Petition for Writ of Certiorari — Ronald Thompson, Jr., Petitioner v. United States

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-30861

FILED

August 8, 2019

UNITED STATES OF AMERICA,

Lyle W. Cayce

Clerk

Plaintiff-Appellee,

v.

RONALD THOMPSON, JR.

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:17-CR-225-l

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

PER CURIAM:*

Ronald Thompson, Jr., appeals his conviction under 21 U.S.C. § 841(a)(1)

and (b)(1)(C) of possession with intent to distribute cocaine, possession with

intent to distribute cocaine base, and possession with intent to distribute

heroin. He contends that the district court erred in denying his motion to

suppress evidence obtained following a traffic stop. We affirm the district

court’s judgment.

* Pursuant to 5TH ClR. 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

ClR. R. 47.5.4.

I

On July 27, 2017, investigators were conducting surveillance at a

convenience store in an area known for illegal drug activity. At approximately

4:15 p.m., Detective Jason Tiliakos observed a black Infiniti pull into the

parking lot. According to the incident report, the investigators had received

an anonymous tip approximately five months earlier, in February 2017, that

*

Thompson conducted drug sales from a black Infiniti. After a short time,

Detective Tiliakos observed a man, later identified as Thompson’s cousin

Emanuel Harris, ride a bicycle up to the Infiniti, put his head through the

driver’s side window, and converse with the vehicle’s occupant.

Shortly

thereafter, a second man approached the Infiniti and entered the vehicle

through the passenger’s side door. Seconds later, the unidentified man exited

the Infiniti and left the area. Harris also left the area on the bicycle. Detective

Tiliakos relayed his observations to assisting investigators as the Infiniti left

the parking lot.

Detective Daniel April and Sergeant Brad Walsh began to follow the

Infiniti and observed the vehicle cross the center line of the roadway several

times. At approximately 4:59 p.m., the investigators activated their emergency

lights and stopped the Infiniti. Detective April approached the driver’s side,

and the driver identified himself as Ronald Thompson.

Sergeant Walsh

approached the passenger’s side and identified the passenger as Darryl

Bourgeois. Detective April informed Thompson of the traffic violation and

requested his driver’s license and vehicle documents. According to one police

report, “Detective April observed that Thompson was sweating heavily about

the forehead and his body was visibly shaking while he produced his driver’s

license and vehicle documents.” When Detective April asked Thompson where

he was going, “Thompson stuttered while attempting to answer, clearing his

*.

2

throat several times and eventually stated he was just driving around with no

known destination.”

Following a “name check,” Detective April learned that Thompson’s

driver’s license was in good standing.

Rather than concluding the

investigation, Detective April asked Thompson about his hepvy sweating,

stuttering, and body shakes. Thompson indicated that he was nervous because

he was on parole for prior drug violations.

The investigators then asked

Bourgeois to exit the vehicle. Bourgeois told the investigators that Thompson

was taking him to Des Allemands and that “he was unsure why Thompson was

unable to provide that information upon being asked by Detective April,”

although the district court found that Bourgeois’s statements were made after

the computer checks had been completed.

At approximately 5:05 p.m., six minutes after the traffic stop was

initiated, the investigators requested the assistance of a K-9 unit. Thompson

was then asked to exit the vehicle and was placed in handcuffs. The canine

unit arrived at 5:17 p.m., the dog alerted to the presence of drugs and officers

searched the vehicle. Officers did not find any drugs in Thompson’s vehicle.

Thompson was then placed in the back of a police vehicle.

When Thompson

was later removed from the police vehicle officers found a clear plastic bag

containing cocaine, cocaine base, ecstasy, and heroin.

Thompson was indicted under 21 U.S.C. § 841(a)(1) and (b)(1)(C) on three

counts of possession with intent to distribute.

Thompson filed a pre-trial

motion to suppress but did not request an evidentiary hearing. Thompson

argued that officers lacked reasonable suspicion to extend the traffic stop while

they waited for a drug detection dog. The trial court made detailed findings of

fact and found that officers had reasonable suspicion to extend the stop. The

case proceeded to trial, and a jury convicted Thompson on alf three counts. The

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No. 18-30861

district court sentenced Thompson to 262 months of imprisonment, followed by

six years of supervised release. Thompson appeals.

II

Thompson does not challenge the validity of the initial traffic stop.

Instead, he contends that Detective Daniel April and Sergeant Brad Walsh

lacked reasonable suspicion to extend the stop beyond the time reasonably

required to address the traffic violation, and therefore that he should not have

been detained after the investigators learned that his driver’s license was in

good standing.

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

findings for clear error and the ultimate constitutionality of law enforcement’s

actions de novo.1 In addition to deferring to the district court’s factual findings,

we must view the evidence in the light most favorable to the prevailing party,

m this case, the Government.2 We may affirm the district court’s decision on

any grounds supported by the record.3

The stopping of a vehicle and detention of its occupants constitutes a

‘seizure’ under the Fourth Amendment.”4 The legality of a traffic stop is

examined under the two-pronged analysis described in Terry v. Ohio.5 The

court must first examine whether the initial official action was justified.6

Second, the court determines whether the subsequent action was “reasonably

related to the circumstances that justified the stop, or to dispelling [the]

reasonable suspicion developed during the stop.”7 As a general rule, once all

1 United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014).

2 See United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010) (citation omitted).

3 United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006) (citation omitted)

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

5 392 U.S. 1 (1968); Brigham, 382 F.3d at 506.

6 Brigham, 382 F.3d at 506.

7 Id. at 507.

4

computer checks reveal no violations or reason for further detention, then

reasonable suspicion disappears and the driver and passengers must be

released.8 “[I]f additional reasonable suspicion arises in the course of the stop

and before the initial purpose of the stop has been fulfilled, then the detention

may continue until the new reasonable suspicion has been dispelled or

confirmed.”9 “Reasonable suspicion exists when the detaining officer can point

to specific and articulable facts that, when taken together with rational

inferences from those facts, reasonably warrant the search and seizure.”10

Reasonable suspicion to justify continued detention may not be based on

hunches and doubts but rather must be based “upon objective evidence of

specific criminal activity, interpreted by an officer experienced or educated in

detecting that particular sort of activity, ”11 In assessing the proffered bases

for continuing the detention, the court should not examine each factor in

isolation but instead give due regard to the totality of the circumstances.12

The question we must answer is whether officers had reasonable

suspicion to prolong Thompson’s traffic stop beyond the time the computer

check was concluded.

A

Thompson takes issue with the district court’s factfinding only in one

respect: he urges that the unknown man who entered his vehicle at the

convenience store could not have actually entered and sat in the passenger seat

because Bourgeois was seated in the passenger seat at all times. The record is

8 See United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006) (citing United States

u. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005)).

9 Lopez-Moreno, 420 F.3d at 431 (citing Brigham, 382 F.3d at 507; United States v.

Grant, 349 F.3d 192, 196 (5th Cir. 2003)).

10 United States u. Estrada, 459 F.3d 627, 631 (5th Cir. 2006) (Ration omitted).

11 United States v. Cavitt, 550 F.3d 430, 438 (5th Cir. 2008) (citation omitted).

12 United States v. Arvizu, 534 U.S. 266, 274-75 (2002).

5

somewhat contradictory on this point. Because Thompson did not request an

evidentiary hearing, the only narrative in the record describing the incident is

a police report. That report does not explain how the man could have entered

Thompson’s vehicle and sat in the passenger seat while Bourgeois was seated

there. But that inconsistency does not leave us with the definite and firm

conviction that a mistake has been made.13 One page of narrative describes

the events from when Thompson was first observed at 4:15 p.m. until he was

stopped at 4:59 p.m. There may be an explanation that was not recorded in

the officer’s report. Moreover, Thompson did not bring this alleged discrepancy

to the attention of the trial court.

Prior to initiating the traffic stop, Detective April and Sergeant Walsh

knew that the driver of the black Infiniti had just engaged in activity which, in

their training and experience, was consistent with drug trafficking. Detective

April and Sergeant Walsh also knew that the activity had taken place in a

high-drug-crime area. Thompson does not challenge the factual accuracy of

these statements. Officers and the district court properly considered these

factors as part of the reasonable-suspicion analysis.14

B

Thompson argues that the anonymous tip lacked specificity and

reliability, was never corroborated by a subsequent investigation, and was

stale. Five months prior to the stop, investigators had received an anonymous

tip that Thompson was distributing drugs from a black Infiniti.

13 See United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (citation omitted).

14 See Ornelas v. United States, 517 U.S. 690, 700 (1996) (citation omitted) (“[A] police

officer may draw inferences based on his own experience in deciding whether probable cause

exists.”); Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (citation omitte£) (“[T]he fact that the

stop occurred in a ‘high crime area’ [is] among the relevant contextual, considerations in a

Terry analysis.”).

6

We consider several factors in assessing the reliability of an informant’s

tip:

the credibility and reliability of the informant, the specificity of the

information contained in the tip or report, the extent to which the

information in the tip or report can be verified by officers in the

field, and whether the tip or report concerns active or recent

activity, or has instead gone stale.15

As we have noted, the Supreme Court views an anonymous tip with “strong

distrust.”16 Merely describing the person’s appearance is insufficient to create

reasonable suspicion; it must “show that the tipster has knowledge of concealed

criminal activity . . . [and is] reliable in its assertion of illegality, not just in its

tendency to identify a determinate person, ”17

Nevertheless, “there are

situations in which an anonymous tip, suitably corroborated, exhibits

sufficient indicia of reliability to provide reasonable suspicion. ”18

The

staleness of a tip is determined on the facts of each case.19

During the course of the stop, and prior to learning that Thompson’s

driver’s license was in good standing, Detective April learned that the black

Infiniti was driven by Thompson.

Further, Detective Tiliakos observed

Thompson engage in behavior that was consistent with drug trafficking. That

corroborated the substance of the tip, including its assertion that Thompson

was engaged in illegal drug transactions,

Taken together, officers

demonstrated that the tip was reliable in its ability to identify Thompson as a

driver of a black Infiniti and reliable in its assertion of illegal activity.

15 United States u. Martinez, 486 F.3d 855, 861 (5th Cir. 2007) (citations omitted).

16 Id. at 862.

17 Florida v. J.L., 529 U.S. 266, 272 (2000) (citation omitted).

18 Martinez, 486 F.3d at 863 (citation and internal quotation marks omitted).

19 United States v. Webster, 734 F.2d 1048, 1056 (5th Cir. 1984^) (citing United States

v. Freeman, 685 F.2d 942 (5th Cir. 1982)).

7

Nor was the tip stale. Thompson counts a generous six-months between

the tip and the stop. But our cases do not mechanically count the time between

events alleged and the time of the Fourth Amendment activity.20 Rather, our

opinions consistently bear out that information describing “a long-standing,

ongoing pattern of criminal activity, even if fairly long periods of time have

lapsed between the information” and subsequent detention or search is not

considered “stale.”21 The anonymous tip described open-ended activity—that

Thompson was using the black Infmiti for drug transactions—not that he

would act in a certain way or use the vehicle on a particular occasion.22 Law

enforcement officers witnessed activity consistent with the drug trafficking

reported by the tip.

C

Detective April observed that Thompson was sweating heavily and that

his body was visibly shaking while he produced his driver’s license and vehicle

documents.

When Detective April asked Thompson where he was going,

Thompson stuttered and cleared his throat several times before eventually

stating that he was driving around with no known destination.

Although Thompson provides innocent explanations for his activities and

nervousness, “factors which by themselves may appear innocent, may in the

aggregate rise to the level of reasonable suspicion.”23

Thompson’s possible drug trafficking in

Further, although

high-drug-crime area.

the

anonymous tip, and Thompson’s nervousness, considered in isolation from one

another, may not have been sufficient to establish the requisite reasonable

20 Id.

21 United States v. Craig, 861 F.2d 818, 822-23 (5th Cir. 1988) (citations omitted).

22 See United States v. Gonzalez, 190 F.3d 668, 673 (5th Cir. 1999) (affirming denial of

motion to suppress in which officers detained defendant two months after informant had

given an open-ended tip that defendant was engaged in smuggling). §

23 United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999) (citation omitted).

8

suspicion, based on the totality of the circumstances and viewing the evidence

in the light most favorable to the Government, the district court did not err in

concluding that Detective April and Sergeant Walsh had reasonable suspicion

to believe that Thompson was engaged in illegal drug activity, justifying their

decision to prolong his detention until the K-9 unit arrived.24

We note that the Government urges that we may affirm on an alternative

basis. The Government points to statements by Harris that allegedly confirm

that Thompson sold drugs at the convenience store. However, the district court

expressly found that Detective April and Sergeant Walsh were not informed of

Harris’s statements until after the search of Thompson’s car. Accordingly we

do not rely on the Government’s proposed alternative ground.25

*

*

*

The district court properly denied Thompson’s motion to suppress. Its

judgment is AFFIRMED.

24 See United States v. Arvizu, 534 U.S. 266, 273-78 (2002); United States v. Pack, 612

F.3d 341, 347, 361-62 (5th Cir. 2010).

25 See United States v. Massi, 761 F.3d 512, 521 (5th Cir. 2014) (citation omitted) (“The

facts leading to a finding of reasonable suspicion do not have to be based on a law enforcement

officer's personal observation, but can also arise from the ‘collective knowledge’ of law

enforcement entities, so long as that knowledge gives rise to reasonable suspicion and was

communicated between those entities at the time of the stop.”).

9

Additional material

from this filing is

available in the

Clerk's Office.