United States v. Dequay Roberts

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 17, 2021
• Docket: 19-14632
• Status: Unpublished

Opinion

USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14632 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cr-14069-DLG-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEQUAY ROBERTS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(March 17, 2021)

Before JORDAN, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM:

DeQuay Roberts appeals the District Court’s denial of his motion to

suppress illegally seized evidence, arguing that the detectives did not have USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 2 of 10

reasonable, particularized suspicion to single him out for an investigatory stop.

We disagree and therefore affirm the District Court’s judgment.

I.

A.

On July 11, 2018, at approximately 7:00 p.m., four detectives in the Fort

Pierce Police Department assigned to the Crime Suppression Unit—Cunzo,

Incorvaia, Cena, and Davis—arrived at Parkland Court, a public housing complex,

for what they called a “park and walk.”1 The detectives exited their vehicle and

walked toward a small group of men with the intent of striking up a conversation.

As the detectives approached, they noticed a strong smell of marijuana emanating

from the group of four to five individuals.2

Detectives Incorvaia and Cena approached Roberts, who was standing next

to the trunk of a parked car, while Detectives Cunzo and Davis spoke with other

members of the group. Either Incorvaia or Cena asked Roberts if he had any

contraband on him, to which Roberts replied “no.” Roberts then voluntarily turned

out his pants pockets to show the detectives that they were empty.

1 According to Detective Cunzo, when engaging in a “park and walk,” police “walk around, say Hi, [and] see what’s going on” in an effort to provide a positive police presence in the community. 2 Detective Cunzo testified that there were five to eight men standing in the group, but video of the incident reveals only four to five, and Roberts later stipulated to this fact in support of a guilty plea. 2 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 3 of 10

At this point, Detective Incorvaia noticed the outline of a hard object in

Roberts’s pocket, which was weighing down his nylon windbreaker. Believing

that the object was a gun, Detective Incorvaia reached out and touched the outside

of Roberts’s jacket pocket. Doing so confirmed Incorvaia’s suspicion. Detective

Incorvaia then notified his fellow officers of the presence of a firearm by yelling

“gun.”

Roberts immediately attempted to flee but was tackled by the detectives. It

took all four of them to restrain Roberts, who continued to resist arrest even after

being placed in a patrol vehicle. Detective Cunzo ultimately secured the loaded

gun, which fell out of Roberts’s pocket in the struggle.

B.

On October 25, 2018, a grand jury indicted Roberts for one count of

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

Roberts promptly filed a motion to suppress, arguing that the detectives lacked

both probable cause and/or reasonable suspicion to detain him or search his person.

According to Roberts, the “[p]olice had no articulable, particularized, and

objectively reasonable belief that [he] was committing a crime or was a danger to

them.”

The Government, on the other hand, argued that the encounter was

consensual, or in the alternative, that the detectives possessed a reasonable

3 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 4 of 10

suspicion that Roberts was engaged in criminal activity based on the strong odor of

marijuana coming from the small group in which he was standing. The

Government further argued that Detective Incorvaia had reason to believe his

safety was at risk when he saw what he believed to be the outline of a firearm in

Roberts’s jacket pocket.

On February 1, 2019, a Magistrate Judge held an evidentiary hearing,

comprised of testimony by Detective Cunzo, Detective Incorvaia, and Chantis

Roberts, the defendant’s father. After hearing from the witnesses, she issued a

Report and Recommendation (R&R), recommending that the District Court deny

Roberts’s motion to suppress.

In the R&R, the Magistrate Judge concluded that Roberts had been seized

for the purposes of the Fourth Amendment, as a reasonable person would not have

felt free to leave, but that police possessed reasonable suspicion to detain him

under Terry. 3 In doing so, she rejected Roberts’s argument that the suspicion was

not sufficiently particularized. The Magistrate Judge then concluded that Detective

Incorvaia had reason to frisk Roberts after he saw what he believed to be the

outline of a gun in Roberts’s jacket pocket, and therefore, the gun yielded from the

pat down was lawfully recovered. Both Roberts and the Government filed timely

objections to the R&R.

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). 4 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 5 of 10

On April 22, 2019, the District Court adopted wholesale the Magistrate

Judge’s R&R, thereby denying Roberts’s motion to suppress. The parties

thereafter entered into a plea agreement under which Roberts retained his right to

appeal the denial of his motion to suppress. The District Court accepted Roberts’s

plea, and on October 28, 2019, imposed a 30-month sentence of imprisonment to

be followed by two years’ supervised release.

In this appeal, Roberts argues that his mere presence in a group which

smelled of marijuana was insufficient to establish reasonable suspicion or probable

cause. He acknowledges that the smell of marijuana can, in some circumstances,

establish probable cause or reasonable suspicion to search a specific area or person.

But he argues that the probable cause or reasonable suspicion must be

individualized, and the detectives had no reason to suspect that he, in particular,

had committed a crime.

Because we have held that the smell of marijuana alone may create a

reasonable suspicion of criminal wrongdoing, see United States v. White, 593 F.3d

1199, 1203 (11th Cir. 2010), and because the group was sufficiently small, the

detectives were justified in detaining Roberts. Accordingly, the District Court

properly denied Roberts’s motion to dismiss. 4

4 As we note in part III.B, Roberts abandoned his claim that the frisk itself was improper by failing to argue this point in his initial brief on appeal. 5 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 6 of 10

II.

Because rulings on motions to suppress present mixed questions of law and

fact, we review the District Court’s factual findings for clear error and its

application of the law to the facts de novo. United States v. Lewis, 674 F.3d 1298,

1302–03 (11th Cir. 2012). The facts are construed in favor of the party that

prevailed below, and we afford substantial deference to the factfinder’s explicit

and implicit credibility determinations. Id. at 1303.

III.

We begin, in part III.A, by addressing Roberts’s argument that the detectives

lacked a reasonable, particularized suspicion to single him out for an investigatory

stop. Then, in part III.B, we briefly dispose of Roberts’s assertion that Detective

Incorvaia had no reason to frisk him.

Under Terry, law enforcement officers may seize an individual for a brief,

investigatory stop if they have a reasonable suspicion that the individual was

involved, or is about to involved in, criminal activity. United States v. Acosta, 363

F.3d 1141, 1144–45 (11th Cir. 2004). While “reasonable suspicion” is a lower

standard than probable cause, it still requires at least an objective justification.

Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675–76 (2000). Police

must “be able to point to specific and articulable facts which, taken together with

6 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 7 of 10

rational inferences from those facts, reasonably warrant [the] intrusion.” Terry,

392 U.S. at 21, 88 S. Ct. at 1880. An “inchoate and unparticularized suspicion or

‘hunch’” is insufficient. Id. at 27, 88 S. Ct. at 1883.

Whether reasonable suspicion exists is based on the totality of the

circumstances. See United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585

(1989). But the smell of marijuana alone can provide reasonable suspicion for an

investigatory stop. White, 593 F.3d at 1203. What’s more, we have held that the

odor of marijuana can establish the existence of probable cause. See United

States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982) (“At the point marijuana was

smelled by [the officer], probable cause to believe a crime had been committed . . .

arose”); United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc)

(“There is no doubt that the agent’s suspicions rose to the level of probable cause

when, as the door stood open, he detected what he knew from his law enforcement

experience to be the odor of marijuana.”).

In this case, the District Court—via adoption of the R&R—found that the

detectives credibly testified that they smelled marijuana as they approached the

group. “[W]e must accept [this factual finding] unless it is . . . so inconsistent or

improbable on its face that no reasonable factfinder could accept it.” United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). And there is nothing

in the record here which would suggest the District Court clearly erred in

7 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 8 of 10

concluding that the detectives smelled marijuana when approaching the group. See

Lewis, 674 F.3d at1302–03. So, accepting this fact as true, we find that the

detectives possessed reasonable suspicion of criminal activity.

The question now becomes whether that suspicion was sufficiently

particularized. Rather than disputing whether the odor of marijuana can provide

police with reasonable suspicion, Roberts argues that even if the detectives smelled

marijuana, the odor was emanating from the group as a whole and not him

specifically; the smell could have been coming from anyone.

In support of his argument, Roberts cites Ybarra v. Illinois, 444 U.S. 85, 100

S. Ct. 338 (1979). In that case, the police patted down nine to thirteen bar patrons

for weapons, frisked Ybarra twice, and then during Ybarra’s second frisk, found a

cigarette pack that contained heroin. Id. at 88–89, 100 S. Ct. at 341. The Supreme

Court determined that the police had a warrant authorizing them to search the

tavern and bartender for illegal drug dealing, but the warrant did not authorize the

police to search individual bar patrons in the absence of reasonable suspicion that

they were armed and dangerous. See id. at 90–93, 100 S. Ct. at 341–43.

Ultimately, Ybarra’s mere presence at the bar was insufficient to give the police

reasonable suspicion to frisk him. Id. at 91, 100 S. Ct. 342.

Roberts’s particularity argument fails to convince us. While it is true that a

person’s “mere propinquity to others independently suspected of criminal activity

8 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 9 of 10

does not, without more, give rise to probable cause to search that person,” id., that

is not the case here. Roberts’s situation is distinguishable from that in Ybarra. He

was not merely present in a location where the police suspected that someone

else—the bartender in Ybarra for example—was engaged in criminal activity.

Rather, the detectives suspected that Roberts himself, and the others in the group,

were engaged in a crime. As the Magistrate Judge noted, a closer analogy would

be if the detectives had stopped and frisked every person in Parkland Court simply

because they were standing outside.

Moreover, the District Court found that there were only four to five people

in Roberts’s immediate area, a factual finding that is borne out by video evidence.

Perhaps Roberts’s claim—that the detectives did not have a sufficiently

particularized suspicion that he was engaged in criminal activity—would have

merit if Roberts had been standing in a larger group. But it strains credulity to say

that the detectives, who smelled marijuana coming from a group of only four or

five individuals, could not briefly detain those individuals simply because they

could not point to any particular person with certainty and say the smell emanated

from them. Consequently, the detectives’ suspicion was sufficiently particularized,

and Roberts’s detention was proper under Terry.

9 USCA11 Case: 19-14632 Date Filed: 03/17/2021 Page: 10 of 10

Generally speaking, law enforcement may frisk a suspect, in connection with

a Terry stop, if they have reason to believe that their safety or that of others in the

surrounding area is at risk. White, 593 F.3d at 1202. This Court need not analyze

whether Detective Incorvaia had cause to frisk Roberts, however, because Roberts

abandoned the issue on appeal by failing to develop an argument for it in his initial

brief. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).

IV.

In conclusion, because the odor of marijuana gave the detectives a

reasonable, particularized suspicion to detain each individual in the group,

including Roberts, and Roberts failed to challenge the frisk on appeal, we find that

the District Court did not err in denying his motion to suppress.

AFFIRMED.