United States v. Richard Odell davis, III , 710 F. App'x 805 ( 2017 )

Case: 16-15570 Date Filed: 09/26/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15570
Non-Argument Calendar
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D.C. Docket No. 9:15-cr-80186-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ODELL DAVIS, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 26, 2017)
Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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After submitting a conditional guilty plea, Richard Odell Davis III was
convicted for being a felon in possession of a firearm and ammunition in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Davis argues the district court
erred when it denied his motion to suppress a firearm seized after police officers
saw him throw it onto the roof of his house as they followed him around the
building to execute a Terry 1 stop. After review, 2 we affirm.
I. DISCUSSION
Davis contends the officers violated the Fourth Amendment in attempting to
execute a Terry stop “in a residence.” In order to enter his home without a
warrant, Davis submits, the officers needed both probable cause and exigent
circumstances. Davis’s contention is without merit, however, because the officers
did not in fact enter his residence; rather, they walked through an area outside of it
that the district court found was not within the curtilage of the home. 3 As a result,
the officers needed only reasonable suspicion to stop him, which, in this case, was
supported by the totality of the circumstances known to both officers. See United
1
See Terry v. Ohio, 392 U.S. 1 (1968).
2
“A district court’s ruling on a motion to suppress presents a mixed question of law and
fact.” United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009) (quotation
omitted). We review the district court’s factual findings for clear error and the court’s
application of law to those findings de novo. Id. We construe the facts in the light most
favorable to the party that prevailed below. United States v. Tobin, 923 F.2d 1506, 1510 (11th
Cir. 1991) (en banc).
3
In his opening brief, Davis failed to address the issue of whether this area was within
the curtilage; he has thus forfeited the contention that it was not. United States v. Noreiga, 676
F.3d 1252, 1260 n.2 (11th Cir. 2012).
2
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States v. Williams, 876 F.2d 1521, 1524 (11th Cir. 1989) (“Reasonable suspicion is
determined from the totality of the circumstances and from the collective
knowledge of the officers involved in the stop.” (citations omitted)). The stop took
place at night, in a high-crime neighborhood, outside a residence known for
criminal activity. Officer Mooney knew through his many interactions with Davis
that he was a convicted felon with gang affiliations who had had prior involvement
in selling drugs. Further, Davis began to flee the officers as soon as he became
aware of their presence and appeared to be concealing an object near his
waistband. These facts, taken together, justified a Terry stop. See Illinois v.
Wardlow, 528 U.S. 119, 124–25 (2000) (holding that the fact that an area is known
for high crime is a relevant contextual consideration in ascertaining reasonable
suspicion, as is “nervous, evasive behavior” or flight, and that together, they
justified the Terry stop at issue).
Davis next contends Officer Mooney violated the Fourth Amendment when,
without having first secured a warrant, he climbed up onto the roof of the residence
to retrieve the firearm. Davis does not dispute Officer Mooney had probable
cause, but he argues there were no exigent circumstances to justify the intrusion.
However, his appeal is unavailing on this score as well. Officers Mooney and
Myers testified they were concerned about the dissipation of DNA evidence from
the gun that could occur from precipitation on the exposed roof during the several
3
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hours it could have taken to secure a warrant, or that a resident of the house could
remove the firearm, alter the DNA evidence on it, or use it against the police.
Based on the officers’ testimony, and construing the facts in favor of the
Government, the district court did not err in finding that an exigency existed. See
United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc) (explaining
that exigent circumstances may arise when “there is danger that the evidence will
be destroyed or removed”); United States v. Beckles, 565 F.3d 832, 839 (11th Cir.
2009) (“We construe all facts in favor of the prevailing party (here the
government).”).
II. CONCLUSION
For the reasons stated above, we affirm Davis’s conviction.
AFFIRMED.
4