USA v. Clifford Virgile

Filing

Opinion issued by court as to Appellant Clifford Virgile. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 14-13246

Date Filed: 06/11/2015

Page: 1 of 5

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13246
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D.C. Docket No. 4:13-cr-00104-RH-CAS-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD VIRGILE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 11, 2015)
Before TJOFLAT, ANDERSON, and SENTELLE,* Circuit Judges.

___________
*
Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia
Circuit, sitting by designation.

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Date Filed: 06/11/2015

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PER CURIAM:
We have had the benefit of oral argument in this case, and have carefully
reviewed the briefs of the parties and the relevant parts of the record. Defendant
raises two challenges on appeal, both of which relate to the district court’s denial
of his motion to suppress: (1) he argues that there was not reasonable suspicion to
support the Terry1 stop of defendant; and (2) even assuming there was reasonable
suspicion to conduct a Terry stop, he argues that the seizure of defendant’s keys
exceeded the scope of a permissible protective frisk under Terry.
We conclude that there was more than enough evidence to constitute
reasonable suspicion to justify the Terry stop (as will be obvious from our
discussion below). We conclude that we need not address the second issue raised
by defendant. We need not resolve whether the officer’s seizure of defendant’s
keys exceeded the scope of a Terry stop, because we conclude that the officer had
probable cause by the time he had seized the keys and asked defendant a few
questions about them.
Before Officer Williams ever even approached and questioned defendant, he
had ample evidence constituting probable cause to believe that Charles had
committed a crime involving the withdrawal of $500 from the Wells Fargo ATM

1

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).

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in the student union complex. Law enforcement had received a report that
custodians had arrived early, at 6 am, at the virtually deserted student union
complex and noticed suspicious activity on the part of two black males around an
ATM. As a result of that report, officers approached Charles, who fled. After
Charles was caught, and after Miranda warnings, Officer Williams questioned
Charles, and determined that he had over $2900 in cash on his person, mostly in
$20 bills which the officer inferred came from an ATM. He also had on his person
a debit card in the name of another person, about which Charles told the officer
that it belonged to another person who asked him to get money for him. During
Officer Williams’ interview of Charles, another officer retrieved a receipt
reflecting that $500 cash had been drawn from the Wells Fargo ATM at the student
union at 5:58 am that morning. The receipt had been dropped as Charles fled, thus
revealing that Charles had withdrawn $500 from that particular ATM using the
card which was not in his own name. During his interview with Charles, the
officer also reasonably inferred that Charles had committed a crime because he
repeatedly asked how much time he was going to get.
Thus, at the time Officer Williams approached defendant, he already had
probable cause that Charles had committed a crime. The officer had already
reasonably inferred that Charles was not alone, because the custodians had
reported that two persons were engaged in suspicious activity around the ATM at
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the student union complex. Also, Officer Williams had considerable indication
that the other person with Charles was this defendant. He matched the description
of the second black male as revealed in the police report. Although a black male
with dreadlocks and a black hoodie might not have been a sufficient identification
in other circumstances, at 6:00 am when the area was otherwise virtually deserted,
the fact that defendant matched the description given in the police report was
evidence of considerable force. After reading defendant his Miranda rights, and
after defendant agreed to speak with the officers, further information was revealed.
In the conversation with Officer Williams, defendant admitted that he knew
Charles from Miami, and admitted that he had seen him briefly that very morning
at the student union. Thus, Officer Williams knew not only that defendant
matched the description of the person indicated in the police report as having
participated in suspicious activity with Charles, the officer also had defendant’s
own admission that he knew Charles and that he had seen him at the student union
that very morning. In light of the fact that virtually nobody else was at the student
union at that hour of the morning, and in light of the fact that the police report
indicated that a black male fitting the description of defendant and another black
male – with respect to whom the officers already had probable cause to believe had
committed a crime involving a $500 withdrawal from an ATM – were engaged in

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suspicious activity around that ATM, we believe that the officers had probable
cause to believe that the defendant was involved in the commission of that crime.
For the foregoing reasons, we believe that Officer Williams had probable
cause to believe that the defendant had committed a crime, and thus was justified
in seizing and retaining the key ring with the keys to the rental car. Thus, the
judgment of the district court is
AFFIRMED.

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