Case: 16-16982 Date Filed: 01/09/2020 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 16-16982 _________________________
D.C. Docket No. 5:15-cr-00018-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHAVEZ ANTWON HUNTER,
Defendant-Appellant. _______________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________________
(January 9, 2020)
Before JORDAN, GRANT, and SILER,* Circuit Judges.
PER CURIAM:
______________________
*Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 16-16982 Date Filed: 01/09/2020 Page: 2 of 17
Chavez Hunter pleaded guilty to illegal receipt of a firearm by a person under
indictment in violation of 18 U.S.C. § 922(n) and § 924(a)(1)(D). Prior to entering
his plea, Hunter moved for an evidentiary hearing to suppress evidence recovered
after he was stopped and detained by Deputy Matthew Cota. Following a hearing,
the district court denied Hunter’s motion. Now, Hunter appeals his conviction and
sentence, arguing that the district court erred in denying his motion to suppress.
We affirm.
I. BACKGROUND
In the early morning of September 15, 2014, Bibb County Sheriff’s Deputy
Cota was on patrol in Georgia in his marked police vehicle. Shortly after 2 a.m., he
received a call about suspicious activity in the nearby area. A homeowner reported
that lawn equipment had been removed from his garage and placed beside the road.
The caller stated that several neighbors had expressed similar complaints, and that it
was believed that after placing the equipment by the road, someone would load it
into a vehicle and drive away.
Cota patrolled the area looking for anyone who might have been involved.
Shortly before 3 a.m., Cota encountered Hunter walking alongside Forsyth Road, a
two-lane road with no sidewalk, surrounded by woods on both sides. Hunter caught
Cota’s attention because of the prior report of suspicious activity, the late hour, and
the rarity of pedestrian traffic on that particular road. Cota drove to the opposite side
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of the road from Hunter, rolled down his window, and asked Hunter what he was
doing. Hunter said he was walking to his girlfriend’s house in Unionville, which
Cota knew to be over five miles away. Cota then rolled up his window and began
to drive away.
After driving a short distance, a gut feeling prompted Cota to quickly turn
around. He drove back to where he had encountered Hunter and stopped his vehicle
in the road. Although Hunter was walking directly toward Cota’s front bumper, the
cruiser was not blocking Hunter’s path, because he was walking alongside the road,
not in it. Cota then got out of his vehicle and began speaking with Hunter. He again
asked Hunter where he was going, and informed Hunter that he was investigating a
burglary report. After talking to Hunter for a few minutes and expressing concern
for his safety, Cota offered him a ride, which was a routine practice in this type of
situation. However, Hunter argues that Cota’s offer was actually a request or
command, and that he was not free to decline the ride.
Hunter hesitated for a moment before saying “sure.” Before letting him in the
police cruiser, protocol required Cota to pat down Hunter’s outer clothing. When
Cota told Hunter of this policy, Hunter’s demeanor suddenly changed and his body
language became tense. Cota, standing about five feet from Hunter at this point,
moved in closer and asked Hunter whether he was carrying any weapons. Hunter
put his hands up and replied that he had one tucked “in his belt loop in front.” After
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telling Hunter, “Don’t go for it. I’m going to remove it,” Cota pulled up Hunter’s
shirt, saw a revolver, and pulled it out.
Cota did not handcuff Hunter; instead, he put him in the back of his patrol
vehicle with either the door or window cracked, and placed the revolver in the front
seat. Cota suspected that Hunter might not have had a license to carry a concealed
firearm, and that it might have been stolen. It was standard procedure for an officer
who comes in contact with a weapon to contact dispatch and run a check to see if
the firearm had been used in a crime or was stolen.
Cota radioed dispatch concerning Hunter’s information and to check the
revolver’s serial number. Hunter then informed Cota that he was carrying the gun
for his safety and that it belonged to his cousin. Cota immediately called Hunter’s
cousin, who denied owning the firearm. About nine to fifteen minutes after
contacting dispatch, Cota was informed that Hunter had an active arrest warrant for
a violation of probation for burglary, a felony. About five or six minutes later,
dispatch informed Cota that the firearm was not stolen. Upon learning of the
outstanding warrant, Cota had Hunter step out of the vehicle to handcuff him, placed
him back in the vehicle, and transported him to the law enforcement center.
Following this incident, Cota wrote two separate reports. The first was written
the morning of the incident, and the second was written about a week later. Cota
testified that the first report was not as detailed as it should have been, so he was
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asked to write a second one. In his first report, he wrote that he had “stated” to
Hunter that he would give him a ride, but in the second report Cota replaced “stated”
with “advised.” He later testified that he typically uses such words when preparing
his reports, and that he had asked Hunter whether he wanted a ride rather than
commanding him to get into the cruiser.
Hunter was subsequently charged in a one-count indictment with illegal
receipt of a firearm by a person under indictment, in violation of 18 U.S.C. § 922(n)
and § 924(a)(1)(D). Hunter filed a motion to suppress, arguing that he was
unjustifiably seized by Cota, and therefore any evidence obtained from the events
that followed were fruits of the poisonous tree. He claimed that Cota did not satisfy
the two-part requirement for a valid Terry stop, as Cota lacked reasonable suspicion
that Hunter had any involvement in criminal activity — he was not acting
suspiciously, and provided adequate explanations to Cota’s questions. Hunter also
argued that Cota exceeded the scope of any permissible investigatory detention by
requiring him to accept a ride in the police car.
Following an evidentiary hearing, the district court denied Hunter’s motion to
suppress. The court determined that Hunter and Cota were engaged in a consensual
encounter until, at the earliest, when Hunter reacted to Cota’s statement about the
frisk, and that reasonable suspicion supported the seizure. Hunter then entered a
conditional guilty plea, reserving the right to appeal the district court’s order.
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II. STANDARD OF REVIEW
The denial of a motion to suppress presents a mixed question of law and fact.
We review the district court’s findings of fact for clear error and the application of
law to those facts de novo. United States v. Dixon, 901 F.3d 1322, 1338 (11th Cir.
2018). In addition, we construe all facts in the light most favorable to the prevailing
party below. Id.
III. DISCUSSION
Hunter offers two grounds for suppression. First, he argues that he was
unlawfully seized at the outset of his second encounter with Cota. Second, he argues
that even if he was not seized until his nervous reaction to the prospect of being
frisked, this seizure was not supported by reasonable suspicion. Therefore, Hunter
claims, any evidence obtained from the events that followed should be suppressed
as fruits of the poisonous tree. We address each argument in turn.
A. Hunter was not seized until he informed Cota that he was carrying a firearm.
The Fourth Amendment prohibits unreasonable searches and seizures. U.S.
Const. amend. IV. We have identified “three broad categories of police-citizen
encounters for purposes of our Fourth Amendment analysis: (1) police-citizen
exchanges involving no coercion or detention; (2) brief seizures or investigatory
detentions; and (3) full-scale arrests.” United States v. Perez, 443 F.3d 772, 777
(11th Cir. 2006). Under the first category, officers may approach individuals on the
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street or other public places, ask questions if they are willing, ask for identification,
and request consent to search, “provided they do not induce cooperation by coercive
means.” United States v. Drayton, 536 U.S. 194, 200–01, 122 S.Ct. 2105, 2110
(2002). “There is nothing in the Constitution which prevents a policeman from
addressing questions to anyone on the streets.” United States v. Franklin, 323 F.3d
1298, 1301 (11th Cir. 2003) (quoting Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868,
1886 (1968) (White, J., concurring)). These “consensual” encounters do not trigger
Fourth Amendment scrutiny. United States v. Jordan, 635 F.3d 1181, 1186 (11th
Cir. 2011).
“A seizure under the Fourth Amendment happens when the officer, by means
of physical force or show of authority, has in some way restrained the liberty of a
citizen.” Franklin, 323 F.3d at 1301. A seizure triggers constitutional scrutiny, and
thus must be justified by either reasonable suspicion or probable cause, depending
on the severity of the intrusion. Jordan, 635 F.3d at 1185. In determining the point
at which a consensual encounter becomes a seizure, we consider whether “a
reasonable person would feel free to decline the officers’ requests or otherwise
terminate the encounter.” Drayton, 536 U.S. at 202, 122 S.Ct. at 2111 (internal
quotation marks omitted). This test is “objective and presupposes an innocent
person.” Id. (internal quotation marks omitted) (emphasis in original). If a
reasonable person would not feel free to terminate the encounter, or if the citizen’s
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cooperation is induced by “coercive means” such as physical force or a show of
authority, a seizure has occurred and the citizen’s Fourth Amendment rights are
implicated. Jordan, 635 F.3d at 1186 (citation omitted). In applying this test, we
consider the “totality of the circumstances.” Id. Relevant factors in this analysis
include: (1) whether the individual’s path is blocked or impeded; (2) whether
identification is retained; (3) the individual’s age, education and intelligence; (4) the
length of the individual’s detention and questioning; (5) the number of police
officers present; (6) the display of weapons; (7) any physical touching of the suspect;
and (8) the language and tone of voice of the police. Id. We are mindful that these
factors are not all-encompassing and should not be applied rigidly. Id.
The district court found that the seizure occurred when Hunter exhibited
nervous behavior upon learning that he would need to be frisked. Hunter argues that
the seizure occurred far earlier, because a reasonable person would not have felt at
liberty to leave from the moment Cota first returned. He directs us to the following
pertinent facts: Cota (1) stopped his police cruiser directly in Hunter’s path; (2)
activated the cruiser’s rear blue lights; (3) exited the vehicle; (4) told Hunter that he
was investigating a burglary report; (4) questioned Hunter’s presence in the area;
and (5) offered Hunter a ride in the police cruiser. The government counters that
Cota did not display a show of force or coerce Hunter into continuing the
conversation, and thus the encounter remained consensual until Hunter’s nervous
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reaction.
First, Hunter argues that Cota blocked his path by stopping his cruiser directly
in front of him, such that Hunter was walking toward Cota’s front bumper. Our
holding in Jordan is instructive on this point — the defendant was walking down the
middle of the street, when an officer slowed down and pulled over his vehicle to
engage him “in a way that did not block [his] path.” 635 F.3d at 1187. Here, Hunter
was walking alongside a two-lane road with no sidewalk, thus giving Cota little
recourse but to simply come to a stop in the road — he did not maneuver the vehicle
in a way that clearly obstructed Hunter’s walking path. Moreover, Hunter concedes
that he could have simply walked around Cota’s car.
Next, Hunter directs us to Cota’s activation of the rear blue lights on the police
cruiser as indicative of a seizure. The government argues that this was merely a
safety precaution taken by Cota to alert oncoming traffic that he was stopped in the
middle of the road, as it was night and Forsyth Road did not have streetlights. We
have yet to address how blue light activation factors into a determination of whether
a person has been seized. The Seventh Circuit is the only federal circuit court to
specifically address whether an individual is seized at the moment a police officer
activates emergency lights; however, the defendant in that case was in a car, not on
foot. United States v. Clements, 522 F.3d 790, 792 (7th Cir. 2008). The Clements
court noted that although the flashing lights may have contributed to the defendant’s
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feeling restrained, this did not constitute a seizure; ultimately, the court did not
decide the issue because the defendant had waived it. Id. at 794-95. In our view,
the mere act of turning on rear blue lights does not automatically signal that a person
has been seized.
Next, Hunter claims that Cota demonstrated a “show of authority” when he
exited the vehicle, approached Hunter, and began asking questions. But the Supreme
Court has repeatedly held that such actions do not necessarily constitute a seizure.
Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1991) (“[A] seizure
does not occur simply because a police officer approaches an individual and asks a
few questions.”). “Law enforcement officers do not violate the Fourth Amendment
. . . merely by approaching individuals on the street or in other public places and
putting questions to them if they are willing to listen.” Drayton, 536 U.S. at 200,
122 S.Ct. at 2110. Moreover, “[e]ven when law enforcement officers have no basis
for suspecting a particular individual, they may pose questions, ask for identification,
and request consent to search . . . provided they do not induce cooperation by
coercive means.” Id. at 201, 122 S.Ct. at 2110. Like the officers in Jordan, Cota
did not brandish his weapon, block or impede Hunter’s path, ask Hunter for
identification, or touch him. Jordan, 635 F.3d at 1187. Cota remained calm
throughout the encounter, never threatening Hunter or raising his tone of voice, and
asked reasonable questions regarding Hunter’s presence in the area and his
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destination. Hunter answered Cota’s questions, and Cota did not “by means of
physical force or show of authority” restrain Hunter’s liberty. Bostick, 501 U.S. at
434, 111 S.Ct. at 2386 (quoting Terry, 392 U.S. at 19 n.16, 88 S.Ct. at 1879 n.16).
Finally, Hunter argues that even if the encounter remained consensual, it was
transformed into a seizure when Cota offered him a ride. As a threshold matter, we
agree with the district court’s finding that Cota’s statement is better construed as an
offer than a specific directive for Hunter to follow. Cota testified that he used the
term “advised” in virtually all of his reports, and that it is not materially different
from his use of the term “stated” in his first report of this incident. Further, he
testified that he had asked Hunter whether he wanted a ride, that Hunter was free to
decline this request, and that his offer was accompanied with an expression of
concern for Hunter’s safety. Hunter argues that a reasonable person in his position
— a felon on probation, unlawfully carrying a concealed firearm — would not have
felt free to accept a ride, exposing himself to possible arrest. But the “reasonable
person” test is an objective standard, one that “calls for consistent application from
one police encounter to the next, regardless of the particular individual's response to
the actions of the police.” Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct.
1975, 1980 (1988). An objective reasonable person standard “ensures that the scope
of Fourth Amendment protection does not vary with the state of mind of the
particular individual being approached.” Id. Accordingly, in determining whether
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Hunter was seized, we decline to substitute Hunter’s specific viewpoint for that of a
reasonable person. As to the offer itself, in a recent case with very similar facts, our
sister circuit held that an officer “[o]ffering [the defendants] a ride did not turn what
was a consensual encounter into a seizure or otherwise implicate the Fourth
Amendment.” United States v. Lozano, 916 F.3d 726, 730 (8th Cir. 2019).
Likewise, Cota’s offer of a ride was the result of a consensual conversation regarding
Hunter’s destination. Given that Hunter was walking to a destination over five miles
away, an offer of a ride was a natural question to ask, not a coercive tactic.
The seizure began only when Hunter informed Cota that he was armed, when
Cota closed the gap between him and Hunter, made physical contact by frisking
Hunter, and seized the firearm. At this point, a reasonable person would not have
felt free to decline Cota’s request, or terminate the encounter. See Jordan, 635 F.3d
at 1186 (explaining that “[t]he ultimate inquiry [about whether an encounter was
consensual] remains whether a person’s freedom of movement was restrained by
physical force or by submission to a show of authority.”). Therefore, the firearm
was discovered pursuant to Cota’s investigatory stop.
B. The seizure was supported by reasonable suspicion.
A seizure must be supported by an objective, particularized basis. As relevant
to the instant case, an officer may conduct a brief, warrantless, investigatory stop if
he can show “a reasonable, articulable suspicion that criminal activity is afoot.”
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Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675 (2000). Such
investigatory stops, commonly known as Terry stops, must be justified from the
outset, and be reasonably related in scope to the circumstances that justified the stop.
United States v. Griffin, 696 F.3d 1354, 1358 (11th Cir. 2012). Reasonable suspicion
is a less demanding standard than probable cause, and requires only a “minimal level
of objective justification” that is “considerably less than” the preponderance of the
evidence. United States v. Acosta, 363 F.3d 1141, 1145 (11th Cir. 2004). Although
important facts may lend themselves to an innocent interpretation when considered
individually, they may collectively support an officer’s reasonable suspicion. United
States v. Arvizu, 534 U.S. 266, 274–75, 122 S.Ct. 744, 751 (2002). Officers may
rely on inferences and deductions “that might well elude an untrained person.”
United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695 (1981). As such,
“behavior, seemingly innocuous to the ordinary citizen, may ‘appear suspect to one
familiar with [criminal] practices.’” United States v. Smith, 201 F.3d 1317, 1323
(11th Cir. 2000) (quoting United States v. Glover, 957 F.2d 1004, 1010 (2d Cir.
1992)). We therefore afford great deference to the judgment of trained law
enforcement officers on the scene. See United States v. Chanthasouxat, 342 F.3d
1271, 1276 (11th Cir. 2003), citing Saucier v. Katz, 533 U.S. 194, 205-06, 121 S.Ct.
2151, 2158 (2001).
Additionally, once an officer has legitimately stopped an individual, the
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officer can perform a frisk 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.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. “When an officer is justified in
believing that the individual whose suspicious behavior he is investigating at close
range is armed and presently dangerous to the officer or to others, the officer may
conduct a patdown search to determine whether the person is in fact carrying a
weapon.” Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136 (1993)
(internal quotation marks omitted). Furthermore, “although an individual may
ultimately be engaged in conduct that is perfectly lawful … officers may detain the
individual to resolve the ambiguity.” Lewis 674 F.3d at 1304 (internal quotation
marks omitted).
Cota’s testimony reveals that he relied on multiple articulable facts in
determining that reasonable suspicion existed to justify a brief investigatory
detention of Hunter. Specifically, the government notes that: (1) Hunter was
walking alone at nearly 3 a.m., on a two-lane road with no sidewalks that was hardly
ever used by pedestrians; (2) Cota encountered Hunter in an area relatively close to
where he had received the report of a burglary; (3) when Cota indicated that he would
need to frisk Hunter before transporting him to his destination, Hunter became
noticeably tense; and (4) Hunter informed Cota that he was armed.
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We agree with the government that each of these factors may be considered
in determining whether the totality of the circumstances supports a reasonable
suspicion that criminal activity was afoot. As to Hunter’s reaction to the patdown,
nervous or evasive behavior is a relevant factor in determining whether reasonable
suspicion existed. United States v. Gordon, 231 F.3d 750, 756 (11th Cir. 2000).
However, nervous behavior alone cannot support a finding of reasonable suspicion.
Brent v. Ashley, 247 F.3d 1294, 1304 (11th Cir. 2001). Here, Hunter’s nervous
reaction was one among several articulable factors that informed Cota’s reasonable
suspicion.
Finally, when Hunter admitted to carrying a firearm, Cota made a split-second
decision to detain him and seize the weapon. The government argues that this action
is consistent with Terry, which emphasizes officer safety as an important policy
interest for courts to recognize in determining reasonable suspicion. “The officer
need not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the belief that
his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883.
When an officer has stopped someone, “he may conduct a pat-down or frisk for
weapons if he reasonably believes that his safety, or the safety of others, is
threatened.” Griffin, 696 F.3d at 1359. “Firearms are dangerous, and extraordinary
dangers sometimes justify unusual precautions.” Florida v. J.L., 529 U.S. 266, 272,
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120 S.Ct. 1375, 1379 (2000). Protective searches during seizures address this
concern. Id. We conclude that Cota’s seizure of Hunter at this point was objectively
reasonable, given the dangers inherent in concealed firearms.
Lastly, Hunter argues that a 2014 Georgia statute prohibited Cota from seizing
him. He directs us to Georgia’s “Guns Everywhere Law,” which provides: “[a]
person carrying a weapon shall not be subject to detention for the sole purpose of
investigating whether such person has a weapons carry license.” O.C.G.A. § 16-11-
137(b). But the statute plainly invalidates only one particular action: detaining an
individual for the sole purpose of determining whether he had a weapons carry
permit. Here, the district court found that Cota had reasonable suspicion to detain
Hunter based on the totality of the circumstances. Therefore, the district court
correctly concluded that O.C.G.A. 16-11-137(b) did not preclude Cota from
detaining Hunter to continue his investigation. Hunter’s position fails to recognize
that “[t]he presumptive lawfulness of an individual’s gun possession in a particular
State does next to nothing to negate the reasonable concern an officer has for his
own safety when forcing an encounter with an individual who is armed with a gun
and whose propensities are unknown.” United States v. Robinson, 846 F.3d 694,
701 (4th Cir. 2017).
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IV. CONCLUSION
Hunter himself acknowledges that the “totality of the circumstances can
sometimes justify a reasonable suspicion, when the individual circumstances would
not.” We agree. Cota had reasonable suspicion to detain Hunter. The district court
correctly denied Hunter’s motion to suppress.
AFFIRMED.