United States v. Williams

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS UNITED STATES DISTRICT JUDGE

         Defendant Robert Williams, Jr. has moved to suppress incriminating evidence revealed during a search incident to a traffic stop. (Doc. # 22.) The Magistrate Judge recommended that his motion be denied. (Doc. # 33.) Defendant objected. (Doc. # 38.) After an independent and de novo review of the record, the Recommendation, and the objections, the court will adopt the Recommendation and deny Defendant's motion to suppress.

         I. DISCUSSION

         A. Defendant consented to the search of the cigarette pack.

         Defendant first argues that, contrary to the Recommendation's conclusion, he did not consent to the search of the cigarette pack. The court disagrees. The totality of the circumstances shows that Defendant consented to the search.

         To begin, it is undisputed that the officer asked if he could have the cigarette pack, and Defendant told his female passenger to give it to the officer. (Doc. # 33, at 4.) That action was voluntary. There were only two officers at the scene, and they did not have their weapons drawn. Defendant was not physically restrained. And there is no evidence that the officer asked for consent in a threatening manner or retained Defendant's driver's license so that he could not leave. See United States v. Perry, 522 Fed.Appx. 821, 826 (11th Cir. 2013) (holding that consent search was voluntary when only three officers were present, their weapons remained holstered, and they did not ask for consent in a threatening manner, even though officer retained defendant's license).

         Defendant argues that his passenger's becoming “frozen” and noncompliant when the officer asked for the cigarette pack shows that she and Defendant perceived the officer's conduct as threatening. But Defendant cites no authority suggesting that, under these objective circumstances, his consent to the search was not voluntary.

         Once the officer discovered the drugs in the cigarette pack, he had probable cause to arrest Defendant and search his person as a search incident to that arrest. See United States v. Anderson, 131 Fed.Appx. 212, 215 (11th Cir. 2005) (“Once the Terry frisk revealed the concealed weapon . . . [the officer] had probable cause to arrest [the defendant] and to conduct a more thorough search incident to that arrest.”). Thus, the officer's search of Defendant's person that revealed the pistol was also lawful.

         The analysis could end there. But since the Recommendation (and the objections) address alternative grounds for denying the motion to suppress, the court will do so as well.

         B. The officer had reasonable suspicion to conduct a Terry protective search of the cigarette pack.

         Defendant next contends that the officer lacked reasonable suspicion to conduct a Terry protective search of the cigarette pack and of Defendant's person.

         These objections fall short, too. First, the circumstances surrounding the stop would have raised the suspicion of a reasonable officer.^[1] The stop occurred in the middle of the night. As the officer approached Defendant, he observed that Defendant was wearing apparel identifying him as a member of a motorcycle club known to be involved in violent criminal activity. Just one hour earlier, the officer helped arrest a member of the same club who was carrying three handguns. (Doc. # 33, at 3-4.)

         Second, Defendant's actions were suspicious. The officer observed him hand the cigarette pack to his female passenger, who then hid it between her legs. (Doc. # 33, at 4.) The officer believed the pack could contain a weapon such as a pocketknife or razor blade (Doc. # 33, at 4), or even a small Derringer pistol (Doc. # 31, at 32). When asked what was in the pack, Defendant gave an evasive answer. See Devenpeck v. Alford, 543 U.S. 146, 155-56 (2004) (noting that officers' suspicion that individual was not being truthful supported probable cause to arrest). Under these circumstances, it was reasonable for the officer to do a Terry protective search of the pack.

         Defendant objects that the officer had no specific information about the motorcycle club using pocketknives or razor blades as weapons or hiding them in cigarette packs. But the officer did know that the club members had a history of violence and that one had just been arrested with three ...