674 F.3d 1298 (11th Cir. 2012), 10-13567, United States v. Lewis

Docket Nº:10-13567.
Citation:674 F.3d 1298
Opinion Judge:MARCUS, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Omar Oneil LEWIS, a.k.a. Paul Campbell, a.k.a. Kevin Ellis, et al., Defendant-Appellee.
Attorney:David Paul Rhodes, Robert E. O'Neill, Tampa, FL, Stephanie E. Gorman, Orlando, FL, for Plaintiff-Appellant. Robert Godfrey, Clarence W. Counts, Jr., Fed. Pub. Defenders, Orlando, FL, for Defendant-Appellee.
Judge Panel:Before MARCUS, WILSON and COX, Circuit Judges. WILSON, Circuit Judge, dissenting:
Case Date:March 23, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1298

674 F.3d 1298 (11th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellant,


Omar Oneil LEWIS, a.k.a. Paul Campbell, a.k.a. Kevin Ellis, et al., Defendant-Appellee.

No. 10-13567.

United States Court of Appeals, Eleventh Circuit.

March 23, 2012

Page 1299

David Paul Rhodes, Robert E. O'Neill, Tampa, FL, Stephanie E. Gorman, Orlando, FL, for Plaintiff-Appellant.

Robert Godfrey, Clarence W. Counts, Jr., Fed. Pub. Defenders, Orlando, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before MARCUS, WILSON and COX, Circuit Judges.

MARCUS, Circuit Judge:

In this interlocutory appeal, the government appeals from a district court order granting defendant Omar Lewis's motion

Page 1300

to suppress a firearm discovered after he and three associates were briefly detained by law enforcement officers at night in a parking lot in Orange County, Florida. What began as a consensual encounter between the officers and the four men quickly evolved into an investigatory detention and then into a probable cause arrest after one of the associates admitted to carrying a concealed firearm on his person and another admitted to having a firearm in a backpack found in the open trunk of a nearby car. The officers briefly detained all of them while further investigating possible criminal activity, and discovered a firearm on the ground near where the defendant had been seated.

The district court granted the motion to suppress the firearm, holding that the detention of Lewis was unreasonable and therefore violated the Fourth Amendment. We reverse and remand because under the peculiar facts of the case and the danger extant, it was reasonable for the officers to make a split-second decision to briefly detain all four individuals as they investigated possible violations of Florida's concealed-weapons laws.


We take the facts essentially from the district court's order granting Lewis's suppression motion and from the transcript of the suppression hearing, accepting the trial judge's findings of fact. On the night of February 6, 2009, Deputy Noel Bojko was in uniform and on patrol with his field training officer, Deputy Scott Stiles. The two deputies were patrolling the Pine Hills area of Orange County, Florida. Around 8:50 p.m., the deputies entered the parking lot of the Seawinds restaurant, which was open for business at the time. No one disputes that the Seawinds restaurant is in a " high crime area" that is a " hotbed" of drug and gun activity.

As the deputies entered the parking lot, they observed four males standing in between two parked vehicles, one with a trunk open. The cars were parked perpendicular to the marked parking spaces in the crowded lot. At the suppression hearing, Deputy Bojko testified that the four men " were just hanging out in between the two cars," and that " [t]hey were moving around computer equipment in the ... open trunk" of one of the cars. Both Deputies Bojko and Stiles observed that the men were just standing in the Seawinds parking lot and that there was no basis to conclude that the men were involved in the commission of a robbery, drug dealing, or any other crime.

The deputies did not immediately detain the four men, but instead approached them and engaged in a wholly consensual encounter. Deputy Bojko asked " how you guys doing" and tried " to start a casual conversation." Deputy Stiles similarly testified that the deputies introduced themselves and said, " Hey, gentlemen, how is it going." According to the officers, the four men responded that " they were just hanging out in the parking lot."

Apparently the very next question asked by Deputy Bojko was whether any of the men were carrying guns. Two of the four men, Carlos Evans and Charles McRae, each responded affirmatively. The other two men, including Lewis, said nothing in response to the deputy's question. Evans told the officers that he had a handgun in a backpack in the open trunk of a car parked nearby, and McRae told the officer that he was carrying a handgun on his person, in his waistband. Deputy Bojko could see the top of the backpack in the open car trunk. There was no indication or testimony that McRae made any attempt to reach for the firearm or made any other sudden movements.

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The deputies did not ask any followup questions, such as whether McRae or Evans had a valid permit for the firearms. Rather, the officers immediately drew their weapons and ordered all four men to sit down on the ground and show their hands. There is no dispute that at this point, the consensual encounter had been transformed into an investigatory stop, and that the four men were not free to leave.

Three of the four men complied immediately. Lewis, however, took some ten seconds to comply. During those ten seconds, Lewis walked a few steps away from the other men. Lewis briefly had his back turned to the officers and moved away from the trunks of the parked cars and towards the front of one of the vehicles. At some point after Lewis sat down, Deputy Bojko ordered him to slide over to the other three men, and he complied.

Around this time, Corporal Steven Scott Jenny, who knew that the deputies were headed to the Seawinds restaurant, arrived on the scene. He saw all four men sitting on the ground. Corporal Jenny testified at the suppression hearing that his attention was immediately drawn to Lewis, who " looked extremely nervous, wouldn't sit still, wouldn't keep his hands in one position where we could see them. His hands were moving to his sides, towards his pockets, towards his back. He was scooting his body around." Their concern heightened by Lewis's behavior, the officers examined the ground where Lewis was previously seated and saw a semi-automatic pistol underneath a vehicle. After observing the firearm, the officers had the four men lie prone and handcuffed all of them. The officers did not observe Lewis with the firearm on his person, nor did they observe Lewis discard the weapon. Corporal Jenny concluded, however, that Lewis was the only one of the men who was in a position to be able to discard the weapon in that particular spot.

At that point, Lewis was arrested and charged with carrying a concealed firearm in violation of Florida law. Subsequent testing found Lewis's DNA on the gun. The weapon was later determined to be registered to McRae. The officers searched Lewis incident to his arrest and discovered the car keys to a white Honda, which was also parked in the Seawinds parking lot. The Honda contained an empty gun box that the officers concluded was used to house the firearm the officers had discovered under the car.

McRae and Evans were not arrested or charged. McRae produced a valid concealed-weapons permit at the scene. Evans, who had indicated that he had a gun in the backpack, did not have a permit but was also released. The third individual, Carlos Bayes, was released as well. Lewis was the only individual arrested and charged following these events.


On January 27, 2010, a federal grand jury sitting in the Middle District of Florida indicted Lewis for one count of unlawful possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2).1 Lewis moved to suppress the seized firearm, arguing that the police lacked reasonable suspicion sufficient to detain him for further investigation under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and, therefore, that their subsequent seizure violated the Fourth Amendment. In response, the

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government claimed that the officers engaged Lewis in a consensual encounter that appropriately evolved into a Terry detention, which in turn was transformed into a probable cause arrest after the discovery of the discarded handgun near the area where Lewis, and Lewis alone, had been sitting. The government urged that, based on the totality of the circumstances, the officers reasonably suspected criminal activity and that the brief detention of all four individuals was performed for legitimate reasons of safety.

The district court conducted a suppression hearing, at which Deputies Bojko and Stiles and Corporal Jenny were the only witnesses called. At the conclusion of the witnesses' testimony, the district court deferred ruling, ordering the parties to provide supplemental briefing on two questions: " whether the admission that you have a weapon you're entitled to have on you is a basis for a ... Terry stop," and, " if so, whether it is a basis to stop not only you by that admission, but everybody who is standing with you."

Thereafter, the district court granted Lewis's motion and suppressed the firearm. The district court determined that the Terry stop was unlawful as to any of the four individuals, even concerning the two men (McRae and Evans) who had admitted to possessing firearms. The court concluded that the officers lacked any particularized and objective suspicion that any of the four men had been engaged in, or were about to engage in criminal activity at the time the officers ordered the men to the ground. The record showed, the court said, that when the officers conducted the stop the four men were engaged in non-criminal activities: standing by a car; looking in the trunk of a car; talking to each other in association; standing in the parking lot of a restaurant while it was open for business; failing to park their cars in designated parking spaces in a crowded private parking lot; and lawfully possessing firearms. None of these activities, the trial court asserted, whether taken alone or in concert, established a reasonable basis to stop any of the men. The court reasoned that mere gun possession did not justify a Terry stop, because it was neither per se unlawful to possess a handgun nor illegal to admit to carrying one, and because the police had no reason to believe that McRae did...

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