United States v. Tony DeShane Brown

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 26, 2021
• Docket: 20-14750
• Status: Unpublished

Opinion

USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-14750 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TONY DESHANE BROWN, a.k.a. Antowayne Deshane Hill, a.k.a. Antowayne Deshan Hill, a.k.a. Antowayne Hill, a.k.a. Antowayne Pollard, a.k.a. Antowayne Deshan Pollard, Defendant-Appellant. USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 2 of 13

2 Opinion of the Court 20-14750

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:16-cr-00104-GKS-LRH-1 ____________________

Before JILL PRYOR, BRANCH and DUBINA, Circuit Judges. PER CURIAM: Tony Brown appeals his conviction for possession with in-

tent to distribute cocaine. First, Brown argues that the district

court erred by denying his motion to suppress the bag containing

cocaine found during an investigative stop because the officers did

not reasonably believe that a weapon was in his paper bag. Sec-

ond, he argues that the district court plainly erred by failing to

dismiss the indictment sua sponte due to speedy trial concerns.

After reading the parties’ briefs and reviewing the record, we

AFFIRM in part and VACATE and REMAND in part.

I. USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 3 of 13

20-14750 Opinion of the Court 3

In June 2016, Brown was indicted for one count of posses-

sion with intent to distribute cocaine and one count of being a

felon in possession of a firearm. An arrest warrant was issued on

the day he was indicted, but Brown was not arrested and detained

until February 2020. In March 2020, Brown was indicted in a su-

perseding indictment that alleged the same counts as the first in-

dictment. Brown filed a motion to suppress the statements he

made to officers and the evidence the officers recovered at the

time of his detention — cocaine and a firearm and ammunition.

The district court conducted a hearing on the motion to suppress

and then denied the motion. Brown proceeded to trial, renewing

the objections stated in his motion to suppress. A jury found him

guilty of cocaine possession with intent to distribute but not

guilty of being a felon in possession of a firearm. USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 4 of 13

4 Opinion of the Court 20-14750

II.

A district court’s denial of a defendant’s motion to suppress

is reviewed under a mixed standard of review, reviewing the dis-

trict court’s findings of fact for clear error and the district court’s

application of law to those facts de novo. United States v. Smith,

459 F.3d 1276, 1290 (11th Cir. 2006). The court’s factual findings

are construed in the light most favorable to the prevailing party.

Id.

The Fourth Amendment guarantees the right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures. United States v. Ross, 963

F.3d 1056, 1062 (11th Cir. 2020) (en banc). Warrantless searches

and seizures are per se unreasonable, subject to a few exceptions.

United States v. Steed, 548 F.3d 961, 967 (11th Cir. 2008). USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 5 of 13

20-14750 Opinion of the Court 5

An officer may warrantlessly seize an individual for an in-

vestigatory detention if he has reasonable grounds to believe that

the suspect is armed and dangerous. Terry v. Ohio, 392 U.S. 1,

28-29, 88 S. Ct. 1868, 1883-84 (1968). However, when an officer is

executing a search warrant on a dwelling, he may detain anyone

within the dwelling while they execute the search, even if he has

no reason to suspect wrongdoing. United States v. Mastin, 972

F.3d 1230, 1237 (11th Cir. 2020), cert. denied, ___ U.S. ___, 141 S.

Ct. 1237 (2021).

During an investigatory detention, the officer may search

the suspect for concealed objects that he reasonably believes may

be weapons or other instruments of assault. United States v.

Johnson, 921 F.3d 991, 997 (11th Cir. 2019) (en banc), cert. denied,

___ U.S. ___, 140 S. Ct. 376 (2019). “A frisk reasonably designed

to discover guns, knives, clubs, or other hidden instruments for USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 6 of 13

6 Opinion of the Court 20-14750

the assault of the police officer does not exceed its permissible

scope.” Id. In determining whether a protective search for

weapons comports with the Fourth Amendment, we ask whether

a reasonably prudent man in the circumstances would be war-

ranted in the belief that his safety or that of others was in danger.

Id. at 997-98 (upholding seizure of bullet from defendant’s pocket

discovered during pat down where officer was in high-crime area

late at night, knew defendant matched burglar suspect’s descrip-

tion, and knew burglars tended to carry weapons).

More generally, officers may search the arrestee’s person

and the area within his immediate control, or the area from with-

in which he might gain possession of a weapon. Arizona v. Gant,

556 U.S. 332, 339, 129 S. Ct. 1710, 1716 (2009) (discussing search

incident to arrest). If there is no possibility that the arrestee could

reach into the area that law enforcement officers seek to search, USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 7 of 13

20-14750 Opinion of the Court 7

the search-incident-to-arrest exception does not apply. Compare

id. at 335-336, 350-51 (holding unlawful a search of arrestee’s ve-

hicle while arrestee is handcuffed and locked in police car), with

Johnson, 921 F.3d at 1001 (rejecting defendant’s argument that

being handcuffed and in the presence of two officers during frisk

eliminated danger).

Individuals do not have a Fourth Amendment interest in

items in which they lack a reasonable expectation of privacy, like,

for example, abandoned property. Ross, 963 F.3d at 1062. Where

the government does not argue that a defendant abandoned

property in which he later claims a reasonable expectation of pri-

vacy, it waives that argument, and we will not consider it for the

first time on appeal. Id. at 1065-66. This is because abandonment

is a finding of fact normally made by the district court. Id. at

1066. USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 8 of 13

8 Opinion of the Court 20-14750

Based on our review of the record, we conclude that the

district court erred in denying Brown’s motion to suppress. The

officers were permitted to detain Brown once Brown entered the

backyard of the duplex; however, the officers exceeded the scope

of their detention when they seized and searched the white paper

bag that Brown threw or dropped near the vehicle. The govern-

ment did not argue, and the district court did not find or hold,

that the officers had a reasonable belief that there was a weapon

in Brown’s white bag. See Johnson, 921 F.3d at 997-98. Moreo-

ver, even if the officers had testified that they believed a weapon

was in the bag, there was no possibility of Brown accessing the

bag while he was handcuffed and sitting in a chair away from the

bag. Thus, we conclude that the officers violated Brown’s Fourth

Amendment rights when they searched the bag. Because the dis-

trict court did not explain why the officers’ safety required them USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 9 of 13

20-14750 Opinion of the Court 9

to search the bag, and the government did not address this issue

on appeal, we conclude that the district court erred by denying

Brown’s motion to suppress the cocaine.

Further, the government’s abandonment argument fails

because it did not argue in the district court that Brown aban-

doned the bag. Abandonment is a factual issue that must be de-

termined by the district court. See Ross, 963 F.3d at 1066. Thus,

we will not consider this argument on appeal.

Based on the aforementioned reasons, we vacate and re-

mand as to this issue.

III.

Usually, constitutional law questions are reviewed de no-

vo, but, when raised for the first time on appeal, they are subject

to plain error review. United States v. Nash, 438 F.3d 1302, 1304

(11th Cir. 2006). Plain error requires: (1) an error; (2) that was USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 10 of 13

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plain; and (3) that affected the defendant’s substantial rights. Id.

A plain error affects an appellant's substantial rights if he can show

a reasonable probability that, but for the error, the outcome of

the proceeding would have been different. United States v. Reed,

941 F.3d 1018, 1021 (11th Cir. 2019). The defendant has the bur-

den to show plain error. United States v. DiFalco, 837 F.3d 1207,

1221 (11th Cir. 2016).

In all criminal prosecutions, the accused shall enjoy the

right to a speedy trial. U.S. CONST. AMEND. VI. To determine

whether a delay in a defendant’s trial deprived him of his constitu-

tional right to a speedy trial, we weigh the following factors: (1)

the length of the delay, (2) the reason for the delay, (3) the de-

fendant’s assertion of the right, and (4) the actual prejudice to the

defendant. United States v. Machado, 886 F.3d 1070, 1079 (11th USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 11 of 13

20-14750 Opinion of the Court 11

Cir. 2018) (citing Barker factors) 1. The defendant must demon-

strate actual prejudice unless each of the first three factors weighs

heavily against the government. Id. at 1081.

Delays exceeding one year are presumptively prejudicial.

United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006). The

burden is on the prosecution to explain the cause of pretrial delay.

Id. at 1337. However, a defendant who intentionally evades the

government’s efforts to bring him to trial is culpable in causing

the delay. Id. The government’s deliberate attempts to delay the

trial should be weighted heavily against the government, whereas

a more neutral reason such as negligence should be weighted less

heavily. Machado, 886 F.3d at 1080. To show actual prejudice,

the defendant must show oppressive pretrial incarceration, his

1Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972) USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 12 of 13

12 Opinion of the Court 20-14750

own anxiety and concern, or the possibility that his defense was

impaired because of the delay. Id. at 1081-82.

Our review of the record persuades us that the district

court did not plainly err by failing to dismiss the indictment. The

district court properly weighed the Barker factors enunciated in

Machado, supra, to find that Brown’s speedy trial rights were not

violated. First, the four-year delay in bringing Brown to trial was

presumptively prejudicial and weighs in his favor. See Ingram,

446 F.3d at 1336. Second, the reason for the delay factor weighs

slightly in Brown’s favor because the government was negligent

in bringing Brown to trial. Brown was free for four years without

being arrested and he encountered police and government offi-

cials during that time. See Machado, 886 F.3d at 1080. Third,

Brown never asserted his right to a speedy trial, which weighs in

favor of the government. See id. at 1079. Fourth, Brown’s only USCA11 Case: 20-14750 Date Filed: 10/26/2021 Page: 13 of 13

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argument regarding actual prejudice is that his delayed trial inhib-

ited his cooperation with law enforcement, which does not allege

actual prejudice. See id. at 1081-82.

We conclude, as did the district court, that although two factors weigh in Brown’s favor, he fails to show actual prejudice; thus, Brown cannot show that the outcome of the proceedings would have been different but for the error. Accordingly, the dis- trict court did not plainly err by failing to sua sponte dismiss the indictment.

AFFIRMED IN PART; VACATED AND REMANDED IN

PART.