United States v. Gross Williams , 880 F.3d 713 ( 2018 )

Case: 17-30198 Document: 00514320824 Page: 1 Date Filed: 01/24/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30198
Fifth Circuit
FILED
January 24, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
GROSS WILLIAMS,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
Defendant-Appellant Gross Williams appeals the district court’s rulings
denying his motions to suppress. For the following reasons, we affirm.
I. Facts & Procedural History
Defendant-Appellant Gross Williams was convicted in 2012 in Iberville
Parish on state charges of distributing marijuana and placed on five years of
probation. Conditions of Williams’s probation included permitting home visits
from the probation officer, refraining from owning or possessing firearms, and
consenting to probation officer searches of his person or property at any time
with or without an arrest warrant. Specifically, Condition 13 of his probation
conditions provided that Williams was required to:
Agree to searches of his person, his property, his place of residence,
his vehicle, or his personal effects, or any or all of them, at any
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time, by the probation officer or the parole officer assigned to him,
with or without a warrant of arrest or with or without a search
warrant, when the probation officer or the parole officer has
reasonable suspicion to believe that [Williams] is engaged in or has
been engaged in criminal activity.
Probation officer Patrick Green testified that during the term of
Williams’s probation, he was a model probationer and as a result, in 2014
Officer Green began the process of drafting a “petition for cause” to request
that the court terminate Williams’s probation early. While Officer Green was
writing the petition, he received a call from his district administrator to report
to his office where a meeting was being held with the Drug Enforcement
Administration (DEA). Officer Green was then informed that the New Orleans
Police Department (NOPD) and the DEA had determined that Williams was
involved in the narcotic trafficking of large amounts of heroin. Officer Green
testified that he was “shocked” at the news.
As a result of the tip from the NOPD and DEA and his knowledge of
Williams’s prior criminal history involving drugs, including the offense for
which he was currently on probation, Officer Green concluded that he was
warranted in conducting a compliance check on Williams. Officer Green called
Williams and asked him to come to his office but Williams said he could not
leave his dealership because he was the only person there. Consequently,
Officer Green, along with several other probation officers and law enforcement
from a neighboring parish, traveled to Williams’s car dealership to begin the
process of the compliance check which would traditionally involve transporting
Williams to his home to investigate further. When he arrived at the
dealership, Officer Green testified that he walked up to Williams and “noticed
that he had bulges underneath his clothing” so he asked Williams “do you have
anything on you I need to know about, anything illegal, any sharp, anything
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that could hurt me[?]” Williams replied no but then stated that he had cash in
his pockets. Officer Green testified that at that point, he Mirandized Williams
and then “started to conduct a frisk, a pat-down, in which I felt large objects
underneath in his pockets. I then removed those objects and they turned out
to be wads of cash from both his shirt and his pants. And the reason I removed
those is I wanted to see if there were any weapons on the other side of him with
the large bulges. I could not tell what else was in his pockets.” Officer Green
testified that as a result of the pat-down, he found in Williams’s shirt and pants
pockets “wads of cash that had been . . . folded over in half of varying
denominations, ones, fives, tens, 20s, 100s—not all of it in the same numerical
order and varying amounts in different pockets.” Officer Green continued, “I
asked him where the money came from, and he told me that the money had
come from the car dealership from him selling the cars.” Although Williams
had estimated that the cash totaled approximately $14,000, law enforcement
counted $10,000. Officer Green testified that he found this large amount of
cash odd since Williams had previously reported that he made approximately
$2,500 per month in income. Officer Green further noted that it seemed
strange that Williams had reported that he was alone at the car dealership but
when officers arrived, Williams’s wife was there.
Thereafter, Officer Green continued conversing with Williams and
obtained his consent to search his business. Officers walked a drug dog around
the dealership and nothing was discovered except approximately $2,000 in
cash. DEA agents then arrived and asked Williams where the cash on his
person came from. He replied that a person named “Twon” had given him the
money to buy cars at an auction. Officer Green testified that this information
put him on alert because not only was it a contradictory answer to the
explanation Williams had given him for having the money but also because
Twon was “the largest drug dealer in the New Orleans East area.” A drug dog
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subsequently alerted to the presence of drug residue on the cash that was found
on Williams’s person.
Officers then obtained consent to search Williams’s mother’s home on
Caffin Street because her address was listed on the incorporation papers to his
business. In an effort to end the ongoing search of his mother’s home, Williams
voluntarily stated to officers: “What you are looking for is at my house. I have
a gun and money at my residence.” No contraband was discovered at
Williams’s mother’s house. Officers then traveled to Williams’s personal
residence on Sandalwood where they again formally obtained Williams’s
consent to search. There, officers found $2,000 on a closet shelf and
subsequently seized over $425,000 in cash in a safe and a .40 caliber Smith
and Wesson pistol in the nightstand drawer. A K-9 unit again alerted to the
presence of drug residue on the cash. The probation officers turned the gun
over to the NOPD who arrested Williams on charges of being a felon in
possession of a firearm.
In January 2015, a federal grand jury returned a five-count indictment
charging Williams with conspiring to possess with the intent to distribute and
distributing heroin and cocaine, possession of a firearm in furtherance of a
drug trafficking crime, being a felon in possession of a firearm, and money
laundering. Following his indictment, Williams moved to suppress the
evidence officers seized on the day of his arrest. The district court held an
evidentiary hearing and denied the motion, concluding that Officer Green had
“sufficient probable cause and reasonable suspicion, under the case law, to
justify the actions that took place [after the initial frisk of Williams’s person]
at the two addresses, the Caffin Street address and the Sandalwood address.”
Later, Williams filed a “Second Motion to Suppress Evidence” which was
construed as a motion to reconsider the denial of his motion to suppress and
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the motion was again denied.(1)(2) In denying the motion, the district court
stated, “In short, Williams’ instant motion raises no evidence or argument not
previously considered in connection with his first motion.”
Williams ultimately entered a guilty plea to two counts and signed a
factual basis admitting to criminal conduct. The two counts were: (1)
conspiracy to distribute and possess with intent to distribute 1kg or more of
heroin and 5kgs or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846, 851(a)(1); and (2) possession of a firearm by a convicted felon
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He was sentenced to 23 years
of imprisonment to be followed by a ten-year term of supervised release. In his
plea agreement, Williams retained the right to appeal the district court’s
rulings on his motions to suppress and to withdraw the plea if the appeal was
successful. This appeal followed.
II. Standard of Review
When reviewing a denial of a motion to suppress evidence, we review the
district court’s factual findings for clear error and its legal conclusions,
including the ultimate constitutionality of the actions of law enforcement, de
novo. United States v. Zuniga, 860 F.3d 276, 280 (5th Cir. 2017) (citing United
States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014)). “The evidence is viewed
1 During the hearing on the second motion to suppress, the Government presented
Giglio information that it had obtained in preparation for trial related to Officer Green and
his involvement in an incident that occurred in 2011. Officer Green retook the stand to
address the prior finding of untruthfulness in connection with a previous disciplinary action
taken as a result of his having improper license plates on his vehicle. Officer Green’s
testimony regarding his prior disciplinary proceedings ultimately had no bearing on the
district court’s findings related to Williams’s proceedings and as mentioned, the second
motion to suppress was denied.
2 At the end of the hearing on the second motion to suppress, Williams stated that he
had surveillance video footage from the dealership that captured the events that took place
there. The parties stipulated to the events that took place on the video and entered it into
the record, along with additional briefing, prior to the district court’s ruling denying the
second motion to suppress.
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in the light most favorable to the prevailing party,” which here, is the
Government. Zuniga, 860 F.3d at 280–81.
III. Discussion
Williams devotes the majority of his argument on appeal to attacking the
validity of Officer Green’s initial frisk of him at his car dealership because,
according to Williams, if the initial frisk was unlawful, then the subsequent
searches were also unlawful. Given the record evidence in this case, Williams’s
argument fails.
The Fourth Amendment guarantees protection to individuals “against
unreasonable searches and seizures.” Id. at 281 (citing U.S. Const. amend. IV).
The Supreme Court has recognized, however, that “[t]o a greater or lesser
degree, it is always true of probationers . . . that they do not enjoy the absolute
liberty to which every citizen is entitled, but only . . . conditional liberty
properly dependent on observance of special [probation] restrictions.” Griffin
v. Wisconsin, 483 U.S. 868, 874 (1987) 3 (internal quotation marks omitted).
“Just as other punishments for criminal convictions curtail an offender’s
freedoms, a court granting probation may impose reasonable conditions that
deprive the offender of some freedoms enjoyed by law-abiding citizens.” United
States v. Knights, 534 U.S. 112, 119 (2001). As this court has acknowledged,
3 The Supreme Court explained in Griffin that:
Probation, like incarceration, is a form of criminal sanction imposed by a court
upon an offender after verdict, finding, or plea of guilty. Probation is simply
one point (or, more accurately, one set of points) on a continuum of possible
punishments ranging from solitary confinement in a maximum-security
facility to a few hours of mandatory community service. A number of different
options lie between those extremes, including confinement in a medium- or
minimum-security facility, work-release programs, halfway houses, and
probation—which can itself be more or less confining depending upon the
number and severity of restrictions imposed.
483 U.S. at 874 (internal quotation marks and citations omitted).
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“reasonable restrictions upon liberty and privacy are allowed and are
necessary to assure that the probation serves as a period of genuine
rehabilitation and that the community is not harmed by the probationer’s
being at large.” United States v. LeBlanc, 490 F.3d 361, 365–66 (5th Cir. 2007)
(quoting Griffin, 483 U.S. at 875) (internal quotation marks omitted). “These
same goals require and justify the exercise of supervision to assure that the
restrictions are in fact observed . . . . Supervision, then, is a ‘special need’ of
the State permitting a degree of impingement upon privacy that would not be
constitutional if applied to the public at large.” Id. at 366.
With regard to conducting “reasonable” searches of probationers, the
Supreme Court explained in Griffin that the probation agency “must be able to
proceed on the basis of its entire experience with the probationer, and to assess
probabilities in the light of its knowledge of his life, character, and
circumstances.” 483 U.S. at 879. Moreover, the Court observed that it is
“reasonable to permit information provided by a police officer, whether or not
on the basis of firsthand knowledge, to support a probationer search.” Id. at
879–80. One reason justifying this policy, the Court determined, is that “the
police may be unwilling to disclose their confidential sources to probation
personnel.” Id. at 880. The Court continued, “[f]or the same reason, and also
because it is the very assumption of the institution of probation that the
probationer is in need of rehabilitation and is more likely than the ordinary
citizen to violate the law, we think it enough if the information provided
indicates . . . only the likelihood (‘had or might have guns’) of facts justifying
the search.” Id.
This court has recognized that “[u]nder Terry, officers may briefly detain
an individual on the street for questioning, without probable cause, when they
possess reasonable, articulable suspicion of criminal activity.” United States
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v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010). Further,
“to ensure their safety during the stop, police may frisk the subject for weapons
that they reasonably suspect he may carry.” Id. This court has noted that a
Terry-style frisk may continue if an officer observes or feels bulges on a
suspect’s person “so long as an officer is investigating an object that reasonably
may be a weapon.” United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003)
(noting that the officer could not rule out the possibility that the bulge in the
defendant’s pocket was a weapon since it was “bigger than a softball” and “in
between hard and soft” and, combined with the officer’s knowledge of the
defendant’s criminal history involving narcotics and weapons, it was
reasonable to believe that the defendant might be armed). Moreover, this court
has explicitly held that “a police officer’s protective search might properly
include seizure of an object that feels like a wad of folded bills concealing a
weapon.” United States v. Ponce, 8 F.3d 989, 999 (5th Cir. 1993); see also
United States v. Campbell, 178 F.3d 345, 349 (5th Cir. 1999) (observing that
the officer “had not ruled out the possibility that the large bulge was a weapon,
and [thus] his removal of the pocket’s contents was not beyond the scope of a
permissible Terry frisk”).
A probationer’s residence is protected by the Fourth Amendment’s
requirement that searches and intrusions upon privacy be “reasonable.”
LeBlanc, 490 F.3d at 365. “Although it is usually required that a search be
undertaken only pursuant to a warrant . . . the Supreme Court has permitted
exceptions when special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.” Id.
(internal quotation marks and citations omitted). With respect to both
personal and residential searches, the Louisiana Fifth Circuit Court of Appeal
has explained that “[a] probationer must necessarily have a reduced
expectation of privacy, which allows for reasonable warrantless searches of his
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person and residence by his probation officer, even though less than probable
cause may be shown.” State v. Saulsby, 892 So. 2d 655, 657–58 (La. App. 5th
Cir. 12/28/04).
This circuit has also noted that “home visits” or compliance checks, as
defined under Louisiana law and as a condition of probation, “do not constitute
as invasive a burden on a probationer’s expectations of privacy as does a
search. A probationer is subject to state supervision as part of the ‘special
needs’ doctrine, including verification of where he lives, and cannot expect to
be free from ‘interpersonal contact’ at his residence.” LeBlanc, 490 F.3d at
368–69. Additionally, this court has observed that if it were to “impose a
requirement that a probation officer show reasonable suspicion of criminal
activity before visiting a probationer at his home, supervision would become
effectively impossible.” Id. at 369 (concluding that a brief walk-through of the
rooms in a probationer’s home and a plain-view seizure of a shotgun did not
violate probationer’s Fourth Amendment rights).
Here, as an initial matter, the plain text of Williams’s probation
conditions requires that he “[a]gree to searches of his person, his property, his
place of residence, his vehicle, or his personal effects, or any or all of them, at
any time, by the probation officer . . . with or without a warrant . . . when the
probation officer . . . has reasonable suspicion to believe that [Williams] is
engaged in or has been engaged in criminal activity.” The question then
becomes whether officers had “reasonable suspicion” to conduct the searches of
Williams’s property. We conclude that he did.
The Supreme Court specifically acknowledged in Griffin that tips given
to a probation officer from other law enforcement officers are sufficient to
support reasonable suspicion to conduct a search of a probationer. See 483 U.S.
at 879–80 (observing that it is “reasonable to permit information provided by
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a police officer, whether or not on the basis of firsthand knowledge, to support
a probationer search”). Additionally, as the Court further observed in Griffin,
in deciding whether to conduct a search of a probationer, the probation officer
“must be able to proceed on the basis of its entire experience with the
probationer, and to assess probabilities in the light of its knowledge of his life,
character, and circumstances.” Id. at 879. Here, Officer Green provided a
number of factors he considered based on his experience with Williams that
would support reasonable suspicion to conduct a search once he received the
tip from state and federal law enforcement. Specifically, Officer Green
testified:
So in my mental checklist . . . he’s on [probation] for distributing
drugs. DEA is telling me he’s probably distributing drugs or that
they think he is. But I’m still trying to give him the benefit of the
doubt. He’s got multiple previous convictions for distributing
drugs. He lives in a fortress. I mean, his house is built like a
fortress. You can’t get in without going through the [four large pit
bulls] or somebody letting you in. So I need to look into this. On
face value, this is not looking good.
The tip, these factors, and Officer Green’s past experience with Williams were
sufficient to support Officer Green’s decision to conduct a search of Williams’s
residence. Once officers arrived at the dealership to transport Williams to his
home (since Williams would not leave his business), Officer Green was
warranted in conducting a Terry-style frisk of Williams, which, here, was
preceded by Miranda warnings. 4 This pat-down was justified to ensure that
officers were not at risk from Williams potentially being armed when they
4 Officer Green testified that he Mirandized Williams prior to frisking him because
“on probation, in parole, persons under supervision do not have a right to remain silent [but]
I wanted him to understand that this was borderline criminal—this was a criminal
investigation at this point, because I got information from DEA that he was involved in
criminal activity. So I wanted him to understand that he had rights, that . . . [f]rom this point
forward, he does have a right to remain silent. He does have a right to an attorney. He does
have a right to question things in a court of law.”
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arrived at the dealership to conduct a search. See Scroggins, 599 F.3d at 441
(observing that, under Terry, “to ensure their safety during the stop, police may
frisk the subject for weapons that they reasonably suspect he may carry”). The
large visible bulges in Williams’s pockets further supported Officer Green’s
decision to conduct the frisk. 5 As noted previously, this court has concluded
that a Terry-style frisk may continue if an officer observes or feels bulges on a
suspect’s person “so long as an officer is investigating an object that reasonably
may be a weapon.” Majors, 328 F.3d at 795 (noting that the officer could not
rule out the possibility that the bulge in the defendant’s pocket was a weapon
since it was “bigger than a softball” and “in between hard and soft” and
combined with the officer’s knowledge of the defendant’s criminal history
involving narcotics and weapons, it was reasonable to believe that the
defendant might be armed). Moreover, this court has explicitly recognized the
validity of a protective search that “include[s] seizure of an object that feels
like a wad of folded bills concealing a weapon.” Ponce, 8 F.3d at 999; see also
Campbell, 178 F.3d at 349 (observing that the officer “had not ruled out the
5 Officer Green testified “I wanted to make sure that—the allegation was that he was
a major player in narcotics. Where there is drugs, there is guns, and so I wanted to make
sure the person I was talking to didn’t have any guns on him.” He continued, “I then started
to conduct a frisk, a pat-down, in which I felt large objects underneath in his pockets. I then
removed those objects and they turned out to be wads of cash from both his shirt and his
pants. And the reason I removed those is I wanted to see if there were any weapons on the
other side of him with the large bulges. I could not tell what else was in his pockets.”
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possibility that the large bulge was a weapon, and [thus] his removal of the
pocket’s contents was not beyond the scope of a permissible Terry frisk”). 6
Additionally, officers obtained consent to search Williams’s car
dealership, 7 his mother’s home on Caffin Street, and his own home at the
Sandalwood address. Here, in spite of Williams’s consent to search his car
dealership, reasonable suspicion to search the business independently arose
once the $10,000 in cash was seized from his pockets pursuant to Officer
Green’s lawful protective frisk and the K-9’s subsequent alert to the presence
of drug residue on the cash. This reasonable suspicion was further supported
by Officer Green’s knowledge that Williams reported only $2,500 per month in
income and because Williams gave conflicting reasons to the source of the cash,
ultimately stating that the cash came from a person named Twon who is known
by law enforcement to be a major drug dealer in New Orleans. This reasonable
suspicion likewise supported the search of Williams’s mother’s house on Caffin
Street (which officers also obtained express consent to search) since that
address was listed on the incorporation papers of his car dealership and was
also a location at which Williams was previously arrested on drug charges in
2003.
6 Although Williams devotes a significant portion of his argument to the notion that
he did not consent to Officer Green’s frisk of his person, the Government does not argue that
Williams consented to the frisk and, regardless, his consent was not required to justify a
protective pat-down/frisk. See United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006) (“It
is without question that [the defendant] did not consent to the pat-down search, but limited
pat-down searches are permissible ‘for the protection of the police officer, 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.’” (quoting Terry v. Ohio, 392 U.S.
1, 27 (1968))).
7 Williams specifies that the search of his car dealership was “allegedly consensual”
and that the Government presented “disputed” evidence that he consented to a search of the
premises.
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Moreover, while officers were searching Williams’s mother’s house on
Caffin Street (relative to that address being associated with his business),
Williams volunteered to officers that “[w]hat you are looking for is at my house.
I have a gun and money at my residence.” Accordingly, Williams expressly
admitted that he was guilty of being a felon in possession of a firearm and, as
would later be revealed, that he had enough cash ($425,000) to support the
reasonable conclusion that he was involved in drug trafficking—a notion
bolstered by the fact that a K-9 also alerted to the presence of drug residue on
the cash found in Williams’s home. Considering that Williams volunteered to
officers that he had cash and a firearm at his home, officers had additional
independent adequate reasonable suspicion based on Williams’s volunteered
admission to conduct a full search of Williams’s personal residence.
On these facts, we conclude that officers had reasonable suspicion to
conduct the searches of Williams’s residence, his dealership, and his mother’s
home. We further conclude that Officer Green’s Terry-style frisk of Williams
once he arrived at the dealership to transport Williams to his residence was
proper given the visible bulges in Williams’s pockets that were large enough to
conceal weapons. 8
In light of the foregoing, the district court did not err in denying
Williams’s motions to suppress. Zuniga, 860 F.3d at 280.
8 Williams’s contention that “[t]he frisk was not justified by concerns for officer safety”
is also misplaced. Citing Terry, he claims that because officers walked slowly toward him
when they arrived at the dealership and did not aggressively search his person or otherwise
act aggressively toward him, they could not have believed that their “safety or that of others
was in danger.” Terry v. Ohio, 392 U.S. 1, 27 (1968). But neither Terry, nor any other case in
this circuit, mandates that officers act aggressively or quickly in order to justify performing
a protective pat-down for weapons. Such a mandate would be dangerous precedent as it could
encourage violations of the Fourth Amendment rights of individuals subject to Terry-style
frisks and/or stops.
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IV. Conclusion
For the reasons provided herein, the district court’s rulings denying
Williams’s motions to suppress and Williams’s conviction and sentence are
affirmed.
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