USCA11 Case: 21-13689 Date Filed: 10/31/2022 Page: 1 of 19
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13689
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY JAMES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00007-KD-B-1
____________________
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2 Opinion of the Court 21-13689
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Jeffrey James appeals his conviction for possession of a
firearm by a felon. Specifically, James appeals the denial of his
motion to suppress evidence discovered as the result of a search of
his person and the statements made following that search. James
argues that police did not have reasonable suspicion to support the
search, rendering it illegal, and that the evidence found on his
person and resulting statements were poisonous fruits of the illegal
search. He also argues that his statements to police resulted from
a custodial interrogation started before Miranda 1 warnings were
given and should therefore have been suppressed. After review,
we affirm.
I. BACKGROUND
A federal grand jury indicted Jeffrey James (“James”) for
possession of a firearm by a felon in violation of
18 U.S.C.
§ 922(g)(1). James moved to suppress evidence and to dismiss the
indictment. James sought the suppression of a firearm found on
his person during a pat-down search following a traffic stop and his
subsequent statements to police. While James did not contest the
basis of the traffic stop or its duration, he argued that the officers
did not have reasonable suspicion that he was armed and
1
Miranda v. Arizona,
384 U.S. 436 (1966).
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dangerous and the search of his person was therefore illegal. On
this basis, he argued that the firearm and his statements about it
were the products of an illegal search. Further, James argued that
officers elicited statements from him during a custodial
interrogation, prior to administering Miranda warnings to him.
Finally, James argued that without the firearm and statements, the
government lacked any legally obtained evidence and the
indictment must be dismissed.
A. Evidentiary Hearing
The district court held an evidentiary hearing on James’s
motion. At the hearing, the government called the two officers
who conducted the traffic stop as witnesses and James cross-
examined them. The court then heard argument from James and
the government before denying James’s motion.
1. Testimony of Officer Blake Russell
Officer Blake Russell, formerly of the Mobile, Alabama
Police Department, testified that from 2018 to 2021, he was
assigned to a “hot-spot area” 2 in Mobile. On the night of August
14, 2020, Officer Russell pulled over a black Ford Escape for a traffic
violation in one of his assigned hot-spot areas. Officer Russell wore
a body camera that recorded the events of the stop and the footage
2
Officer Russell testified that “hot-spot areas” are areas that experience high
levels of violent crimes such as shootings, robberies, and domestic violence as
well as drug activity.
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4 Opinion of the Court 21-13689
from the camera was shown at the hearing. The footage shows the
following events.
After pulling over the black Ford Escape, Officer Russell,
along with Officer Jorge Chiang, approached the vehicle. There
were three people inside the car—a female driver, a female
passenger in the front passenger seat, and James in the rear seat of
the car. After requesting a license and proof of car insurance from
the driver, Officer Russell asked the occupants if there were any
weapons in the vehicle. The driver, handing over several
documents, responded that there were no weapons in the vehicle.
The video shows James speaking with Officer Chiang during the
initial moments of the stop, showing his hands to Officer Chiang,
moving them to his lap, and reaching towards his pockets. Officer
Russell again asked whether there were any weapons in the vehicle
and James responded that he had turned over his pocketknife to
Officer Chiang. James provided his identifying information to
Officer Russell.
Officer Russell then asked each occupant individually if they
had any weapons or narcotics in the vehicle. The driver admitted
that she had an open container in the vehicle. James responded for
a second time that he had given his pocketknife to Officer Chiang:
“I just gave him my knife, but what I’m trying to see is, y’all got
probable cause to search? I don’t care. I don’t care. Is y’all got
probable cause.”
The officers asked each occupant to exit the car and sit on
the front bumper of the patrol vehicle. When James exited the car,
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Officer Russell informed James that he would pat him down.
While James turned to put his hands on the car, he informed
Officer Russell that he received a ride from the female occupants
to “take this back, somebody left it in my car.” Officer Russell
handcuffed James, proceeded with the pat-down, and located a
pistol in James’s right pant leg. Officer Russell asked James if he
had a permit for the gun and James responded that he did not.
James informed Officer Russell that the pistol was not his and
reiterated repeatedly that he was “taking it back.” Officer Russell
placed James in the back seat of his patrol vehicle.
Several minutes later, Officer Russell read James his Miranda
rights and questioned him about the firearm. James told Officer
Russell that the firearm belonged to his cousin, James did not have
a pistol permit and he had a prior felony conviction.
At the evidentiary hearing, Officer Russell stated that upon
approaching the vehicle, he immediately smelled marijuana, he
observed open containers in the front seat, and he noticed the
slurred speech and nervous behavior of the occupants. He testified
that the occupants were speaking over each other, which he
considered might have been an attempt to distract the officers.
As for James’s behavior, Officer Russell testified that when
he asked James whether he had any weapons or narcotics, James
“hesitated” and questioned whether Officer Russell had probable
cause to search. Officer Russell testified that as a result of his
training and experience, he interpreted this as a sign that James was
deceptive or hiding something.
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Officer Russell explained that he asked James and the two
females to step out of the vehicle “[f]or officer safety” due to the
nervousness of the occupants and because the officers were
outnumbered. He decided to pat down James because James
displayed signs of nervousness and deception and James’s baggy
clothes made it impossible for Officer Russell to tell if James was
carrying a weapon. When Officer Russell began the pat down,
James started apologizing and repeatedly stated that he was trying
to “take it back,” which Officer Russell took to mean that James
was attempting to admit that he was carrying a weapon. Officer
Russell stated that James cooperated with the officers in providing
accurate personal information and showing his hands when the
officers approached the vehicle. No marijuana was found in the car
or on any of the occupants.
2. Testimony of Officer Jorge Chiang
The government next called Officer Chiang to testify,
showing footage from his body camera, which begins shortly after
James turned over his pocketknife to Officer Chiang. The footage
is consistent with the footage from Officer Russell’s body camera.
After Officer Russell placed James in the back of the patrol
vehicle, but prior to him receiving Miranda warnings, the footage
shows Officer Chiang approaching the vehicle and asking James if
he called out for him. James responded, “Yes, sir” and Officer
Chiang asked James, “What’s up, man?” Officer Chiang did not
provide Miranda warnings to James upon approaching the vehicle.
James explained to Officer Chiang that his cousin, who James
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believed had a pistol permit, left the pistol in James’s girlfriend’s
car. James could not leave the firearm in his girlfriend’s car because
his girlfriend has two children. James’s cousin told James to bring
the pistol back to him and, while walking the pistol back to his
cousin, James called the female occupants for a ride. James stated
that there was “one in the clip” and reiterated that he does not
“play with” firearms.
Officer Chiang then asked James, “So he let you put yourself
in that spot?” James responded that he did not want firearms
around him and, because he typically walks from place to place, he
did not want to walk around with a firearm on his person. Officer
Chiang responded, “Right,” and asked James why he did not
mention the pistol when he turned over his pocketknife. James
stated that he knew he was not supposed “to be around them” and
that he would go to jail if found with a firearm. James reiterated
his explanation for having the gun, his attempts to return it to his
cousin, and his understanding that he was not supposed to have it.
Officer Chiang asked James if the pistol was stolen and James stated
that he did not know.
On cross-examination, Officer Chiang testified that the area
in which he and Officer Russell stopped James was a high-crime
area known for burglaries but stated that he did not have crime
statistics for the area on hand. Officer Chiang did not recall
smelling marijuana when he approached the vehicle.
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B. District Court’s Findings and Rulings
Following argument from James and the government, the
district court found that the officers had reasonable suspicion to
initiate a frisk of James’s person based on concerns for officer safety.
The court summarized its findings:
[T]here was sufficient evidence to support that the
officer[s] had reasonable suspicion for the pat-down
for officer safety based on the [fact that] the officers
were outnumbered, particularly when they
approached the car. The defendant had slurred
speech. The smell of marijuana. He wouldn’t answer
the questions. He evasively answered the questions.
And then produced that he at least had one weapon.
At that point—and also the fact that he was wearing
the baggy clothes gave the officer more than what he
needed to do an officer safety pat-down to—on him.
The court also found that James was in custody the moment
that Officer Russell handcuffed him prior to patting him down.
However, because the government stated on the record that it
would not seek to use James’s pre-Miranda statement that he did
not have a pistol permit, the court ruled that James’s motion to
suppress that statement was moot. Similarly, because the
government conceded that James’s pre-Miranda statement to
Officer Chiang that he did not know whether the gun was stolen
was not admissible, the court ruled that James’s motion to suppress
that statement was also moot. Finally, the court ruled that James’s
post-Miranda statements to Officer Russell were admissible.
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As to the remaining statements, the court ruled that James
had not made any incriminating statements to Officer Russell prior
to receiving the Miranda warnings. Lastly, the court ruled that
James’s statements to Officer Chiang, up until responding to
Officer Chiang’s question of whether the gun was stolen, were also
admissible. The court thus denied James’s motion.
C. Guilty Plea, Sentencing, and Appeal
James pleaded guilty to possession of a firearm by a felon in
violation of
18 U.S.C. § 922(g)(1) reserving his right to appeal the
district court’s denial of his motion to suppress. The district court
sentenced James to 37 months’ imprisonment, adjusted to 32
months for time served, followed by a three-year term of
supervised release. James appealed his conviction, the district
court’s judgment, and the denial of his motion to suppress.
II. ANALYSIS
On appeal, James makes two arguments: (1) the officers did
not have reasonable suspicion that James was armed and
dangerous and thus the Terry 3 frisk was unlawful; and (2) James’s
statements were fruits of an illegal search and violated his Fifth
Amendment rights.
3
Terry v. Ohio,
392 U.S. 1 (1968).
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10 Opinion of the Court 21-13689
A. Reasonableness of the Terry Frisk
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 the law to those facts de
novo. United States v. Bervaldi,
226 F.3d 1256, 1262 (11th Cir.
2000). We also construe all facts in the light most favorable to the
prevailing party below.
Id. A factual finding is clearly erroneous
if, after reviewing all the evidence, we have a definite and firm
conviction that the district court made a mistake. United States v.
Villarreal,
613 F.3d 1344, 1349 (11th Cir. 2010). When there is a
credibility dispute, we will not reverse the factfinder for clear error
unless the testimony is “so inconsistent or improbable on its face
that no reasonable factfinder could accept it.” United States v.
Pineiro,
389 F.3d 1359, 1366 (11th Cir. 2004) (quotation omitted).
Questions of probable cause and reasonable suspicion are reviewed
de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996).
As a general matter, any evidence obtained through
unconstitutional searches and seizures is inadmissible. Mapp v.
Ohio,
367 U.S. 643, 654–55 (1961). This exclusionary rule extends
beyond the direct products of the constitutional violation to the
“fruit of the poisonous tree”—evidence that became available only
through the exploitation of the police misconduct, rather than
through an independent, legitimate search. Wong Sun v. United
States,
371 U.S. 471, 485, 488 (1963).
In interpreting the Fourth Amendment’s protection against
unreasonable searches and seizures, the Supreme Court has held
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that an officer may frisk a legally stopped individual for weapons if
he reasonably believes that the individual is armed and dangerous.
Terry v. Ohio,
392 U.S. 1, 27 (1968). “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.”
Id. Similarly, an officer may conduct a pat-down search
of a person seized during a lawful traffic stop, if the officer has a
reasonable suspicion that the individual is armed and dangerous.
Arizona v. Johnson,
555 U.S. 323, 327 (2009). We evaluate the
totality of the circumstances to determine whether the officer’s
suspicion was reasonable. United States v. Johnson,
921 F.3d 991,
998 (11th Cir. 2019) (en banc). Circumstances considered include
“the number of officers” at the scene, and a person’s nervous,
argumentative, or evasive behavior. Id.; United States v. Bishop,
940 F.3d 1242, 1248–49 (11th Cir. 2019). The reasonable suspicion
inquiry “allows officers to draw on their own experience and
specialized training to make inferences from and deductions about
the cumulative information available to them that might well
elude an untrained person.” United States v. Arvizu,
534 U.S. 266,
273 (2002) (quotations omitted). Still, an officer’s suspicion, based
on inferences drawn in light of his experience, must rise beyond an
“inchoate and unparticularized suspicion or hunch.” Terry,
392
U.S. at 27 (quotations omitted).
We turn first to the district court’s factual findings
supporting reasonable suspicion. The district court found that
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James had slurred speech, he did not answer some questions at all,
he answered other questions evasively, he had already produced
one weapon, he was wearing baggy clothes, the officers were
outnumbered, and Officer Russell smelled marijuana. James
challenges two of these findings. He contends that the record
evidence does not support that he had slurred speech or that the
car smelled of marijuana. 4
James has not shown that the district court clearly erred in
making these factual findings. We cannot say that we have a
“definite and firm conviction” that the district court incorrectly
4
Throughout his briefs, James contends that other facts upon which the
government relies as support for reasonable suspicion are contradicted or
otherwise not supported by the record—such as the characterization of the
area as “high crime,” that James acted “evasive, confrontational, and
argumentative,” and that James moved his hands frequently, not keeping
them in view the entire time he was in the vehicle. James also argues that
“nervousness does not create reasonable suspicion that a person is armed and
dangerous.” The district court, however, did not make factual findings on
whether the area was high-crime or whether James acted confrontational or
argumentative. Nor did the district court make an explicit finding
characterizing the movement of James’s hands during the stop or as to
whether James’s apparent nervous behavior, to which both officers testified,
supported reasonable suspicion for the frisk. We will therefore not discuss
James’s arguments as to those facts here. Rather, we focus our analysis on the
only two factual findings James challenges as clearly erroneous: the marijuana
odor and his slurred speech. To the extent that James seeks to challenge as
clearly erroneous the district court’s findings that he was acting evasively and
would not answer certain questions, we have reviewed the body camera
footage from both officers and conclude that the district court did not commit
clear error.
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concluded that James’s speech was slurred after review of the body
camera footage. Villarreal,
613 F.3d at 1349. As for Officer
Russell’s testimony that he smelled marijuana coming from the
vehicle, the district court was permitted to make a credibility
determination in conducting its reasonable suspicion analysis. The
mere fact that the two officers had somewhat inconsistent
testimony does not render the district court’s finding clearly
erroneous. Anderson, 470 U.S. at 575 (“[W]hen a [district court’s]
finding is based on [its] decision to credit the testimony of one of
two or more witnesses, each of whom has told a coherent and
facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually
never be clear error.”); see also United States v. Rodriguez,
398
F.3d 1291, 1296 (11th Cir. 2005). The district court was therefore
free to credit Officer Russell’s testimony that he smelled marijuana.
Indeed, “[w]here two permissible views of the evidence exist, ‘the
factfinder’s choice between them cannot be clearly erroneous.’”
United States v. Holloway,
74 F.3d 249, 252 (11th Cir. 1996)
(quoting Anderson v. Bessemer City,
470 U.S. 564, 574 (1985)). It
is not clear from the face of the evidence that this testimony was
“so inconsistent” such that we could conclude the district court
clearly erred. Pineiro, 389 F.3d at 1366.
James also argues that the officers did not have a
particularized and objective basis for their reasonable suspicion
that James was armed and dangerous. We disagree. The totality
of the circumstances indicates that the pat-down was reasonable.
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14 Opinion of the Court 21-13689
It was late at night, the officers were outnumbered, and all of the
occupants exhibited slurred speech. One of the officers smelled
marijuana coming from the vehicle. 5 Additionally, although James
had already turned over one weapon to police, when asked
whether there were other weapons in the car, he responded
evasively and questioned the officers about the basis for probable
cause. These factors taken together gave Officer Russell “reason
to believe that he was ‘dealing with an armed and dangerous
individual’” and that the officers’ safety may be in danger, which
justified the pat-down of James. United States v. Clay,
483 F.3d 739,
743 (11th Cir. 2007) (quoting Terry,
392 U.S. at 27).
Accordingly, the district court did not err in denying James’s
motion to suppress.
5
James argues that because the officers did not mention the marijuana odor at
the time of the stop or did not find any marijuana in the vehicle, the odor
cannot support reasonable suspicion. However, as James notes, we have held
that “marijuana alone may provide a basis for reasonable suspicion for further
investigation of possible criminal conduct.” United States v. White,
593 F.3d
1199, 1203 (11th Cir. 2010). Moreover, the district court was free to credit
Officer Russell’s testimony as to the marijuana odor in the absence of directly
contradictory extrinsic evidence and where Officer Russell’s testimony was
not internally inconsistent. Anderson,
470 U.S. at 575; Holloway,
74 F.3d at
252.
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B. Suppression of James’s Statements
James argues that the district court erred in denying his
motion to suppress the statements he made to Officer Chiang while
seated in the rear of the patrol vehicle before receiving Miranda
warnings. Specifically, he argues that, in response to Officer
Chiang’s questions, he stated that he did not voluntarily produce
the firearm when he produced the knife because he was a felon and
knew he was not supposed to have a firearm. He argues that
suppression of his statements to Officer Chiang was warranted for
two reasons: (1) the statements were made following an illegal
frisk; and (2) the statements were obtained in violation of his Fifth
Amendment rights. As discussed above, the frisk was lawful. We
therefore turn to James’s Fifth Amendment arguments.
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. In Miranda, the Supreme Court established
that statements made during a custodial6 interrogation are not
admissible at trial unless the defendant was first advised of his
rights, including the right against self-incrimination. Miranda,
384
U.S. at 444–45. A person in custody is subject to “interrogation”
when they face “express questioning or its functional equivalent.”
Rhode Island v. Innis,
446 U.S. 291, 300–01 (1980). This includes
6
The district court found that James was in custody for purposes of Miranda
when he was handcuffed by Officer Russell. Neither James nor the
government argue that this finding was erroneous.
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16 Opinion of the Court 21-13689
any “words or actions” by the police “other than those normally
attendant to arrest and custody” that the police should have known
were “reasonably likely to elicit an incriminating response.”
Id. at
301. Interrogation reflects a “measure of compulsion above and
beyond that inherent in custody itself.”
Id. at 300. A defendant’s
volunteered statements are not barred by the Fifth Amendment.
Miranda,
384 U.S. at 478. Accordingly, “a district court need not
suppress spontaneous remarks that are not a product of
interrogation.” United States v. Hall,
716 F.2d 826, 830 (11th Cir.
1983) (quotations omitted).
Additionally, the “simple failure to administer the [Miranda]
warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s ability to
exercise his free will,” does not taint the investigatory process to
the point that a subsequent voluntary and informed waiver is
ineffective. Oregon v. Elstad,
470 U.S. 298, 301 (1985). “[C]ourts
are not to presume that the existence of [an] earlier unwarned
statement compelled the defendant to give another one, but
instead should assume that ordinarily giving proper Miranda
warnings removes the effect of any conditions requiring
suppression of the unwarned statement.” United States v. Street,
472 F.3d 1298, 1313 (11th Cir. 2006).
Harmless error review applies to decisions denying motions
to suppress on Fifth Amendment grounds. United States v.
Arbolaez,
450 F.3d 1283, 1292 (11th Cir. 2006). To find that an error
was harmless on direct appeal, we must determine that the error
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was “harmless beyond a reasonable doubt.” United States v. Lall,
607 F.3d 1277, 1292–93 (11th Cir. 2010) (quotation marks omitted).
In making that determination, we must determine whether there
is a reasonable probability that the erroneously admitted evidence
“might have contributed to the conviction.” Arbolaez,
450 F.3d at
1292–93. Importantly, the improper admission of statements made
before an individual received Miranda warnings is harmless where
the statements were encompassed by a subsequent, properly
admitted statement. Street,
472 F.3d at 1315. 7
James challenges the admission of his pre-Miranda
statement to Officer Chiang that he did not turn over the firearm
at the same time as the pocketknife because he knew, as a felon, he
was not supposed to have a firearm. Assuming that admission of
this statement was error, the error is harmless. As demonstrated
from Officer Russell’s body camera footage, James, after receiving
his Miranda rights, informed Officer Russell that he was a
convicted felon, that he did not have a pistol permit, and that he
7
We recognize that harmless error review does not fit neatly with this case.
It is difficult to discern whether denial of the motion to suppress made a
difference to James’s conviction because he pleaded guilty. However, James
does not argue on appeal that, but for denial of his motion, he would not have
pleaded guilty. Furthermore, even assuming it was error to admit his
statements to Officer Chiang, there was sufficient admissible evidence to
convict him of possession of a firearm by a felon; namely, James admitted to
Officer Russell after receiving Miranda warnings that he was a convicted felon,
that he did not have a pistol permit, and that he knew he was not supposed to
have a firearm in his possession.
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knew he was not supposed to have a firearm in his possession.
Therefore, because the challenged information in James’s
statement to Officer Chiang was also included in James’s post-
Miranda statements to Officer Russell, any error in the admission
of his pre-Miranda statements was harmless. Street,
472 F.3d at
1313, 1315.
Moreover, based on James’s post-Miranda statements, there
was sufficient evidence to conclude that James was a felon, that he
knew of his status of a felon, and that he knowingly possessed a
firearm, which is all that is required for the offense of felon in
possession of a firearm. See Rehaif v. United States, __ U.S. __,
139
S. Ct. 2191, 2200 (2019). Accordingly, there is no reasonable
probability that James’s pre-Miranda statements might have
contributed to conviction. Arbolaez,
450 F.3d at 1292–93.
Accordingly, the district court did not err in denying James’s
motion to suppress the statements about the firearm made to
Officer Chiang.
III. CONCLUSION
The district court did not err in denying James’s motion to
suppress. Officer Russell’s pat-down search was lawful because it
was supported by reasonable suspicion that James was armed and
dangerous. Additionally, even assuming that the district court
erred in failing to suppress some of James’s pre-Miranda
statements, because James made the same admissions after
receiving Miranda warnings, any such errors were harmless. As
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such, there is no reasonable probability that the pre-Miranda
statements contributed to his conviction.
AFFIRMED.
