Criminal Procedure - Charles E. Cox, Jr.

• Publication year: 2004

Criminal Procedureby Charles E. Cox, Jr.^*

I. Introduction

Each year the United States Court of Appeals for the Eleventh Circuit issues numerous decisions concerning the protections provided to criminal defendants by the United States Constitution. This Article surveys decisions issued in 2003 that are likely to be of interest to criminal law practitioners.

II. The Fourth Amendment

A. Investigatory Stops and Frisks

In United States v. Dunn,¹ defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g),² and defendant appealed the denial of his motion to suppress.³ In Dunn private security guards hired by the Housing Authority of the City of Atlanta⁴ heard more than one volley of gunshots, so they moved in the general direction of the gunshots. Within five minutes after the last volley of gunshots, the security guards encountered defendant and observed him placing an SKS assault rifle in the trunk of his automobile. The security guards drew their weapons and detained defendant in handcuffs pending the arrival of an Atlanta police officer.⁵ During the approximately ten to fifteen minutes it took for the first police officer to arrive, two witnesses informed the security guards that defendant was not the person responsible for the gunshots. When the first police officer arrived, he placed defendant in the back of his patrol car and called for a gun investigator. The gun investigator arrived approximately ten minutes later and advised defendant of his Miranda rights. At that point defendant admitted to being a convicted felon and to owning the assault rifle.⁶

Defendant conceded on appeal that the security guards hired by the Housing Authority had reasonable suspicion under Terry⁷ to believe that criminal activity was afoot;⁸ however, defendant contended that his seizure and detention "exceeded the outer boundaries of an investigatory Terry stop and became a de facto arrest."⁹ Defendant contended that the officer learned of defendant's status as a convicted felon as a result of defendant's unlawful detention.¹⁰ The Eleventh Circuit pretermitted the issue of whether defendant's detention was a permissible investigative detention under Terry by concluding that the security guards and the police had probable cause to believe that defendant had discharged his firearm in public, violating Georgia law.¹¹ The court concluded that "[p]lainly, a reasonable person could have concluded that [defendant] had just fired his weapon,"¹² and the uncorroborated statements of the two witnesses and the fact that the officers found no shell casings did not change that result.¹³

The Eleventh Circuit's decision in Dunn is consistent with prior holdings by the Eleventh Circuit that "arresting officers, in deciding whether probable cause exists, are not required to sift through conflicting evidence or resolve issues of credibility, so long as the totality of the circumstances present a sufficient basis for believing that an offense has been committed."¹⁴ As the Eleventh Circuit has stated, "probable cause[does not] require certainty on the part of the police. 'Sufficient probability, not certainty, is the touchstone ofreasonableness under the Fourth Amendment.'"¹⁵

B. Traffic Stops

In United States v. Perkins,¹⁶ the Eleventh Circuit upheld the district court's order suppressing all statements made and evidence obtained during a traffic stop¹⁷ in which an Alabama Highway Patrol officer stopped defendant driver after observing his car crossing the white line onto the shoulder of the road. The officer checked defendant's driver's license and insurance and then asked him to get out of his vehicle, so the officer could issue him a warning ticket for a lane violation. Although the officer informed defendant that he would be free to leave after receiving the warning citation, the officer checked defendant for weapons and directed him to sit in the patrol car while completing the warning ticket.¹⁸

Noticing that defendant had a Florida driver's license, the officer asked defendant if Florida was his destination. In response, defendant explained that he had relocated from Florida to Montgomery, Alabama, where he was employed and that he was headed to Greenville, Alabama, to visit his cousin, Shantay. During this questioning, defendant was not free to leave.¹⁹

After a driver's license check revealed that defendant had a valid license and no outstanding warrants, the officer gave the warning ticket to defendant for his signature and completed the portion of his investigation relating to the traffic stop.²⁰ Even though the officer had issued the warning citation, the officer "continued to detain [defendant] because of his nervousness; what he perceived as [defendant's] evasive behavior in response to his questions;²¹ and his hunch that [defendant] was being untruthful about his destination."²² At this point the officer decided to question defendant passenger. In response to the officer's questions, the passenger informed the officer that he and defendant driver were going to Greenville, that he was going to be visiting a girl named Quinn, and that he had no knowledge of illegal drugs in the car.²³

After questioning the passenger, the officer returned to the patrol car, took back the signed warning ticket from the driver, and continued to question him. After defendant driver denied that drugs were in the car and denied the officer's request for consent to search, the officer called for a drug-sniffing dog. After the dog arrived, the officer placed the passenger in the patrol car with defendant driver. Unaware that their conversation was being taped, defendants had a conversation in the back of the car about whether the dog would be able to find drugs. After the officer spoke with the canine officer, he returned to the patrol car and repeatedly questioned the driver until he admitted that drugs were in the car and showed the officer where they were hidden.²⁴

The Eleventh Circuit rejected defendants' arguments that the duration of the traffic stop itself was unconstitutional.²⁵ While "[a] traffic stop may be prolonged where an officer is able to articulate a reasonable suspicion of other illegal activity beyond the traffic offense,"²⁶ the court concluded that the officer did not have reasonable suspicion to continue the detention of defendants after issuing the warning ticket.²⁷

The Eleventh Circuit recognized that a traffic stop is an "'unsettling show of authority,'"²⁸ and the officer could not articulate any reason why he suspected that the driver's nervousness was tied to anything other than being detained by an authority figure.²⁹ The court rejected the argument that the driver's habit of repeating a question back to the officer before answering was odd behavior and instead attributed it to anxiety.³⁰ The Eleventh Circuit declared, "Indeed, it is a common occurrence at oral arguments before this Court by even the most seasoned lawyers."³¹ Finally, the court reasoned that defendants' explanations of who they were intending to visit did not contradict one another.³² Defendants "could have intended to see both persons during their visit, or [defendant driver] could have intended to visit Shantay while [defendant passenger] visited Quinn."³³ Because the driver's consent was the result of an unlawful detention, the consent was tainted, and any statements made and evidence seized during the detention had to be suppressed.³⁴

In United States v. Chanthasouxat,³⁵ defendants appealed the district court's denial of their motion to suppress. The arresting officer stopped the van in which defendants were riding for failure to have an inside rear-view mirror. After receiving permission from the driver to search the van, the arresting officer found approximately fifteen kilograms of cocaine. Defendants were placed in the back of the patrol car while the officer searched the van. Defendants' conversation, which was recorded by a video camera in the patrol car, demonstrated that defendants knew they were carrying cocaine.³⁶

Defendants argued that the arresting officer lacked both probable cause and reasonable suspicion to stop the van because neither municipal nor state law requires an inside rear-view mirror. In response the Government argued that the applicable statute was ambiguous and that the applicable traffic laws reasonably could be construed to require an inside rear-view mirror.³⁷

The Eleventh Circuit explained that "[a] traffic stop based on an officer's incorrect but reasonable assessment of facts does not violate the Fourth Amendment . . . . Thus, if an officer makes a traffic stop based on a mistake of fact, the only question is whether his mistake of fact was reasonable."³⁸ The court concluded, however, that in this case the officer's mistake was one of law.³⁹ The statute at issue required a rear-view mirror, but the statute contained no requirement that the mirror be located inside the vehicle.⁴⁰ Even if the statute was ambiguous, the court declined to use that ambiguity against defendants when the language of the statute did not explicitly require an inside rear-view mirror.⁴¹ The court held that "a mistake of law, no matter how reasonable or understandable, can [never] provide the objectively reasonable grounds for reasonable suspicion or probable cause."⁴²

The court also rejected the Government's arguments that the defendant driver's consent to search the van cured any taint on the evidence discovered as a result of the unconstitutional stop.⁴³ For a consent given after an illegal seizure to be valid, the Government must prove that the consent is voluntary and that the consent was not a product of the illegal seizure.⁴⁴ In determining whether a voluntary consent was a product of the illegal seizure, the court considers: "(1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial...