United States v. Jamal Nicholl

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 13, 2023
• Docket: 22-12043
• Status: Unpublished

Opinion

USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 1 of 10

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-12043 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMAL NICHOLL,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20-cr-00386-JPB-JSA-1 USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 2 of 10

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Before WILSON, ROSENBAUM, and LUCK, Circuit Judges. PER CURIAM: Jamal Nicholl appeals his conviction after pleading guilty to possession of a firearm by a convicted felon. He contends that the district court erred in denying his motion to suppress because of- ficers did not have probable cause to arrest him, so the firearm found in his pocket at the time of his arrest is inadmissible. After careful review, we affirm the denial of the motion to suppress and Nicholl’s conviction. I. In the early morning of August 16, 2020, Nicholl was pulled over in his Dodge Challenger and arrested by Atlanta Police De- partment officers for “laying drag,” in violation of O.C.G.A. § 40-6- 251, after he engaged the “line lock” feature of his car and burned out his rear tires while stopped in traffic. A search incident to arrest revealed a gun in Nicholl’s pocket. Nicholl was charged by indict- ment with possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). Nicholl moved to suppress the gun, arguing that it was the poisoned fruit of an unlawful traffic stop and arrest. A magistrate judge held an evidentiary hearing. The government called as wit- nesses Atlanta Officers Amasiah Toombs and Michael Doherty. Nicholl called Eric Shelton, an expert on drag racing. USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 3 of 10

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Toombs testified that he was on patrol near Edgewood Av- enue in downtown Atlanta when he heard the screeching sound of burning tires and saw a cloud of smoke coming down the road trail- ing an orange Challenger. According to Toombs, the Challenger would “burn out a little and then stop” multiple times while in westbound traffic on Edgewood. Similarly, Doherty testified that he saw the Challenger burn its tires while stopped in traffic, “move up a little bit,” and then “d[o] it again.” That area of Edgewood is a busy bar district, so there were other cars and a “lot of pedestri- ans” around at the time of these events. Acting on standing orders to crack down on any reckless driving, Toombs pulled over the Challenger and arrested Nicholl for “laying drag,” in violation of O.C.G.A. § 40-6-251. Toombs tes- tified that, in his understanding, laying drag meant “just burning your tires to the point where it will actually leave a mark on the ground.” Nicholl told Toombs that he had activated the line lock feature on his car and did not know burning his tires was illegal. Toombs conducted a search incident to arrest and found a firearm in Nicholl’s pocket. Nicholl’s expert Shelton testified that a line lock allows a driver to engage the front brakes independently of the rear brakes and do a “burnout.” Specifically, with the line lock engaged, step- ping on the gas will cause the rear wheels to spin while the car is stationary, heating up and smoking through friction, which is use- ful in drag racing to improve tire adhesion just before a race. USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 4 of 10

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According to Shelton, the line lock was a standard feature in the Challenger, with prompts explaining how to use it. After further briefing, a magistrate judge issued a report rec- ommending denial of the motion to suppress. The magistrate judge first found that the officers lacked probable cause to arrest Nicholl for “laying drag” under § 40-6-251, because they had no rea- son to believe that the Challenger “had likely engaged in zigzag- ging, circular, or gyrating movements as seemingly required by the plain language of the statute.” While the magistrate judge agreed with the government that the traffic stop was supported by reason- able suspicion, it explained that the evidence stemmed from the arrest, which required its own justification. Nevertheless, the magistrate judge continued, there was probable cause to believe Nicholl had committed the offense of “reckless driving” under O.C.G.A. § 40-6-390(a), so his warrantless arrest was still constitutionally valid. The magistrate judge acknowledged that Toombs, the arresting officer, testified that simply burning tires was not “technically” reckless. But based on testimony from Doherty and Shelton, the magistrate judge rea- soned that “spinning and burning the back wheels as if about to shoot out in a drag race on a busy urban street with pedestrians and other cars” posed a “clear and inherent risk” of actual harm due to the possibility of mechanical or driver error. And even if no acci- dent occurred, the magistrate judge stated, Nicholl’s conduct showed disregard for the safety of others, or “[a]t a minimum” a disregard for the public roadways. USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 5 of 10

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Nicholl objected that the probable-cause analysis should be limited to the cited offense of laying drag, and that, in any case, the officers lacked probable cause to believe that his conduct—burning tires while stationary—was reckless. The government did not file objections. The district court overruled Nicholl’s objections in material part. It recited the well-established rule that the validity of a war- rantless arrest does not turn on the offense announced by the ar- resting officer. And it agreed with the magistrate judge that the arrest was supported by probable cause for reckless driving. The court explained that, while doing a line lock burnout alone may not be reckless, “using this feature to stop and start, burn tires and expel smoke, in an area with traffic and pedestrians, constitutes a ‘clear and inherent risk’ of harm” “by impeding the flow of traffic and potentially obstructing the views of other drivers with smoke.” Nicholl then pled guilty under a written plea agreement, but he reserved the right to appeal the denial of the motion to suppress. The district court sentenced Nicholl to 24 months’ imprisonment. Nicholl now appeals. II. A district court’s grant or denial of a motion to suppress is a mixed question of law and fact. United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015). We review the district court’s factual findings for clear error and its application of the law to those facts de novo. United States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 6 of 10

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2017). The facts are construed in favor of the party that prevailed in the district court—here, the government. Id. The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. Ordinarily, evidence obtained in violation of a defendant’s Fourth Amendment rights cannot be used against him in a criminal trial. United States v. Per- kins, 348 F.3d 965, 969 (11th Cir. 2003). A warrantless arrest without probable cause is an unreason- able seizure that violates the Fourth Amendment. Dist. of Colum- bia v. Wesby, 138 S. Ct. 577, 586 (2018). To determine whether probable cause existed, we examine the “totality of the circum- stances” facing the officers and ask “whether these historical facts, viewed from the standpoint of an objectively reasonable police of- ficer, amount to probable cause.” Id. (quotation marks omitted). Probable cause exists if a “reasonable officer could conclude that there was a substantial chance of criminal activity.” Washington v. Howard, 25 F.4th 891, 902 (11th Cir. 2022) (cleaned up). Incident to a valid arrest, officers may search the suspect’s person for weap- ons. Arizona v. Gant, 556 U.S. 332, 338–39 (2009). The government concedes that the “officers did not have probable cause to arrest Defendant for laying drags.” We agree. The “laying drags” statute prohibits “intentionally and unneces- sarily causing [a] vehicle to move in a zigzag or circular course or to gyrate or spin around.” O.C.G.A. § 40-6-251(a). Neither officer described Nicholl as doing anything other than burning his tires while stopped and driving in a straight line, activities that fall USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 7 of 10

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outside the statute’s plain terms. So the arresting officer was mis- taken in relying on § 40-6-251(a). But “an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause” for a warrantless arrest. Devenpeck v. Alford, 543 U.S. 146, 153 (2004). But cf. Williams v. Aguirre, 965 F.3d 1147, 1162 (11th Cir. 2020) (holding that a different rule applies to arrests based on a warrant). So long as the circumstances known to the officers, viewed objec- tively, give probable cause to arrest for any crime, the arrest is con- stitutional even if probable cause was lacking as to the announced charges. Devenpeck, 543 U.S. at 153–55; Williams, 965 F.3d at 1162 (“[T]he only question relevant to the objective reasonableness of a seizure is whether probable cause for some crime exists.”). Here, we agree with the district court that probable cause existed to arrest Nicholl for the crime of reckless driving. Under Georgia law, “[a]ny person who drives any vehicle in reckless dis- regard for the safety of persons or property commits the offense of reckless driving.” O.G.C.A. § 40-6-390(a). This offense “may be committed in a variety of ways, and the State need only present evidence that the defendant drove in a manner exhibiting reckless disregard for the safety of persons or property.” Hughes v. State, 659 S.E.2d 844, 846 (Ga. Ct. App. 2008) (quotation marks omitted). An officer who observes reckless driving is empowered to stop and arrest the driver. Draper v. Reynolds, 369 F.3d 1270, 1276 (11th Cir. 2004); Mackey v. State, 675 S.E.2d 567, 569 (Ga. Ct. App. 2009). USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 8 of 10

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Viewed in the light most favorable to the government, the prevailing party below, the evidence presented at the suppression hearing supports the existence of probable cause to believe that Nicholl “drove with reckless disregard for the safety of persons in the area.” O.G.C.A. § 40-6-390(a). By any ordinary definition of the term, Nicholl was “driving” the Challenger when he engaged the line lock feature and burned his rear tires, creating a large cloud of smoke. He was in a running car, in traffic, and pressing the gas pedal, even if he wasn’t moving. The officers also indicated that Nicholl did a burnout at least twice, moving forward in between. Although some of the testimony described doing a line-lock burnout on a public street as merely unwise or a nuisance, not nec- essarily a safety danger, we must consider “the particular condi- tions on the street,” among other factors, when evaluating proba- ble cause for reckless driving. Hughes, 659 S.E.2d at 847; see Wesby, 138 S. Ct. at 586. And the circumstances here include the presence of other traffic and “a lot of pedestrians” early in the morning in a busy bar district. A reasonable officer could conclude that Nicholl’s operation of his vehicle in this specific context—by creating a startling, screeching sound, the expectation of a car ac- celerating, and a large cloud of smoke in traffic—unnecessarily put others’ safety or property at risk by increasing the chances of a col- lision, even if no one was injured or in imminent danger. Nicholl objects that it is speculative “to conclude that there was a legitimate concern for public safety” based on “the large cloud of smoke.” In his view, the record lacks support for that USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 9 of 10

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conclusion because the officers did not provide “descriptive details on the cloud of smoke” or indicate “that pedestrians or drivers could not see due to the large cloud of smoke.” He also notes that the officers themselves were at best equivocal about whether they viewed his conduct as reckless. But even assuming the evidence available to the officers would have been inadequate to convict Nicholl of reckless driving, “the probable cause determination is entirely different from the standard for a conviction.” Wood v. Kesler, 323 F.3d 872, 880 n.12 (11th Cir. 2003). “[W]hile an arrest must stand on more than sus- picion, the arresting officer need not have in hand evidence suffi- cient to obtain a conviction.” Id. In other words, there must be a “substantial chance of criminal activity,” not “conclusive evi- dence.” Washington, 25 F.4th at 898–99. For the reasons we just explained, we believe the totality of the circumstance before the officers, viewed in the light most favorable to the government, pro- vides objectively reasonable grounds to support Nicholl’s arrest for reckless driving. The officers’ subjective beliefs or personal legal conclusions are irrelevant to that determination. Wood, 323 F.3d at 880 n.12. Because there was probable cause of reckless driving, the of- ficers did not violate Nicholl’s Fourth Amendment rights by stop- ping his car and arresting him. See Draper, 369 F.3d at 1276; Mackey, 675 S.E.2d at 569. Accordingly, the district court did not USCA11 Case: 22-12043 Document: 24-1 Date Filed: 02/13/2023 Page: 10 of 10

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err in denying Nicholl’s motion to suppress, and we affirm his con- viction. AFFIRMED.