Petition for Writ of Certiorari — Robert Dayon Dumas, Petitioner v. United States

No. __________

In the Supreme Court of the United States

________________

ROBERT DAYON DUMAS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

___________________

Appendix

___________________

RICHARD ESCOBAR

Counsel for Petitioner

Escobar, Michaels &

Associates, P.A.

2917 W. Kennedy Blvd.,

Suite 100

Tampa, Florida 33609

Tel: (813) 875-5100

Fax: (813) 877-6590

rescobar@escobarlaw.com

Florida Bar No. 375179

Counsel for Petitioner

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals,

Eleventh Appellate District, United States v.

Robert Dayon Dumas No. 21-11341 (May 8,

2023) The Opinion is unpublished…….…App-1

Appendix B

Oder Denying “Defendant’s Motion to

Suppress Evidence”, United States Court

Middle District, United States v. Robert Dayon

Dumas No. 8:18-cr-326-T-60TGW (October 21,

2020)…………………………………..….…App-26

i

App-1

Appendix A

[DO NOT PUBLISH]

Date Filed: 05/08/2023

In the

United States Court of Appeals

For the Eleventh Circuit

__________________________

No. 21-33341

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT DAYON DUMAS,

Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cr-00326-TPB-TGW-1

__________________________

App-2

2

Opinion of the Court

21-11341

Before JORDAN, ROSENBAUM, and NEWSOM,

Circuit Judges.

PER CURIAM:

Following his conviction on five counts of Hobbs

Act robbery, Robert Dayon Dumas appeals the district

court’s denial of his motion to suppress the items

obtained during a warrantless search of his vehicle and

the statements he made to the police following his

arrest. The district court concluded that suppression of

the evidence was not warranted because the police

officer had probable cause to search Mr. Dumas’

vehicle for marijuana, the robbery items unrelated to

the search for marijuana were in plain view during a

lawful search of the vehicle, and Mr. Dumas knowingly

and voluntarily waived his rights under Miranda v.

Arizona, 384 U.S. 436, 439 (1966).

After review of the parties’ briefs and the record,

and with the benefit of oral argument, we conclude that

the district court did not err in denying Mr. Dumas’

motion to suppress. We therefore affirm.

I

A

During the five-day time period from February 8,

2018, until February 13, 2018, an unidentified man

committed a series of five armed robberies in Wesley

Chapel, Florida.

Specifically, on February 8, 2018, an unknown

“white or Hispanic male,” approximately five feet, nine

inches, to six feet in height and wearing “all black”—

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Opinion of the Court

3

including a “ski mask” and a dark hat with a white

emblem in the front— entered a Citgo gas station

brandishing a “black semi entered a Citgo gas station

brandishing a “black semi auto with a stainless upper

slide handgun.” The suspect pointed the firearm at a

store employee, chambered a round, and demanded

money from the register. The employee complied, and

the suspect fled on foot with $800.

Approximately 90 minutes later that same day,

a suspect matching the description of the Citgo gas

station assailant robbed a Best Western hotel. The

suspect, armed with a black frame semiautomatic

handgun with a silver upper slide, demanded that the

clerk “open the safe.” As the clerk attempted to open

the lock to the safe, “the suspect fired one shot into the

wall above the clerk.” The suspect told the employee,

“the next one goes in your head!” The suspect took

approximately $500 from the register and the safe and

fled. A witness reported a “dark color[ed] sedan

leaving the hotel entrance.”

Two days later, a suspect described as a “white

male” and “wearing all black,” including a “ski mask,”

robbed a Metro PCS store. The suspect wore black Nike

sneakers with white soles. The suspect had a “black

semi auto handgun,” demanded money from the

register, and “fired one shot into the wall.” The

suspect took approximately $820 from the register and

fled.” The police suspected that a “light colored 20152017 Nissan Altima” was involved based on surveillance

from a neighboring business.

Three days after the Metro PCS robbery, a

suspect described as a “white male” in his “late 20’s to ear-

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Opinion of the Court

21-11341

ly 30’s” and wearing “black clothing,” a “ski mask,” and

“wire rim glasses,” robbed a B Creative painting studio.

Once again, the suspect demanded money and obtained

approximately $60. When the employee told the

suspect that there was no more money, the suspect “coocked” the firearm, which was believed to be a “9mm.”

About 30 minutes after that robbery, a similar

suspect wearing all black clothing, including a black ski

mask and gloves, robbed a Subway restaurant. The

suspect demanded money from the cash register and the

safe. The suspect fled the location in a vehicle after he

received money in a “grey bank bag.”

This armed-robbery spree was investigated by

the Pasco County Sheriff’s Office Strategic Target Area

Response

(“STAR”)

team,

which

conducts

“investigations related to property crime, burglaries,

robberies, and grand theft autos.” Corporal Andrew

Denbo, a seven-year veteran of the Pasco County

Sheriff’s Office, was a member of the STAR team

involved in investigating this string of robberies in the

“new and upcoming” Wesley Chapel area. Corporal

Denbo was one of the first officers at the scene of the

Metro PCS store robbery. Given that there was not a

lot of crime in the Wesley Chapel area, the

investigation into these robberies was the highest

priority.

B

On March 11, 2018, Corporal Denbo conducted a traffic

stop after he observed, and confirmed on the radar of

his patrol car, a “black Audi sedan” traveling at 75 miles

per hour in a 55-miles-per- hour zone. Mr. Dumas was

the driver and sole occupant of the car. Corporal Denbo

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Opinion of the Court

5

approached the vehicle and asked Mr. Dumas for his

license and registration. Corporal Denbo also asked Mr.

Dumas where he was headed and if he had received

any citations before Mr. Dumas provided his license

and registration and responded that he had

previously received one citation.

After Corporal Denbo returned to his patrol car,

he ran the driver license and registration to check the

status of the vehicle and Mr. Dumas’ driving history.

Corporal Denbo learned that, although the car

registration was valid, Mr. Dumas had received a

couple of warnings from the Pasco County Sheriff’s

Office as well as several citations in other jurisdictions.

Corporal Denbo returned to Mr. Dumas’ vehicle to

speak with him.

When Corporal Denbo approached the vehicle

the second time, Mr. Dumas appeared “nervous,”

seemed “uncomfortable,” “kept looking around the

car,” and was “slow” to respond to Corporal Denbo’s

questions. According to Corporal Denbo, Mr. Dumas

was looking at the “front passenger seat of the

vehicle,” but Corporal Denbo could not see what he

was looking at. Corporal Denbo then repositioned

himself and leaned forward and down, so that he could

look around Mr. Dumas’ body and into the passenger

seat. At that point, Corporal Denbo was “[l]ess than a

foot” away from the rolled-down window of Mr. Dumas’

car. Corporal Denbo then observed a partially

unzipped bag in the passenger seat, detected the odor

of marijuana coming from within the vehicle, and

noticed “shake,” or small pieces of green leafy

substances, all throughout the vehicle’s passenger

seat.

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Opinion of the Court

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After making these observations, Corporal Denbo

asked Mr. Dumas to step out of the vehicle. Corporal

Denbo also asked Mr. Dumas if he had any weapons,

and he responded that he had a gun, a Glock 17, that

was in the bag on the passenger seat. Corporal Denbo

handcuffed Mr. Dumas, placed him on the curb,

removed the bag from the vehicle, and took the gun

out of the bag and secured it. Corporal Denbo then

called and waited for backup to arrive before searching

the vehicle.

When Corporal Denbo searched Mr. Dumas’

vehicle he found a “piece of marijuana,” “smaller pieces

throughout,” and “a green leafy substance” on the

floorboard that he believed to be “marijuana.”

According to Corporal Denbo, there was also a

“marijuana cigarette in the center console ashtray of the

vehicle.” Corporal Denbo further found a “scale” that

was “seated next to the driver in the center console,

which had small flakes of marijuana on it and smelled

of marijuana.” Corporal Denbo field-tested the

substance he found, and the result was positive for

marijuana.

In the backseat of the vehicle, Corporal Denbo

found a “mask” that was “shoved” into the bottom of

the pocket directly behind the passenger seat. The

backseat of the vehicle contained several items of

clothing, shoes, and personal effects, including a “pair

of black Nike shoes with a white bottom” and a “New

York Yankees [baseball] hat.” Corporal Denbo also

found “black baseball gloves in the backseat,” along with

a “black t-shirt,” and a “dark grey bank bag.” He also

found suitcases in the trunk which contained black cl-

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21-11341

othing.

Opinion of the Court

7

C

Following the search, Corporal Denbo placed Mr. Dumas

in the back of a patrol car and read him his Miranda

rights from an agency-issued card. After reading the

Miranda rights to Mr. Dumas, Corporal Denbo asked

him about the marijuana and the mask in his car. Mr.

Dumas responded that “he just used marijuana, and

when he played baseball [ ] they didn’t drug test him so

it wasn’t a problem.” Mr. Dumas claimed he did not

know anything about the mask. Corporal Denbo

arrested Dumas for possession of marijuana and

transported him to the Sheriff’s district office.

While Corporal Denbo was waiting for

detectives to arrive at the district office, he gave Mr.

Dumas a copy of a multipurpose release/waiver form,

which Mr. Dumas signed in his presence. Specifically,

Mr. Dumas signed the section titled “Statement of

Miranda Rights,” which explained the Miranda rights,

but he did not sign any of the remaining sections,

including the section titled “Waiver of Rights.”

Mr. Dumas was then interviewed by Detective

Toner and Agent Lanier at the Sheriff’s district office.

When Mr. Dumas was first questioned about his

involvement in the armed robberies, he denied any

participation. But, when Corporal Denbo was later

transporting Mr. Dumas to the Pasco County jail, Mr.

Dumas began to admit his involvement in the

robberies. Corporal Denbo then returned Mr. Dumas

to the Sheriff’s district office, where he provided a full

video-taped confession. Nearly eight hours had

elapsed from the time Corporal Denbo searched Mr.

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Opinion of the Court

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Dumas’ car to the time he confessed.

D

A grand jury indicted Mr. Dumas on five counts

of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a),

and two counts of discharging a firearm during two of

the robberies, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

After his indictment, Mr. Dumas filed a motion to

suppress all evidence derived from the warrantless

search of his vehicle because, in his view, there was no

probable cause. Mr. Dumas also moved to suppress his

incriminating statements because he asserted that he

was not properly advised of his Miranda rights. Mr.

Dumas, however, did not challenge the validity of the

traffic stop in his motion to suppress.

At the suppression hearing, Corporal Denbo

was the only witness. Corporal Denbo testified in part

that when he searched Mr. Dumas’ vehicle and saw the

mask, the black gloves, the Yankees hat, the Nike

shoes, the black clothing, and the bag, he “believed

[Mr. Dumas] was a suspect of [the] robberies at that

time.” D.E. 72 at 53. During both direct and crossexamination, Corporal Denbo admitted that under the

rules and policies of the Pasco County Sheriff’s Office,

his camera should have been turned on sooner than it

had been.

Following the hearing, the district court

entered an order denying Mr. Dumas’ motion to

suppress. The district court found Corporal Denbo

credible and ruled that he had probable cause to

search Mr. Dumas’ vehicle based on the odor of

marijuana emanating from the vehicle. The district

court also ruled that Corporal Denbo’s detection of the

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Opinion of the Court

9

odor of marijuana, his observation of marijuana in the

vehicle, and Mr. Dumas’ admission of using marijuana

established sufficient probable cause to support Mr.

Dumas’ arrest for possession of marijuana.

Additionally, the district court concluded that there

was no basis to suppress the items related to the

robberies because they were found in plain view during

a lawful search of the vehicle. Finally, the district court

ruled that incriminating statements made by Mr.

Dumas were admissible because he knowingly and

voluntarily waived his Miranda rights.

In light of the district court’s ruling and Mr.

Dumas’ desire to expedite the appeal of the district

court’s order, the parties agreed to a streamlined

bench trial. After a short trial, the district court found

Mr. Dumas guilty of all charges and sentenced him to

25 years in prison.

This appeal followed.

II

On appeal, Mr. Dumas argues that the district

court erred in denying his motion to suppress for three

reasons. First, the district court erred in finding that

Corporal Denbo had probable cause to search and

arrest him for possession of marijuana because Corporal

Denbo was “anything but a credible witness[.]”

Appellant’s Br. At 22. Second, the district court erred in

finding that Corporal Denbo properly seized numerous

items unrelated to marijuana possession because there

was no probable cause to seize those items. See id. at

23. Finally, the district court erred in finding that he

waived his Miranda rights because Corporal Denbo

failed to “secure a valid waiver.” Id. at 39.

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Opinion of the Court

21-11341

We are unpersuaded by Mr. Dumas’ arguments

that the district court committed any error. We

therefore affirm the district court’s denial of Mr.

Dumas’ motion to suppress.

A

We begin by addressing Mr. Dumas’ challenges

to the district court’s probable cause rulings.

Probable cause is a mixed question of law and fact

subject to plenary review. See Ornelas v. United States,

517 U.S. 690, 696–97 (1996). We review factual findings

for clear error and the application of the law to those

facts de novo in an appeal from the denial of a motion to

suppress. See United States v. Caraballo, 595 F.3d 1214,

1222 (11th Cir. 2010). We construe all facts in the light

most favorable to the party prevailing below—the

government in this instance. See United States v.

Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

The Fourth Amendment provides that “[t]he

right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S.

Const. amend. IV. In most circumstances, unless there

is consent, police officers must obtain a warrant

supported by probable cause to justify a search under

the Fourth Amendment. See United States v. Magluta,

418 F.3d 1166, 1182 (11th Cir. 2005). One exception to the

warrant requirement is the so-called automobile

exception, which allows police to conduct a search of a

vehicle if (1) the vehicle is readily mobile, and (2) the

police have probable cause for the search. See United States

v. Lindsey, 482 F.3d 1285, 1293 (11th Cir. 2007). No

separate exigent circumstances need to be shown. See

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Opinion of the Court

11

Maryland v. Dyson, 527 U.S. 465, 466 (1999). The

validity of the search turns on whether there was

probable cause to believe the vehicle contained

contraband or evidence of a crime. See id.

1

Probable cause exists when, “under the totality

of the circumstances, there is a fair probability that

contraband or evidence of a crime will be found in the

vehicle.” Lindsey, 482 F.3d at 1293 (quotation marks

omitted). Specifically, when an officer detects the odor

of marijuana emanating from a vehicle, there is

probable cause to support a warrantless search of the

vehicle. See United States v. Johns, 469 U.S. 478, 482

(1985) (“After the officers came closer and detected the

distinct odor of marihuana [sic], they had probable

cause to believe that the vehicles contained

contraband.”); Merricks v. Adkisson, 785 F.3d 553, 560 n.3

(11th Cir. 2015) (noting that “the smell of burnt

marijuana emanating from a vehicle is sufficient

probable cause to search a vehicle”). See also United

States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991)

(en banc) (“There is no doubt that the agent’s

suspicions rose to the level of probable cause when, as

the door stood open, he detected what he knew from his

law enforcement experience to be the odor of

marijuana.”); United States v. Lueck, 678 F.2d 895, 903

(11th Cir. 1982) (“[T]he recognizable smell of

marijuana gives rise to probable cause supporting

a… search.”).

Here, Corporal Denbo—whose testimony the

district court credited—smelled marijuana when he

returned to speak to Mr. Dumas while conducting a va-

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Opinion of the Court

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lid traffic stop. After Corporal Denbo witnessed Mr.

Dumas nervously looking at the bag in the passenger

seat, he shifted his position to lean forward and down

to have a better view of the passenger seat. At that

point, Corporal Denbo—who was standing “[l]ess than

a foot” away from the rolled down window of Mr.

Dumas’ car—detected the odor of marijuana coming

from within the vehicle, and noticed “shake” (or small

pieces of green leafy substances) all throughout the

vehicle’s passenger seat. Corporal Denbo, who had

extensive training and experience with marijuana in

his law enforcement career, thus had probable cause to

conduct a warrantless search of Mr. Dumas’ car for

evidence of marijuana. See Johns, 469 U.S. at 482;

Tobin, 923 F.2d at 1512.

Mr. Dumas challenges the district court’s

conclusion that there was probable cause to search the

vehicle based on the odor of marijuana emanating from

the vehicle because Corporal Denbo was not “a credible

witness.” Appellant’s Br. at 25. According to Mr.

Dumas, Corporal Denbo “inexplicably” failed to record

all of the “most crucial moments” that allegedly gave

him probable cause to search the vehicle, which

included the interactions with Mr. Dumas at the

driver-side window. Id. at 26.

Mr. Dumas’ argument fails because even if

Corporal Denbo’s camera had been turned on, it could

not have captured the smell of marijuana. At the

suppression hearing Mr. Dumas “did not present any

testimony or evidence to contradict Corporal Denbo’s

testimony” as to the smell of marijuana, see D.E. 80 at

4, and he does not do so on appeal. As the district cou-

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Opinion of the Court

13

rt observed, moreover, Corporal Denbo’s testimony was

“consistent with what was eventually found in the

vehicle.” Id. at 3–4. There was also the near

contemporaneous video of Corporal Denbo searching

Mr. Dumas’ vehicle, which revealed evidence of a leafy

substance and marijuana paraphernalia, as well the

questioning of Mr. Dumas in the back of the patrol car.

This corroborated Corporal Denbo’s testimony that he

smelled and observed marijuana in Mr. Dumas’

vehicle.

In sum, we cannot say that the district court,

which had the benefit of observing Corporal Denbo,

erred in crediting his testimony. See United States v.

Holt, 777 F.3d 1234, 1255–56 (11th Cir. 2015) (“We accept

the factfinder’s choice of whom to believe unless it is

contrary to the laws of nature, or is so inconsistent or

improbable on its face that no reasonable factfinder

could accept it . . . Thus, we defer to the district court’s

factual determinations unless the district court’s

understanding of the facts is unbelievable.”) (internal

quotation marks and citation omitted). Corporal Denbo

had probable cause to search Mr. Dumas’ vehicle.

2

Additionally, the district court did not err in

ruling that Corporal Denbo had probable cause to

arrest Mr. Dumas for misdemeanor possession of

marijuana. As the district court noted, Mr. Dumas’

arrest for possession of marijuana was based on

“Corporal Denbo’s detection of the odor of marijuana,

observation of marijuana in the vehicle, and [Mr.

Dumas’] statement admitting that he had used

marijuana.” D.E. 80 at 5–6. Given these facts, Corporal

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Opinion of the Court

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Denbo had probable cause to arrest Mr. Dumas for

possession of marijuana. See United States v. Tate, 855 F.

App’x 509, 512 (11th Cir. 2021) (holding that there was

probable cause to arrest defendant for possession of

marijuana because the police officers found him passed

out in the driver’s seat of his vehicle at an intersection,

he was described as drowsy and loopy, and the police

officers claimed to see an item that looked like a blunt

in the center console).

Mr. Dumas’ challenge to the probable cause

determination of his arrest for possession of marijuana

focuses, once again, on attacking the credibility of

Corporal Denbo due to his failure to record the entirety

of the encounter. See Appellant’s Br. at 26–31. Mr.

Dumas’ arguments as to the constant deactivation of

the camera, which Corporal Denbo admitted was in

violation of the rules and policies of the Pasco County

Sheriff’s Office, and the fact that the marijuana

cigarette was not among the items inventoried from the

car, are well taken but they do not alter our

conclusion.

First, Corporal Denbo recorded key critical

moments of his encounter with Mr. Dumas that support

the conclusion that he had probable cause to arrest him

for possession of marijuana. Corporal Denbo, for

example, recorded the search of Mr. Dumas’ car, which

showed evidence of marijuana particles as well as drug

paraphernalia (i.e., the scale) in the car. Corporal

Denbo also recorded the field test that he conducted of

a clump of marijuana found in the vehicle, which

yielded a positive result. And Corporal Denbo recorded

his interview of Mr. Dumas in the back of his patrol vehi-

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Opinion of the Court

15

cle, in which he admitted that he used marijuana.

Thus, Mr. Dumas’ argument that there was no

evidence to support the district court’s probable cause

determination is incorrect. Probable cause “does not

require convincing proof.” Wood v. Kesler, 323 F.3d 872,

878 (11th Cir. 2003) (citation omitted).

Second, the district court explicitly acknowledged

the credibility concerns that Mr. Dumas now raises.

Indeed, the district court went out of its way to explain

that “[w]ith the advent of mod- ern technology… it is

increasingly difficult to understand why law

enforcement officers are either unwilling or unable to

consistently record encounters with the public.” D.E.

80 at 7. According to the district court, “had Corporal

Denbo recorded his entire encounter with [Mr. Dumas]

on his body camera in this instance, it is highly

unlikely the instant motion would have been filed in

the first place.” Id. at 8. Nevertheless, the district

court found Corporal Denbo’s testimony to be credible

because “[a]lthough it is certainly the better practice for

law enforcement officers to record encounters with the

public, there is no legal requirement that they do so.”

Id. Given the consideration the district court gave to

the issue of Corporal Denbo’s body camera after

listening to the testimony and reviewing the evidence,

which included more than three hours of crossexamination by Mr. Dumas’ counsel, this is not one of

those rare instances where the credibility

determination and finding of probable cause cannot

stand.

3

We next address the district court’s ruling that

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Opinion of the Court

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the items unrelated to the possession of marijuana did

not have to be suppressed. The district court explained

that Corporal Denbo’s belief that the items were linked

to the recent armed robberies that he had “personally

investigated” was not “mere speculation,” and that the

items were found in “plain view” during a lawful search

of Mr. Dumas’ vehicle. See D.E. 80 at 5. We agree.

The

plain-view

doctrine

permits

the

warrantless seizure of an object where an officer is

lawfully located in a place from which the object can be

plainly viewed, the officer has a lawful right to access

the object, and the incriminating character of the

object is “immediately apparent.” United States v. Smith,

459 F.3d 1276, 1290 (11th Cir. 2006) (citing Horton v.

California, 496 U.S. 128, 136–37 (1990)). The plain-view

doctrine applies, for example, when, during the course of

a lawful search for certain objects, the police come across

other items of incriminating character. See Smith, 459

F.3d at 1290. For an item’s incriminating character to

be “immediately apparent,” the police must have

probable cause to believe the object in plain view is

contraband or evidence of a crime. See Minnesota v.

Dickerson, 508 U.S. 366, 375 (1993).

Corporal Denbo was lawfully located and had a

lawful right to access Mr. Dumas’ vehicle when he was

searching for marijuana. Indeed, as previously

discussed, Corporal Denbo had probable cause to

search the car for evidence of marijuana. Therefore,

the first two elements of the plain view inquiry are

satisfied. See United States v. Baldwin, 774 F.3d 711, 720

(11th Cir. 2014) (“Once probable cause exists to search the

vehicle, the police may search all parts of the vehicle,

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Opinion of the Court

17

and any containers therein, where the object of the

search might be found.”) (citing Wyoming v. Houghton, 526

U.S. 295, 301 (1999)).

As to the third element—whether the

incriminating character of the object is immediately

apparent—it is satisfied as well. At the suppression

hearing, Corporal Denbo testified that “[he] personally

believed [Mr. Dumas] was responsible” for the robbery

spree in the Wesley Chapel area. See D.E. 72 at 55–56.

Corporal Denbo’s belief is not, of course, dispositive

because “probable cause is an objective standard[.]”

District of Columbia v. Wesby, 138 S. Ct. 577, 584 n.2 (2018).

But that belief was based on his discovery of items that

resembled items from the recent armed robberies,

including (1) a dark grey bank bag, (2) black Nike shoes

with white soles, (3) a black mask, (4) black gloves, and

(5) black clothing. See D.E. 72 at 22, 44, 48–49.

Corporal Denbo also testified that Mr. Dumas

resembled the robbery suspect because he was of the

same “race” as the suspect, and had a similar “height”

and “body type.” See id. at 46. In particular, Corporal

Denbo noticed that Mr. Dumas had “thicker eyebrows”

and “blue eyes,” which matched the de- scription of the

robbery suspect. See id. at 47. Corporal Denbo testified

that Mr. Dumas’ vehicle, a black Audi sedan, and the

vehicle that Mr. Dumas’ mother drove to the scene of

his arrest, a white sedan, matched the description of

the cars in the “be on the look- out” (BOLO) notices. See

id. Finally, Corporal Denbo testified that the black

handgun Mr. Dumas had in his car, including its

Luger ammunition, resembled the black handgun the

robber had bran- dished in two of the robberies and the

Luger shell casings that were recovered at one of the ro-

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Opinion of the Court

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bbery scenes. See id. at 48.

In light of this testimony, a reasonable officer with

Corporal Denbo’s prior knowledge about the recent

armed-robbery spree could conclude that the items in

the vehicle were evidence of the recent armed

robberies. The district court, therefore, did not err in

denying Mr. Dumas’ motion to suppress on this

ground. See United States v. Reeves, 604 F. App’x 823, 828–

829 (11th Cir. 2015) (holding that the district court did

not err in denying a motion to suppress evidence that

a police officer found in plain view during a lawful

search of the defendant’s backpack that was located in

his vehicle and contained items—a laptop computer,

approximately thirty credit cards, and a notebook with

names, dates of birth, and social security numbers—

whose incriminating character was im- mediately

apparent to the police officer as evidence of fraud). Cf.

Baldwin, 774 F.3d at 720 (holding that the district court

did not err in denying a motion to suppress because

“mail from the IRS not addressed to [the defendant] or

the other passenger in the vehicle, debit cards not in

their names, and currency within plain view” were

sufficient to establish probable cause to search the

vehicle for evidence of identity theft and tax fraud).

Mr. Dumas challenges the district court’s

ruling because “none of the seized items unrelated to

the marijuana possession were incriminatory on

their face.” Appellant’s Br. at 36–37. According to Mr.

Dumas, “[t]here is nothing immediately criminal about

clothing, shoes, baseball equipment, or even a securely

encased firearm.” Id. at 37. Mr. Dumas’ argument,

however, fails. As the district court observed, “Corporal

App-19

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Opinion of the Court

19

Denbo had personally investigated some of those

robberies so he had particularized familiarity with the

circumstances of those crimes.” D.E. 80 at 5.

We find instructive and persuasive our decision

in United States v. Rivera, 824 F. App’x 930, 934 (11th

Cir. 2020). In Rivera, five convenience stores in the

Tampa area were robbed in a ten- day period by an

unknown Hispanic male brandishing a short-barreled

shotgun. See id. at 932. In four of the robberies, the

suspect appeared to be wearing “the same white

athletic shoes with black edging.” Id. During the

course of the police investigation, the police witnessed

a domestic violence incident at a motel involving one

of the robbery suspects. See id. After the police entered a

motel room to check on the safety of the victim, and in

the process of conducting a protective sweep of the

motel room, the police officers “saw a white athletic

sneaker with a black trim on the floor of the motel

room.” Id. In affirming the district court’s denial of a

motion to suppress, the panel held that “the plainview doctrine applie[d] to the discovery of the sneaker

because it was in plain view and its incriminating

character would have been immediately apparent to the

officers” because “[t]he masked robber was wearing

sneakers with the same distinctive pattern, [the

suspect] matched the description of a man wearing

similar sneakers just before the robbery, and [a car]

linked to at least one of the robberies was parked at

the motel.” Id. at 934. The panel explained that

although “mere possession of a similar sneaker alone

might not be enough . . . the combined circumstances

made the incriminating character of the sneaker in the

motel room where [the suspect] was present immediat-

App-20

20

Opinion of the Court

21-11341

ely apparent.” Id.

As in Rivera, the record here reveals that the

incriminating character of the Nike sneakers and

other items that were found in Mr. Dumas’ vehicle was

immediately apparent to Corporal Denbo, who was

intimately involved in the investigation of the recent

armed-robbery spree in the Wesley Chapel area.

Corporal Denbo testified that he was among the first

officers on the scene at the Metro PCS robbery, so he

remembered that Mr. Dumas’ description matched the

“description that the victim had provided in that

particular case.” D.E. 72 at 47. Furthermore,

according to Cor- poral Denbo, who had personally

reviewed the security footage many times, the suspect

of the Metro PCS robbery wore black “Nike shoes with

[ ] white sole[s],” a black ski “mask,” “black gloves,”

and was armed with a “9 millimeter handgun.” Id. at

48–50. Although we recognize, as did the panel did in

Rivera, that mere possession of a common pair of black

Nike shoes alone might not be enough, we conclude

that under the totality of the circum- stances, the

incriminating character of the items in Mr. Dumas’

vehicle was immediately apparent to Corporal Denbo.

See Rivera, 824 F. App’x at 934.

Contrary to Mr. Dumas’ contention, Corporal

Denbo’s belief was not “mere speculation.” Appellant’s

Br. at 33. Although Mr. Dumas highlights some

factual differences from the BOLOs, such as the gun

with a silver or stainless-steel upper slide and the

height differences of the suspect, those discrepancies

ignore the remaining similarities previously discussed

that led Corporal Denbo to believe that Mr. Dumas was

App-21

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Opinion of the Court

21

involved in the armed robberies. Probable cause turns

on the “assessment of probability in particular factual

contexts[.]” Wesby, 138 S. Ct. at 590 (citation and

internal quotation marks omitted). See also Brinegar v.

United States, 338 U.S. 160, 175 (1949) (“In dealing with

probable cause, however, as the very name implies, we

deal with probabilities. These are not technical; they

are the factual and practical considerations of everyday

life on which reasonable and prudent men, not legal

technicians, act.”).

Finally, Mr. Dumas claims that Corporal Denbo

“twice admitted, on video, that there was not probable

cause to charge Mr. Dumas with the robberies.”

Appellant’s Br. at 35. Mr. Dumas rea- sons that

because an assistant state attorney purportedly

determined that there was no probable cause to arrest

Mr. Dumas for the robberies, then “there was no

probable cause to seize items speculated to be involved

in the robbery.” Id. Mr. Dumas’ argument, however,

does not carry the day because the subjective beliefs of

Corporal Denbo or the assistant state attorney are

irrelevant to probable cause’s objective analysis. See

Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997)

(“[T]the subjective beliefs of Detective Singer are

irrelevant to our probable cause analysis. Probable

cause issues are to be decided on an objective basis by

courts without regard to the subjective beliefs of law

enforcement officers, whatever those beliefs may have

been.”). See also Whren v. United States, 517 U.S. 806,

813 (1996) (“Subjective intentions play no role in

ordinary,

probable-cause

Fourth

Amendment

analysis.”).

App-22

22

Opinion of the Court

21-11341

III

We conclude by addressing the argument that

the district court erred in finding that Mr. Dumas

waived his Miranda rights. See Appellant’s Br. at 38–

41.

A

Miranda effectuates the Fifth Amendment’s

protection against self-incrimination and requires that

defendants be informed of their rights. See Moran v.

Burbine, 475 U.S. 412, 420 (1986). A valid waiver of

Miranda rights must be voluntary, knowing, and

intelligent. See United States v. Lall, 607 F.3d 1277, 1283

(11th Cir. 2010). Finding a valid waiver requires a twostep inquiry. We ask whether the waiver was (1) a “free

and deliberate” choice (2) made with a “full awareness”

of the Fifth Amendment’s protections and the

consequences of abandoning them. See id. (internal

quotation marks omitted). We find voluntary waiver

only “if the totality of the circumstances surrounding

the interrogation reveal both an uncoerced choice and

the requisite level of comprehension.” United States v.

Bernal-Benitez, 594 F.3d 1303, 1318 (11th Cir. 2010)

(internal quotation marks omitted).

We conclude that Mr. Dumas freely and

deliberately waived his Miranda rights when he spoke

to law enforcement. When analyzing if waiver was “free

and deliberate,” we consider “the defend- ant’s

intelligence, the length of his detention, the nature of

the interrogation, the use of any physical force against

him, or the use of any promises or inducements by police.”

Hubbard v. Haley, 317 F.3d 1245, 1253 (11th Cir. 2003).

As the district court observed, when Mr. Dumas was

App-23

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Opinion of the Court

23

detained he was “23 years old and had a high school

education.” D.E. 80 at 5. And there is no argument,

evidence, or allegation that Mr. Dumas was coerced

when he spoke to Corporal Denbo in his patrol car or

after he was taken to the Sheriff’s district office.

We also conclude that Mr. Dumas had full

awareness of the Fifth Amendment’s protections and

the consequences of abandoning them. When

analyzing these issues, we pay special attention to the

defendant’s intelligence and mental capacity. See

Coleman v. Singletary, 30 F.3d 1420, 1426 (11th Cir.

1994). Nothing in the record shows that Mr. Dumas’

intelligence prevented him from appreciating the

importance of his rights or the choice to waive them.

After Corporal Denbo read Mr. Dumas his Miranda

rights in the back of the patrol car aloud, Mr. Dumas

affirmed that he understood his rights, as evidenced by

the video. Likewise, Mr. Dumas was informed again of

his Fifth Amendment rights at the Sheriff’s district

office, where he signed the multi-purpose form.

Because Mr. Dumas was an adult of at least average

intelligence, who spoke English fluently, he had full

awareness of his rights.

Based on the totality of the circumstances, the

district court did not err when it found that Mr.

Dumas knowingly and voluntarily waived his Miranda

rights. See Berghuis v. Thompkins, 560 U.S. 370, 388–89

(2010) (“In sum, a suspect who has received and understood the Miranda warnings, and has not invoked

his Miranda rights, waives the right to remain silent

by making an uncoerced statement to the police.”).

App-24

24

Opinion of the Court

21-11341

B

Finally, Mr. Dumas contends that Corporal

Denbo’s reading of his Miranda rights was too quick to

secure a valid waiver. Corporal Denbo, he points out,

read 100 words in 13 seconds. See Appellant’s Br. at 39.

Though a police officer should not speed-read Miranda

rights, here the video depicting the moment Corporal

Denbo read Mr. Dumas his Miranda rights in the back

of the patrol car demonstrates that Corporal Denbo read

the Miranda rights at a speed that adequately enabled

Mr. Dumas to understand his rights. Although

Corporal Denbo read the Miranda rights swiftly, it was

not so fast that they were incomprehensible,

particularly given that Corporal Denbo paused after

reading each right, that he explicitly asked Mr. Dumas

whether he understood the rights that he read to him,

and that Mr. Dumas said he did. In sum, Mr. Dumas has

failed to convince us that the manner in which Corporal

Denbo read him his Miranda rights was not

understandable or unclear as a matter of law.

Mr. Dumas also contends that law

enforcement’s failure to obtain his written waiver of

Miranda rights at the Sheriff’s district office means he

did not waive his rights there. See Appellant’s Br. at 41.

We find this argument unconvincing as well. “A signed

Miranda waiver is usually strong evidence that the

defendant waived his rights, but it is not necessary.”

Bernal-Benitez, 594 F.3d at 1319 (emphasis added). See

North Carolina v. Butler, 441 U.S. 369, 373 (1979) (“An

express written or oral statement of waiver of the right

to remain silent or of the right to counsel is usually

strong proof of the validity of that waiver, but is not

inevitably either necessary or sufficient to establish wai-

App-25

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Opinion of the Court

25

ver.”). The fact that Mr. Dumas did not sign the “Waiver

of Rights” portion of the Miranda form he signed at the

Sheriff’s district office does not mean he did not waive

his Miranda rights. See Bernal-Benitez, 594 F.3d at 1319

(rejecting defendant’s argument that he did not freely

and knowingly waive his Miranda rights because he

did not sign the Miranda waiver form presented to

him).

IV

We affirm the district court’s denial of Mr.

Dumas’ motion to suppress the evidence obtained

during the search of his vehicle and the incriminating

statements he made following his arrest.

AFFIRMED.

App-26

Appendix B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISON

UNITED STATES OF AMERICA,

v.

Case No. 8:18-cr-326-T-60TGW

ROBERT DAYON DUMAS,

Defendant.

/

ORDER DENYING “DEFENDANT’S MOTION

TO SUPPRESS EVIDENCE”

This matter is before the Court on “Defendant’s

Motion to Suppress Evidence,” filed by counsel on

February 21, 2020. (Doc. 43). On March 6, 2020, the

United States of America filed a response in

opposition to the motion. (Doc. 49). The Court held a

suppression hearing on July 27, 2020. (Docs. 71; 72).

After the hearing, the parties submitted written

closing arguments the last one having been received

on September 28, 2020. (Docs. 77; 79). After

reviewing the motion, response, testimony, evidence,

closing arguments, court file, and the record, the

Court finds as follows:

Background

From February 8, 2018, until February 13,

2018, an unidentified man committed a series of

five violent, armed robberies in Wesley Chapel,

Florida. During these robberies, the man held

App-27

victims at gunpoint, and he discharged his weapon

on at least one occasion. These robberies were

investigated by the Pasco County Sheriff’s Office

“STAR Team.” Corporal Andrew Denbo was a

member of the team and involved in the

investigations.

On March 11, 2018, Corporal Denbo, while

coming out of his own neighborhood, conducted a

traffic stop after he observed Defendant, as

indicated on radar, traveling at 75 m.p.h. According

to Corporal Denbo, during the traffic stop, he

noticed the odor of marijuana emanating from the

vehicle. Corporal Denbo ordered Defendant out of

the vehicle. After Defendant was ordered out of the

vehicle, Defendant advised Corporal Denbo that

there was a firearm in the car. As Corporal Denbo

went to secure the firearm, he observed pieces of

marijuana embedded in the floor and seat area of

the vehicle, along with a marijuana cigarette and

digital scale. Corporal Denbo also observed items

that he believed to be related to the robbery spree

that he was investigating, including a firearm, a

black mask, and shoes.

Corporal Denbo read Defendant his Miranda

rights from an agency-issued card. This interaction

was captured on Corporal Denbo’s body camera.

Defendant agreed to waive his rights and answered

some questions. Later, he signed a written document

evidencing his waiver of Miranda rights.1 In sub1 The Court notes that Defendant signed a box on a

multipurpose form that included a statement outlining his

Miranda rights. Although did not sign the “waiver” box, it is

clear from the signature on the form that he was aware of and

waived his Miranda rights.

App-28

sequent interviews, Defendant admitted to being

involved in all five robberies.

In his motion, Defendant does not challenge the

validity of the traffic stop. Instead, Defendant argues

that there was no probable cause to support the

warrantless search of his vehicle. Defendant contends

that because the search was illegal, all evidence

derived from the search must be suppressed.

Analysis

Search of Automobile

“The

Fourth

Amendment

protects

individuals from unreasonable search and seizure.”

United States v. Holt, 777 F.3d 1234, 1256 (11th Cir.

2015); see U.S. Const. amend. IV. “A warrantless

search of an automobile is constitutional if . . . there

is probable cause to believe that it contains

contraband or evidence of a crime.” United States v.

Smith, 596 F. App’x 804, 807 (11th Cir. 2015).

Probable cause is based on the totality of the

circumstances and must be viewed from the

standpoint of an objectively reasonable police

officer. United States v. Roy, 869 F.2d 1427, 1433

(11th Cir. 1989). The law is well-settled that an

officer’s detection of the odor of marijuana coming

from a vehicle provides the officer with probable

cause to search the vehicle. See, e.g., United States

v. Johnson, 445 F. App’x 311, 313 (11th Cir. 2011);

Smith, 596 F. App’x at 807; United States v. Tobin,

923 F.2d 1506, 1512 (11th Cir. 1991) (en banc).

Upon review, the Court finds that

suppression is not warranted because Corporal

Denbo had probable cause to search the vehicle

based on the odor of marijuana emanating from

the vehicle. At the suppression hearing, the only

App-29

witness who testified as to the encounter was

Corporal Denbo. The Court initially finds Corporal

Denbo’s testimony to be credible. During his

lengthy

testimony,

Corporal

Denbo

was

professional, calm, and courteous. See United

States v. Sims, No. 9:19-cr-80106, 2019 WL

7879878, at *5 (S.D. Fla. Dec. 20, 2019) (finding

testimony of officer credible in part because his

demeanor was “honest, professional, and

courteous.”). His testimony was largely internally

consistent and consistent with what was

eventually found in the vehicle. See United States

v. Rembert, No. 1:17-cr-316-MHC-AJB, 2018 WL

7283630, at *11 (N.D. Ga. Dec. 6, 2018) (finding

officer’s testimony that he detected the odor of

marijuana credible in part because the search of

the vehicle uncovered unburned marijuana).

Corporal Denbo testified about his extensive

training and experience with marijuana in his law

enforcement career, which supports his credibility

with respect to identifying the odor of marijuana.

See United States v. Clark, 605 F. App’x 892, 895

(11th Cir. 2015). Although there was no other

officer present at the time of the traffic stop to

corroborate Corporal Denbo’s testimony that he

detected the odor of marijuana, this fact neither

defeats nor minimizes his credibility. The Court

notes that Defendant did not present any

testimony or evidence to contradict Corporal

Denbo’s testimony.

According to Corporal Denbo’s credible

testimony, he detected the odor of marijuana

emanating from the vehicle. He therefore had a

particularized and objective basis for believing

that the vehicle contained marijuana. See United

App-30

States v. Green, No. 3:20-cr-18/MCR, 2020 WL

4059721, at *6 (N.D. Fla. July 20, 2020).

C onsidering the totality of the circumstances, the

Court concludes that Corporal Denbo possessed

probable cause to support the search of the vehicle.

Seizure of Firearm and Personal Belongings

In his motion, Defendant argues that even if

the Court were to find that the vehicle search was

constitutional, the seizure of items found during the

search could only extend to items related to crimes

for which there was probable cause, so items such

as the clothing, personal items, a firearm, and Nike

sneakers would still require suppression because

they were unrelated to the offense of possession of

marijuana.

As previously noted, Corporal Denbo had

probable cause to search the vehicle based on his

detection of the odor of marijuana. When he

searched the vehicle, he found marijuana and

marijuana paraphernalia, along with items that

Corporal Denbo believed linked defendant to a

string of recent armed robberies. Corporal Denbo’s

belief that those items were linked to a string of

recent armed robberies was not mere speculation.

As it turns out, Corporal Denbo had personally

investigated some of those robberies so he had

particularized familiarity with the circumstances of

those crimes. Even if the items were not specifically

connected to the initial charge of marijuana

possession, there is no basis to suppress the items

because they were found in plain view during a

lawful search of the vehicle. See, e.g., Coolidge v.

New Hampshire, 403 U.S. 443, 466 (1971)

(explaining that the plain view doctrine permits the

warrantless seizure of evidence when an officer

App-31

inadvertently comes across a piece of evidence

incriminating the accused); Harris v. United States,

390 U.S. 234, 236 (1968) (“It has long been settled

that objects falling in the plain view of an officer

who has a right to be in the position to have that

view are subject to seizure and may be introduced

in evidence.”).

Arrest

Defendant contends that his arrest was not

supported by probable cause. Corporal Denbo

arrested Defendant for possession of marijuana. The

arrest was based on Corporal Denbo’s detection of

the odor of marijuana, observation of marijuana in

the vehicle, and Defendant’s statements admitting

that he used marijuana. Based on these facts,

established by Corporal Denbo’s credible testimony,

the Court finds that there was sufficient probable

cause to support Defendant’s arrest for possession of

marijuana. See, e.g., Smith, 481 F. App’x at 543-44.

Miranda Waiver

In his motion, Defendant also argues that his

statements should be suppressed because he was

not properly advised of his Miranda rights, making

his waiver unknowing and involuntary. The

Supreme Court has established a two-step inquiry

that courts use to consider whether a defendant’s

waiver of his Miranda rights was knowing and

voluntary. See United States v. Barbour, 70 F.3d

580, 585 (11th Cir. 1995) (citing Moran v. Burbine,

475 U.S. 412 (1986)).

First, the relinquishment of the right

must have been voluntary in the sense

that it was the product of a free and

App-32

deliberate

choice

rather

than

intimidation, coercion, or deception.

Second, the waiver must have been

made with a full awareness of both

the nature of the right being

abandoned and the consequences of

the decision to abandon it. Only if the

“totality

of

the

circumstances

surrounding the interrogation” reveal

both an uncoerced choice and the

requisite level of comprehension may

a court properly conclude that the

Miranda rights have been waived.

Moran, 475 U.S. at 421.

At the time of the stop, Defendant was 23

years old and had a high school education.

Corporal Denbo testified that he read Defendant

his Miranda rights from an agency issued card.

After being read his rights, Defendant

acknowledged that he understood his rights and

agreed to speak with investigators. This

interaction was captured on Corporal Denbo’s body

camera and was admitted into evidence at the

suppression hearing. Corporal Denbo testified

that, after being transported to the district office,

Defendant again waived his Miranda rights and

signed a written document evidencing his waiver.

A copy of that waiver was admitted into evidence

at the suppression hearing. There was no evidence

presented at the hearing to show that Defendant

did not understand the Miranda warnings, that

his statements were coerced, or that Defendant

otherwise did not knowingly and voluntarily waive

App-33

his Miranda rights.

After being advised of his Miranda rights on

two separate occasions, Defendant agreed to

participate in a recorded interview during which he

made

incriminating

statements.

Because

Defendant knowingly and voluntarily waived his

Miranda rights, these statements are admissible

under well-settled principles of law.

Conclusion

Defendant takes issue with the fact that

Corporal Denbo did not utilize his body camera

during the majority of his encounter with

Defendant, and even when he did, there appear to

have been numerous instances where it was

activated for a period of time and then turned off.

Defendant’s arguments in this regard are certainly

reasonable and raise credibility concerns. With the

advent of modern technology, including mobile

phones that can accurately record audio and video

for long periods of time, it is increasingly difficult to

understand why law enforcement officers are either

unwilling or unable to consistently record

encounters with the public.2 Particularly in times

such as these in which we now live – when law

enforcement officers seem to be under constant

suspicion of malfeasance and are routinely accused

of wrong-doing – common sense suggests they

should record everything they do, if for no other rea2 Corporal Denbo indicated he had issues charging the

battery on his body camera on the date in question. He also

admitted on cross examination that his failure to fully record

his encounter with Defendant was in violation of his Agency’s

policies.

App-34

son than their own protection. Furthermore, from

the Court’s perspective, body cameras seem to be

extremely useful as a practical matter because they

frequently reduce, if not eliminate, the need for

judges to take lengthy, and sometimes confusing,

testimony from witnesses and make difficult

credibility determinations. Indeed, had Corporal

Denbo recorded his entire encounter with

Defendant on his body camera in this case, it is

highly unlikely the instant motion would have even

been filed in the first place.

Nonetheless, as previously discussed, after

very carefully considering the credibility issues in

this case, the Court has found Corporal Denbo’s

testimony to be credible. Although it is certainly

the better practice for law enforcement officers to

record encounters with the public, there is no legal

requirement that they do so. Even though the

encounter at issue here was not recorded, for the

reasons discussed, the Court finds Corporal Denbo’s

testimony credible. Consequently, “Defendant’s

Motion to Suppress Evidence” is DENIED.

DONE and ORDERED in Chambers, in

Tampa, Florida, this 21st day of October, 2020.

/s/ Tom Barber

TOM BARBER

UNITED STATES DISTRICT JUDGE