Petition for Writ of Certiorari — Gross Williams, Petitioner v. United States

No. _______________

IN THE

SUPREME COURT OF THE UNITED STATES

GROSS WILLIAMS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit

APPENDIX

A.

Pages

Opinion of the United States Court of Appeals for the Fifth Circuit

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30198

United States Court of Appeals

Fifth Circuit

FILED

January 24, 2018

UNITED STATES OF AMERICA,

Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

GROSS WILLIAMS,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.

CARL E. STEWART, Chief Judge:

Defendant-Appellant Gross Williams appeals the district court’s rulings

denying his motions to suppress. For the following reasons, we affirm.

I.

Facts & Procedural History

Defendant-Appellant Gross Williams was convicted in 2012 in Iberville

Parish on state charges of distributing marijuana and placed on five years of

probation. Conditions of Williams’s probation included permitting home visits

from the probation officer, refraining from owning or possessing firearms, and

consenting to probation officer searches of his person or property at any time

with or without an arrest warrant. Specifically, Condition 13 of his probation

conditions provided that Williams was required to:

Agree to searches of his person, his property, his place of residence,

his vehicle, or his personal effects, or any or all of them, at any

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time, by the probation officer or the parole officer assigned to him,

with or without a warrant of arrest or with or without a search

warrant, when the probation officer or the parole officer has

reasonable suspicion to believe that [Williams] is engaged in or has

been engaged in criminal activity.

Probation officer Patrick Green testified that during the term of

Williams’s probation, he was a model probationer and as a result, in 2014

Officer Green began the process of drafting a “petition for cause” to request

that the court terminate Williams’s probation early. While Officer Green was

writing the petition, he received a call from his district administrator to report

to his office where a meeting was being held with the Drug Enforcement

Administration (DEA). Officer Green was then informed that the New Orleans

Police Department (NOPD) and the DEA had determined that Williams was

involved in the narcotic trafficking of large amounts of heroin. Officer Green

testified that he was “shocked” at the news.

As a result of the tip from the NOPD and DEA and his knowledge of

Williams’s prior criminal history involving drugs, including the offense for

which he was currently on probation, Officer Green concluded that he was

warranted in conducting a compliance check on Williams. Officer Green called

Williams and asked him to come to his office but Williams said he could not

leave his dealership because he was the only person there. Consequently,

Officer Green, along with several other probation officers and law enforcement

from a neighboring parish, traveled to Williams’s car dealership to begin the

process of the compliance check which would traditionally involve transporting

Williams to his home to investigate further.

When he arrived at the

dealership, Officer Green testified that he walked up to Williams and “noticed

that he had bulges underneath his clothing” so he asked Williams “do you have

anything on you I need to know about, anything illegal, any sharp, anything

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that could hurt me[?]” Williams replied no but then stated that he had cash in

his pockets. Officer Green testified that at that point, he Mirandized Williams

and then “started to conduct a frisk, a pat-down, in which I felt large objects

underneath in his pockets. I then removed those objects and they turned out

to be wads of cash from both his shirt and his pants. And the reason I removed

those is I wanted to see if there were any weapons on the other side of him with

the large bulges. I could not tell what else was in his pockets.” Officer Green

testified that as a result of the pat-down, he found in Williams’s shirt and pants

pockets “wads of cash that had been . . . folded over in half of varying

denominations, ones, fives, tens, 20s, 100s—not all of it in the same numerical

order and varying amounts in different pockets.” Officer Green continued, “I

asked him where the money came from, and he told me that the money had

come from the car dealership from him selling the cars.” Although Williams

had estimated that the cash totaled approximately $14,000, law enforcement

counted $10,000. Officer Green testified that he found this large amount of

cash odd since Williams had previously reported that he made approximately

$2,500 per month in income.

Officer Green further noted that it seemed

strange that Williams had reported that he was alone at the car dealership but

when officers arrived, Williams’s wife was there.

Thereafter, Officer Green continued conversing with Williams and

obtained his consent to search his business. Officers walked a drug dog around

the dealership and nothing was discovered except approximately $2,000 in

cash. DEA agents then arrived and asked Williams where the cash on his

person came from. He replied that a person named “Twon” had given him the

money to buy cars at an auction. Officer Green testified that this information

put him on alert because not only was it a contradictory answer to the

explanation Williams had given him for having the money but also because

Twon was “the largest drug dealer in the New Orleans East area.” A drug dog

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subsequently alerted to the presence of drug residue on the cash that was found

on Williams’s person.

Officers then obtained consent to search Williams’s mother’s home on

Caffin Street because her address was listed on the incorporation papers to his

business. In an effort to end the ongoing search of his mother’s home, Williams

voluntarily stated to officers: “What you are looking for is at my house. I have

a gun and money at my residence.”

Williams’s mother’s house.

No contraband was discovered at

Officers then traveled to Williams’s personal

residence on Sandalwood where they again formally obtained Williams’s

consent to search.

There, officers found $2,000 on a closet shelf and

subsequently seized over $425,000 in cash in a safe and a .40 caliber Smith

and Wesson pistol in the nightstand drawer. A K-9 unit again alerted to the

presence of drug residue on the cash. The probation officers turned the gun

over to the NOPD who arrested Williams on charges of being a felon in

possession of a firearm.

In January 2015, a federal grand jury returned a five-count indictment

charging Williams with conspiring to possess with the intent to distribute and

distributing heroin and cocaine, possession of a firearm in furtherance of a

drug trafficking crime, being a felon in possession of a firearm, and money

laundering. Following his indictment, Williams moved to suppress the

evidence officers seized on the day of his arrest. The district court held an

evidentiary hearing and denied the motion, concluding that Officer Green had

“sufficient probable cause and reasonable suspicion, under the case law, to

justify the actions that took place [after the initial frisk of Williams’s person]

at the two addresses, the Caffin Street address and the Sandalwood address.”

Later, Williams filed a “Second Motion to Suppress Evidence” which was

construed as a motion to reconsider the denial of his motion to suppress and

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the motion was again denied.(1)(2) In denying the motion, the district court

stated, “In short, Williams’ instant motion raises no evidence or argument not

previously considered in connection with his first motion.”

Williams ultimately entered a guilty plea to two counts and signed a

factual basis admitting to criminal conduct.

The two counts were: (1)

conspiracy to distribute and possess with intent to distribute 1kg or more of

heroin and 5kgs or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), 846, 851(a)(1); and (2) possession of a firearm by a convicted felon

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He was sentenced to 23 years

of imprisonment to be followed by a ten-year term of supervised release. In his

plea agreement, Williams retained the right to appeal the district court’s

rulings on his motions to suppress and to withdraw the plea if the appeal was

successful. This appeal followed.

II.

Standard of Review

When reviewing a denial of a motion to suppress evidence, we review the

district court’s factual findings for clear error and its legal conclusions,

including the ultimate constitutionality of the actions of law enforcement, de

novo. United States v. Zuniga, 860 F.3d 276, 280 (5th Cir. 2017) (citing United

States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014)). “The evidence is viewed

1 During the hearing on the second motion to suppress, the Government presented

Giglio information that it had obtained in preparation for trial related to Officer Green and

his involvement in an incident that occurred in 2011. Officer Green retook the stand to

address the prior finding of untruthfulness in connection with a previous disciplinary action

taken as a result of his having improper license plates on his vehicle. Officer Green’s

testimony regarding his prior disciplinary proceedings ultimately had no bearing on the

district court’s findings related to Williams’s proceedings and as mentioned, the second

motion to suppress was denied.

2 At the end of the hearing on the second motion to suppress, Williams stated that he

had surveillance video footage from the dealership that captured the events that took place

there. The parties stipulated to the events that took place on the video and entered it into

the record, along with additional briefing, prior to the district court’s ruling denying the

second motion to suppress.

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in the light most favorable to the prevailing party,” which here, is the

Government. Zuniga, 860 F.3d at 280–81.

III.

Discussion

Williams devotes the majority of his argument on appeal to attacking the

validity of Officer Green’s initial frisk of him at his car dealership because,

according to Williams, if the initial frisk was unlawful, then the subsequent

searches were also unlawful. Given the record evidence in this case, Williams’s

argument fails.

The Fourth Amendment guarantees protection to individuals “against

unreasonable searches and seizures.” Id. at 281 (citing U.S. Const. amend. IV).

The Supreme Court has recognized, however, that “[t]o a greater or lesser

degree, it is always true of probationers . . . that they do not enjoy the absolute

liberty to which every citizen is entitled, but only . . . conditional liberty

properly dependent on observance of special [probation] restrictions.” Griffin

v. Wisconsin, 483 U.S. 868, 874 (1987) 3 (internal quotation marks omitted).

“Just as other punishments for criminal convictions curtail an offender’s

freedoms, a court granting probation may impose reasonable conditions that

deprive the offender of some freedoms enjoyed by law-abiding citizens.” United

States v. Knights, 534 U.S. 112, 119 (2001). As this court has acknowledged,

3 The Supreme Court explained in Griffin that:

Probation, like incarceration, is a form of criminal sanction imposed by a court

upon an offender after verdict, finding, or plea of guilty. Probation is simply

one point (or, more accurately, one set of points) on a continuum of possible

punishments ranging from solitary confinement in a maximum-security

facility to a few hours of mandatory community service. A number of different

options lie between those extremes, including confinement in a medium- or

minimum-security facility, work-release programs, halfway houses, and

probation—which can itself be more or less confining depending upon the

number and severity of restrictions imposed.

483 U.S. at 874 (internal quotation marks and citations omitted).

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“reasonable restrictions upon liberty and privacy are allowed and are

necessary to assure that the probation serves as a period of genuine

rehabilitation and that the community is not harmed by the probationer’s

being at large.” United States v. LeBlanc, 490 F.3d 361, 365–66 (5th Cir. 2007)

(quoting Griffin, 483 U.S. at 875) (internal quotation marks omitted). “These

same goals require and justify the exercise of supervision to assure that the

restrictions are in fact observed . . . . Supervision, then, is a ‘special need’ of

the State permitting a degree of impingement upon privacy that would not be

constitutional if applied to the public at large.” Id. at 366.

With regard to conducting “reasonable” searches of probationers, the

Supreme Court explained in Griffin that the probation agency “must be able to

proceed on the basis of its entire experience with the probationer, and to assess

probabilities in the light of its knowledge of his life, character, and

circumstances.” 483 U.S. at 879. Moreover, the Court observed that it is

“reasonable to permit information provided by a police officer, whether or not

on the basis of firsthand knowledge, to support a probationer search.” Id. at

879–80. One reason justifying this policy, the Court determined, is that “the

police may be unwilling to disclose their confidential sources to probation

personnel.” Id. at 880. The Court continued, “[f]or the same reason, and also

because it is the very assumption of the institution of probation that the

probationer is in need of rehabilitation and is more likely than the ordinary

citizen to violate the law, we think it enough if the information provided

indicates . . . only the likelihood (‘had or might have guns’) of facts justifying

the search.” Id.

This court has recognized that “[u]nder Terry, officers may briefly detain

an individual on the street for questioning, without probable cause, when they

possess reasonable, articulable suspicion of criminal activity.” United States

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v.

Scroggins,

599

F.3d

433,

441

(5th

Cir.

2010).

Further,

“to ensure their safety during the stop, police may frisk the subject for weapons

that they reasonably suspect he may carry.” Id. This court has noted that a

Terry-style frisk may continue if an officer observes or feels bulges on a

suspect’s person “so long as an officer is investigating an object that reasonably

may be a weapon.” United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003)

(noting that the officer could not rule out the possibility that the bulge in the

defendant’s pocket was a weapon since it was “bigger than a softball” and “in

between hard and soft” and, combined with the officer’s knowledge of the

defendant’s criminal history involving narcotics and weapons, it was

reasonable to believe that the defendant might be armed). Moreover, this court

has explicitly held that “a police officer’s protective search might properly

include seizure of an object that feels like a wad of folded bills concealing a

weapon.” United States v. Ponce, 8 F.3d 989, 999 (5th Cir. 1993); see also

United States v. Campbell, 178 F.3d 345, 349 (5th Cir. 1999) (observing that

the officer “had not ruled out the possibility that the large bulge was a weapon,

and [thus] his removal of the pocket’s contents was not beyond the scope of a

permissible Terry frisk”).

A probationer’s residence is protected by the Fourth Amendment’s

requirement that searches and intrusions upon privacy be “reasonable.”

LeBlanc, 490 F.3d at 365. “Although it is usually required that a search be

undertaken only pursuant to a warrant . . . the Supreme Court has permitted

exceptions when special needs, beyond the normal need for law enforcement,

make the warrant and probable-cause requirement impracticable.”

(internal quotation marks and citations omitted).

Id.

With respect to both

personal and residential searches, the Louisiana Fifth Circuit Court of Appeal

has explained that “[a] probationer must necessarily have a reduced

expectation of privacy, which allows for reasonable warrantless searches of his

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person and residence by his probation officer, even though less than probable

cause may be shown.” State v. Saulsby, 892 So.2d 655, 657–58 (La. App. 5th

Cir. 12/28/04).

This circuit has also noted that “home visits” or compliance checks, as

defined under Louisiana law and as a condition of probation, “do not constitute

as invasive a burden on a probationer’s expectations of privacy as does a

search. A probationer is subject to state supervision as part of the ‘special

needs’ doctrine, including verification of where he lives, and cannot expect to

be free from ‘interpersonal contact’ at his residence.” LeBlanc, 490 F.3d at

368–69. Additionally, this court has observed that if it were to “impose a

requirement that a probation officer show reasonable suspicion of criminal

activity before visiting a probationer at his home, supervision would become

effectively impossible.” Id. at 369 (concluding that a brief walk-through of the

rooms in a probationer’s home and a plain-view seizure of a shotgun did not

violate probationer’s Fourth Amendment rights).

Here, as an initial matter, the plain text of Williams’s probation

conditions requires that he “[a]gree to searches of his person, his property, his

place of residence, his vehicle, or his personal effects, or any or all of them, at

any time, by the probation officer . . . with or without a warrant . . . when the

probation officer . . . has reasonable suspicion to believe that [Williams] is

engaged in or has been engaged in criminal activity.” The question then

becomes whether officers had “reasonable suspicion” to conduct the searches of

Williams’s property. We conclude that he did.

The Supreme Court specifically acknowledged in Griffin that tips given

to a probation officer from other law enforcement officers are sufficient to

support reasonable suspicion to conduct a search of a probationer. See 483 U.S.

at 879–80 (observing that it is “reasonable to permit information provided by

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a police officer, whether or not on the basis of firsthand knowledge, to support

a probationer search”). Additionally, as the Court further observed in Griffin,

in deciding whether to conduct a search of a probationer, the probation officer

“must be able to proceed on the basis of its entire experience with the

probationer, and to assess probabilities in the light of its knowledge of his life,

character, and circumstances.” Id. at 879. Here, Officer Green provided a

number of factors he considered based on his experience with Williams that

would support reasonable suspicion to conduct a search once he received the

tip from state and federal law enforcement.

Specifically, Officer Green

testified:

So in my mental checklist . . . he’s on [probation] for distributing

drugs. DEA is telling me he’s probably distributing drugs or that

they think he is. But I’m still trying to give him the benefit of the

doubt. He’s got multiple previous convictions for distributing

drugs. He lives in a fortress. I mean, his house is built like a

fortress. You can’t get in without going through the [four large pit

bulls] or somebody letting you in. So I need to look into this. On

face value, this is not looking good.

The tip, these factors, and Officer Green’s past experience with Williams were

sufficient to support Officer Green’s decision to conduct a search of Williams’s

residence. Once officers arrived at the dealership to transport Williams to his

home (since Williams would not leave his business), Officer Green was

warranted in conducting a Terry-style frisk of Williams, which, here, was

preceded by Miranda warnings. 4 This pat-down was justified to ensure that

officers were not at risk from Williams potentially being armed when they

4 Officer Green testified that he Mirandized Williams prior to frisking him because

“on probation, in parole, persons under supervision do not have a right to remain silent [but]

I wanted him to understand that this was borderline criminal—this was a criminal

investigation at this point, because I got information from DEA that he was involved in

criminal activity. So I wanted him to understand that he had rights, that . . . [f]rom this point

forward, he does have a right to remain silent. He does have a right to an attorney. He does

have a right to question things in a court of law.”

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arrived at the dealership to conduct a search. See Scroggins, 599 F.3d at 441

(observing that, under Terry, “to ensure their safety during the stop, police may

frisk the subject for weapons that they reasonably suspect he may carry”). The

large visible bulges in Williams’s pockets further supported Officer Green’s

decision to conduct the frisk. 5 As noted previously, this court has concluded

that a Terry-style frisk may continue if an officer observes or feels bulges on a

suspect’s person “so long as an officer is investigating an object that reasonably

may be a weapon.” Majors, 328 F.3d at 795 (noting that the officer could not

rule out the possibility that the bulge in the defendant’s pocket was a weapon

since it was “bigger than a softball” and “in between hard and soft” and

combined with the officer’s knowledge of the defendant’s criminal history

involving narcotics and weapons, it was reasonable to believe that the

defendant might be armed). Moreover, this court has explicitly recognized the

validity of a protective search that “include[s] seizure of an object that feels

like a wad of folded bills concealing a weapon.” Ponce, 8 F.3d at 999; see also

Campbell, 178 F.3d at 349 (observing that the officer “had not ruled out the

5 Officer Green testified “I wanted to make sure that—the allegation was that he was

a major player in narcotics. Where there is drugs, there is guns, and so I wanted to make

sure the person I was talking to didn’t have any guns on him.” He continued, “I then started

to conduct a frisk, a pat-down, in which I felt large objects underneath in his pockets. I then

removed those objects and they turned out to be wads of cash from both his shirt and his

pants. And the reason I removed those is I wanted to see if there were any weapons on the

other side of him with the large bulges. I could not tell what else was in his pockets.”

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possibility that the large bulge was a weapon, and [thus] his removal of the

pocket’s contents was not beyond the scope of a permissible Terry frisk”). 6

Additionally, officers obtained consent to search Williams’s car

dealership, 7 his mother’s home on Caffin Street, and his own home at the

Sandalwood address. Here, in spite of Williams’s consent to search his car

dealership, reasonable suspicion to search the business independently arose

once the $10,000 in cash was seized from his pockets pursuant to Officer

Green’s lawful protective frisk and the K-9’s subsequent alert to the presence

of drug residue on the cash. This reasonable suspicion was further supported

by Officer Green’s knowledge that Williams reported only $2,500 per month in

income and because Williams gave conflicting reasons to the source of the cash,

ultimately stating that the cash came from a person named Twon who is known

by law enforcement to be a major drug dealer in New Orleans. This reasonable

suspicion likewise supported the search of Williams’s mother’s house on Caffin

Street (which officers also obtained express consent to search) since that

address was listed on the incorporation papers of his car dealership and was

also a location at which Williams was previously arrested on drug charges in

2003.

6 Although Williams devotes a significant portion of his argument to the notion that

he did not consent to Officer Green’s frisk of his person, the Government does not argue that

Williams consented to the frisk and, regardless, his consent was not required to justify a

protective pat-down/frisk. See United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006) (“It

is without question that [the defendant] did not consent to the pat-down search, but limited

pat-down searches are permissible ‘for the protection of the police officer, where he has reason

to believe that he is dealing with an armed and dangerous individual, regardless of whether

he has probable cause to arrest the individual for a crime.’” (quoting Terry v. Ohio, 392 U.S.

1, 27 (1968))).

7 Williams specifies that the search of his car dealership was “allegedly consensual”

and that the Government presented “disputed” evidence that he consented to a search of the

premises.

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Moreover, while officers were searching Williams’s mother’s house on

Caffin Street (relative to that address being associated with his business),

Williams volunteered to officers that “[w]hat you are looking for is at my house.

I have a gun and money at my residence.” Accordingly, Williams expressly

admitted that he was guilty of being a felon in possession of a firearm and, as

would later be revealed, that he had enough cash ($425,000) to support the

reasonable conclusion that he was involved in drug trafficking—a notion

bolstered by the fact that a K-9 also alerted to the presence of drug residue on

the cash found in Williams’s home. Considering that Williams volunteered to

officers that he had cash and a firearm at his home, officers had additional

independent adequate reasonable suspicion based on Williams’s volunteered

admission to conduct a full search of Williams’s personal residence.

On these facts, we conclude that officers had reasonable suspicion to

conduct the searches of Williams’s residence, his dealership, and his mother’s

home. We further conclude that Officer Green’s Terry-style frisk of Williams

once he arrived at the dealership to transport Williams to his residence was

proper given the visible bulges in Williams’s pockets that were large enough to

conceal weapons. 8

In light of the foregoing, the district court did not err in denying

Williams’s motions to suppress. Zuniga, 860 F.3d at 280.

8 Williams’s contention that “[t]he frisk was not justified by concerns for officer safety”

is also misplaced. Citing Terry, he claims that because officers walked slowly toward him

when they arrived at the dealership and did not aggressively search his person or otherwise

act aggressively toward him, they could not have believed that their “safety or that of others

was in danger.” Terry v. Ohio, 392 U.S. 1, 27 (1968). But neither Terry, nor any other case in

this circuit, mandates that officers act aggressively or quickly in order to justify performing

a protective pat-down for weapons. Such a mandate would be dangerous precedent as it could

encourage violations of the Fourth Amendment rights of individuals subject to Terry-style

frisks and/or stops.

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IV.

Conclusion

For the reasons provided herein, the district court’s rulings denying

Williams’s motions to suppress and Williams’s conviction and sentence are

affirmed.

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