United States v. Terry Brown

Case: 13-60223 Document: 00512551826 Page: 1 Date Filed: 03/06/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 13-60223 FILED

March 6, 2014

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

TERRY THOMAS BROWN,

Defendant – Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:11-CR-113-1

Before KING, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM: *

Terry Thomas Brown challenges the district court’s denial of his motion

to suppress. For the following reasons, we AFFIRM the judgment of the

district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Terry Thomas Brown, together with co-defendant Anthony D. Jones, was

charged by indictment with four counts of aiding and abetting the passing of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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counterfeit $100 bills. Brown moved to suppress evidence obtained as the

result of an unlawful arrest. Specifically, Brown seeks to suppress

incriminating statements he made to a Secret Service special agent while he

was in detention.

The district court held an evidentiary hearing on Brown’s motion and a

similar motion filed by Jones. At the hearing, Chip Benjamin, a police officer

with the City of Tupelo, Mississippi, testified that on July 30, 2011, he received

a dispatch call to a residence, where he spoke with Kasi Guyton about her

receipt of a counterfeit $100 bill at her yard sale. Benjamin arrived at Guyton’s

home within ten minutes of the call and possibly “less than five minutes” after

the call. Guyton reported that a black male accompanied by a white male had

given her the money, which she discovered was counterfeit when she went to a

nearby store to try to get change. The employees at the store identified the bill

as counterfeit by using a marker pen. Guyton told Officer Benjamin that the

black male had given her the bill.

Officer Benjamin testified that Guyton said the men were driving “a

newer model silver Toyota four-door truck with Florida [license] plates.” She

stated that the black male was wearing a green shirt and blue jeans. During

the conversation, a truck matching Guyton’s description drove by. Officer

Benjamin asked Guyton if the truck that drove by looked like the one the men

were in, and she responded affirmatively. Officer Benjamin immediately

returned to his patrol car and followed the truck. Officer Benjamin could tell

that the vehicle matched the make, model, and color of the truck described by

Guyton, and when he caught up to it he saw that it had Florida license plates.

Officer Benjamin observed the vehicle turn into a gas station, and he

followed. When Officer Benjamin pulled into the gas station, the black male

was in the driver’s seat of the vehicle and the white male was “standing outside

the [passenger] door.” Officer Benjamin activated his patrol car’s blue lights

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as he pulled into the station. The white male looked directly at Officer

Benjamin’s patrol car and the flashing lights. 1 He then “hurriedly tr[ied] to

get in the [convenience] store” located at the gas station. Officer Benjamin

instructed him to “get back in the truck,” but the man did not heed the

instruction. Officer Benjamin exited his vehicle, pulled his service weapon,

and again ordered the man back to the truck, at which point he complied. 2

Officer Benjamin testified that when the man returned to the vehicle, Officer

Benjamin noticed open beer cans on the floorboard of the vehicle’s passenger

side. 3 He ordered both men to place their hands on the dashboard.

Officer Benjamin obtained both men’s driver’s licenses and told the

driver the reason for the stop. In the courtroom, he identified Jones as the

driver of the vehicle and Brown as the passenger. Officer Benjamin testified

that when he spoke with Jones at the gas station, Jones was wearing clothing

matching the description given by Guyton. Officer Benjamin informed Jones

that he was suspected of passing counterfeit money, and asked Jones several

questions about where he was coming from and why he was in Tupelo. Jones

explained that he was driving from Alabama to Tennessee to pick up his

daughter. Officer Benjamin testified that Jones’s story “didn’t make sense” to

him.

1 Our review of the patrol car’s video from the incident confirms this order of events.

2The video indicates that Officer Benjamin ordered Brown to return to the vehicle

four times before drawing his service weapon.

3 By ordinance in the City of Tupelo, consuming or opening a container of beer is

restricted to certain designated areas, and “[n]o beer shall be open or in the possession of any

person in automobiles at any time on public property, streets or highways.” Tupelo, Miss.,

Code of Ordinances § 5-18(a)(1) (2003). Violation of the ordinance is punishable by a fine not

exceeding $1,000, imprisonment not exceeding ninety days, or both. Id. § 1-8.

Officer Benjamin’s police report did not mention the open containers. He testified at

the hearing that “[t]he Tupelo detectives did not like us to mix felony and misdemeanor

charges . . . so we charged [Jones and Brown] with the felony charge of counterfeiting.”

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Guyton then arrived at the scene. Officer Benjamin had not asked her

to follow him; she came to the gas station on her own initiative. She identified

Jones as “the guy” who gave her the counterfeit bill, and told Jones, “[y]ou gave

me a fake hundred-dollar bill.” Jones responded that he did not know the bill

was counterfeit and he would “make it right.” Officer Benjamin then removed

Jones from the truck and had him place his hands on the vehicle. Officer

Benjamin checked Jones’s pockets and found a counterfeit $100 bill, at which

point Officer Benjamin handcuffed Jones and placed him under arrest. During

a search of Jones’s vehicle, officers found another counterfeit bill in Jones’s

wallet, which was on the driver’s seat; a large sum of counterfeit money in the

passenger side door; and another large counterfeit sum in a book in the back

seat. There was also a computer printout of yard sale locations in the Tupelo

area. Legitimate money was found separate from the counterfeit bills, in the

driver’s side door. Items that appeared to be from yard sales were in the bed

of the truck. 4

A second officer, Clay Hassell, arrived at the scene and took Brown into

custody while Officer Benjamin spoke with Jones. Officer Hassell patted down

Brown and did not find any counterfeit bills on him. When a third officer,

Nathan Sheffield, arrived, he escorted Brown to Officer Benjamin’s vehicle.

Officer Sheffield testified at the hearing that he noticed the smell of alcohol on

Brown’s breath and person. Officer Sheffield also testified that he noticed open

containers of alcohol on the floorboard of the vehicle’s passenger side.

Officer Benjamin stated that Jones did not commit a traffic violation. He

testified that Guyton did not provide any information about the clothing worn

4 It is not clear whether Officer Benjamin saw the yard sale items before or after he

placed Jones and Brown under arrest. At the hearing, he testified that he saw the items after

arresting Jones and Brown. In the police report, he stated that he noted the items when he

first spoke with Jones, before placing Jones under arrest.

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by the white male accompanying Jones, and she did not speak with Brown

when she arrived at the gas station. Officer Benjamin had no information at

the time of the stop that Brown was in possession of counterfeit money. Officer

Benjamin stated that at the time Brown returned to the vehicle, he was being

detained, and that “[t]he open containers and the smell of alcohol on him” were

the reasons for his detention.

The district court denied both defendants’ motions to suppress in an oral

order three weeks after the hearing on the motion. It found that Guyton had

described “the persons” that had paid her with the counterfeit bills, that Brown

was the passenger in the truck, and that he had “almost immediately exited

the truck and attempted to walk into the convenience store.” The court noted

that when Guyton arrived at the scene, she said to “one or both defendants,

‘[y]ou gave me a fake 100-dollar bill.’” The court stated that Jones replied “that

he did not know it was fake, ‘I will make it right,’” which was “indicative to the

[c]ourt that Jones and the other occupant, Brown, were aware that the

currency passed at the yard sale was counterfeit currency.” The court found

that Officer Benjamin frisked both defendants and that “counterfeit money

was found on their person,” as well as within the vehicle.

The court performed a two-tiered reasonable suspicion analysis under

Terry v. Ohio, 392 U.S. 1 (1968), as articulated in United States v. Grant, 349

F.3d 192, 196 (5th Cir. 2003). “[C]onsidering the totality of the circumstances,”

it determined that Officer Benjamin’s actions in immediately following the

truck were justified at their inception. The court concluded that the ensuing

search or seizure was reasonably related in scope to the

circumstances that justified the stop in the first place, considering

the location of the yard sale items in the back of the truck and the

acknowledgement of finding the counterfeit bills in the vehicle and

on the persons of Jones and Brown, and also in light of the

responses made by Jones, the driver of the truck, that he did not

know that the bills were fake and that he would make them right.

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“Considering the totality of all of the facts encountered or confronted by this

officer,” it found that the motion to suppress should be denied. Although

Brown’s motion to suppress was “predicated upon his arrest being without

probable cause,” the district court did not expressly address probable cause.

Following the denial of his motion, Brown entered a conditional guilty

plea to one count of aiding and abetting the passing of a counterfeit bill,

reserving his right to challenge the ruling on his motion to suppress. The

district court sentenced Brown to twenty-four months’ imprisonment and a

three-year term of supervised release. Brown was also ordered to pay $100 in

restitution. Brown filed a timely notice of appeal.

II. STANDARD OF REVIEW

“To assess a district court’s ruling on a motion to suppress evidence

under the Fourth Amendment, we review its factual determinations for clear

error and the ultimate Fourth Amendment conclusions de novo.” United States

v. Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc) (citing United States

v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003)). “Factual findings are clearly

erroneous only if a review of the record leaves this Court with a definite and

firm conviction that a mistake has been committed.” United States v. Hearn,

563 F.3d 95, 101 (5th Cir. 2009) (internal quotation marks and citation

omitted). The district court’s ruling should be upheld “if there is any

reasonable view of the evidence to support it,” United States v. Scroggins, 599

F.3d 433, 440 (5th Cir. 2010) (quoting United States v. Gonzalez, 190 F.3d 668,

671 (5th Cir. 1999)), and the reviewing court “can affirm the lower court’s

decision on any grounds supported by the record,” United States v. McSween,

53 F.3d 684, 687 n.3 (5th Cir. 1995).

III. APPLICABLE LAW

Pursuant to Terry, 392 U.S. 1, “[p]olice officers may briefly detain

individuals on the street, even though there is no probable cause to arrest

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them, if they have a reasonable suspicion that criminal activity is afoot.”

United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc). To

determine whether such an investigatory stop was legal, the court first

examines “whether the officer’s action was justified at its inception, and then

inquires whether the officer’s subsequent actions were reasonably related in

scope to the circumstances that justified the stop.” Brigham, 382 F.3d at 506

(citing Terry, 392 U.S. at 19–20). “Reasonable suspicion requires less

information and certainty than the probable cause needed to make an arrest.”

United States v. Vickers, 540 F.3d 356, 361 (5th Cir. 2008). “Whether an officer

has reasonable suspicion to stop is answered from the facts known to the officer

at the time.” Id. Courts “must look at the totality of the circumstances of each

case to see whether the detaining officer has a particularized and objective

basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266,

273 (2002) (internal quotation marks and citation omitted). The court “looks

at all circumstances together to weigh not the individual layers, but the

laminated total.” United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th

Cir. 2011).

“It is well established that under the Fourth Amendment a warrantless

arrest must be based on probable cause.” Hogan v. Cunningham, 722 F.3d 725,

731 (5th Cir. 2013) (quoting United States v. Castro, 166 F.3d 728, 733 (5th

Cir. 1999) (en banc) (per curiam)). Probable cause for an arrest made without

a warrant “exists when the totality of facts and circumstances within an

officer’s knowledge at the moment of arrest are sufficient for a reasonable

person to conclude that the suspect had committed an offense.” United States

v. Hebert, 131 F.3d 514, 524 (5th Cir. 1997). The probable cause standard

“requires substantially less evidence than that sufficient to support a

conviction.” United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1996) (internal

quotation marks and citation omitted).

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Passing counterfeit currency with intent to defraud is a crime in

violation of 18 U.S.C. § 472. 5 “Generally, probable cause to arrest for the

offense of passing a counterfeit note is established by circumstances showing

the passing of a counterfeit note coupled with an identification of the individual

who passed the note.” United States v. Hernandez, 825 F.2d 846, 849 (5th Cir.

1987); see also United States v. Burbridge, 252 F.3d 775, 778 (5th Cir. 2001)

(“An ordinary citizen’s eyewitness account of criminal activity and

identification of a perpetrator is normally sufficient to supply probable cause

to stop the suspect.”).

“[R]easonable suspicion may ‘ripen’ or ‘develop’ into probable cause for

an arrest if a Terry stop reveals further evidence of criminal conduct.”

Scroggins, 599 F.3d at 441. “Of particular significance in those cases in which

the available description is alone sufficient for a stopping for investigation, is

the possibility that it may develop into probable cause for arrest as a

consequence of what the police see or hear during the detention.” WAYNE R.

LAFAVE, SEARCH AND SEIZURE § 3.4(c) (5th ed. 2012).

IV. MOTION TO SUPPRESS

This case requires us to determine, first, whether a police officer had

reasonable suspicion to perform an investigatory stop and, second, whether his

reasonable suspicion ripened into probable cause during the course of the stop.

We find in the affirmative on both questions. Accordingly, we affirm the

district court’s denial of Brown’s motion to suppress.

5 Section 472 provides:

Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts

to pass, utter, publish, or sell, or with like intent brings into the United States

or keeps in possession or conceals any falsely made, forged, counterfeited, or

altered obligation or other security of the United States, shall be fined under

this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 472 (2013).

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A. Terry Analysis

Officer Benjamin’s investigatory stop was justified at its inception

because he had reasonable suspicion that criminal activity had occurred. See

Michelletti, 13 F.3d at 840. The record shows that police received a phone call

from Guyton regarding counterfeit money she received at a yard sale, and

Guyton informed Officer Benjamin that a store clerk had identified the bill as

counterfeit. Officer Benjamin had a particularized and objective basis to

believe that the individuals in the vehicle he followed were involved in the

crime. See Vickers, 540 F.3d at 361. Guyton described the physical appearance

of the man who gave her the bill, and said he was accompanied by a white

male. She described the vehicle in which they were riding. When a truck

matching Guyton’s description drove by, Guyton identified it as “look[ing] just

like” the truck the men were in. When Officer Benjamin followed the truck, he

determined that it matched the make, model, and color of the vehicle described

by Guyton, and had Florida license plates.

Brown suggests that because “[t]he truck was not in operation, and

[Brown] was not in the truck at the time he was detained,” there was no

reasonable suspicion to stop him, as opposed to his co-defendant, Jones. We

disagree. Officer Benjamin knew that a white male accompanied the male who

passed the counterfeit bill. The testimony reveals that Brown was “standing

outside the [passenger] door” when Officer Benjamin pulled in behind the

pickup truck, and that he “hurriedly tr[ied] to get in the [convenience] store.”

The police video shows Brown standing outside the truck’s passenger side, with

the door open, and closing the door as Officer Benjamin pulls up behind the

truck. This record is sufficient for us to conclude that Officer Benjamin had

reasonable suspicion to include Brown in the scope of his investigatory stop.

Under the second prong of the Terry analysis, the question is whether

Officer Benjamin’s actions “were reasonably related to the circumstances that

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justified the stop, or to dispelling his reasonable suspicion developed during

the stop.” Brigham, 382 F.3d at 507. We conclude that they were.

Brown argues that Officer Benjamin’s “show of force and authority,” in

drawing his service weapon, “left [Brown] no choice but compliance” and

therefore constituted “a de facto warrantless arrest of a citizen without

probable cause.” We construe this argument to suggest that Officer Benjamin’s

actions exceeded the permissible scope of a Terry stop. The government

contends that Officer Benjamin’s “actions of ordering Brown back into the

truck were reasonable in the course of an investigative detention, and did not

amount to a full blown arrest.” The government explains that the actions

“were clearly reasonably related to the circumstance[s] that justified the stop.”

Even assuming there was no probable cause to arrest Brown when

Officer Benjamin drew his service weapon, his actions did not exceed the scope

of the stop under Terry. Officer Benjamin had reasonable suspicion to believe

that Brown had been involved in criminal activity. Brown disobeyed Officer

Benjamin’s order, delivered four times, to return to the vehicle. Given these

circumstances, Officer Benjamin’s actions in drawing his service weapon were

reasonably related to the circumstances justifying the stop. See, e.g., United

States v. Abdo, 733 F.3d 562, 566 (5th Cir. 2013) (holding that stop “was a

proper investigatory detention” where officer drew his weapon, ordered

defendant to halt, and placed defendant in handcuffs inside a patrol car);

United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993) (“[U]sing some force

on a suspect, pointing a weapon at a suspect, ordering a suspect to lie on the

ground, and handcuffing a suspect—whether singly or in combination—do not

automatically convert an investigative detention into an arrest requiring

probable cause.”). “The Fourth Amendment does not require a policeman who

lacks the precise level of information necessary for probable cause to arrest to

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simply shrug his shoulders and allow a crime to occur or a criminal to escape.”

Vickers, 540 F.3d at 361 (quoting Adams v. Williams, 407 U.S. 143, 145 (1972)).

In sum, reasonable suspicion existed to believe that Brown was involved

in a recently completed crime of passing of counterfeit money, which gave

Officer Benjamin the right to stop him. Officer Benjamin did not exceed the

permissible scope of the stop when he drew his service weapon.

B. Probable Cause

We conclude that the laminated total of the evidence was more than

sufficient to cause Officer Benjamin’s reasonable suspicion to ripen into

probable cause during the course of the investigatory stop. See United States

v. Harlan, 35 F.3d 176, 179 (5th Cir. 1994); Scroggins, 599 F.3d at 441.

Officer Benjamin knew that counterfeit bills had been passed. He

followed a vehicle identified by Guyton, and the vehicle matched the make,

model, and color of the truck described by Guyton, and had Florida license

plates. Brown walked away from Officer Benjamin, despite seeing that the

patrol car’s lights were activated, and despite Officer Benjamin’s multiple

orders to return to the truck. Finally, Officer Benjamin testified at the

suppression hearing that he saw open beer cans on the floorboard of the

passenger side of the vehicle when Brown returned to the vehicle. The

presence of an open beer container in a vehicle is a violation of Tupelo city

ordinances, see Tupelo, Miss., Code of Ordinances § 5-18, which Officer

Benjamin testified is an arrestable offense. While none of these factors alone

may have been sufficient to create probable cause, the laminated total was

more than sufficient. See Olivares-Pacheco, 633 F.3d at 402.

The fact pattern here is analogous to that in United States v. Rice, 652

F.2d 521 (5th Cir. Unit A Aug. 1981). In Rice, the court also found probable

cause to arrest an individual who did not actively participate in passing a

counterfeit bill, but was with someone who did, when that individual took

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independent actions that led the police officer to believe the individual “might

be involved [with] or at least ha[ve] some knowledge of [his associate’s] illegal

activity.” Id. at 525. In Rice, defendants Rice and Williford, accompanied by

a third individual who was never identified, entered a drug store in a mall,

where Rice paid the sales clerk using a counterfeit twenty-dollar bill, while

Williford stood at the magazine rack. Id. at 523. After the men left, the clerk

concluded the bill was counterfeit, notified the manager, and called the police.

Id. at 523–24. The clerk and the manager went into the mall to see if they

could identify the suspects. Id. at 524. The clerk was able to indicate Rice and

Williford to the manager, after which she returned to the store. Id. When a

police officer arrived, the manager identified Rice and Williford to him. Id.

The officer approached the men and asked them for identification; they were

evasive, and their answers raised the officer’s suspicions. Id. After the officer

obtained identification from the men, the store manager again “pointed out

Rice as the man who had passed the bill to the clerk.” Id. The officer arrested

both men. Id. While Williford was being handcuffed, he dropped his wallet,

which the officer retrieved. Id. The officer found two counterfeit bills in the

wallet. Id.

Rice and Williford challenged the validity of their arrests for lack of

probable cause. The court concluded that there was sufficient probable cause

to support the arrest of both men, even though Williford “did not actively

participate in passing the bill[.]” Id. at 525. The court explained:

When viewed in totality, not a vacuum, we find the officer had before

him information that (i) three men had passed a counterfeit bill at

Skillern’s Drug Store, (ii) Williford was with Rice, (iii) they both

were reluctant to identify themselves on the officer’s request,

initially only giving their first names, (iv) both denied possessing

any identification, (v) it was only on his specific notice of the wallet

in Williford’s pocket and repeated request for identification that

Williford produced the driver’s license which bore another name and

picture, and (vi) the bill Rice was charged with passing was indeed

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counterfeit. . . . Williford’s action in seeking to (i) hide his true

identity, (ii) evade giving even his last name, and (iii) avoid giving

identification until the officer spotted his wallet, when combined

with the other factors, establish the officer had probable cause to

arrest him.

Id.

Here, Brown took independent actions, like Williford in Rice, that

suggested he was more than a mere bystander to a co-defendant’s criminal

actions. A review of the police surveillance video of the stop reveals that Brown

walked away from Officer Benjamin, despite the fact that Officer Benjamin

had activated the blue lights on his patrol car immediately after pulling in

behind Brown and Jones’s truck. Moreover, Brown continued walking towards

the convenience store despite multiple orders from Officer Benjamin to return

to the truck. In Rice, Williford hid his true identity, evaded giving his last

name, and avoided giving identification to the police officer. Id. The court said

that those actions could reasonably lead the officer to believe that Williford

“might be involved [with] or at least ha[ve] some knowledge of [his associate’s]

illegal activity.” Id. Similarly, Brown’s actions in avoiding Officer Benjamin

reasonably suggested that he might be involved with the crime of passing

counterfeit money or have some knowledge of the crime. Other courts have

found probable cause in similar situations. 6

6See Hernandez, 825 F.2d at 849 (finding probable cause to arrest two men where

carnival vendor had described both men, only one of whom had tried to pass a counterfeit

bill, and police officers had subsequently found the defendant and his co-defendant a short

time later at the carnival and the men matched the vendor’s description); see also United

States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991) (finding probable cause where store clerk

called police to report a man fitting the description of a robber broadcast over the radio, and

when police approached the cab in which the man was sitting, “he exited the cab and

attempted to leave the scene,” but “was stopped by police, who determined that he matched

the description given with the exception of clothing color”); United States v. Hill, 340 F. Supp.

344, 348 (E.D. Pa. 1972) (finding probable cause to arrest passengers in rear seat of car, when

only the individual in the front seat appeared to have engaged in an illegal transaction,

explaining that the fact that the passengers “left the rear seat” and “started to walk away,”

when “taken with the surrounding facts indicates enough guilty knowledge of the transaction

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Brown argues that Rice is distinguishable because Williford was evasive

about his identity whereas Brown was not. This argument is unpersuasive.

The relevance of Rice is that a defendant’s actions raised suspicion that he was

more than a bystander to his co-defendant’s illegal activity, i.e., that he was

involved with or knew of the illegal activity. Brown’s actions in ignoring the

patrol car’s flashing lights and disobeying Officer Benjamin’s orders did

precisely that.

Likewise, Brown’s argument that “a person’s presence at the scene of an

offense and association with persons connected to an offense are insufficient to

establish probable cause” is unavailing. We do not find probable cause solely

because of Brown’s presence, although that is one layer we consider in the

laminated total. See Olivares-Pacheco, 633 F.3d at 402; Harlan, 35 F.3d at

179. Brown engaged in independent actions that reasonably raised Officer

Benjamin’s suspicions, and Officer Benjamin saw open beer containers on

Brown’s side of the vehicle, in violation of local law. Taken together, these

factors establish probable cause.

For these reasons, we conclude that Officer Benjamin’s reasonable

suspicion ripened into probable cause to arrest Brown.

V. ERRORS IN DISTRICT COURT’S FACTUAL FINDINGS

Brown contends that the district court’s ruling contained several factual

errors that constitute clear error, and therefore warrant reversal. Specifically,

to overcome any presumption that they were merely innocent passengers, and in the Court’s

opinion established probable cause for their arrest likewise”); Matter of E.G., 482 A.2d 1243,

1247 (D.C. 1984) (finding probable cause where suspect matched complainant’s description

and refused officer’s order to halt; the court explained that “the strong correlation between

appellant’s appearance and the description possessed by [the officer], together with

appellant’s proximity to the crime scene and his behavior when confronted with a police order

to halt, tips the scales here in favor of probable cause”); LAFAVE, SEARCH AND SEIZURE § 3.4(c)

(explaining that “if the officer attempts a lawful stop but the suspect ‘refused to stop when

initially ordered to do so,’ this may also be taken into account” in the probable cause analysis).

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he challenges the district court’s findings that: (1) counterfeit money was found

“in the vehicle and on the persons of Jones and Brown”; (2) Guyton “provided

a description of the persons that were offering the counterfeit bills”; (3) Brown

was a passenger in the truck and “almost immediately exited the truck and

attempted to walk into the convenience store”; (4) and Guyton told “one or both

or both defendants, ‘You gave me a fake 100-dollar bill.’” Brown also argues

that the district court committed clear error when it stated that Jones’s

response to Guyton, that he “will make it right,” was “indicative to the [c]ourt

that Jones and the other occupant, Brown, were aware that the currency

passed at the yard sale was counterfeit currency.”

We conclude that the district court’s first finding constitutes clear error,

since there was no testimony that counterfeit money was found on Brown’s

person. However, the district court’s erroneous finding does not alter our Terry

or probable cause analyses, since there was sufficient evidence to reach our

conclusions absent the error. Therefore, the court’s finding does not affect

Brown’s substantial rights, and is harmless error. Fed. R. Crim. P. 52; see

United States v. Hughes, 726 F.3d 656, 668 (5th Cir. 2013).

The district court’s other findings are not clearly erroneous. Guyton

provided a description of both Jones and Brown, and their vehicle, that was

sufficient for Officer Benjamin to identify them. The fact that Guyton’s

description of Brown was less specific than her description of Jones is not

material; Brown was found accompanying Jones and in the vehicle that Guyton

described. The court’s finding that Brown was a passenger in the vehicle and

attempted to enter the convenience store is supported by the record and the

patrol car’s video. The court’s finding that Guyton informed “one or both

defendants” of the counterfeit bill is likewise not erroneous, since the record

reveals that she made her statement to Jones.

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Case: 13-60223 Document: 00512551826 Page: 16 Date Filed: 03/06/2014

No. 13-60223

Finally, the court did not commit clear error when it suggested that

Jones’s statement was indicative of Brown’s guilt. Since Guyton’s information

implicated both defendants, and Brown’s independent actions reasonably

raised Officer Benjamin’s suspicions, there is a “reasonable view of the

evidence [] support[ing]” the district court’s statement. See Scroggins, 599 F.3d

at 440. Moreover, even if the court’s statement were clearly erroneous, it would

not change our Terry or probable cause analyses, since there was sufficient

evidence to reach our conclusions without consideration of Jones’s statement.

VI. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

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