613 F.3d 1093 (11th Cir. 2010), 09-12285, United States v. Epps

Docket Nº:09-12285.
Citation:613 F.3d 1093
Opinion Judge:MARTIN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Azim Waleed EPPS, Defendant-Appellant.
Attorney:Jeffrey Lyn Ertel, Stephanie Kearns, Fed. Pub. Defenders, Fed. Public Defender Program, Inc., Atlanta, GA, for Defendant-Appellant. Thomas Aloysius Devlin, Jr., Lawrence R. Sommerfeld, Atlanta, GA, Timothy J. Storino, Tampa, FL, for Plaintiff-appellee.
Judge Panel:Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.
Case Date:August 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1093

613 F.3d 1093 (11th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Azim Waleed EPPS, Defendant-Appellant.

No. 09-12285.

United States Court of Appeals, Eleventh Circuit.

August 6, 2010

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[Copyrighted Material Omitted]

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Jeffrey Lyn Ertel, Stephanie Kearns, Fed. Pub. Defenders, Fed. Public Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Thomas Aloysius Devlin, Jr., Lawrence R. Sommerfeld, Atlanta, GA, Timothy J. Storino, Tampa, FL, for Plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

Azim Waleed Epps (" Mr. Epps" ) appeals his convictions and sentence for armed bank robbery in violation of 18 U.S.C. § 2113(a), (d), and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He contends that the district court erred in denying his motion to suppress evidence and also that the government improperly vouched for a witness's credibility during closing argument.1 After reading the parties' briefs, reviewing the record, and having the benefit of oral argument, we affirm.

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I.

On August 11, 2006, an African-American man with dreadlocks entered the Gainesville Bank and Trust. He approached a teller and said, " This is a robbery, give me your money." As the teller was gathering the money, he told her to hurry up and not to make him pull his gun. Both the first teller and an adjacent teller gave the robber money and dye packs, which he placed into a black bag.

In a parking lot near the bank, a woman was approaching her car. An African-American man with braided hair demanded her car keys, whereupon she hit him with the magazine she had in her hand. The would-be carjacker then went over to an 83-year-old man sitting in his blue Chevrolet Cavalier, pulled the elderly man out of the car and onto the pavement, and drove off.

Deputy Paul Kent was responding to the bank robbery when he heard a report about a blue Cavalier being carjacked. There were a number of police cars present when he arrived at the scene of the carjacking, so he instead proceeded across the street in the direction of a shopping mall. As he was approaching the mall, he noticed a blue Cavalier parked at an angle next to a pawnshop, with its driver's door open. He continued toward the mall, and he saw a man running quickly through the mall parking lot with a white bag in his hand. The path that the runner was taking led away from the Cavalier toward the mall entrance. Deputy Kent, who had his lights and siren going, used his car's P.A. system two or three times to announce his presence and order the individual to stop. The fleeing individual looked back over his shoulder at the police car and pointed a gun in the deputy's direction, while continuing to run. A bystander in the mall parking lot also saw the gun being pointed at the officer. At this point, the runner was approximately ten feet in front of the police car. Deputy Kent then attempted to stop the man by hitting him with the front right corner of the patrol car. The man rolled off the car's hood and landed on the ground. Both the gun and the white bag went flying, as well as another object later determined to be a pocket knife. Deputy Kent got out of his car and covered the suspect with his firearm until another officer arrived and handcuffed the individual. The man arrested turned out to be Mr. Epps.

Mr. Epps was already in custody by the time Investigator Margaret Dawson arrived to process the scene. She took photographs of the gun, knife, and white bag where they came to rest on the ground near the patrol car. The white bag was a pillowcase, with pink stains on it. The pillowcase was later moved to the back of a police vehicle, where the police opened it and found the following items: currency that was partially burned and marked with red dye; two dye packs; a dreadlock wig; a black bag; a shirt; and a can of pepper spray.

Mr. Epps was taken to a nearby hospital for treatment of his abrasions. He informed the police that he wanted to speak with the lead investigator and was interviewed by FBI Agent Joseph Thompson approximately three hours after the bank robbery took place. Agent Thompson advised Mr. Epps of his rights to remain silent and to consult with an attorney. Mr. Epps signed a waiver of rights form, which was also signed by Agent Thompson and by a witness, Investigator Kevin Gaddis of the Gainesville Police Department. Mr. Epps then confessed to the bank robbery, carjackings, and attempt to flee from the police, although Mr. Epps denied pointing his gun at Deputy Kent.

After being indicted, Mr. Epps filed a motion to suppress the evidence found in

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the pillowcase. Deputy Kent and Investigator Dawson testified at an evidentiary hearing. The magistrate judge subsequently recommended that the motion to suppress be denied, a recommendation that the district judge approved and adopted over Mr. Epps's objections.

Mr. Epps's jury trial began on December 8, 2008. The government's witnesses included the bank tellers, the carjacking victims, and various law enforcement officers. Agent Thompson testified about the confession that Mr. Epps gave shortly after being arrested. Investigator Gaddis was not called as a witness by either party.

During closing argument, defense counsel suggested that Agent Thompson had fabricated the confession:

Ask yourself something: Why in the world would somebody let an agent know that, hey, I want to talk to you and then I want to give a full confession? There is no testimony about any promises. There was no testimony that he was going to get any benefit. Why in the world would he do that? That doesn't make sense. That type of thing is reason to doubt. It's reason to doubt whether that statement was given.

In rebuttal, the prosecutor told the jury, " Defense specifically argued to you there's-that what Agent Thompson testified to, he said that's not what the defendant said. I'm going to say it again: Agent Thompson wasn't the only other person in the room. There was somebody else there." Mr. Epps objected and moved for a mistrial. The district court denied the motion, but instructed the jury that the defense had no burden to present any kind of evidence and that the burden of proof was entirely on the government.

The jury found Mr. Epps guilty on all counts, and the district court sentenced him to 360 months imprisonment. Mr. Epps timely appealed.

II.

Mr. Epps contends that the district court erred in denying his motion to suppress evidence. Specifically, he argues that the police did not have authority to conduct a warrantless search of the pillowcase he was carrying. He also maintains that Deputy Kent did not have a lawful justification for stopping him, and that everything obtained from his unlawful detention must therefore be suppressed as the fruit of the poisonous tree.

" In an appeal of the district court's denial of a defendant's motion to suppress, we review the district court's findings of fact for clear error and its application of the law to those facts de novo. " United States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir.2010). When reviewing the denial of a motion to suppress, this Court is not restricted to the evidence presented at the suppression hearing and instead considers the whole record. United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir.2007).

The Fourth Amendment to the United States Constitution prohibits " unreasonable searches and seizures." U.S. Const. Amend. IV. However, " only individuals who have a legitimate expectation of privacy in the area invaded may invoke the protections of the Fourth Amendment." United States v. Lee, 586 F.3d 859, 864 (11th Cir.2009). " ‘ The party alleging an unconstitutional search must establish both a subjective and an objective expectation of privacy.’ " United States v. King, 509 F.3d 1338, 1341 (11th Cir.2007) (quoting United States v. Segura-Baltazar, 448 F.3d 1281, 1286 (11th Cir.2006)). " ‘ The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one

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that society is prepared to recognize as reasonable.’ " Id. (quoting Segura-Baltazar, 448 F.3d at 1286).

Mr. Epps manifested his subjective expectation of privacy by placing personal items inside the pillowcase and holding it shut in one hand. The fact that the pillowcase could not be fastened is not dispositive. The Supreme Court has recognized that " a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attachécase." United States v. Ross, 456 U.S. 798, 822, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982).

Where Mr. Epps's argument founders is on the objective component, because society is not willing to accept that his subjective privacy expectation was objectively reasonable. The Supreme Court has suggested in dictum that " some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance." Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 579, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991).2

This Court, applying Sanders, has found permissible warrantless searches where the container itself and the circumstances under which the police obtained it indicate that the contents are contraband. For example, we have...

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