United States v. Joseph Bellamy

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 9, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10570
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-20736-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
JOSEPH L. BELLAMY,
lllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 9, 2010)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Joseph Bellamy appeals his conviction for being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The sole issue on
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appeal is whether the district court erred in denying Bellamy’s motion to suppress
the firearm and ammunition officers of the Miami-Dade Police Department
recovered from a locked tool box lying on the bed of Bellamy’s pickup truck.
(Bellamy gave the officers the key to the box after they detained him.) The motion
to suppress was heard by a magistrate judge. After holding an evidentiary hearing,
the magistrate judge issued a report and recommendation (“R & R”), with findings
of fact and conclusions of law, recommending that the district court deny the
motion. Bellamy did not object to the R & R, and the district court, after
conducting a de novo review of the record, adopted the R & R and denied
Bellamy’s motion.
In his brief to us, Bellamy argues that (1) the testimony of the officers at the
evidentiary hearing was contradicted by more credible evidence presented by the
defense witness; (2) the officers lacked a lawful basis for stopping him; (3) even if
the officers had a lawful basis to stop him, they lacked a legal basis for searching
his truck or for patting him down; (4) the officers’ use of his identification to
conduct further investigation constituted an unlawful seizure under the Fourth and
Fourteenth Amendments; and (5) he did not voluntarily consent to the challenged
search.
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Bellamy’s failure to object to the magistrate judge’s R & R means that we
review the R & R’s findings of fact for plain error or manifest injustice. United
States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982). “We . . . defer to the . . .
judge’s [credibility] determinations unless [her] understanding of the facts appears
to be ‘unbelievable.’” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th
Cir. 2002). Findings of probable cause and reasonable suspicion are mixed
findings of fact and law that we review de novo as matters of law. United States v.
Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002). In this
case, the record fully supports the magistrate judge’s findings of historical fact; we
therefore accept the findings.
The Fourth Amendment protects individuals from “unreasonable searches
and seizures” by government officials, “and its protections extend to brief
investigatory stops of persons or vehicles.” Arvizu, 534 U.S. at 273, 122 S.Ct. at
750. However, “the police may search an automobile and the containers within it
where they have probable cause to believe contraband or evidence is contained.”
California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619
(1991). Additionally, an officer is permitted to arrest a suspect without a warrant
if there is probable cause to believe that the suspect has committed or is
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committing an offense. United States v. Lyons, 403 F.3d 1248, 1253 (11th Cir.
2005) (citation and internal quotation marks omitted).
Florida law defines a concealed firearm as any firearm “which is carried on
or about a person in such a manner as to conceal the firearm from the ordinary
sight of another person.” Fla. Stat. § 790.001 (2006). Some are licensed to carry a
concealed firearm. See Fla. Stat. § 790.06. Florida law further provides that it is
“unlawful for any person to openly carry on or about” his person “any firearm.”
Fla. Stat. § 790.053 (2006). “Ordinary sight” means the “casual and ordinary
observation of another in the normal associations of life.” Davis v. State, 761 So.
2d 1154, 1156 (Fla. Dist. Ct. App. 2000). Here, as Bellamy was approaching his
pickup truck following what the police suspected was a drug transaction,
involving Bellamy’s payment of cash to a suspected drug trafficker in a high crime
area, an officer saw Bellamy take a firearm from his waistband, place it in a
toolbox on the bed of his truck, lock the box, and get into the truck.
Where an officer has a reasonable articulable suspicion that criminal activity
is afoot, he is permitted to conduct a brief investigatory stop even in the absence
of probable cause. Terry v. Ohio, 392 U.S. 1, 26-29, 88 S.Ct. 1868, 1882-84, 20
L.Ed.2d 889 (1968). When the police believe through the course of their
investigation that the person may be armed and dangerous, and there is concern for
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officer safety, for his protection, the officer is entitled to conduct a limited search
of the outer clothing. Terry, 392 U.S. at 29-30. The Terry investigative stop of
persons on foot has been applied to automobiles. United States v. Sharpe, 470
U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). While a “mere
hunch” is insufficient to justify a stop, the likelihood of criminal activity need not
rise to the level required for probable cause, and falls short of satisfying a
preponderance of the evidence standard. Arivzu, 534 U.S. at 751.
After hearing the testimony the parties presented at the evidentiary hearing,
the magistrate judge found the officers’s testimony credible and not materially
contradicted by the defense witnesses. The officers reasonably believed that
criminal activity was afoot. Given the judge’s findings of fact, the officers had
probable cause or at least a reasonable suspicion to stop Bellamy.1
We find no error in the district court’s application of Fourth Amendment
precedent in denying Bellamy’s motion to suppress. The court’s judgment is,
accordingly,
AFFIRMED.
Since we conclude that, at the very least, the officers had reasonable suspicion to stop1
Bellamy, we need not determine whether his delivery of the key to the tool box was voluntary.
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