United States v. Simmons

172 F.3d 775

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 14, 1999
• Docket: 98-2295
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 04/14/99 No. 98-2295 THOMAS K. KAHN CLERK

D. C. Docket No. 97-288-CR-T-26C

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

BOBBY GENE SIMMONS,

Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida

(April 14, 1999)

Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.

MARCUS, Circuit Judge:

A federal grand jury indicted Bobby Gene Simmons on charges of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), possession of cocaine

with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and carrying a firearm

during and in relation to a drug offense, in violation of 18 U.S.C. § 924(c)(1). Simmons moved to suppress some thirty bags of cocaine and a firearm, both of which police

officers discovered in his automobile following a traffic stop for running a stop sign.

After holding an evidentiary hearing, the district court suppressed both the gun and the

cocaine as the fruits of a “prolonged” detention that violated the Fourth Amendment. The

government has taken this interlocutory appeal from the suppression order, arguing that

the relatively short additional delay occasioned by the officers’ investigation during the

traffic stop -- attempting to verify whether the detainee was the “Bobby Simmons” who

was the subject of an outstanding arrest warrant -- was a valid detention under Terry v.

Ohio, 392 U.S. 1 (1968).1 We agree and reverse.

I.

The facts are straightforward and we recount them as they were found by the

district court, crediting the officers’ testimony. On June 9, 1997, at 6:14 p.m., Tampa

Bay police officers Dale Frix and Alexander Rahmings stopped Bobby Gene Simmons

for running a stop sign while driving a white Pontiac station wagon with dark-tinted

windows.2 Before approaching the stopped car, the officers advised their dispatcher that

1 The government also argues that the police had reasonable suspicion of Simmons’ involvement with the sale of cocaine based upon information the officers had received prior to the stop, and contends that Simmons’ detention, until a drug-detecting dog could arrive, was reasonable on that basis too. Since we find that the delay while investigating the warrant provides a constitutional basis for Simmons’ detention, we have no need to determine whether the officers had reasonable suspicions of Simmons’ involvement with cocaine based upon information predating the traffic stop.

Prior to the traffic stop, Officers Frix and Rahmings had received information 2

from two sources implicating Simmons as a dealer in narcotics. Two and one-half

2 they were on a traffic stop. They told Simmons that he had been stopped for failing to

stop at a stop sign and requested his driver's license and registration. They also asked for

consent to search the car, but Simmons refused. Four minutes later, at 6:18 p.m., Officer

Frix radioed the dispatcher and requested a drug-detecting dog, but was told that narcotics

dogs usually were not available until 7:00 p.m. Approximately ten minutes later, Frix

again radioed the dispatcher for an update on the availability of a dog. At 6:32 p.m., the

dispatcher told Frix that there was still no dog available. Frix asked the dispatcher to

contact a supervisor who might know where a canine unit could be located.

While Officer Frix sought a narcotics dog, Officer Rahmings had begun writing a

traffic citation for Simmons. He also conducted a routine mobile computer check to

ascertain whether there were any outstanding arrest warrants for Simmons. Rahmings

learned that Simmons’ license and registration were valid, but received a computer report

of an outstanding arrest warrant from Brevard County, Florida, for a “Bobby Simmons”

on a worthless check charge. The physical description of the subject of the warrant --

black male, 5 feet 10 or 11 inches tall, weighing 200 pounds -- closely matched that of

Simmons, but the birth date was different. The arrest warrant listed the subject’s date of

months earlier, a person familiar with the Robles Park area, the neighborhood near where Simmons was detained, told the officers that a man who drove a white Pontiac station wagon with dark-tinted windows regularly sold drugs in the area. Three weeks before the stop, a woman who had been arrested for cocaine possession told the officers that she regularly bought cocaine from Simmons. She said that she would page Simmons from a nearby convenience store, and that Simmons usually appeared at the store shortly after being paged to call the telephone number of the convenience store.

3 birth as October 10, 1957, and Simmons’ date of birth was August 23, 1953, making the

subject of the warrant approximately 40 years old, while Simmons was approximately 44

years old.

Officer Rahmings radioed the dispatcher to request a teletype be sent to Brevard

County to clarify the information, but was put on hold. Rahmings then used his mobile

computer to request the teletype to be sent. Rahmings also tried to contact his supervisor

for advice on how to proceed. Rahmings’ activities occurred within 20 to 30 minutes of

the officer’s return to the police car to write the traffic citation, or between 6:38 p.m. and

6:48 p.m.

At 6:50 p.m., Officers Frix and Rahmings were notified that a drug-detecting dog

had been dispatched to the scene. Six minutes later, Rahmings called his dispatcher to

confirm that his request that a teletype be sent to Brevard County had been received, but

again was told by the dispatcher to “stand by.” At approximately 7:00 p.m., the drug-

detecting dog arrived at the scene and gave a positive alert to Simmons’ car for the

presence of contraband between 7:05 p.m. and 7:10 p.m. Soon thereafter, the officers

searched Simmons’ car and found thirty small bags of cocaine under the driver’s seat and

a loaded handgun beneath a sheet of paper on the center console. By 7:12 p.m., Simmons

was under arrest. At 7:32 p.m., Brevard County responded to the teletype inquiry,

reporting that it had no further information on the “Bobby Simmons” who was the subject

of the bad check warrant.

4 The district court unambiguously found that the police officers had observed

Simmons run a stop sign and consequently ruled that the initial traffic stop was lawful,

regardless of what the officers’ subjective motivations may have been. Notably, the court

also determined that the Tampa police officers had acted diligently in attempting to verify

whether Simmons was the subject of the Brevard County arrest warrant and found that

there had been no undue delay in that endeavor. Further, the court found that the police

had acted diligently in procuring a drug-detecting dog and that there had been no

unreasonable delay in getting the dog to the scene.3

Notwithstanding those findings of fact and credibility choices drawn in favor of

the police officers, the district court concluded that the detention of Simmons beyond the

time it normally takes to write a traffic citation was unconstitutional because the officers

lacked reasonable suspicion to believe that Simmons was the actual subject of the

Brevard County arrest warrant. In addition to what the court regarded as ambiguous

information concerning the warrant from the computer check, the court based its ruling on

several factors it felt were peculiar to this case: that Simmons lived in the neighborhood

where the stop had taken place on the west coast of Florida, and the warrant was issued

from a county on the east coast of Florida; that the officers had known of their drug

suspicions of Simmons for several months and yet had learned of no outstanding warrants

3 The court rejected as not sufficiently specific the officers’ testimony that they also had a reasonable suspicion that Simmons’ dark-tinted windshield violated some tint law of Florida, but that ruling is not relevant to our conclusions on this appeal.

5 for him; and that the officers easily could have arrested Simmons later if the warrant

turned out to be for him. Having concluded that the officers lacked reasonable suspicion

to detain Simmons based on the arrest warrant, the district court determined that evidence

found by the police after the time Simmons’ traffic stop normally should have been

completed had been discovered in violation of the Fourth Amendment.4

II.

We review the trial court’s findings of fact for clear error, see Ornelas v. United

States, 517 U.S. 690, 699 (1996), but we review de novo the application of those facts to

the law, see United States v. Garcia, 890 F.2d 355, 358 (11th Cir. 1989). Here, since the

government is not contesting any factual finding, we apply the de novo standard.

Under the Fourth Amendment, a decision to stop an automobile is reasonable

where the police have probable cause to believe that a traffic violation occurred, see

Whren v. United States, 517 U.S. 806, 810 (1996), and an officer’s motive in making the

traffic stop does not invalidate what is otherwise “objectively justifiable behavior under

the Fourth Amendment,” id. at 812; see also United States v. Roy, 869 F.2d 1427, 1431-

33 (11th Cir.) (subjective belief of Coast Guard did not invalidate boarding, even where

4 The court phrased the issue as follows: “The issue is, is between 6:18 and we’ll say 7:00 p.m., that’s what, 42 minutes, 42 minutes, taking into account how long these police officers would normally write a ticket -- really hasn’t been any testimony, but obviously it doesn’t take 42 minutes to effectuate a traffic stop for a stop sign -- was that too long? Did they have the authority to detain Mr. Simmons awaiting the arrival of this K-9, this drug -- I’ll call it the drug dog, based on facts which came to their mind or which they perceived after the traffic stop?”

6 the officers themselves believed they did not have probable cause, where facts objectively

supported a finding of probable cause, which is determined by the courts), cert. denied,

493 U.S. 818 (1989). The district court found that there was “no question” that the

officers had observed Simmons run the stop sign and, therefore, had probable cause to

stop Simmons’ automobile. There is no basis on this record to question that finding,

which was grounded upon credibility choices made by the district court.

The essential question posited by this case then is whether the additional 17 to 26

minutes consumed by Officer Rahmings’ attempts to track down more information

concerning the Brevard County warrant for a bad check charge rendered the duration of

the stop unconstitutional. We hold that it did not. Once the police had validly detained

Simmons, plainly they were entitled under the decisional law to conduct a variety of

checks on the driver and his car, including questioning the driver about the traffic

violation, requesting consent to search the car, and running a computer check for

outstanding warrants. See, e.g., Ohio v. Robinette, 519 U.S. 33, 35-36 (1996) (discussing

an officer’s computer check of driver license and request for consent to search during a

traffic stop); United States v. Hardy, 855 F.2d 753, 755, 757 (11th Cir. 1988) (relating

officers’ request for consent to search and check for warrants after traffic stop); see also

United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir. 1997) (“An officer conducting a

routine traffic stop may run computer checks on the driver’s license, the vehicle

registration papers, and on whether the driver has any outstanding warrants or the vehicle

has been reported stolen.”).

7 The propriety of the continued detention of Simmons after the “normal time for a

traffic stop ended” is governed by Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. The

detention of Simmons was proper if the officers could point to “‘specific and articulable

facts which, taken together with rational inferences from those facts, justify a reasonable

and articulable suspicion that the person seized is engaged in criminal activity.’” Hardy,

855 F.2d at 757 (quoting Terry, 392 U.S. at 21). Although the “reasonable suspicion”

standard is less demanding than probable cause, it must be more than an “inchoate and

unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989)

(citation and internal quotation marks omitted). Thus, in evaluating the validity of an

investigative stop, we consider the “totality of the circumstances.” Id. at 8. Translated

into the inquiry here, the question boils down to this: whether, in light of all of the

circumstances the officers faced, they had a reasonable and articulable suspicion that

Simmons was the subject of the Brevard County arrest warrant.

In echoing the district court’s conclusion, Simmons argues that it was not

reasonable for the officers to think that the warrant was for him because it was from a

county on the other side of the state, that the date of birth on the warrant did not match the

defendant's, that two and one-half months earlier police had run defendant's name, but

had not detected any outstanding warrants, and that the warrant was for a worthless

check, as opposed to a more "serious" crime. The government contends that the officers

were entitled to investigate whether the warrant was for Simmons, even though the date

8 of birth may not have completely matched up. The government has the better of the

argument.

As we stated in Hardy, "'if the initial stop was legal, the [officer] had the duty to

investigate suspicious circumstances that then came to his attention.'" 855 F.2d at 757

(emphasis added) (quoting United States v. Cruz, 581 F.2d 535, 539 (5th Cir. 1978) (en

banc)). Here, the traffic stop was unquestionably legal and the officers legally ran the

computer check that turned up the Brevard County warrant. The mere fact that the

warrant was from another county on the other side of a narrow state, or that it was for a

worthless check, does not diminish the specific and articulable suspicion that the "Bobby

Simmons" named in the warrant was the "Bobby Gene Simmons" who had been stopped.

The difference in the date of birth is not fatal. Notably, the person described in the

teletype concerning the warrant conformed to the person before the officers by first and

last names, sex, race, and physical description. The difference of four years as applied to

a man in his forties did not negate the positive matches. The officers' fruitless records

check on Simmons two and one-half months earlier did not require a conclusion by the

officers that this warrant was not for Simmons. The officers testified at the suppression

hearing that they previously had received inaccurate information from their computer

checks of warrants. At best, their prior check of outstanding warrants for Simmons was

only one factor among many that a reasonable officer would have considered in deciding

whether to detain Simmons to investigate further whether he was the subject of the

outstanding Brevard County warrant. Although the degree of correlation between

9 Simmons and the subject of the warrant may not have given the officers probable cause to

arrest him, the correlation was far more than an inchoate "hunch." While the officers

could have let him go and arrested him later because they may have known where to find

him, no case has ever so held and we can discern no valid legal principle or compelling

fact requiring them to do so. Indeed, a reasonable officer may well have viewed as a

dereliction of duty the possibility of sending Simmons on his way without diligently

attempting to verify whether the arrest warrant was really for him. We cannot fault their

determination to do a sworn duty.

The courts refrain from "indulg[ing] in unrealistic second-guessing" of officers at

the scene. United States v. Sokolow, 490 U.S. at 11 (citation and internal quotation marks

omitted). The determination of reasonable suspicion "does not deal with hard certainties,

but with probabilities. Long before the law of probabilities was articulated as such,

practical people formulated certain common sense conclusions about human behavior;

jurors as factfinders are permitted to do the same -- and so are law enforcement officers."

United States v. Cortez, 449 U.S. 411, 418 (1981). We cannot say that Officers Frix and

Rahmings acted unreasonably in detaining Simmons to investigate the warrant, even if the

investigation ultimately did not produce definitive results. To hold otherwise would

mean that the officers violated the Fourth Amendment when they briefly detained

Simmons to verify whether he was the subject of the Brevard County warrant. Nothing in

Fourth Amendment jurisprudence suggests such an answer.

10 Finally, the length of the delay consumed in the conduct of the investigative

detention must have been "sufficiently limited in scope and duration to remain within the

bounds" permitted by Terry. Hardy, 855 F.2d at 758. Several issues and circumstances

are relevant to this analysis, including "the law enforcement purposes served by the

detention, the diligence with which the police pursue the investigation, the scope and

intrusiveness of the detention, and the duration of the detention." Id. (citing United States

v. Sharpe, 470 U.S. 675, 685-86 (1985)). Here, the law enforcement purpose served by

detaining Simmons beyond the initial traffic stop was to confirm or reject, by computer

check and follow-up teletype, whether Simmons was the subject of the Brevard County

arrest warrant. We believe that this was a "method of investigation that was likely to

confirm or dispel their suspicions quickly, and with a minimum of interference." Id.

(citing Sharpe, 470 U.S. at 686). Moreover, the district court found, and the record fully

supports the finding, that the officers acted diligently with respect to the warrant. They

tried to obtain further information from a variety of sources to clarify the identity of the

"Bobby Simmons" who was the subject of the warrant. Promptly, they radioed the

dispatcher to send a teletype to Brevard County, and after being put on hold, used their

mobile computer to request the dispatcher to send the teletype. They also tried to contact

their supervisor. We find that the "scope and intrusiveness" of the detention was

relatively minor. Simmons sat in his own car during the time consumed by the entire

stop.

11 We held in Hardy that a 50-minute investigative stop was not excessive under the

circumstances. See id. at 761; cf. United States v. Place, 462 U.S. 696, 709 (1983)

(stating that 90 minutes is "probably" too long for a Terry stop). Other courts have found

a 30-minute wait for a computer check during a traffic stop reasonable. See, e.g., United

States v. Shareef, 100 F.3d 1491, 1502 (10th Cir. 1996); United States v. Jones, 44 F.3d

860, 871 (10th Cir. 1995). We observe that longer traffic stops, during which nothing

occurred to justify the additional detention, usually require extenuating circumstances to

be upheld. See United States v. Rutherford, 824 F.2d 831, 833-34 (10th Cir. 1987)

(upholding a one-hour traffic stop where nearly one-half of the time was occasioned by

problems with police computer).

In this case we find that the purpose of the detention, the officers' diligence in

trying to prove or disprove that Simmons was the subject of the Brevard County warrant,

the limited scope of the continued detention beyond that warranted for a "normal traffic

stop," and the overall length of the total detention, all place Simmons' detention well

within the bounds permitted by Terry v. Ohio and its progeny. The officers stopped

Simmons at 6:14 p.m., and the officers returned to their vehicle at 6:18 p.m. to begin the

routine processes of writing a citation and requesting checks of Simmons' license, tag and

for outstanding warrants. The unrebutted evidence adduced at the suppression hearing

showed that these officers spent 20 to 30 minutes on the "routine" part of this traffic stop.

Thus, the issuance of a citation to Simmons would have been completed by around 6:44

p.m. to 6:48 p.m. The remainder of the time that elapsed until the narcotics-detecting dog

12 alerted to Simmons' car some time between 7:05 p.m. and 7:10 p.m. constitutes the

additional 17 to 26 minutes consumed by the attempts to determine whether Simmons

was the subject of the Brevard County warrant. The intervening development of probable

cause based upon the dog's alert, see United States v. Holloman, 113 F.3d 192, 194 (11th

1997), obviates the need for us to ascertain whether Simmons' continued detention until

7:32 p.m., when the Brevard County response was received, would have been reasonable.

Simmons contends, however, that the officers' request for a drug-detecting dog

shortly after pulling Simmons over, when combined with the information they possessed

concerning allegations of his earlier involvement in the sale of cocaine, transformed the

stop into an investigative detention for a drug search. However, we measure whether

Officers Frix and Rahmings had reasonable suspicion to detain Simmons by considering

whether an objectively reasonable police officer would make such a decision to detain.

We need only determine whether a reasonable police officer, under the totality of

circumstances, would have detained Simmons to investigate whether the arrest warrant

for "Bobby Simmons" was for him. Nothing about the bases for suspecting that Simmons

was a drug dealer in the neighborhood undermined the specific and articulable facts

which justified a reasonable belief that Simmons was the subject of the Brevard County

arrest warrant. Thus, we reject the contention that the precautionary request for the dog

shortly after the officers effected the traffic stop, by itself, somehow transformed a stop

and short detention, otherwise unambiguously supported by specific and objectively

reasonable facts, into an unreasonable one.

13 We, therefore, reverse the district court's order suppressing the evidence on Fourth

Amendment grounds and remand this case to the district court for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.