United States v. Green

• Decision Date: 27 December 2019
• Docket Number: No. 18-3589, No. 18-3591,18-3589
• Citation: 946 F.3d 433
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Tereall Deshawn GREEN, Defendant - Appellant United States of America, Plaintiff - Appellee v. Javonta Juan Herbert, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

946 F.3d 433

UNITED STATES of America, Plaintiff - Appellee

v.Tereall Deshawn GREEN, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Javonta Juan Herbert, Defendant - Appellant

No. 18-3589

No. 18-3591

United States Court of Appeals, Eighth Circuit.

Submitted: September 23, 2019

Filed: December 27, 2019

Rehearing and Rehearing En Banc Denied January 29, 2020^*

Anthony R. Morfitt, Martin Joseph McLaughlin, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff - Appellee.

Tereall Deshawn Green, Pro Se.

Brian Dean Johnson, JACOBSEN & JOHNSON, Cedar Rapids, IA, for Defendant - Appellant Tereall Deshawn Green.

Javonta Juan Herbert, Pro Se.

Michael Lindeman, Cedar Rapids, IA, for Defendant - Appellant Javonta Juan Herbert.

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

In this consolidated appeal, Tereall Green challenges the district court’s¹ denial of his motion to suppress evidence, and both Green and Javonta Herbert appeal their respective sentences for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We affirm.

I.

At approximately 1:00 a.m. on January 13, 2018, Jordan Ehlers, a police officer in Waterloo, Iowa, observed a black Nissan Rogue SUV that, based on his visual estimation, was speeding. Ehlers ran a search of the license plate number on the SUV, which returned a record for a different vehicle. While following the vehicle, he also noticed that a license plate frame on the SUV covered a portion of the license plate and registration. Based on these three facts, Officer Ehlers initiated a traffic stop.

Once the SUV stopped, Ehlers shined his spotlight on the back of the vehicle, and he observed passengers making what he perceived as suspicious movements. Ehlers exited his patrol car and approached the front passenger side of the vehicle. As the front passenger opened his window, Ehlers immediately smelled alcohol. He also observed open liquor bottles in the car and noticed that the floorboard appeared wet. Ehlers requested identification from the driver and from each of the three passengers. The front seat passenger did not have identification but identified himself as Tereall Green. Officer Ehlers recognized Green’s name from a prior intelligence report indicating that Green was seen in a Facebook video possessing a weapon. Ehlers then turned to the back-seat passengers, requesting identification from each of them. When one of them rolled down his window, Ehlers smelled marijuana. This passenger identified himself as Deshawn Marks. The other backseat passenger said his name was "Spencer Green." Ehlers noticed that "Spencer Green" appeared nervous, and he recognized "Green" as Javonta Herbert from prior contact with him.

After Officers Randy Girsch and Kenneth Schaaf arrived on the scene, Officer Ehlers asked Tereall Green to exit the SUV. He conducted a brief frisk of Green—quicker than normal due to the cold temperature. He did not find anything. Ehlers then frisked Marks, finding clear plastic baggies of marijuana. Because both Green and Marks were shivering, Officer Girsch offered to let them sit in his patrol car, an offer both men eventually accepted.

Back at the SUV, Ehlers asked "Spencer Green" to step out of the car. Ehlers asked if he was Javonta Herbert, and Herbert conceded that was his real name. Ehlers then conducted a patdown of Herbert. As Ehlers frisked Herbert, Officer Schaaf used his flashlight to look into the backseat floorboard of the SUV. He saw a handgun where Herbert had been sitting and immediately yelled "ten thirty-two"—a police code that indicated he had discovered a firearm in the vehicle. Ehlers placed Herbert under arrest.

Officer Girsch, who was standing beside the patrol car in which Tereall Green and Marks were sitting, heard Officer Schaaf call out the "ten thirty-two." Girsch decided to handcuff Green while another officer handcuffed Marks. Although he had observed Ehlers frisk Green earlier in the stop, Officer Girsch frisked him again, this time conducting a more thorough patdown. Girsch discovered a loaded firearm hidden in Green’s pants. Green subsequently fled on foot. Officers pursued and captured him within minutes.

Both Green and Herbert were indicted on charges of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In pre-trial matters, the district court denied Green’s motion to suppress evidence gathered during the traffic stop, finding that Ehlers had probable cause to stop the SUV and that neither patdown of Green constituted an unreasonable search in violation of the Fourth Amendment. Green and Herbert both entered conditional guilty pleas.

At sentencing, the district court applied to both Green’s and Herbert’s guideline calculations a four-level enhancement for possession of a firearm in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B). Herbert objected to the application of the enhancement, and the district court overruled the objection. For Green, the court calculated a total offense level of 23, a criminal history category of III, and an advisory guidelines range of 57 to 71 months. After rejecting Green’s motion for a downward variance, the court imposed a sentence of 71 months’ imprisonment. For Herbert, the court initially calculated a total offense level of 15, a criminal history category of VI, and an advisory guidelines range of 41 to 51 months. The Government moved for a three-level upward departure pursuant to U.S.S.G. § 4A1.3 based on Herbert’s underrepresented criminal history. The district court granted the motion, calculating a new total offense level of 18, a criminal history category of VI, and a guidelines range of 57 to 71 months’ imprisonment. The district court also sentenced Herbert to 71 months’ imprisonment.

II.

Green appeals the denial of his motion to suppress, arguing that the traffic stop was unlawful and that the officers lacked reasonable suspicion to frisk him.² He also challenges his 71-month sentence, arguing the district court erred in denying his motion for a downward variance. Herbert too appeals his 71-month sentence, arguing we should overrule our decision in United States v. Walker , 771 F.3d 449 (8th Cir. 2014), the district court abused its discretion in departing upwards, and his sentence is substantively unreasonable. We address each argument in turn.

A.

We first address Green’s argument that the district court erred in denying his motion to suppress evidence on the basis that the traffic stop was unlawful. Green claims that Officer Ehlers lacked probable cause to stop the SUV because the driver "was not driving in a suspicious manner" and the "vehicle in question obeyed the traffic laws." Green’s claims are not supported by the record, and we conclude that the traffic stop was not unlawful.

"We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials." United States v. Tamayo-Baez , 820 F.3d 308, 312 (8th Cir. 2016). "This court will affirm the district court’s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." United States v. Collins , 883 F.3d 1029, 1031 (8th Cir. 2018) (per curiam ).

"Under the Fourth Amendment, a traffic stop is reasonable if it is supported by either probable cause or an articulable and reasonable suspicion that a traffic violation has occurred." United States v. Washington , 455 F.3d 824, 826 (8th Cir. 2006). "Even a minor traffic violation provides probable cause for a traffic stop." United States v. Harris , 617 F.3d 977, 979 (8th Cir. 2010).

In this case, the district court found that Officer Ehlers had probable cause to believe the SUV was in violation of three different Iowa traffic laws. First, the district court credited Officer Ehlers’s testimony that he observed the SUV speeding. Though we have cautioned that "there must be sufficient indicia of reliability for a court to credit as reasonable an officer’s visual estimate of speed," United States v. Gaffney , 789 F.3d 866, 869 (8th Cir. 2015), we find the district court’s determination that the SUV was speeding, based on Ehlers’s credibility, training, and video evidence, is not clearly erroneous, and therefore Ehlers had probable cause to stop the vehicle. See id. at 869-70 ; Iowa Code § 321.285.

Furthermore, Ehlers also observed two other infractions that provided grounds to stop the SUV. First, Ehlers noticed that the license plate frame on the SUV covered the letters on the plate and the registration sticker. See Iowa Code § 321.37(3) ("It is unlawful for the owner of a vehicle to place any frame around or over the registration plate which does not permit full view of all numerals and letters printed on the registration plate."). Second, prior to initiating the stop, Officer Ehlers also ran an inquiry of the license plate which returned a record showing that the registration belonged on a silver 2004 Mercedes-Benz ML 500, but the plate was on a black 2011 Nissan Rogue. See Iowa Code § 321.17 (providing, in relevant part, that it is "a simple misdemeanor ... for any person to drive ... a vehicle of a type required to be registered under this chapter which is not registered"). Because the license plate frame obscured the plate, Ehlers had probable cause to make a stop, see Harris , 617 F.3d at 979, and because the plates were registered to a different vehicle, Ehlers at least had a reasonable suspicion that the SUV may not be properly registered at all, see United States v. Hollins , 685 F.3d 703, 706 (8th Cir. 2012) ; see also United States v. Givens , 763 F.3d 987, 989 (8th Cir. 2014) ("Reasonable suspicion exists when an officer is aware of particularized,...