UNITED STATES OF AMERICA v. MICHAEL RAY BISHOP
No. 17-15473
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
October 11, 2019
D.C. Docket No. 3:17-cr-00085-RV-1
[PUBLISH]
Appeal from the United States District Court for the Northern District of Florida
(October 11, 2019)
Before WILSON and NEWSOM, Circuit Judges, and COOGLER,* District Judge.
WILSON, Circuit Judge:
* Honorable L. Scott Coogler, District Judge for the United States District Court for the Northern District of Alabama, sitting by
Michael Bishop appeals his conviction and sentence following his conditional guilty plea to knowingly possessing a firearm as a convicted felon under
I. Factual and Procedural Background
A. Suppression Hearing
Following a lawful traffic stop, police conducted a pat-down search of Bishop‘s outer clothing and seized a high-capacity gun magazine, the matching firearm, one hydromorphone pill, and three syringes. Bishop moved to suppress all evidence seized during the search. He argued that police (1) unlawfully extended the length of the traffic stop, and (2) lacked reasonable suspicion that he was armed and dangerous to justify the pat-down.
At the suppression hearing, Santa Rosa County Deputy Sheriff Chad Floyd testified about the events leading up to the search. Floyd was in a marked patrol car and observed a pickup truck drive through a stop sign while exiting an apartment complex. Floyd began following the truck and saw it drive through another stop sign. Floyd pulled the truck over and approached the vehicle. He observed Antonio Davis in the driver‘s seat and Bishop in the passenger‘s seat.
Earlier that day, Floyd pulled over a woman that he subsequently arrested for possessing heroin and drug paraphernalia. The woman told Floyd that “she was headed to Michael Bishop‘s house.” Floyd testified that because of the woman‘s statement, and because Davis “was a known narcotics violator in [Floyd‘s] agency,” he called for a K-9 officer to come to the scene.
Deputy Dаnny Miller—a K-9 handler—and Deputy Richard Dunsford arrived at the scene to assist Floyd. Dunsford had worked as a corrections officer at the county jail and recognized both Davis and Bishop as former inmates.
Dunsford approached the driver‘s side of the truck and asked Davis to exit the vehicle. Davis complied without issue. As Dunsford was performing a pat-down search of Davis, Bishop—still seated in the truck—told Dunsford, “you have no right to stop us, you have no right to ask us to get out of the vehicle.” Dunsford testified that Bishop was agitated, “fidgeting around,” “moving around in the seat,” and “very defensive.” Dunsford then asked Bishop to exit the truck, and Bishop adamantly refused, saying “[n]o, . . . I‘m not getting out of the vehicle, you have no right to ask me to get out of the vehicle.” Based on Bishop‘s general behavior and reluctance to exit the truck, Dunsford became concerned that Bishop “might be hiding a firearm or a weapon or . . . something on his person.” After multiple requests to exit the truck, Bishop complied.
Dunsford testified that, for his safety and the safety of his fellow officers, he performed a pat-down search of Bishoр‘s outer clothing. Dunsford felt a firearm magazine in Bishop‘s left pocket, which he removed. The matching firearm was in Bishop‘s left pant leg, which Dunsford also removed. The firearm was a stolen semi-automatic handgun with a high-capacity magazine. Deputy Miller then deployed his K-9 to search the truck. After the K-9 gave a positive alert, the deputies searched the truck and recovered a marijuana cigarette, a zip-sealed bag containing empty baggies, and a digital scale.
At the suppression hearing, Bishop argued that Dunsford lacked any reasonable, articulable suspicion that he was armed and dangerous to justify the pat-down
B. Sentencing
The United States Probation Office prepared a presentence investigation report (PSI). In addition to the facts offered at the suppression hearing, the PSI stated that after the deputies recovered the firearm from Bishop‘s pants, Bishop informed the deputies that he had syringes in his right pocket. The deputies removed three syringes and a clear plastic bag containing one pill, which was later identified as hydromorphone.2
The PSI assigned Bishoр an enhanced base offense level of 22 under
A two-level enhancement applied under
Bishop objected to his enhanced base offense level under
The district court overruled Bishop‘s objections, adopted the facts and guideline calculations in the PSI, and sentenced Bishop to 80 months. Bishop timely appealed.
Bishop raises three challenges on appeal. First, Bishop challenges the district court‘s denial of his motion to suppress evidence seized during the pat-down search. He argues that the pat-down search was not warranted because the deputies lacked reasonable suspicion to believe that he was armed and dangerous. Second, Bishop asserts that the district court erred in applying a four-level enhancement under
A. Motion to Suppress Evidence
In reviewing a denial of a motion to suppress, we review the district court‘s findings of fact for clear error and its application of the law de novo. United States v. Campbell, 912 F.3d 1340, 1349 (11th Cir. 2019).
The
“[I]n a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation,” and the “police need not have, in addition, cause to believe any оccupant of the vehicle is involved in criminal activity.” Arizona v. Johnson, 555 U.S. 323, 327 (2009). Once a vehicle is lawfully stopped, an officer may order the occupants to exit the vehicle. Maryland v. Wilson, 519 U.S. 408, 415 (1997). If the officer has a reasonable suspicion that the person may be armed and dangerous, the officer is then permitted to conduct a limited search of an occupant‘s outer clothing for weapons. Johnson, 555 U.S. at 327. Reasonable suspicion that an individual is armed and dangerous exists so long as “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” UnitedStates v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (quoting Terry, 392 U.S. at 27).
We evaluate the totality of the circumstances to determine whether such suspicion was reasonable. United States v. Griffin, 696 F.3d 1354, 1359 (11th Cir. 2012), abrogated on other grounds by United States v. Campbell, 912 F.3d 1340, 1353 (11th Cir. 2019). “[N]ervous, evasive behavior” is a relevant factor to be considered in the totality of the circumstances. Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000); United States v. Gordon, 231 F.3d 750, 756 (11th Cir. 2000) (recognizing “that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion“). So too may argumentative or non-compliant behavior give rise to a reasonable suspicious that an individual is armed and dangerous. See United States v. Knight, 562 F.3d 1314, 1327 (11th Cir. 2009) (determining that а driver‘s argumentative behavior at the initial stop, among other things, weighed in favor of finding reasonable suspicion existed).
Bishop does not challenge the initial traffic stop, but only whether the deputies had a reasonable suspicion that he was armed and dangerous to justify the pat-down search. He argues that his nervous, fidgety, and defensive behavior, combined with the deputies’ knowledge that he had previously been an inmate at the county jail, was insufficient to establish reasonable suspicion.
To determine whether a suspicion was rеasonable, we evaluate the totality of the circumstances surrounding the stop, including the collective knowledge of all officers involved in the stop. United States v. Cotton, 721 F.2d 350, 352 (11th Cir. 1983). In their collective knowledge, the deputies knew that (1) Bishop had been an inmate at the county jail; (2) a woman arrested with heroin earlier that day informed Deputy Floyd that she was heading to Bishop‘s house; (3) Bishop was argumentative and noncompliant, adamantly refusing to comply with lawful orders to exit the truck; and (4) he was agitated, fidgeting, moving around in his seat, and very defensive.
Viewed in totality, Bishop‘s known criminal history,4 non-compliance, argumentativeness, and nervous, agitated behavior following lawful orders to exit the truck would cause a reasonably prudent officer in the circumstances to believe that his safety or that of his fellow officers was in danger. Hunter, 291 F.3d at 1306.
“[O]ur courts have repeatedly recognized the danger inherent in traffic stops, particularly when persons other than the driver are present, and the concomitant need to exercise unquestioned command of the situation.” United States v. Gibbs,
917 F.3d 1289, 1297 (11th Cir. 2019) (internal quotation marks omitted). Exercising command of the situation during а traffic stop may include ordering both the driver and any passengers out of the vehicle pending completion of the stop. See, e.g., Wilson, 519 U.S. at 415. The deputies were thus lawfully permitted to order Bishop to exit the truck in the interest of exercising unquestioned command of the situation. His repeated refusals to comply with those lawful orders, coupled with his peculiar movements and tense behavior while seated in the truck, support a finding of reasonable suspicion. See Wardlow, 528 U.S. at 124–25; Gordon, 231 F.3d at 756; see also Knight, 562 F.3d at 1327.
Bishop asserts that none of these factors, standing alone, is sufficient to establish a reasonable suspicion that he was armed and dangerous. But our analysis is controlled by the totality of the circumstances, and reasonable suspicion may
Accordingly, we conclude that, based on the totality of the circumstances, the deputies were justified in conducting a limited pat-down search for weapons. We therefore affirm the denial of Bishop‘s motion to suppress.
B. U.S.S.G. § 2K2.1(b)(6)(B)
Bishop next challenges the district court‘s application of a four-level enhancement under
In challenges to sentencing decisions, we review a district court‘s determinations of law de novo and its findings of fact for clear error. United States v. Barrington, 648 F.3d 1178, 1194–95 (11th Cir. 2011). A district court‘s determination that a defendant possessed a gun “in connection with” another felony offense is a finding of fact that we review for clear error. United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995).
Application of the enhancement thus depends on the type of felony alleged. If the offense involves drug trafficking,
The government responds that the record supports the district court‘s application of the four-level enhancement because the firearm and ammunition facilitated, or had the potential to facilitate, Bishop‘s possession of drugs and drug paraphernalia. The government cites to United States v. Carillo-Ayala for the proposition that a firearm found “in close proximity to drugs or drug-related items simply ‘has‘—without any requirement for additional evidence—the potential to facilitate the drug offense.” 713 F.3d 82, 92 (11th Cir. 2013). The fact that Bishop possessed a firearm in connection with a drug possession offense rather than a drug trafficking crime, the government argues, is therefore immaterial. We disagree.
The government‘s reliance on Carillo-Ayala is misplaced. In Carillo-Ayala, we considered whether a defendant convicted of drug trafficking was entitled to application of the “safety valve” under
Several of our sister circuits have addressed this issue and concluded that the Application Notes clearly indicate thаt spatial proximity between a firearm and drugs is enough to show a “connection” when the underlying offense is drug trafficking, but something more must be shown for other felonies. See United States v. Shields, 664 F.3d 1040, 1045 (6th Cir. 2011) (“[P]roximity that is merely coincidental is not enough for application of § 2K2.1(b)(6) when a defendant merely possessed drugs. . . . To allow otherwise would render the distinction in the Guidelines commentary between drug trafficking and other felonies meaningless.“) (internal citations and alterations omitted); United States v. West, 643 F.3d 102, 113–14 (3d Cir. 2011); United States v. Jeffries, 587 F.3d 690, 693 (5th Cir. 2009) (“If [Application Note 14(B)] had intended to allow a ‘mere proximity’ argument to suffice for all drug crimеs, it would have said so. It did not.“); United States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009); United States v. Fuentes Torres, 529 F.3d 825, 827 (8th Cir. 2008) (“[T]he Commission treated drug trafficking offenses and drug possession offenses differently.“).
The Eighth Circuit in United States v. Blankenship, for example, has explained the distinction:
[W]ith the addition of Application Note 14, the Sentencing Commission decided to make a distinction between the factual
circumstances of when the other felony was a drug trafficking offense, or alternatively, a simple drug possession offense. If the felony is for drug trafficking, Application Note 14(B) mandates application of the adjustment if guns and drugs are in the same location. . . . If the underlying drug offense is for simple possession, the district court may still apply the adjustment, but only after making a finding that the firearm facilitated [or had the potential of facilitating] the drug offense.
552 F.3d 703, 705 (8th Cir. 2009).
We agree with our sister circuits and hold that mere proximity between a firearm and drugs possessed for personal use cannot support the
The government concedes that the district court did not find that the firearm facilitated Bishop‘s drug possession offense but argues that we can infer such a finding so long as there is a factual basis in the record to support the enhancement. See United States v. Robinson, 493 F.3d 1322, 1334–35 (11th Cir. 2007) (inferring an implied factual finding by the district court that defendant‘s fraud proximately caused victim‘s loss).
Specifically, the government argues that the district court recognized certain undisputed facts: (1) that Bishop possessed an unloaded firearm, a loaded magazine, a single hydromorphone pill, and three syringes; and (2) that police recovered empty baggies and a scale from Davis‘s truck. The government argues that Bishop was a drug addict at the time of his arrest, indicating that he would be more willing to use his firearm to protect the single pill. It asserts that these facts are enough to support a finding that the firearm facilitated Bishop‘s drug possession. But the fact that the district court recognized undisputed facts does not necessarily mean that the court considered these findings in the context of applying the
In fact, the government‘s theory at sentencing rested solely on proximity. See Doc. 44 at 5. Thus, the only finding that the district court made in support of applying the enhancement was about proximity.
Though the government contends that there are facts in the record that may support the enhancement under the facilitation standard, it simply did not advance that argument at sentencing.6 Remanding
We caution that our holding today should not be confused to mean that the
C. U.S.S.G. § 2K2.1(a)(3)
Bishop argues that the district court erred in applying an enhancеd base offense level under
We review de novo whether a prior conviction qualifies as a “controlled substance offense” under the Guidelines. United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017). The Guidelines provide that a defendant is subject to an enhanced base offense level of 22 if (1) the offense involved a firearm capable of accepting large capacity magazines; and (2) the defendant committed the instant offense after sustaining a felony conviction for a “crime of violence” or a “controlled substance offense.”
Of relevance here, Florida criminalizes the sale, manufacture, or delivery of a controlled substance, or the possession with intent to sell, manufacture, or deliver a controlled substance.
Bishop argues that his prior Florida conviction under
We are bound by Smith unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or this Court sitting en banc. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). We have previously reaffirmed that Smith remains binding precedent. See United States v. Pridgeon, 853 F.3d 1192, 1198–2000 (11th Cir. 2017). The district court‘s application of an enhanced base offense level under
III. Conclusion
After careful review, and with the benefit of oral argument, we affirm the district court‘s denial of Bishop‘s motion to suppress evidence seized during the pat-down search. We also affirm the application of an enhanced base offense level under
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.