U.S. v. Gordon

• Decision Date: 23 October 2000
• Docket Number: No. 99-12361,Docket No. 98-00569-CR-UUB,99-12361
• Citation: 231 F.3d 750
• Parties: (11th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARREN DEMEATRIE GORDON, Defendant-Appellant. D. C
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 750

231 F.3d 750 (11th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARREN DEMEATRIE GORDON, Defendant-Appellant.

No. 99-12361

D. C. Docket No. 98-00569-CR-UUB

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

October 23, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI^*, Judge.

MARCUS, Circuit Judge:

A jury convicted Defendant Darren Gordon of robbery and firearms offenses in connection with a brutal attack on a gun store clerk. On appeal, Gordon raises two sets of issues. First, he challenges the district court's denial of his motion to suppress evidence seized by the police after an investigatory stop on the night of the robbery. Gordon contends that the police lacked the reasonable suspicion required for an investigatory stop, because the only basis for that stop was his presence in a reputed high- crime area and his alleged flight after sighting the officers. Second, Gordon contends that the district court improperly relied upon his co-Defendants' hearsay statements to support a role enhancement and an upward departure at sentencing. Because we find no reversible error in the district court's rulings, we affirm Gordon's conviction and sentence.

I.

On July 29, 1998, a federal grand jury indicted Gordon and three co-Defendants, Carlton Grant, Sule Jackson, and Enos Beauchamp, for their role in a violent robbery at a gun store in Hialeah, Florida. Gordon had initially been arrested by Miami-Dade County police officers for violating Florida's anti-loitering statute (Fla. Stat. 856.021); evidence seized from Gordon's car at the time of that arrest gave rise to the robbery-related charges. The indictment charged each of the Defendants with robbing the gun store in violation of 18 U.S.C. 1951, carrying and using firearms during the robbery in violation of 18 U.S.C. 924(c)(1), and possessing firearms as a felon in violation of 18 U.S.C. 922(g)(1). Grant, Jackson, and Beauchamp all pled guilty; Gordon alone proceeded to trial.

Evidence at trial established the following events. Kathleen Maltbie was a sales clerk at the Kodiak Military Surplus and Firearms Store in Hialeah. She testified that she was tending the store alone when, at approximately 5:00 p.m. on May 6, 1998, she heard the buzzer sound indicating that someone had entered the store. When she walked to the front of the store, expecting to greet a customer, a man grabbed her from behind in a chokehold and placed a gun to her head, while a second man attempted to grab her by the legs. A third man behind the counter asked Maltbie how to open the cash register, while a fourth person moved near a rifle rack. Maltbie testified that her assailant tried "to choke the daylights out of me." She then lost consciousness when the first man, leaning her body over a counter of merchandise, "smashed" her in the face with a pistol. She was found later in the back of the store where she lay bound, gagged, and wearing handcuffs. Maltbie was subsequently hospitalized with numerous injuries from this violent attack, including a fractured eye socket, a crushed nose, broken teeth, and multiple bruises and lacerations on her scalp, wrists and ankles. Maltbie also suffered severe and ongoing psychological trauma from the assault.

About three hours after the robbery, Gordon, two co-Defendants, and a fourth man were arrested in a nearby area for loitering and prowling in violation of Florida law.¹ The arresting officers searched the car in which the Defendants were traveling, and recovered four fully-loaded .9 millimeter magazine clips in the back seat, as well as a flak jacket, several boxes of bullets, a black gun case, and a ski mask found in the trunk. Hialeah police subsequently identified the property seized from the car as property taken in the Kodiak store robbery. Maltbie thereafter identified Jackson as one of the individuals involved in the robbery, and recognized Gordon and Grant as individuals who visited the store prior to the robbery.

On May 11, 1998, police went to Gordon's home and arrested him for possession of stolen property. After having been read his rights and signing a waiver form, Gordon proceeded to discuss the circumstances of the robbery. Gordon acknowledged that he had driven Jackson, Beauchamp, and Grant to the gun store on the day of the robbery. He maintained, however, that it was Grant, not he, who had beaten Maltbie, and that he only entered the store after the beating had occurred. As discussed below, Gordon's co-Defendants, in post-arrest statements of their own, gave a completely different version of events that put Gordon at the center of the vicious assault and the robbery.

Before trial Gordon moved to suppress the physical evidence seized after his arrest as well as his post-arrest confession. He argued that the police lacked reasonable suspicion to stop him when he was observed on the night of the robbery, and also lacked probable cause to arrest him for loitering and prowling. The magistrate judge, after conducting a hearing, entered proposed findings of fact and recommended that Gordon's motion be denied. The magistrate judge concluded that there was a sufficient basis for the stop as well as the arrest. The district court, after considering Gordon's objections, adopted the magistrate judge's report and denied the motion. A jury eventually convicted Gordon on all three counts against him.

The district court, in sentencing Gordon, increased his base offense level by two under 3B1.1(c) of the Sentencing Guidelines because he was the leader or organizer of the offense. The court also departed upward one level under USSG 5K2.3 and 5K2.8 based upon the nature and extent of the injury inflicted on the victim of the robbery. In making these enhancements, the district court implicitly relied in part on taped and transcribed post-arrest statements by Gordon's three co-Defendants. The court ultimately sentenced Gordon to 300 months in prison.

II.

There is no dispute about the proper standards of review. A district court's findings of fact in resolving a motion to suppress are reviewed for clear error; the court's application of the law to those facts is reviewed de novo. See United States v. Gonzales, 71 F.3d 819, 824 (11th Cir. 1996). We construe the facts in the light most favorable to the prevailing party (here, the government). See id.; United States v. Briggman, 931 F.2d 705, 708 (11th Cir. 1991) (per curiam). A district court's upward adjustment of a defendant's Guidelines offense level due to his status as a leader or organizer under USSG 3B1.1 is reviewed only for clear error. See United States v. De Varon, 175 F.3d 930, 937 & n.3 (11th Cir.) (en banc) ("This Court has long and repeatedly held that a district court's determination of a defendant's role in the offense is a finding of fact to be reviewed only for clear error."), cert. denied, 120 S. Ct. 424, 145 L. Ed. 2d 331 (1999). A court's upward departure from the Guidelines is reviewed only for abuse of discretion. See United States v. Taylor, 88 F.3d 938, 945 (11th Cir. 1996).

III.

Gordon's first ground for appeal concerns the district court's denial of his motion to suppress. Gordon argues that the police lacked reasonable suspicion to stop him initially, and also lacked probable cause to arrest him for violating Florida's anti-loitering statute. We disagree.

A.

The Fourth Amendment prohibits "unreasonable searches and seizures . . .." U.S. Const. Amend. IV. "What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S. Ct. 3304, 3308, 87 L. Ed. 2d 381 (1985). The general rule is that "warrantless searches are presumptively unreasonable . . .." Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2306, 110 L. Ed. 2d 112 (1990). The courts have, however, fashioned exceptions to the general rule, recognizing that in certain limited situations the government's interest in conducting a search without a warrant may outweigh the individual's privacy interest. See, e.g., id.; Montoya de Hernandez, 473 U.S. at 537-41, 105 S. Ct. at 3308-11.

A so-called "Terry stop" is one such narrow exception. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Terry, and the cases which have followed it, make clear that "an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 675, 145 L. Ed. 2d 570 (2000). To make a showing that he in fact had reasonable suspicion, "[t]he officer must be able to articulate more than an `inchoate and unparticularized suspicion or `hunch' of criminal activity.'" Id. (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1868). Thus, "`[w]hile `reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.'" Jackson v. Sauls, 206 F.3d 1156, 1165 (11th Cir. 2000) (quoting Wardlow, 120 S. Ct. at 675-76). A reasonable suspicion of criminal activity may be formed by observing exclusively legal activity. See Wardlow, 120 S. Ct. at 677; Terry, 392 U.S. at 22-23, 88 S. Ct. at 1868.

The circumstances surrounding the initial stop of Gordon are as follows.² At approximately 8:00 p.m. on the night of the robbery, Miami-Dade Police Detective Juan Leon and a partner were conducting a routine patrol in a marked police car in the area of 15th Avenue and 61st Street in Miami. As they turned a corner, Detective Leon observed Defendant and three other black males standing approximately ten feet...