United States v. De'Undre Rashad Robert Turner

Opinion

Case: 19-14656 Date Filed: 09/17/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14656 Non-Argument Calendar ________________________

D.C. Docket No. 1:19-cr-20245-RNS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DE’UNDRE RASHAD ROBERT TURNER,

Defendant-Appellant.

________________________

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

(September 17, 2020)

Before WILLIAM PRYOR, Chief Judge, WILSON and LAGOA, Circuit Judges.

PER CURIAM:

De’Undre Turner, who conditionally pleaded guilty to possessing a firearm

and ammunition as a convicted felon, appeals the denial of his motion to suppress. Case: 19-14656 Date Filed: 09/17/2020 Page: 2 of 5

18 U.S.C. § 922(g)(1). Turner argues that law enforcement officers lacked

reasonable suspicion to approach his vehicle, to detain him while verifying that his

passenger had a valid permit to carry a concealed weapon, or to remove him from

his vehicle and pat him down for weapons. We affirm.

Detective Angel Delgado, Officer Ti’Andre Bellinger, and other officers of

the City of Miami Police Department drove to a multi-family residence in the

Model City neighborhood of Miami, Florida, to collect genetic material from a

resident. Bellinger, who grew up in the area, and Delgado, who patrolled the area

regularly, knew that Model City was plagued with drug-related violence and that

police informants had bought drugs at the residence. And Delgado suspected that

the resident would be armed because a lawful search of the residence two weeks

earlier led to the seizure of narcotics and a firearm. Because the parking area was

congested, the officers approached the residence from the street with their body

cameras activated.

Delgado detected movement inside a blue vehicle near the residence, but he

could not see the occupants through the tinted rear windows. Concerned that he

might encounter the resident named in the warrant, Delgado walked to the

passenger’s side of the vehicle. Its windows were rolled down and the detective

could see that there were three men in the vehicle and that the front passenger had

a gun protruding from under his shirt at the waistband of his pants. The detective

2 Case: 19-14656 Date Filed: 09/17/2020 Page: 3 of 5

asked if there were any guns in the vehicle, and the front passenger quickly

responded yes, began searching for a gun permit, and then exited the vehicle with a

card in his left hand. After the front passenger volunteered that there was a second

gun under his seat, other officers ordered another passenger to exit the rear seat and

removed the second gun from the vehicle.

Meanwhile, Bellinger watched an officer approach Turner as he sat in the

driver’s seat of the vehicle. Bellinger recognized Turner from the neighborhood

and noticed that he was acting nervous and was shaking when he produced his

driver’s license. After the officer heard about the second gun, he asked Turner to

exit the vehicle. Turner denied having a weapon, but Bellinger escorted Turner to

the back of his vehicle and began to pat him down for weapons. Turner became

defensive and upset, so Bellinger stepped away from Turner.

A few minutes later, Turner whispered to Bellinger, “I have a gun, bra, I

have a gun.” Bellinger confirmed that help was nearby and then wrapped his arms

around Turner to secure him. Bellinger yelled, “gun, gun” and another officer

removed the gun from Turner’s pants. Turner possessed a card that identified him

as a convicted felon.

We apply a mixed standard of review to the denial of a motion to suppress.

We review legal rulings de novo and related findings of fact for clear error. United

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States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017). We consider the evidence

in the light most favorable to the prevailing party. Id.

The district court did not err by denying Turner’s motion to suppress.

Delgado was entitled, “without any level of suspicion,” to approach a car in a

dangerous locale with an unknown number of occupants parked near a residence

where he and fellow officers were about to execute a warrant. See Miller v. Harget,

458 F.3d 1251, 1257 (11th Cir. 2006) (stating that police do not violate the Fourth

Amendment by “approaching a person in a parked car”). When Delgado saw a gun

in plain view in the front passenger’s waistband, the detective had reasonable

suspicion to remove the passenger from the car to determine whether he possessed

a valid permit to carry a concealed weapon, Fla. Stat. § 790.06(1). See United

States v. Lewis, 674 F.3d 1298, 1304–05 (11th Cir. 2012). After the front passenger

volunteered that there was a second gun concealed under his seat, safety concerns

allowed officers to remove Turner from the driver’s seat “to control [his]

movements . . . and exercise command over the situation.” See id. at 1308.

Turner’s nervous behavior provided Bellinger reasonable suspicion to pat Turner

down for weapons. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000). Bellinger

did not find a weapon and ceased searching Turner when he became upset.

Bellinger later had reasonable suspicion to seize Turner when he admitted

that he was armed, which led to the discovery of the gun concealed in his

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waistband. See Terry v. Ohio, 392 U.S. 1, 27 (1968). The district court was

entitled to credit Bellinger’s testimony about Turner’s admission. See Lewis, 674

F.3d at 1303. As explained by the district court, Bellinger’s testimony was

consistent with the events recorded on his and another officer’s body cameras,

which included his sudden decision to encircle Turner’s arms and chest and to yell

“gun” until another officer removed a gun from Turner’s waistband.

We AFFIRM the denial of Turner’s motion to suppress.