United States v. Harold Edward Baranoff

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 8, 2009
• Docket: 08-10727
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 08, 2009 No. 08-10727 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 07-00015-CR-1-SPM-AK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HAROLD EDWARD BARANOFF,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida _________________________

(January 8, 2009)

Before ANDERSON, BARKETT and FAY, Circuit Judges.

PER CURIAM:

Harold Baranoff appeals his conviction for possession with intent to distribute more than 50, but less than 100, kilograms of marijuana, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C). Baranoff filed a motion to suppress evidence

– including 190 pounds of marijuana – that was obtained during a search of his

motor home, which occurred during the second of two traffic stops. During an

evidentiary hearing on this issue, the officer who conducted the second traffic stop

testified that he stopped Baranoff’s motor home because it was swerving across the

white line of the highway, and there was a rear taillight that was out, both of which

are traffic violations under Florida law. Based on a strong odor of a cleaning

agent, an open Bible inside the motor home, a religious bumper sticker on the

motor home, and Baranoff’s nervous demeanor, the officer believed that Baranoff

was involved in illegal narcotics activity and requested a K-9 officer. The K-9

officer arrived while Baranoff was receiving two warning citations, and the dog

walked around the motor home and indicated the presence of narcotics.

On appeal, Baranoff contends that the totality of the circumstances here gave

the officer who conducted the second traffic stop only a “vague suspicion” that

Baranoff was engaged in criminal activity, such that he “lengthen[ed]” the traffic

stop into two separate stops to obtain additional facts beyond those related to the

original traffic violation. He further argues that the stop was nothing more than a

custodial arrest, because the detention was not justified by a legitimate purpose,

2 and the police officers conducted each step in the investigation with deliberate

delay.

We review “a district court’s denial of a motion to suppress evidence as a

mixed question of law and fact, with rulings of law reviewed de novo and findings

of fact reviewed for clear error, in the light most favorable to the prevailing party

in district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).

A decision to stop a vehicle is reasonable under the Fourth Amendment where an

officer has probable cause to believe that a traffic violation occurred. United States

v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999). A traffic stop must be of limited

duration and may not last “any longer than necessary to process the traffic

violation unless there is articulable suspicion of other illegal activity.” United

States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). Where an initial traffic

stop is legal, however, the officer has “the duty to investigate suspicious

circumstances that then [come] to his attention.” United States v. Harris, 928 F.2d

1113, 1117 (11th Cir. 1991).

During a traffic stop, the officer may lengthen the detention for further

questioning beyond that related to the initial stop when: (1) the officer has an

objectively reasonable and articulable suspicion that illegal activity has occurred or

is occurring; or (2) the initial detention has become a consensual encounter.

3 United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999). When determining

whether reasonable suspicion exists, the courts must review the “totality of the

circumstances” to ascertain whether the detaining officer had a “particularized and

objective basis” for suspecting legal wrongdoing. United States v. Arvizu, 534

U.S. 266, 273, 122 S.Ct. 744, 750 (2002). “[A] reviewing court must give due

weight to the officer’s experience.” United States v. Briggman, 931 F.2d 705, 709

(11th Cir. 1991). However, we have stated that the basis for the officer’s

reasonable suspicion requires “more than the innocuous characteristics of

nervousness, a habit of repeating questions, and an out-of-state license.” United

States v. Perkins, 348 F.3d 965, 971 (11th Cir. 2003).

The focus of Baranoff’s challenge is the second stop, conducted by Deputy

Condy. We agree with the district court’s rejected of Baranoff’s argument that the

second stop was a mere continuation of the first stop.

The traffic stop was proper because it was supported by probable cause,

based on Baranoff’s violations of two traffic laws. Although both officers stopped

Baranoff for his taillight, they both testified that they had not communicated with

each other about the stops.

We need not decided whether Deputy Condy had reasonable suspicion to

4 lengthen the duration of the stop, because the stop1 was not unreasonably delayed.

This Court considers several factors to determine whether a purported

investigatory detention amounts to a de facto custodial arrest requiring probable

cause, including: (1) the purpose of the detention; (2) the diligence of the officials

in conducting the investigation; (3) the scope and intrusiveness of the detention;

and (4) the duration of the detention. United States v. Hardy, 855 F.2d 753, 759

(11th Cir. 1988). First, the purpose of the detention was based on Baranoff’s

traffic violations and Deputy Condy’s preparation of two written traffic citations

resulting from these violations. Second, there was no evidence to indicate that

Deputy Condy was not diligent in conducting the investigation, and the entire

detention lasted only 14 to 15 minutes before the narcotics-trained dog arrived.

Third, the detention cannot be said to have been intrusive, as Deputy Condy did

not enter the motor home until the narcotics dog signaled the presence of drugs.

Finally, the duration of the investigation was not unreasonable, and Baranoff has

not offered any factual or legal argument that the duration itself was unreasonable.

Thus, there was no basis on which to conclude that the investigatory detention here

1 Although we need not decide that issue, we note that Deputy Condy detected the strong smell of cleaning products, which he testified were often used to mask the odor of narcotics. He also noted a religious bumper sticker on the motor home and an open Bible in plain view on the couch, which he testified were often used to make an officer think the person is not a criminal. Finally, Baranoff appeared nervous.

5 amounted to a custodial arrest. See Hardy, 855 F.2d at 759.2 Accordingly, we

affirm.

AFFIRMED.3

2 Baranoff argues for the first time in his reply brief that the investigatory detention was a custodial arrest because law enforcement officers blocked in his vehicle, such that he was not free to leave. However, because he did not raise this argument in his initial brief on appeal, it has been abandoned. See United States v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005) (concluding that defendant abandoned issue that was raised for first time in reply brief), cert. denied, 126 S.Ct. 2966 (2006). 3 Baranoff’s request for oral argument is denied.