United States v. White

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

________________________ JANUARY 11, 2010

JOHN P. LEY

No. 08-16010 ACTING CLERK

________________________

D.C. Docket No. 07-00361-CR-KD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUDIVIC WHITE, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(January 11, 2010)

Before DUBINA, Chief Judge, BIRCH and SILER,* Circuit Judges.

SILER, Circuit Judge:

*

Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting

by designation.

INTRODUCTION

Ludivic White, Jr., appeals his conviction for possession of a firearm by a

person convicted of a misdemeanor crime of domestic violence, in violation of 18

U.S.C. § 922(g)(9). For the following reasons, we affirm.

I.

At around 2:00 a.m. on April 21, 2007, Police Officers Brad Latham and

Otha Lee Hargrove received a complaint about loud music coming from a vehicle

parked in a high-crime area of Mobile, Alabama. Upon arriving at the scene, the

officers saw a vehicle that matched dispatch’s description. As Officer Hargrove

drove by the vehicle with his windows partially open, he smelled a “strong” odor

of marijuana and heard music emanating from the car. The vehicle contained four

occupants: two females in the front seat and two males in the back seat.

Latham approached the driver and asked for identification, which she was

unable to provide. The officers then questioned the occupants about whether they

had been smoking marijuana. The occupants denied possessing or using any drugs.

Latham asked the driver to exit the vehicle and requested her name and social

security number to perform a background check. Latham then requested that White

step out of the car. Shortly thereafter, Hargrove, who was busy performing a

background check on the other male passenger, heard Latham say “gun,” at which

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point he saw Latham remove a black handgun from White’s person. The officers

arrested White after he failed to produce a permit for the pistol. No drugs were

found in the car. Latham filed two police reports detailing the incident, neither of

which mentioned the smell of marijuana. Hargrove did not file any written reports.

White was indicted for possession of a firearm by a person convicted of a

misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).

Before trial, he filed a motion to suppress the firearm found on his person during

the search, arguing that the officers had violated his Fourth Amendment rights.

Hargrove testified to the facts stated above at the suppression hearing. On the

motion to suppress, the court found that he was a credible witness, and it held that

the smell of marijuana gave the officers reasonable suspicion to detain and question

the passengers and to pat them down for officer safety.

Both officers testified at trial. Hargrove’s testimony remained the same.

Latham stated that he responded to a loud noise complaint; when he arrived on the

scene, a car matching the description in the complaint contained four occupants and

only the dome light was on; and the occupants, when questioned, could not

produce identification. He stated that he and Hargrove asked all the occupants if

there were any weapons or illegal items in the vehicle, to which each responded in

the negative. After recognizing White as having “given [him] problems in the past

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to where [sic] I stopped him before,” he “patted him down for weapons . . . for

officer safety,” which was “standard [department] practice.” As he was patting

White down, he noticed the gun’s magazine protruding from White’s pocket. He

could not remember whether there had been any music playing in the car, although

he testified that if there had been, it was not loud. He stated that his report had not

mentioned marijuana, because he had not smelled any.

Marcus Carothers and Tequila Ward Prince, two of the occupants of the car,

later testified that they had been smoking marijuana prior to the stop. They stated

that they had not been playing loud music, and that they believed that the loud

noise complaint had been filed by a disgruntled neighbor. They were unsure

whether the smell of marijuana had lingered in the air, but they estimated that they

had ceased smoking marijuana between five to twenty minutes before the officers

arrived.

To prove the predicate offense, the government offered a certified copy of

White’s previous misdemeanor conviction for domestic violence, which stated that

he was convicted on January 11, 2005, of domestic violence in the third degree,

harassment, in violation of Alabama Code §§ 13A-11-8A and 13A-6-132.1

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Under Alabama Code § 13A-6-8A, harassment occurs “if, with intent to harass, annoy,

or alarm another person, [he] . . . [s]trikes, shoves, kicks, or otherwise touches a person or

subjects [him] to physical contact . . . [or] [d]irects abusive or obscene language or makes an

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According to his conviction, on June 22, 2003, he tried to choke his then live-in

girlfriend. The district court overruled his objection that this conviction did not

qualify as a predicate offense under 18 U.S.C. § 922(g)(9).

After the government rested, White moved for a judgment of acquittal and

renewed his motion to suppress the gun. The district court denied both motions.

The jury found White guilty, and he was sentenced to forty-six months’

imprisonment. The trial court also denied his subsequent motion to dismiss based

upon District of Columbia v. Heller, __ U.S. __, 128 S. Ct. 2783, 171 L. Ed. 2d 637

(2008). White now appeals pursuant to 28 U.S.C. § 1291.

obscene gesture towards another person.” Id. A person commits domestic violence in the third

degree if he commits the crime of harassment under § 13A-6-8A and “the victim is a current or

former spouse, parent, child, any person with whom the defendant has a child in common, a

present or former household member, or a person who has or had a dating or engagement

relationship with the defendant.” § 13A-6-132.

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II.

A.

1.

White first contests the district court’s denial of his motion to suppress the

gun found during the pat-down search. “Rulings on motions to suppress evidence

constitute mixed questions of law and fact.” United States v. LeCroy, 441 F.3d

914, 925 (11th Cir. 2006). We accept the district court’s findings of fact, including

the district court’s credibility determinations, unless they are clearly erroneous.

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We review

the application of law to those facts de novo. LeCroy, 441 F.3d at 925. Because

the pat-down search to preserve officer safety was not unreasonable given the

totality of the circumstances, we affirm the district court’s denial of the motion to

suppress.

2.

“Our analysis [of the legality of the pat-down search] is governed by 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.” United States v. Williams, 876 F.2d 1521, 1523 (11th Cir.

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1989). To justify a Terry stop, the officers must “have a reasonable, articulable

suspicion based on objective facts that the person has engaged in, or is about to

engage in, criminal activity.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th

Cir. 2007) (quoting United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000)),

cert. denied 128 S. Ct. 438, 169 L. Ed. 2d 305 (2007). In connection with a Terry

stop, an officer may conduct a pat-down search if he has reason to believe that his

own safety or the safety of others is at risk. Terry, 392 U.S. at 27, 88 S. Ct. at

1883. “The officer need not be absolutely certain that the individual is armed; the

issue is whether a reasonably prudent man in the circumstances would be warranted

in the belief that his safety or that of others was in danger.” Id. (emphasis added).

The district court found that (1) Hargrove was credible, and (2) he smelled

marijuana. We “must accept [these factual findings] unless [they are] so

inconsistent or improbable on [their] face that no reasonable factfinder could

accept [them].” Ramirez-Chilel, 289 F.3d at 749. Also, we must construe the facts

in the light most favorable to the party that prevailed below (here, the government).

United States v. Nunez, 455 F.3d 1223, 1225 (11th Cir. 2006). White focuses on

the inconsistencies in the officers’ testimony—namely, that Hargrove remembered

the marijuana smell, while Latham did not recollect it. However, it is not

inconceivable that two busy police officers testifying about an incident that

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occurred over a year prior remembered the existence of the smell of marijuana

differently. It is also not unbelievable that the district court found that Hargrove’s

testimony about the marijuana smell was credible.

Accepting these findings of fact, we hold that both the brief detention of the

vehicle and its occupants and the limited pat-down of White were reasonable.

“Reasonable suspicion is determined from the totality of the circumstances, and

from the collective knowledge of all the officers involved in the stop.” Williams,

876 F.2d at 1524 (citing United States v. Cotton, 721 F.2d 350 (11th Cir. 1983));

see also United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed.

2d 740 (2002) (upholding detention when the totality of the circumstances created

reasonable suspicion). Given that the smell of marijuana alone may provide a basis

for reasonable suspicion for further investigation of possible criminal conduct, the

initial stop was valid. Bryan v. Spillman, 217 F. App’x 882, 885 (11th Cir. 2007)

(citing United States v. Garcia, 592 F.2d at 259 (5th Cir. 1979) (holding that smell

of marijuana emanating from vehicle established reasonable suspicion for search)).

Additionally, even without considering Hargrove’s testimony regarding marijuana,

the totality of the circumstances indicates that the pat-down was reasonable.2

2

Thus, we decline to reach the question of whether the smell of marijuana, which Latham

failed to articulate but the district court held was present, can be considered in determining the

legality of the pat-down search.

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“[T]he issue is whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger.” Terry, 392

U.S. at 27, 88 S. Ct. at 1883 (emphasis added). Here, several factors support the

objective reasonableness of the search: Latham responded to a loud music

complaint in a high-crime area late at night, see United States v. Gordon, 231 F.3d

750, 755-56 (11th Cir. 2000) (noting an area’s reputation for criminal activity is a

factor that may be considered when determining whether reasonable suspicion

exists); the officers were outnumbered two-to-one; none of the occupants could

provide identification; and Latham recognized White as someone who had given

him trouble in the past. For these reasons, the limited pat-down search of White

did not violate the Fourth Amendment, and we affirm the district court’s denial of

White’s motion to suppress the gun.

B.

1.

White next argues that the district court erroneously denied his motion for a

judgment of acquittal based on its conclusion that his previous domestic violence

conviction was a predicate offense for purposes of § 922(g)(9). We review de novo

a district court’s denial of a motion for a judgment of acquittal on sufficiency of

evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12 (11th Cir.

9

2006) (en banc). We affirm the district court’s decision, because White’s

underlying domestic violence offense is a predicate offense for purposes of §

922(g).

2.

Section 922(g)(9) makes it illegal for a person “convicted in any court of a

misdemeanor crime of domestic violence” to possess “any firearm or ammunition”

that has been in or affects interstate commerce. Section 921(a)(33)(A) defines a

“misdemeanor crime of violence” as an offense that “(1) has, as an element, the use

[of force],3 and (2) is committed by a person who has a specified domestic

relationship with the victim.” United States v. Hayes, __ U.S. __, 129 S.Ct. 1079,

1087, 172 L. Ed. 2d 816 (2009) (alteration in original).

While the government must establish that the underlying offense was

committed against a person with a specified domestic relationship beyond a

reasonable doubt, § 922(g)(9) does not require the predicate offense to have the

specified domestic relationship as an element. Id. at __, 129 S.Ct. at 1082-83.

Accord United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir. 2000) (holding

that while the domestic nature of the relationship must be a fact, it need not be an

3

White does not argue that the Alabama statue does not contain the use of physical force

as an element of the offense. Consequently, he has abandoned this argument on appeal. See

United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (“Because [defendant] has

offered no argument on [an] issue on appeal, we find that he has abandoned it.”).

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element of the prior offense); United States v. Griffith, 455 F.3d 1339, 1346 (11th

Cir. 2006) (“Therefore, as we held in Chavez, a domestic relationship must exist as

part of the facts giving rise to the prior offense, but it need not be an element of

that offense.”).

To meet the definition of a “misdemeanor crime of domestic violence,” the

offense must be committed by (1) “a current or former spouse,” (2) “a person with

whom the victim shares a child in common,” (3) “a person who is cohabiting with

or has cohabited with the victim as a spouse, parent, or guardian,” or (4) “by a

person similarly situated to a spouse, parent, or guardian of the victim.”

§ 921(a)(33)(a)(ii). At trial the government introduced a certified copy of the

underlying conviction, which contained identical addresses of both the victim and

White. In addition, White was convicted in a “domestic dispute” during which he

pushed his girlfriend down and then tried to choke her. Finally, White concedes

that a live-in girlfriend would meet the domestic relationship requirement of §

921(a)(33)(a). The victim was in a specified domestic relationship with White: she

lived with him, was his “girlfriend,” and the dispute was a “domestic” one. Several

of our sister circuits have held that a “‘live-in’ girlfriend qualifies as a domestic

relationship for purposes of [§§ 922 and 921(a)(33)(a)].” Buster v. United States,

447 F.3d 1130, 1133 (8th Cir. 2006). See also United States v. Shelton, 325 F.3d

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553, 563 (5th Cir. 2003) (holding defendant’s admission that he lived with his

girlfriend was sufficient to qualify the relationship under §§ 922 and

921(a)(33)(a)); United States v. Denis, 297 F.3d 25, 31 (1st Cir. 2002) (assuming

defendant’s “‘live-in girlfriend’” was similarly situated for purposes of §§ 922 and

921(a)(33)(a)). Viewing, as we must, the evidence in the light most favorable to

the government, United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005),

there is sufficient evidence to show that a “domestic relationship . . . exist[ed] as

part of the facts giving rise to the prior offense” and that the trier of fact could have

so found beyond a reasonable doubt. Griffith, 455 F.3d at 1346. Therefore, the

district court did not err in determining that White’s previous domestic violence

conviction was a predicate offense for purposes of § 922(g).

C.

1.

White’s last argument on appeal focuses on the constitutionality of §

922(g)(9). “We review de novo the legal question of whether a statute is

constitutional.” United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002)

(citation omitted). Under our interpretation of Heller, __ U.S. at __, 128 S. Ct. at

2783, we affirm his conviction.

2.

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Although prior to Heller we upheld the constitutionality of § 922(g)(9), our

decision did not rest on Second Amendment grounds. See Hiley v. Barrett, 155

F.3d 1276 (11th Cir. 1998) (affirming the district court’s decision upholding

§ 922(g)(9)’s constitutionality against commerce clause, equal protection,

substantive due process, ex post facto, bill of attainder, and Tenth Amendment

attacks). Today we limit our holding to deciding whether § 922(g)(9) may be

properly included as a presumptively lawful “longstanding prohibition[] on the

possession of firearms,” a category of prohibitions the Supreme Court has implied

survives Second Amendment scrutiny. Heller, __ U.S. __-__, 128 S. Ct. at 2816-

17.

The Second Amendment provides as follows: “A well regulated Militia,

being necessary to the security of a free State, the right of the people to keep and

bear Arms, shall not be infringed.” U.S. Const. amend. II. Last year, in Heller, the

Supreme Court interpreted this language to “guarantee [an] individual right to

possess and carry weapons in case of confrontation.” __ U.S. __, 128 S. Ct. at

2797. In Heller, the Court held that the District of Columbia’s ban on handgun

possession in the home by law-abiding citizens violated the Second Amendment.

Id. In dictum, the Court qualified the right to bear arms: “[l]ike most rights, [it] is

not unlimited.” Id. at __, 129 S. Ct. at 2816. “[N]othing in [Heller] should be

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taken to cast doubt on longstanding prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive

places such as schools and government buildings . . . .” Id. at __-__, 129 S. Ct. at

2816-17. While the Court did not specifically mention § 922(g)(9), it included a

footnote to clarify that the enumerated “presumptively lawful regulatory measures

[are] only examples; [this] list does not purport to be exhaustive.” Id. at __, 129 S.

Ct. at 2817 n.26.

We are called upon to decide whether the statutory prohibition against the

possession of firearms by persons convicted of the misdemeanor crime of domestic

violence, § 922(g)(9), warrants inclusion on Heller’s list of presumptively lawful

longstanding prohibitions. As the Supreme Court recently noted, § 922(g)(9) was

passed in 1996 in response to Congress’s concern that “[e]xisting felon-in-

possession laws . . . were not keeping firearms out of the hands of domestic

abusers, because ‘many people who engage in serious spousal or child abuse

ultimately are not charged with or convicted of felonies.’” Hayes, __ U.S. at __,

129 S. Ct. at 1087 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen.

Lautenberg)). Section 922(g)(9) was designed to “‘close this dangerous

loophole.’” Id. By way of example, the federal ban on felons-in-possession in §

922(g)(1)—a statute characterized in the Heller dictum as a presumptively lawful

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longstanding prohibition—does not distinguish between the violent and non-

violent offender. Thus, both an armed robber and tax evader lose their right to bear

arms on conviction under § 922(g)(1). In contrast, a person convicted under §

922(g)(9) must have first acted violently toward a family member or domestic

partner, a predicate demonstrated by his conviction for a misdemeanor crime of

violence. Thus, although passed relatively recently, § 922(g)(9) addresses the

thorny problem of domestic violence, a problem Congress recognized was not

remedied by “longstanding” felon-in-possession laws. We see no reason to exclude

§ 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast

doubt. See In re United States, 578 F.3d 1195 (10th Cir. 2009) (order) (“Nothing

suggests that the Heller dictum, which we must follow, is not inclusive of §

922(g)(9) involving those convicted of misdemeanor domestic violence.”).

We now explicitly hold that § 922(g)(9) is a presumptively lawful

“longstanding prohibition[] on the possession of firearms.” Heller, __ U.S. __-__,

128 S. Ct. at 2816-17. Given that Heller does not cast doubt on the

constitutionality of § 922(g)(9), we affirm White’s conviction.

AFFIRMED.

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