United States v. Roosevelt Williams

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 19, 2018
• Docket: 17-11843
• Status: Unpublished

Opinion

Case: 17-11843 Date Filed: 04/19/2018 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT __________________________

No. 17-11843 __________________________

D.C. Docket No. 4:16-cr-00031-MW-CAS-1

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

versus

ROOSEVELT WILLIAMS,

Defendant – Appellant.

__________________________

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

(April 19, 2018) Case: 17-11843 Date Filed: 04/19/2018 Page: 2 of 12

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

Roosevelt Williams appeals the denial of his motion to suppress evidence

obtained from searches of his vehicle in 2011 and 2013. We hold that the District

Court did not err in denying the motion to suppress because in both instances the

police had probable cause to believe that his vehicle contained evidence of a crime.

I.

A.

On October 19, 2011, Officer Bryan Cutcliffe of the Florida State University

Police Department pulled Williams over for speeding. When Officer Cutcliffe

approached Williams’ vehicle, he detected “the odor of burnt marijuana.” He

ordered Williams out of the car and searched him1 and his vehicle. The search

revealed “small bits of cannabis,” a number of pre-paid gift cards, some receipts,

and banking documentation.2 When Officer Cutcliffe questioned Williams about

the pre-paid gift cards, Williams “appeared to get very nervous and he began to

1 In his testimony, Officer Cutcliffe admitted that “nothing . . . specifically led [him] to believe that [Williams]” was armed and dangerous when he patted Williams down. 2 Officer Cutcliffe testified in this case. He recounted the traffic stop as follows. Due to the odor of cannabis coming from the car, I told Mr. Williams that I was going to search him and the car. I had him exit the car, at which point I searched his pockets looking for cannabis. When I did so, I found two pre[-]paid gift cards in his pocket. 2 Case: 17-11843 Date Filed: 04/19/2018 Page: 3 of 12

shake.” Rather than arrest Williams, however, Officer Cutcliffe confiscated the

pre-paid gift cards and allowed Williams to leave the scene.

Two years later, on June 13, 2013, Deputy Michael Wheeler of the Clayton

County Sheriff’s Office stopped Williams for traveling seventy-six miles an hour

in a zone with a speed limit of forty-five miles per hour. When Deputy Wheeler

spoke with Williams at the window of his vehicle, Williams appeared “nervous and

sweating.”

After running Williams’ license and registration, which came back clear,

Deputy Wheeler decided to arrest Williams for the traffic offense because “he

ha[d] an out-of-state plate” and “[i]t was better to go ahead and have him . . . make

bond on it.”3 Before arresting Williams, Deputy Wheeler requested another officer

to transport Williams. 4 Deputy Brian Hoe responded to the request and arrived to

assist Deputy Wheeler.

At this point, the deputies approached Williams in his vehicle to arrest him.

As they approached, Deputy Wheeler5 and Deputy Hoe both noticed “the smell of

3 In Georgia, a police officer has discretion to arrest a person for a traffic violation. Ga. Code Ann. § 17-4-23(a). (“A law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation, licensing, registration, maintenance, or inspection of motor vehicles . . . by the issuance of a citation, provided that the offense is committed in his presence.”). 4 Deputy Wheeler could not transport Williams because he had a K-9 Unit in his patrol vehicle. 5 On July 2, 2013, Williams appeared before the Clayton County Magistrate Court for a preliminary hearing on the 113 counts that were filed against him following the traffic stop of 3 Case: 17-11843 Date Filed: 04/19/2018 Page: 4 of 12

burnt marijuana” coming from the vehicle. 6 Deputy Hoe observed Williams

“trying to put” money into “his right pocket, front pocket.” To Deputy Wheeler,

Williams appeared “very nervous” and “couldn’t control his hands.” When the

deputies asked Williams to leave his vehicle, Williams initially refused and was

“reaching throughout the vehicle . . . for items.” The deputies eventually “help[ed]

him out” of the vehicle.

After removing Williams from the vehicle, the deputies handcuffed and

searched him. The search revealed $3,500 in cash in his pocket. Then, while

Deputy Hoe was securing Williams in his patrol vehicle, Williams told him that he

had a firearm near the driver’s seat of his vehicle. Deputy Hoe informed Deputy

Wheeler, who located the firearm and then performed a search of the car, including

the trunk, ostensibly as an inventory search. 7 The search of the vehicle uncovered

a few thousand dollars in cash, a loaded handgun, more than twelve pre-paid debit

cards, a laptop computer, two iPhones, and a Samsung phone.8 Williams’ vehicle

was then towed to the Clayton County Sheriff’s Office.

June 13. In the hearing, Deputy Wheeler testified that he could “smell marijuana coming from the vehicle” as he spoke with Williams. 6 Deputy Hoe testified that he was “[v]ery unlikely” to misidentify the smell of marijuana. 7 Deputy Wheeler permitted Williams to call someone to pick up his car so that it would not need to be impounded. He called his cousin who lived in Atlanta, but she never arrived. 8 While the deputies conducted the search of his vehicle, Williams broke the window of the patrol vehicle and fled on foot. The officers quickly apprehended him. 4 Case: 17-11843 Date Filed: 04/19/2018 Page: 5 of 12

B.

The Internal Revenue Service (“IRS”) sought to use the pre-paid gift and

debit cards discovered through the searches—along with evidence discovered on

the laptop and cell phones recovered in the 2013 search—against Williams. On

July 5, 2016, based in part on the evidence seized from the searches, a grand jury

in Tallahassee, Florida issued a fourteen-count indictment against Williams for a

scheme in which he fraudulently filed and cashed the tax returns of unsuspecting

individuals. The indictment alleged that Williams committed twelve counts of

theft of government property, 18 U.S.C. §§ 641–42, and two counts of aggravated

identity theft, 18 U.S.C. § 1028A(a)(1).

Williams was arrested on July 15, 2016 in Minnesota. He appeared before

the United States District Court for the District of Minnesota, with counsel present.

The District Court ordered Williams detained until a hearing was held on July 20,

2016. At the hearing, the District Court set bond at $25,000 and ordered him

removed to Northern District of Florida in Tallahassee, where the indictment was

issued. On the day of the hearing, Williams was released after signing an “Order

Setting Conditions of Release” which, among other things, prohibited him from

“violat[ing] any federal, state, or local law while on release.” Williams was

5 Case: 17-11843 Date Filed: 04/19/2018 Page: 6 of 12

ordered to appear before the District Court for the Northern District of Florida on

August 8, 2016.

On July 29, not long after his release, an arrest warrant was issued for

Williams because he violated his conditions of release by being arrested in

Aventura, Florida for battery on law enforcement, escape, resisting arrest without

violence, and credit card fraud. He was arrested on August 8, 2016. On the day of

his arrest, Williams appeared with counsel before a Magistrate Judge. The

Magistrate Judge ordered him detained until a detention hearing could be held on

August 12.9 Williams also pled not guilty to the grand jury charges, and a trial was

scheduled for September 12, 2016. However, the District Court later granted a

continuance and rescheduled the trial for November 14, 2016.

Before trial, Williams moved to suppress the evidence obtained from the

searches of his vehicle in 2011 and 2013 in an effort to destroy the foundation of

the charges against him. He contended that the Deputies Wheeler and Hoe

conducted the inventory of his vehicle in 2013 as a pretext for an investigative

search. He further argued that the odor of marijuana, without more, did not create

probable cause to search the car for evidence of criminal activity. Williams also

9 In the hearing held on August 12, the Magistrate Judge found “probable cause to believe that [Williams] committed several . . . felony crimes while on pre-trial release” and revoked his conditional release. It thus ordered that Williams remain detained pending trial. Williams moved to revoke the detention order on September 12, 2016. The District Court denied the motion because Williams “demonstrated that he is unwilling to abide by conditions of release and is unlikely to do so if he were again released.” 6 Case: 17-11843 Date Filed: 04/19/2018 Page: 7 of 12

claimed that the officer who patted him down in 2011 did not have grounds to

suspect that he was armed and dangerous.

The Government responded to the suppression motion on November 7. 10 It

argued that the officers in 2011 and 2013 had probable cause to search the vehicle

because “the smell of marijuana alone justifies the search of the vehicle from

which it emanates.” In the alternative, the Government claimed that the deputies in

2013 followed protocol when they inventoried Williams’ vehicle after his arrest.

The hearing on the motion to suppress occurred on November 14. In the

hearing, the District Court heard testimony and argument on each suppression

claim. As to the 2011 search, the District Court framed the factual issue as

whether Officer Cutcliffe in fact detected the odor of marijuana coming from

Williams’ vehicle. It found Officer Cutcliffe’s testimony to be credible and thus

held that he had probable cause to search the car.11

10 The Government also moved to continue the trial because the suppression hearing was scheduled for the same day as the trial, November 14, 2016, and Williams indicated that he would plead guilty if his motion to suppress did not succeed. The District Court granted the continuance. 11 However, the District Court granted the motion to suppress as to the credit cards that Officer Cutcliffe retrieved from Williams’ pocket. First, the District Court found that the Officer Cutcliffe did not have reason to suspect that the credit cards were weapons or other illicit goods and therefore could not reach into the pocket. Second, the District Court determined that Officer Cutcliffe did not have probable cause to search Williams for evidence of marijuana because Officer Cutcliffe “had no recollection that Mr. Williams himself smelled of marijuana.” Therefore, the District Court granted the motion to suppress as to the 2011 search of Williams’ person. 7 Case: 17-11843 Date Filed: 04/19/2018 Page: 8 of 12

The District Court upheld the 2013 search on the ground that Officer

Wheeler had probable cause that “contraband or evidence of a crime could be

found in the vehicle.” In reaching this determination, the District Court credited

Officer Hoe’s testimony as to the smell of marijuana in the vehicle and summed up

the situation as follows: “Mr. Williams was stopped for speeding. His vehicle

reeked of marijuana. When he exited the vehicle to be arrested, he was found to be

carrying more than three thousand dollars in cash and acknowledged that he had a

loaded firearm in the vehicle.” Given these facts, the District Court concluded that

Officer Wheeler had probable cause to search Williams’ vehicle. 12 Thus, the

District Court denied the motion to suppress the evidence from the searches of

Williams’ vehicle in 2011 and 2013, but granted the motion as to the search of his

pocket in 2011. 13

On appeal, Williams argues that the 2013 search was an improper and

pretextual inventory search—even though the District Court held that the search

12 The District Court, however, held that the inventory search did not provide an alternative basis for upholding the search of Williams’ vehicle because the testimony suggested that “the decision to impound the car was based on the suspicion of evidence of criminal activity as opposed to simply conducting an inventory search.” 13 On December 22, 2016, after the District Court denied his motion to suppress, Williams pled guilty to each count of the grand jury indictment. However, the plea agreement permitted him to appeal the denial of his motion to suppress. On April 28, 2017, Williams filed his amended notice of appeal challenging the denial of the motion to suppress. 8 Case: 17-11843 Date Filed: 04/19/2018 Page: 9 of 12

could not be justified as an inventory search. 14 He contends that it is irrelevant

whether Deputies Wheeler and Hoe smelled marijuana because they decided to

impound and inventory the vehicle. The Government replies that the officers had

probable cause to search the vehicle because they smelled marijuana.

Alternatively, the government argues that the officers performed a valid inventory

search.

II.

When we review a denial of a motion to suppress, we review the district

court’s findings of fact for clear error and its applications of law de novo,

construing the facts in the light most favorable to the party that prevailed below.

United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir. 2013). We accept the

credibility determinations of the fact finder, unless they are “contrary to the laws of

nature” or “so inconsistent or improbable on its face that no reasonable fact finder

could accept [them].” United States v. Holt, 777 F.3d 1234, 1255–56 (11th Cir.

2015) (quoting United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.

2002)).

The present case concerns the warrantless search of a vehicle. In general,

such a warrantless search is per se unreasonable. United States v. Bradley, 644

F.3d 1213, 1262 (11th Cir. 2011). As an exception, however, law enforcement

14 In his brief on appeal, Williams stated that the District Court erred in denying his motion to suppress and recited facts but did not raise any arguments as to the 2011 search. 9 Case: 17-11843 Date Filed: 04/19/2018 Page: 10 of 12

may conduct a warrantless search of a vehicle if it is operational and there is

probable cause to believe that the vehicle contains evidence of a crime. See United

States v. Tamari, 454 F.3d 1259, 1261–62 (11th Cir. 2006); United States v. Watts,

329 F.3d 1282, 1285–86 (11th Cir. 2003). To determine whether probable cause

exists, we perform an objective analysis that does not account for the subjective

beliefs of law enforcement. United States v. Franklin, 694 F.3d 1, 9 (11h Cir.

2012).

In a long line of cases, we have held that the smell of marijuana coming

from a person’s house or vehicle establishes probable cause for a search. See

Merricks v. Adkisson, 785 F.3d 553, 560 n.3 (11th Cir. 2015); United States v.

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

595 F.2d 1095, 1098–99 (5th Cir. 1979); see also United States v. Johns, 469 U.S.

478, 482, 105 S. Ct. 881, 884 (1985). It is irrelevant if an inventory search

occurred as a pretext for gathering evidence where the police officers already had

probable cause that justified the search. Whren v. United States, 517 U.S. 806,

811–12, 116 S. Ct. 1769, 1773 (1996).

We take the 2011 and 2013 searches in turn. As to the 2011 search, the

District Court credited Officer Cutcliffe’s testimony that he smelled marijuana

emanating from the vehicle. We find no reason to overturn this determination.

Therefore, since Officer Cutcliffe smelled marijuana coming from the vehicle, he

10 Case: 17-11843 Date Filed: 04/19/2018 Page: 11 of 12

had probable cause to search it. The District Court thus did not err in denying the

motion to suppress as to the 2011 search.

With respect to the 2013 search, the District Court credited the testimony of

Deputy Hoe. It made the following finding of fact.

Mr. Williams after being stopped was—appeared nervous and was engaged in furtive movements such that Officer Wheeler felt compelled to ask Officer Hoe to come around to the driver’s side door. Whereupon, Officer Wheeler testified [at the preliminary hearing that he smelled marijuana]. But as corroborated . . . here in open court, the hearsay [of Officer Wheeler] is consistent with sworn testimony of Officer Hoe; namely, that he smelled marijuana as well.

The District Court also found that the deputies discovered $3,500 in cash on

Williams’ person and that Williams told the deputies he had a firearm in his car.

The District Court thus summarized the situation as follows: “we have a car that

reeks of marijuana, somebody that’s armed, somebody that’s got several thousand

dollars of cash, and somebody that’s nervous and engaged in furtive movements in

the car.” There is no reason to overturn these factual findings.

Contrary to Williams’ contentions, a pretextual inventory of a vehicle is

irrelevant if the deputies possessed probable cause to believe that the vehicle

contained evidence of a crime. Whren, 517 U.S. at 811–12, 116 S. Ct. at 1773.

The smell of marijuana, furtive movements, indication of a firearm, and $3,500 in

cash clearly established probable cause for the deputies to search Williams’ vehicle

11 Case: 17-11843 Date Filed: 04/19/2018 Page: 12 of 12

for evidence. Rivera, 595 F.2d at 1099 (“It is well settled that detection of the odor

of marijuana furnishes probable cause to search a vehicle.”). Therefore, we agree

with that the search fell under the automobile exception to the warrant requirement.

AFFIRMED.