UNITED STATES OF AMERICA v. NEELY
United States Court of Appeals, Eleventh Circuit
471 F.3d 851
We review the denial of a motion to suppress under a mixed standard of review. We review findings of fact for clear error and the application of the law to those facts de novo, and we construe the facts in the light most favorable to the government. United States v. Santa, 236 F.3d 662, 668 (11th Cir.2000).
Neely argues that the district court erred when it denied the motion to suppress because Detective Hargrove lacked reasonable suspicion to conduct the investigatory stop. We disagree. Reasonable suspicion is more than an “inchoate and unparticularized suspicion or ‘hunch,‘” but is “considerably less than proof of wrongdoing by a preponderance of the evidence” and less than probable cause, which is “a fair probability that contraband or evidence of a crime will be found.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)).
A combination of objective factors established a reasonable suspicion. First, Neely and Saunders were in an area known for criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Second, Saunders was a known narcotics dealer. See United States v. Cruz, 909 F.2d 422, 424 (11th Cir.1989). Third, Neely and Saunders fled without provocation when they saw Detective Hargrove. See Wardlow, 528 U.S. at 124, 120 S.Ct. at 676. Neely disputes that he or Saunders recognized Hargrove as a police officer, but we must infer from Detective Hargrove‘s testimony that Saunders saw and recognized his vehicle.
Detective Hargrove had a reasonable suspicion that justified the investigatory stop of the car in which Saunders was a passenger, and that reasonable suspicion persisted. After questioning by Detective Hargrove, Saunders was unable to account for his actions, and after Neely repeatedly reached under his seat, Detective Hargrove reasonably believed that Neely was dangerous and might have gained immediate control of a weapon. See Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983). Hargrove was entitled to search the vehicle to ensure his safety. Even if this automobile exception did not apply, Neely‘s diminished expectation of privacy as a probationer subject to a search condition, along with the reasonable suspicion created by his flight, would render the search reasonable. See United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 593, 151 L.Ed.2d 497 (2001).
AFFIRMED.
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Counter-Defendant Third-Party-Defendant-Appellee, v. Diane SIMMONS, Defendant-Counter-Claimant Third-Party-Plaintiff-Appellant.
No. 06-14839
United States Court of Appeals, Eleventh Circuit
Feb. 8, 2007
Eugene Terry Moore, The Law Office of Gene T. Moore, P.C., Tuscaloosa, AL, for Diane Simmons.
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Diane Simmons appeals the district court‘s grant of State Farm‘s motion for summary judgment in her action against State Farm. The district court concluded Simmons’ claims should be dismissed because they were barred by the doctrine of judicial estoppel. Specifically, the district court found Simmons did not disclose her potential claims against State Farm in her pending bankruptcy case, despite numerous opportunities to do so, and that the failure to disclose was calculated to make a mockery of the judicial system.
Under the doctrine of judicial estoppel, “a party is precluded from ‘asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.‘” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002) (citation omitted). We consider two factors in the application of judicial estoppel. Id. First, the allegedly inconsistent positions must have been made under oath in a prior proceeding. Second, the inconsistencies must have been calculated to make a mockery of the judicial system. Id.
After review, we conclude the district court did not err in dismissing Simmons’ claims based on judicial estoppel. We affirm for the reasons stated in the district court‘s well-reasoned opinion of August 2, 2006.
AFFIRMED.