USA v. Jesse Witherspoon

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 13, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-12182
Non-Argument Calendar
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D.C. Docket No. 0:09-cr-60191-WPD-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
JESSE WITHERSPOON,
lllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 13, 2010)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Following a bench trial in the district court, appellant was convicted of

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possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),
and sentenced to prison for a term of 180 months. He now appeals his conviction,
raising one issue: whether, following a hearing on appellant’s motion to suppress
evidence, i.e., the gun that led to appellant’s conviction, the district court clearly
erred in crediting the testimony of Detective Gonzalez that appellant possessed a
gun in his waistband and in denying the motion to suppress based on that
testimony. Appellant contends that, because Gonzalez did not have reasonable
suspicion, the district court should have suppressed the gun and ammunition found
during the pat-down search. Appellant contends, moreover, that court clearly
erred in its implicit decision not to credit consistent testimony from a second
detective, Mazzola, and from appellant’s friend, Bien-Aime, which contradicted
the officer’s testimony. Appellant says that Gonzalez stopped him based on a
mere “hunch.” Accordingly, the court erred in denying the motion to suppress,
and the conviction should be vacated.
In determining whether the district court erred in denying the motion to
suppress, we review the district court’s findings of fact for clear error and
application of the law to those facts de novo. United States v. Epps, 613 F.3d
1093, 1097 (11th Cir. 2010). The district court’s credibility determinations are
among the factual findings that we must accept unless they are “so inconsistent or
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improbable on their face that no reasonable factfinder could accept them.” United
States v. White, 593 F.3d 1199, 1203 (11th Cir. 2010) (citation and brackets
omitted).
We analyze the legality of pat-down searches according to the principles of
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “under which the
police may stop and briefly detain a person to investigate a reasonable suspicion
that he is involved in criminal activity, even though probable cause is lacking.”
Id. at 1202 (quotation omitted). A Terry stop is justified when the officer has a
“reasonable, articulable suspicion based on objective facts that the person has
engaged in, or is about to engage in, criminal activity.” Id. Furthermore, an
officer may proceed with a pat-down search of a person he has detained “if he has
reason to believe that his own safety or the safety of others is at risk.” Id.
However, “[t]he officer need not be absolutely certain that the individual is
armed” in order to justify a pat-down search. Id. (quoting Terry, 392 U.S. at 27,
88 S.Ct. at 1883) (emphasis in original). Rather, the issue is whether a reasonably
prudent man in the circumstances would be warranted in believing that his safety
or the safety of others was in danger. Id.
In this case, the district court’s determination that Detective Gonzalez’s
testimony was credible was not clearly erroneous. Nothing in the record shows
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the testimony “so inconsistent or improbable on [its] face that no reasonable
factfinder could accept” it. The court considered the credibility of the witnesses,
and even though it found that Bien-Aime was a credible witness “in a lot of
respects[,]” its decision to credit Gonzalez’s testimony, to the extent that it
differed from Bien-Aime’s, was not clearly erroneous.
AFFIRMED.
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