United States v. Antwan D. Jackson , 558 F. App'x 932 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13056
Non-Argument Calendar
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D.C. Docket No. 6:12-cr-00202-CEH-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTWAN D. JACKSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 10, 2014)
Before TJOFLAT, HILL, and ANDERSON, Circuit Judges.
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PER CURIAM:
Antwan Jackson appeals his conviction for possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e)(1). On appeal, Jackson argues the district court erred by
denying his motion to suppress the fruits of a traffic stop, and by denying his
motion for judgment of acquittal because the government failed to establish venue
and possession. Each of these arguments is addressed in turn below.
I. MOTION TO SUPPRESS
The denial of a defendant’s motion to suppress generally involves a mixed
question of fact and law. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.
2007). Findings of fact are construed in the light most favorable to the prevailing
party below and reviewed for clear error, while findings of law are reviewed de
novo. Id. We give deference to district courts’ credibility determinations. United
States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003). A failure to object to a
magistrate’s findings in accordance with Rule 59(b)(2) waives a party’s right to
review of those findings. See Fed.R.Cr.P. 59(b)(2); United States v. Garcia-
Sandobal, 703 F.3d 1278, 1283 (11th Cir. 2013) (holding that a defendant waived
his right to appellate review on an issue because he did not file a timely objection
to the magistrate’s recommendation and report).
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A traffic stop does not violate the Fourth Amendment if it is either based
upon probable cause to believe a traffic violation has occurred or reasonable
suspicion of criminal activity. United States v. Harris, 526 F.3d 1334, 1337 (11th
Cir. 2008). Police officers have probable cause when the facts and circumstances
within their collective knowledge would cause a prudent person to believe the
suspect has committed or is committing an offense. Craig v. Singletary, 127 F.3d
1030, 1042 (11th Cir. 1997)(en banc). Reasonable suspicion is a lower standard
than probable cause, and is satisfied by “considerably less than proof of
wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490
U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). The existence of probable
cause or reasonable suspicion is viewed from the standpoint of an objectively
reasonable police officer. United States v. Chanthasouxat, 342 F.3d 1271, 1276
(11th Cir. 2003). The inquiry is centered on information available to officers at the
time of the stop, and not whether a suspect’s conduct is ultimately proved lawful.
United States v. Lewis, 674 F.3d 1298, 1305 (11th Cir. 2012).
Florida law provides:
A person shall not operate any motor vehicle on any
public highway, road, or street on which vehicle the side
wings and side windows on either side forward of or
adjacent to the operator’s seat are composed of, covered
by, or treated with any sunscreening material or other
product or covering which has the effect of making the
window nontransparent or which would alter the
window’s color, increase its reflectivity, or reduce its
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light transmittance, except as expressly permitted by this
section. A sunscreening material is authorized for such
windows if, when applied to and tested on the glass of
such windows on the specific motor vehicle, the material
has a total solar reflectance of visible light of not more
than 25 percent as measured on the nonfilm side and a
light transmittance of at least 28 percent in the visible
light range.
Fla. Stat. § 316.2953. There are exceptions for people with certain medical
conditions, law enforcement canine units, and licensed private investigators. Fla.
Stat. § 316.29545. Officers are permitted to detain suspects long enough to
determine whether they qualify for an exemption to a statute. See Lewis, 674 F.3d
at 1304.
Jackson is precluded from arguing that a patrol deputy could not determine
the car he was riding in had tinted windows when he passed it on the road. In
addition to the deference we give to a district court’s credibility determinations, the
uncontested findings of fact from the magistrate, adopted by the district court, state
that the car Jackson was riding in had “very, very, very dark” windows, and that an
officer was able to determine that fact when he passed the car on the highway.
Because Jackson waived his right to challenge those facts on appeal by not
objecting to the magistrate’s factual findings, he cannot challenge the officer’s
ability to make that determination.
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It also does not matter that the record lacks evidence showing the windows
of the car Jackson was riding in actually violated the window tint statute. Probable
cause is determined by officers’ knowledge at the time of the stop, and the record
states that an officer observed a car with heavily tinted windows. Even if the
windows did not turn out to violate Florida law, a stop based on an officer’s
incorrect but reasonable assessment of facts does not violate the Fourth
Amendment.
Jackson’s argument that there was no probable cause to stop the vehicle
because officers did not investigate whether he fell within an exemption to the
window tint statute also fails, because Moore and Gray were entitled to stop the car
and discern whether its operator qualified for an exemption for the statute. Then,
as they effectuated that stop, reasonable suspicion of criminal activity arose further
justifying the detention.
Contrary to Jackson’s stance, an officer’s knowledge of the car’s rental
status also does not change the probable cause analysis. The statute deals with
operation of a car with tinted windows, and not ownership of such a car.
Finally, Jackson’s argument that a gun on the center console did not justify
detention beyond a simple traffic stop fails because the gun was not the reason for
extending the stop. The stop was extended because there was reasonable suspicion
that the driver had committed battery and had attempted to flee and elude police.
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Since all of the car’s occupants piled into the back seat before the officers could
determine who was driving the vehicle, and Jackson crawled out of the back seat of
the car, there was reasonable suspicion to believe Jackson was the driver and his
detention was reasonable. Therefore, the district court did not err in denying
Jackson’s motion to suppress.
II. MOTION FOR JUDGMENT OF ACQUITTAL
We review the denial of a motion for judgment of acquittal based on the
sufficiency of the evidence de novo, drawing all inferences and credibility
determinations in the government’s favor. United States v. Robertson, No. 12-
10046, manuscript op. at 13 (11th Cir. Nov. 12, 2013). The evidence need not
“exclude every reasonable hypothesis of innocence” as long as a reasonable trier of
fact could find the evidence establishes guilt beyond a reasonable doubt. United
States v. Young, 906 F.2d 615, 618 (11th Cir. 1990).
The Sixth Amendment and Fed.R.Crim.P. 18 give a criminal defendant a
right to trial in the district court where the alleged offense was committed. United
States v. DiJames, 731 F.2d 758, 761 (11th Cir. 1984). An improper venue claim
is reviewed to determine whether the government proved the offense took place in
the trial district by a preponderance of the evidence. United States v. Burroughs,
830 F.2d 1574, 1580 (11th Cir. 1987). Evidence is viewed in the light most
favorable to the government, and all reasonable inferences and credibility
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determinations are drawn in favor of the district court’s verdict. Id. Circumstantial
evidence without any direct evidence can be sufficient to show venue. United
States v. Bustos-Guzman, 685 F.2d 1278, 1280 (11th Cir. 1982).
Generally, a fact finder is entitled to infer from his or her own experiences
and from the manner the evidence was presented that witnesses were referring to
place and street names within a specific district. United States v. White, 611 F.2d
531, 535 n.5 (11th Cir. 1982). Similarly, judicial notice can be used. United
States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006).
Possession of a firearm can be shown by demonstrating actual physical
possession, or by proving constructive possession, meaning the person enjoyed
ownership, dominion, or control over an object or the premises where it was
concealed. United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005).
Mere presence in the vicinity or association with another person in possession of a
gun does not amount to constructive possession. United States v. Perez, 661 F.3d
568, 576 (11th Cir. 2011). The government must prove the defendant was aware
of the firearm’s presence and had the ability and intent to later exercise dominion
and control over that firearm. Id.Here, two officers testified that they were on patrol in Volusia County when
they encountered the vehicle Jackson was riding in. Another testified that he
encountered him while working with the Daytona Beach Police Department.
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Street names and the name of a club were also given. As a fact finder, the judge
could have taken judicial notice or relied on personal knowledge to place those
locations within the Middle District of Florida. Taking this evidence in the light
most favorable to the government, venue was established by a preponderance of
the evidence.
As to the handgun, it was found in plain view on the center console of the
vehicle, so a reasonable trier of fact could infer Jackson was aware of the gun.
Regardless of which seat Jackson actually occupied in the car, he would have been
able to easily reach the gun, so he had access to it. Finally, because Jackson told
Detective Vahey he had “held” that gun because of an “issue” he was having with
somebody, a reasonable fact finder could have concluded Jackson had intent to
exercise dominion and control over the firearm, and therefore constructively
possessed it.
Furthermore, the government also met its burden in establishing actual
possession on a prior occasion. A detective testified that Jackson admitted he had
“held” the gun, then later changed his story, claiming he had just “touched” it. A
reasonable fact finder could make the credibility determination that the first story
was more believable. Additionally, Jackson did not admit to possessing just any
gun, he specifically said “that” gun when questioned about the gun found in the
car, and identified it as a .380. The gun recovered in the car was also a .380 caliber
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pistol. Therefore, a reasonable fact finder could have concluded the government
proved the element of possession, and the district court did not err by denying the
motion for judgment of acquittal.
III. CONCLUSION
For the foregoing reasons, we conclude the district court did not err in
denying Jackson’s motion to suppress or in denying his motion for judgment of
acquittal. Accordingly, we affirm.
AFFIRMED.
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