United States v. Derrick Vonn Smith , 533 F. App'x 465 ( 2013 )

Case: 11-50390 Document: 00512252178 Page: 1 Date Filed: 05/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 23, 2013
No. 11-50390
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DERRICK VONN SMITH,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:10-CR-296-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
A jury convicted Derrick Vonn Smith of bank robbery and carrying a
firearm during the commission of a crime of violence. Smith contends that his
trial counsel was ineffective for failing to file a motion to suppress the fruits of
his stop and arrest. While we ordinarily decline to consider the question of trial
counsel’s effectiveness on direct appeal, the record here is sufficient to determine
the issue. See United States v. Gordon, 346 F.3d 135, 136 (5th Cir. 2003).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-50390
According to Smith, law enforcement lacked a particularized reasonable
suspicion to stop him. A citizen who was in the Wells Fargo bank in Marquez,
Texas, at the time it was robbed reported seeing “a green Firebird with a brown
or tan sun roof” and a paper license plate turn east out of the bank parking lot
onto Highway 79 right after the robbery. Police stopped Smith’s car, a greenish-
blue Firebird with a tan convertible top and temporary paper license plates,
within 10 minutes of the robbery as the Firebird traveled east on Highway 79
away from the bank. The sheriff’s deputy who initiated the stop described how,
when he first turned his lights on, the Firebird pulled to the side of the road
briefly, then pulled back onto the highway and passed another vehicle. The
Firebird stopped after a second patrol car joined the pursuit. The totality of
these circumstances provided law enforcement with reasonable suspicion that
the driver of the Firebird had been involved in criminal activity. See United
States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Vickers, 540 F.3d 356,
361 (5th Cir. 2008); United States v. Hall, 557 F.2d 1114, 1115-17 (5th Cir.
1977). Because there was reasonable suspicion for the stop, Smith’s trial counsel
was not ineffective for failing to move to suppress the fruits of the stop. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Clark v. Collins, 19 F.3d
959, 966 (5th Cir. 1994).
Next, Smith contends that the stop escalated to an arrest without probable
cause when the officers drew their weapons and instructed him to lie down on
the ground without investigating him first. While Smith asserts that this show
of force was unnecessary, he was suspected of having robbed a bank at gunpoint
shortly before the stop, and he initially refused to pull over. An investigatory
stop does not become a de facto arrest merely because the officers draw their
weapons and instruct the suspect to lie down. United States v. Sanders, 994
F.2d 200, 206 (5th Cir. 1993). The officers’ actions here were reasonable under
the Fourth Amendment to protect their safety, reduce Smith’s ability to fight or
flee, and preserve the status quo. See id. at 207. Again here, Smith’s attorney
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No. 11-50390
was not ineffective for failing to file a motion to suppress the fruits of the stop.
See Strickland, 466 U.S. at 687; Clark, 19 F.3d at 966.
Finally, Smith contends that the evidence was insufficient to prove beyond
a reasonable doubt that he carried a firearm during the bank robbery. He relies
on evidence that the firearm police recovered from a ditch adjacent to Highway
79 did not contain fingerprints, that the bank security footage did not show a
firearm, and that no one in the bank other than the teller who was robbed saw
him with a weapon.
The bank teller testified that Smith pointed a gun at her during the
robbery. A volunteer firefighter who was following the Firebird down Highway
79 after hearing a report of the robbery testified that he saw the driver throw a
pistol from the car window. The firefighter also testified that he located the
firearm in a ditch soon after that. When this evidence, all reasonable inferences
therefrom, and all credibility determinations are viewed in the light most
favorable to the Government, the evidence was sufficient for a reasonable jury
to find beyond a reasonable doubt that Smith carried a firearm during the bank
robbery. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
The judgment of the district court is AFFIRMED.
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