted).
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However, an officer may continue the detention of the occupants of the vehicle
after the citations have been issued when the encounter has become consensual.
Id. at 1106 n.3. An encounter between law enforcement and an individual is
considered consensual when there is no coercion and the liberty of the citizen is
not restrained by a show of authority or physical force. See Florida v. Bostick,
501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991). Merely
asking an individual questions after the conclusion of a traffic stop does not
amount to a seizure. See id. “The crucial inquiry in determining whether a person
has been seized within the meaning of the fourth amendment is whether,
considering all the circumstances, a reasonable person would have believed that
he was not free to leave if he failed to respond to the questions.” United States v.
Alvarez-Sanchez, 774 F.2d 1036, 1040 (11th Cir. 1985) (internal quotation and
citation omitted).
“‘[V]oluntariness is a question of fact to be determined from all the
circumstances’ when evaluating the validity of a consent to search.” United States
v. Garcia, 890 F.2d 355, 358 (11th Cir. 1989) (citations omitted). “Thus, because
in the ordinary case a finding of voluntariness is based on credibility choices, we
will not overturn the trial judge’s finding that defendant’s consent was voluntary,
unless it is clearly erroneous.” Id. at 359.
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“The Fourth Amendment of the United States Constitution protects
individuals from unreasonable searches and seizures by law enforcement
authorities of the United States government.” Id. at 360. “It is well settled under
the Fourth and Fourteenth Amendments that a search conducted without a warrant
issued upon probable cause is per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions.” Id. (internal quotations
omitted). “One of the well-established exceptions to the probable cause and
warrant requirements is a search which is conducted pursuant to voluntary
consent.” Id. “The government bears the burden of proving the voluntariness of
the consent.” United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984).
“In order for consent to a search to be deemed voluntary, it must be the
product of an essentially free and unconstrained choice.” Garcia, 890 F.2d at 360.
“[I]n determining whether [a defendant’s] consent was voluntary, we must
scrutinize the facts, and strike a balance between [the defendant’s] right to be free
from coercive conduct and the legitimate need of the government to conduct
lawful searches.” Id.“Relevant factors in determining voluntariness, none of which is
dispositive, include voluntariness of the defendant’s custodial status,
the presence of coercive police procedure, the extent and level of the
defendant’s cooperation with police, the defendant’s awareness of his
right to refuse to consent to the search, the defendant’s education and
intelligence, and, significantly, the defendant’s belief that no
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incriminating evidence will be found.”
Chemaly, 741 F.2d at 1352. However, “[w]hile knowledge of the right to refuse
consent is one factor to be taken into account, the government need not establish
such knowledge as the sine qua non of an effective consent.” Schneckloth v.
Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973).
Similarly, the Fourth Amendment does not always require law enforcement
officers to “inform detainees that they are free to go before a consent to search
may be deemed voluntary.” Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417,
421, 136 L. Ed. 2d 347 (1996).
First, crediting the officers’ version of the facts (see section A), the record
demonstrates that the continued detention of Bentley was a result of a consensual
conversation. At the time Officer Edwards issued the citations to Griffin and
asked him whether he had anything illegal in his car, Bentley initiated a
conversation with Sergeant Janson and stated that he was working with vice or
narcotics. However, there is no indication in the record that when Edwards gave
Griffin the citations they were not free to leave. When Edwards approached the
passenger side of the vehicle and asked Bentley to step out, Bentley voluntarily
complied. Then, Edwards asked Bentley if he had any weapons or drugs on him,
and Bentley stated that he did not. The record indicates that Edwards did not
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draw his service weapon, nor made any threats or promises to Bentley at any time,
nor exerted authority over him. Thus, up to this point, the encounter between the
officers and Bentley was consensual.
Second, the record reveals that Bentley unambiguously consented to the
search of his person. To Edwards’s question whether he could search him,
Bentley gave an answer “along the lines of go ahead.” Even though Edwards did
not remember the specific language, Sergeant Janson also testified that they
obtained consent to search Bentley. Moreover, there is nothing in the record
indicating that Officer Edwards suggested that Bentley had no choice but to
consent to the search, used any coercive procedures, or made threats or promises
when asking for Bentley’s consent. On the other hand, the officers did not advise
Bentley that he was free to leave or had a right to refuse the search. However,
Bentley’s knowledge of the right to refuse consent is only one factor to be taken
into account; the government need not establish such knowledge as the sine qua
non of an effective consent. Thus, the government was not required to prove that
the suspect was aware of the right to refuse to consent. Similarly, the Fourth
Amendment does not always require law enforcement officers to inform detainees
that they are free to leave before voluntary consent to search may be deemed
established. See Robinette, 519 U.S. at 40, 117 S. Ct. at 421. Moreover, the
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record indicates that Bentley had numerous encounters with law enforcement and
on many occasions consented to pat-down searches. These facts tend to show that
Bentley was familiar with the criminal justice system and most likely was aware
of his right to refuse consent to the search. However, the record shows that
Bentley knew that Edwards would find a gun if he conducted a pat-down search,
and Bentley tried to block Edwards’s hand reaching towards his waistband.
Griffin also testified that Bentley asked him to pull over into a dark alley so he
could run away. Even though this factor militates against the finding of voluntary
consent to the search, it is not dispositive, and the totality of the circumstances
tend to show that Bentley’s consent to the search was voluntary.
C. Reasonable Suspicion
An officer may continue to detain a vehicle’s occupants after a traffic stop
has concluded if the officer has “articulable suspicion of other illegal activity.”
Boyce, 351 F.3d at 1106 (internal citation and quotation omitted). Reasonable
suspicion is “considerably less than proof of wrongdoing by a preponderance of
the evidence” and less than probable cause, which is “‘a fair probability that
contraband or evidence of a crime will be found.’” United States v. Sokolow, 490
U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (citation omitted). When
determining whether reasonable suspicion exists, the courts must review the
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“totality of the circumstances” of each case to ascertain whether the detaining
officer had a “particularized and objective basis” for suspecting legal wrongdoing.
United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740(2002) (citation omitted). In addition, “a reviewing court must give due weight to
the officer’s experience” when examining the totality of the circumstances.
United States v. Briggman, 931 F.2d 705, 709 (11th Cir. 1991). “None of the
suspect’s actions, [however], need be criminal on their face.” United States v.
Lee, 68 F.3d 1267, 1271 (11th Cir. 1995). The rule is not concerned with “hard
certainties, but with probabilities” and, thus, law enforcement officials may rely
on “common sense conclusions.” United States v. Cortez, 449 U.S. 411, 418, 101
S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981).
A defendant standing at night with his co-defendants, within ten feet of a
parked car, surrounded by largely abandoned buildings, in an area notorious for
violent crime and drug trafficking could be factors taken into consideration under
the totality of the circumstances test, although not sufficient in themselves. See
United States v. Gordon, 231 F.3d 750, 755-56 (11th Cir. 2000). Criminal history
alone is insufficient to give rise to the necessary reasonable suspicion. See United
States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). “[N]ervous, evasive behavior
is a pertinent factor in determining reasonable suspicion.” See Gordon, 231 F.3d
10at 756; but see Brent v. Ashley, 247 F.3d 1294, 1304 (11th Cir. 2001) (noting that
nervousness alone cannot give rise to reasonable suspicion) (emphasis added).
An officer who has a reasonable suspicion that an individual is engaged in
illegal activity and is armed with a concealed weapon is justified in conducting a
limited search for weapons. United States v. Hunter, 291 F.3d 1302, 1307 (11th
Cir. 2002).
“An officer may conduct a frisk or pat down of an individual in order
to conduct a limited search for weapons “where he has reason to
believe that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual
for a crime. The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in
the circumstances would be warranted in the belief that his safety or
that of others was in danger.”
Terry, 392 U.S. at 27, 88 S. Ct at 1883.
After reviewing the record, we conclude that the district court did not err by
concluding that Officer Edwards had reasonable suspicion to seize and conduct a
frisk search of Bentley. As Edwards continued searching Bentley after obtaining
consent, Bentley suddenly moved his right hand towards his waistband. Edwards
perceived this movement as aggressive and seized Bentley by grabbing and
holding his hand behind his back. The record reveals that at that time Edwards
knew the following information. First, the traffic stop occurred at approximately
3:45 a.m. in an area that had pockets of high drug activity, where Edwards had
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previously made numerous drug arrests. Second, Bentley had an extensive
criminal history and was recently released from prison after serving a sentence for
selling drugs. Third, Bentley appeared to be very nervous and his behavior was
very different than his usual behavior during these type of encounters. Fourth,
Bentley had consented to many previous pat down searches. Fifth, Edwards had
previously found Bentley twice in the vicinity of drugs. Sixth, Griffin told
Edwards that Bentley was a drug dealer than that he might have put something
illegal in the car, even though the car search did not reveal any contraband.
Seventh, despite consenting to the search, Bentley reached to his waistband so
Edwards could not reach it, Edwards believed that Bentley’s hand movement was
an aggressive move jeopardizing his safety, and that Bentley was attempting to
hide something that could hurt him. Finally, Edwards knew that drug dealers
sometimes carried guns and that people in the area were carrying weapons in order
to protect themselves from a specific individual, Lockhart. These facts were
objective and constituted more than a hunch of criminal activity. The totality of
the circumstances reveals that Edwards had a reasonable suspicion that Bentley
was dangerous and was involved in criminal activity, so the pat-down search was
justified.
II.
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Finally, Bentley contends that the district court erred in finding that two of
the three crimes that formed the requisite for a mandatory 15-year sentence were
separate offenses within the meaning of 18 U.S.C. § 924(e). Title 18 U.S.C.
§ 924(e) provides mandatory penalties, i.e., at least 15 years of imprisonment, for
any person convicted under 18 U.S.C. § 922(g), who has “three previous
convictions . . . for . . . a serious drug offense . . . committed on occasions
different from one another.” See 18 U.S.C. § 924(e)(1).
We review de novo the district court’s determination of whether two crimes
were “committed on occasions different from one another” for the purposes of 18
U.S.C. § 924(e). United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000).
So long as predicate crimes are successive rather than simultaneous, they
constitute separate criminal episodes for purposes of 18 U.S.C. § 924(e). See
United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998). Successive crimes are
“separated by a meaningful opportunity to desist activity before committing the
second offense.” See Lee, 208 F.3d at 1307 (internal quotation omitted). The fact
that offenses are consolidated for conviction and sentencing, however, does not
render them the same offense for purposes of 18 U.S.C. § 924(e). See United
States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995).
We conclude from the record that the district court did not err by finding
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that Bentley committed two separate drug offenses for purposes of 18 U.S.C. §
924(e). Bentley’s offenses were committed 18 days apart, thus, Bentley had the
time to desist his criminal activity. Second, the fact that Bentley’s offenses were
consolidated for conviction and sentencing did not render them the same offense
for purposes of 18 U.S.C. § 924(e). For the foregoing reasons, we affirm
Bentley’s conviction and sentence.
AFFIRMED.
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