U.S. v. Lindsey

• Decision Date: 27 March 2007
• Docket Number: No. 05-11273.,05-11273.
• Citation: 482 F.3d 1285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony H. LINDSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

482 F.3d 1285

UNITED STATES of America, Plaintiff-Appellee, v. Anthony H. LINDSEY, Defendant-Appellant.

No. 05-11273.

United States Court of Appeals, Eleventh Circuit.

March 27, 2007.

Nina S. Mandel (Court-Appointed), Mandel & McAliley, LLP, Miami, FL, for Lindsey.

Jonathan D. Colan, Anne R. Schultz, Asst. U.S. Atty., Jeanne Marie Mullenhoff, Asst. U.S. Atty., Miami, FL, for U.S.

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

Before EDMONDSON, Chief Judge, and BARKETT and COX, Circuit Judges.

EDMONDSON, Chief Judge:

Anthony H. Lindsey ("Defendant") appeals his conviction and sentence of 300 months' imprisonment for (1) being a felon in possession of a firearm, and (2) being a felon in possession of one or more rounds of ammunition, both in violation of 18 U.S.C. § 922(g)(1) and the Armed Career Criminal Act, 18 U.S.C. § 924(e). Defendant claims several violations of his Fourth, Fifth, and Sixth Amendment rights for alleged errors at trial and sentencing. Because no reversible error has been shown, we affirm.

I. BACKGROUND

In February 2004, authorities received a 911 call from a person identifying himself as "Davis" and reporting that four black males were loading guns and putting them in a large white SUV. The SUV was parked behind a Mobil gas station across from a branch of Wachovia Bank. Detective Jason O. Houston ("Houston") and other members of the West Palm Beach Police Department had been investigating a recent series of armed bank robberies in the area. The robberies involved three to four black males who had entered banks with assault-type weapons and who drove large SUV-type vehicles. The police also had knowledge of two robberies committed by two black males using handguns in the parking lot of this very same branch of Wachovia Bank.

Believing that another robbery was imminent, several officers—including Houston and Sergeant Martin Tierney ("Tierney")—responded to the 911 call. Tierney, the first officer on the scene, observed a white Ford Excursion (a large SUV) parked behind the gas station. As Tierney pulled into and circled the station, he observed the SUV pull out of its parked location. Tierney then radioed the other officers that the vehicle was on the move. But instead of leaving the gas station, the SUV pulled around to a gas pump and stopped. Then, four black men, including Defendant, exited the vehicle. Three of the men walked toward the station's convenience store, and the fourth opened the hood of the vehicle.

Sergeant Tierney then exited his vehicle and drew his shotgun while yelling at the men to get on the ground. Other officers converged on the gas station and secured the scene. Turning his attention to Defendant, who had reached the door of the convenience store, Tierney ordered Defendant to lay down, to which Defendant responded, "What did I do?" After five to eight seconds, Defendant submitted to Tierney's request. Officers then handcuffed each of the four men and placed them in police vehicles. Then, officers observed an armored vehicle pulling up to the bank and guards leaving the bank carrying satchels of money. According to Tierney, employees of the gas station told officers that the SUV had been parked behind the building for two hours.

Police then examined the SUV to ensure that no armed persons were inside. After identifying each of the men and checking their backgrounds, the officers learned that all four were convicted felons. Three of the men, however, had no outstanding warrants and were released at the scene. Police also discovered that Defendant was the registered owner of the vehicle. Because Defendant was on parole for armed bank robbery and because the police suspected the vehicle contained weapons, Detective Houston decided to detain Defendant to determine whether he had violated his parole.¹ After Defendant twice refused his consent for officers to search the SUV, Houston looked through the tinted windows of the SUV and saw a pair of binoculars and a black canvass bag that he "believe[d] was a rifle bag."

The SUV, which had expired registration tags, was towed to the police station to inventory its contents. Officers then sought a search warrant before searching the vehicle. Detective Houston and another officer prepared a warrant affidavit based on information they received from other officers and from the 911 operator. After a state judge issued the warrant, officers searched the SUV and discovered a .38-caliber revolver with two rounds of ammunition. The officers also retrieved the binoculars and learned that what they thought was a rifle bag was actually an empty portable-chair holder.

Meanwhile, because the police suspected Defendant of being a felon in possession of a firearm, the officers had arrested Defendant and brought him to the police station for questioning. After hearing his Miranda rights and signing a waiver, Defendant admitted that the SUV and the items found inside the SUV belonged to him. During this unrecorded interview, Defendant specifically admitted that he had purchased the gun found in the SUV, that he knew the gun contained two rounds of ammunition, and that he had placed the gun in the center console of the vehicle.

Investigators also conducted an investigation of the items found in the vehicle, including the gun. One crime scene technician attempted to collect latent fingerprints from the gun but was only able to obtain certain "ridge detail" prints. Another fingerprint examiner determined that because the prints had less than six comparison points, they were of no value in making an identification. The examiner, therefore, disposed of the fingerprint card.

At trial, James Jackson ("Jackson"), a jailhouse acquaintance of Defendant, testified that Defendant had made several admissions during their conversations at the Palm Beach County Jail. According to Jackson, Defendant boasted that, on the day police arrested him, he had been "casing a Wachovia bank from a gas station" with binoculars. Defendant also said he was surprised the police had not found his fingerprints on his gun. In addition, Defendant told Jackson that another friend "was supposed to be in on their deal" but was likely the one who had placed the 911 call.

II. DISCUSSION

A. Reasonable Suspicion of Criminal Behavior

Defendant argues that the district court erred in denying his suppression motions for evidence discovered in the SUV because the police engaged in an unlawful search and seizure. He specifically maintains that the police lacked reasonable suspicion of illegal activity before stopping and detaining Defendant and failed to make reasonable inquiries to determine whether criminal activity was afoot. For background, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Defendant also argues that, under Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the police failed to verify information from an "anonymous" tip before acting on the information. We review a district court's denial of a motion to suppress evidence as a mixed question of law and fact, with rulings of law reviewed de novo and findings of fact reviewed for clear error, in the light most favorable to the prevailing party in district court. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir.2003).

To have reasonable suspicion, an officer conducting a stop must "have a reasonable, articulable suspicion based on objective facts that the person has engaged in, or is about to engage in, criminal activity." United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000) "The `reasonable suspicion' must be more than `an inchoate and unparticularized suspicion or hunch.'" Id. (quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). "While `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." Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 675-76, 145 L.Ed.2d 570 (2000). Also, "[a] reasonable suspicion of criminal activity may be formed by observing exclusively legal activity," United States v. Gordon, 231 F.3d 750, 754 (11th Cir.2000), even if such activity is "seemingly innocuous to the ordinary citizen." United States v. Smith, 201 F.3d 1317, 1323 (11th Cir.2000).

We examine "the totality of the circumstances" to determine whether the police had "a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (citation and internal quotation marks omitted). We also recognize that the police may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Id. at 750-51 (citation and internal quotation marks omitted). To have reasonable suspicion based on an anonymous tip, the tip must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." J.L., 120 S.Ct. at 1379. "The issue is whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 2414, 110 L.Ed.2d 301 (1990).

The totality of the circumstances in this case demonstrates that the police had more than an "inchoate and unparticularized suspicion" based on an "anonymous" tip.² The tip was consistent with specific facts already discovered during the ongoing investigation into several bank robberies in the area involving three to four black males driving large SUVs. The police also knew of two armed robberies of patrons committed by two black males outside the very branch of Wachovia Bank that was across from the location of D...