United States v. Freeman, 120514 FED11, 14-11302

Docket Nº:14-11302
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WALI HASSAN FREEMAN, Defendant-Appellant.
Judge Panel:Before HULL, ROSENBAUM, and FAY, Circuit Judges.
Case Date:December 05, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

WALI HASSAN FREEMAN, Defendant-Appellant.

No. 14-11302

United States Court of Appeals, Eleventh Circuit

December 5, 2014

DO NOT PUBLISH

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 2:13-cr-00005-WCO-JCF-1

Before HULL, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:

Wali Hassan Freeman appeals his conviction and 108-month sentence for possession of a firearm by a convicted felon. We affirm Freeman's conviction and sentence, but remand for the limited purpose of correcting clerical errors in the judgment of conviction.

I. BACKGROUND

On January 28, 2013, at approximately 12:30 a.m., Freeman was driving southbound on the Thompson Bridge Road in Gainesville, Georgia. Officer Carlo Miller of the Gainesville Police Department stopped him, because Freeman had failed to dim his high beams within 500 feet of Officer Miller's car. Before activating his blue lights, Officer Miller asked the radio dispatcher to check Freeman's license-plate number. After Officer Miller activated his lights, Freeman "hit his brakes and then continued on, hit his brakes, continued on." ROA at 76. Freeman passed two access roads and eventually stopped in a church parking lot. Before stopping, Freeman extended his head out of his window more than once, which, Officer Miller thought was unusual.

While Officer Miller was returning to his car after retrieving Freeman's identification, the dispatcher asked: "Are you clear for traffic?" ROA at 77 (internal quotation marks omitted). This phrase informed Officer Miller of a possible existing warrant, based on Freeman's license-plate number. The dispatcher also gave Officer Miller a description of the subject of the warrant, which matched Freeman. Officer Miller then provided Freeman's driver's license information to the dispatcher, who confirmed the existing warrant. Two other officers arrived at the scene.

Officer Miller returned to Freeman's car, asked him to exit the car, told him of the warrant, and placed him in handcuffs. Officer Miller then asked Freeman "if he had anything on his person, if he had any weapons, needles or anything like that." ROA at 79. Freeman initially hesitated, which caused Officer Miller to be concerned. When Officer Miller again asked whether Freeman was carrying any weapons, Freeman responded he had a weapon in his waistband; Officer Miller removed a gun from Freeman's waistband.

A federal grand jury indicted Freeman for possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).1 Freeman moved to suppress several items, including a gun, ammunition, and three "baggies" of marijuana seized from him during a traffic stop on January 28, 2013, as well as any statements attributed to him on that date.

Officer Miller testified to the facts, and the magistrate judge admitted into evidence an audiovisual recording of the traffic stop. During cross-examination, excerpts of the recording were played. In the recording, the squad car's blue lights were activated at 12:33:03 a.m. Freeman's car left the road and entered a church parking lot at 12:33:39 a.m. During the time between the blue lights being activated and the officers first speaking to Freeman, several unintelligible radio communications occurred. At 12:34:54 a.m., the dispatcher stated: "Clear for traffic." See Gov't Exh. 1 at 3:28. Several seconds later, the dispatcher provided an unintelligible report followed by Freeman's name, height, weight, hair, and eye color. Additional unintelligible information followed.

Two officers approached Freeman's car, directed him to exit the car, informed him of an outstanding warrant, and placed him in handcuffs. While Officer Miller and Freeman discussed his failure to dim his lights, two brief, unintelligible sounds were heard in the background. Several seconds later, the dispatcher provided another unintelligible report followed by: "Be advised, [unintelligible] has a history of obstruction on an officer. [Unintelligible.]" See Gov't Exh. 1 at 5:26-5:45. More unintelligible communications occurred during and after the search of Freeman, when the gun was discovered.

During cross-examination, Officer Miller testified he did not learn of the warrant until he retrieved Freeman's driver's license and returned to his squad car. Before he placed Freeman in handcuffs, Officer Miller knew only of the possibility of a warrant, although he was fairly certain Freeman was the subject of the warrant from the description of the dispatcher. Officer Miller had not advised Freeman of his Miranda2 rights before asking whether he was carrying a weapon. Based on Officer Miller's experience, Freeman's hesitation indicated the possible presence of a weapon.

During re-direct examination, Officer Miller testified he received confirmation of the outstanding warrant as Freeman exited his car, before the pat-down search began. The following exchange ensued:

Q. Was it confirmed before you actually placed him into handcuffs?

A. Yes, I believe so.

Q. Sometime in that timeframe?

A. That's right. Because there [were] a lot of things happening within that timeframe.

ROA at 54. The magistrate judge admitted into evidence a warrant for Freeman's arrest issued on March 9, 2010.

In a post-hearing brief, the government argued, regardless of the admissibility of Freeman's admission, Officer Miller found the gun as a result of a valid search incident to a lawful arrest based on the outstanding arrest warrant. The government further contended Freeman's admission he was carrying a gun was admissible under the public-safety exception to the Miranda requirements.

Freeman responded the record did not establish a lawful arrest before Officer Miller searched him. According to Freeman, Officer Miller had testified inconsistently regarding whether he had received confirmation of the warrant before placing Freeman in handcuffs and searching him. The video recording contained no confirmation of a warrant, when Freeman exited his vehicle. Because the record did not show the warrant had been verified before his arrest, Freeman argued the government had not met its burden of proof.

Freeman further contended the public-safety exception to the Miranda requirements was inapplicable. He argued none of the circumstances before the search suggested he posed a cognizable threat to anyone. He further asserted the record showed his admission he was carrying a gun was not voluntary, because he had been commanded out of his car, handcuffed, and surrounded by three officers. He claimed his hesitation in answering also showed the admission was not voluntary.

The magistrate judge issued a report and recommendation ("R&R"), recommending the district judge deny Freeman's motions to suppress the gun and his statement regarding the gun. The magistrate judge had relied primarily on Officer Miller's testimony, as "the sound quality of [the audiovisual] recording is somewhat poor, and it is not possible to understand all communications between Officer Miller and dispatch, and between Officer Miller and Defendant during the stop." ROA at 185 n.3. Regardless of whether the warrant was confirmed before Freeman was handcuffed, the magistrate judge concluded Officer Miller reasonably believed a warrant existed. Accordingly, it was reasonable to ask Freeman to exit...

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