United States v. Derrick Vonn Smith ( 2013 )

  •      Case: 11-50390       Document: 00512252178         Page: 1     Date Filed: 05/23/2013
                        FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                        Fifth Circuit
                                                                               May 23, 2013
                                         No. 11-50390
                                       Summary Calendar                        Lyle W. Cayce
                       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.
           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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    74 F.3d 575
    , 577 (5th Cir. 1996).
          The judgment of the district court is AFFIRMED.