United States v. Gregory Simeon

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 16, 2018
• Docket: 17-14620
• Status: Unpublished

Opinion

Case: 17-14620 Date Filed: 10/16/2018 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14620 Non-Argument Calendar ________________________

D.C. Docket No. 2:16-cr-00319-AKK-JHE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY SIMEON,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(October 16, 2018)

Before ED CARNES, Chief Judge, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-14620 Date Filed: 10/16/2018 Page: 2 of 6

Gregory Simeon pleaded guilty to committing access device fraud and

aggravated identity theft fraud in violation of 18 U.S.C. §§ 1029(a)(3) and 2, and

1028A and 2. Simeon appeals the district court’s denial of his motion to suppress

evidence obtained during a search of his rental car.

I.

Simeon was riding in the passenger seat of a car rented in his name when

Birmingham Police Officer William Harrington pulled the car over for speeding.

Charles Jacks was driving the car. During the traffic stop, Harrington learned that

only Simeon was on the rental agreement and discovered a warrant for Simeon’s

arrest from Columbus, Georgia for a fraud charge. Harrington asked if Simeon had

anything other than his wallet and phone in the car, and Simeon responded that he

did not. After confirming that Georgia authorities wanted Simeon taken into

custody, Harrington informed Jacks of the situation and asked him if Simeon had

any luggage in the car. Jacks said that Simeon did in fact have luggage in the car,

contradicting Simeon’s earlier statement. Harrington later testified that when he

questioned Jacks about Simeon’s luggage, Jacks was shaking and speaking

nervously and that he could see Jacks’ heart beating through his shirt. Harrington

called in a K9 unit to perform a drug sniff. The dog positively alerted on the car,

so Harrington searched the car and Simeon’s luggage. Harrington did not find any

drugs, but he did find sixty-four credit cards and a credit card encoding device

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inside Simeon’s luggage. During his trial Simeon moved to suppress that

evidence, and the district court denied his motion.

II.

Review of a district court’s denial of a motion to suppress is a mixed

question of law and fact. See United States v. Delancy, 502 F.3d 1297, 1304 (11th

Cir. 2007). We review de novo the district court’s application of the law, while we

review its factfindings for clear error — construing all facts in the light most

favorable to the party that prevailed in the initial proceeding, here the government.

Id.

Although Simeon concedes that there was probable cause to stop the car and

arrest him, he contends that the search of the car was illegal for two reasons. First

he contends that Harrington unreasonably prolonged the traffic stop to conduct the

dog sniff. He asserts that, after hearing that Georgia authorities wanted Simeon

taken into custody, Harrington should have arrested him and released the rental car

and its contents to Jacks. He argues that Harrington’s failure to do so after taking

Simeon into custody was beyond the scope of the initial investigatory stop because

Harrington did not have reasonable suspicion of further criminal activity. Second

Simeon contends that even if probable cause existed to search the car following the

dog sniff, the Fourth Amendment required the officers to get a warrant before

searching the car and Simeon’s luggage. We reject both contentions.

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A.

Simeon first contends that Harrington should have released the rental car to

Jacks following Simeon’s arrest instead of prolonging the stop to conduct a dog

sniff. A traffic stop may not last any longer than necessary to effectuate the stop

unless there is an articulable suspicion of other illegal activity. See United States

v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). A dog sniff incident to a traffic

stop is unlawful when the police extend the stop without reasonable suspicion of

criminal activity to conduct the dog sniff. See Rodriguez v. United States, 575

U.S. ___, 135 S. Ct. 1609, 1615 (2015). We have described reasonable suspicion

as the ability “to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion.” United

States v. Boyce, 351 F.3d 1102, 1107 (11th Cir. 2003). To determine if reasonable

suspicion exists we take a “totality of the circumstances” approach and recognize

that facts and circumstances that may be consistent with innocent travel when

considered in isolation can give rise to reasonable suspicion when taken together.

Id. But reasonable suspicion is more than an “inchoate hunch”; officers must be

able to articulate some “minimal, objective justification” to extend an investigatory

stop. Id.

Harrington had reasonable suspicion of criminal activity when he prolonged

the search to conduct the dog sniff. Once he discovered a warrant for Simeon’s

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arrest, the incident ceased to be a routine traffic stop. Simeon implies that, even

after the discovery of the warrant, he should have been detained but not his rental

car. But Harrington was not required to release the car to Jacks if he reasonably

suspected that something in the car was linked to further criminal activity. The

totality of the circumstances — including Simeon’s arrest warrant for fraud,

Simeon’s and Jacks’ conflicting accounts of whether Simeon had luggage in the

car, the fact that only Simeon was on the rental agreement for the car Jacks was

driving, and Jacks’ noticeably beating heart and visible agitation — could easily

cause a reasonable officer to suspect that there was contraband in the car.

Harrington did not unreasonably prolong the stop.

B.

Simeon also contends that the search of the car was unconstitutional because

exigent circumstances were not present to permit a warrantless search. But the

Supreme Court has recognized an “automobile exception” to the warrant

requirement that “does not have a separate exigency requirement: If a car is

readily mobile and probable cause exists to believe it contains contraband, the

Fourth Amendment . . . permits police to search the car without more.” Maryland

v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014 (1999) (quotations omitted).

Knowing that Simeon was wanted in Georgia for allegedly committing fraud,

hearing conflicting accounts as to whether Simeon had luggage in the car, and

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seeing a trained dog indicate that the car contained drugs was enough to give

Harrington probable cause to believe that there might be contraband in the car.

That probable cause permitted him to conduct the search that uncovered the

evidence. Id.

AFFIRMED.