USA v. Chad Hogan

Filing

Opinion issued by court as to Appellant Chad Lamar Hogan. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13226
Non-Argument Calendar
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D.C. Docket No. 2:14-cr-00636-LSC-WC-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHAD LAMAR HOGAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(April 10, 2017)
Before MARTIN, FAY and ANDERSON, Circuit Judges.
PER CURIAM:

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Chad Lamar Hogan appeals his conviction and sentence for possession of a
firearm by a convicted felon. We affirm.
I. BACKGROUND
In June 2013, Detective Greg Schnupp, a detective with the Montgomery
Police Department (“MPD”), was investigating a group of armed-home-invasion
robberies. Following one of the robberies, MPD canvassed the victim’s
neighborhood and a neighbor reported having seen a white Ford Expedition near
the scene prior to the crime. The neighbor had written down the license-plate
number of the vehicle and provided it to MPD, which later discovered the vehicle
was registered to Hogan. Detective Schnupp created a be-on-the-lookout
notification (“BOLO”) for Hogan to be taken to the police department for
questioning. He included descriptions of the two cars registered to Hogan. The
BOLO stated Hogan should be considered armed and dangerous, because the
victims of the robberies had reported the offenders were armed and because of
Hogan’s criminal history. Although Detective Schnupp believed he had probable
cause to question Hogan and to obtain an arrest warrant, he did not obtain a
warrant, because he “was trying to build [a] case against Hogan.” Hr’g Tr. at 24
(Mar. 19, 2015).
At morning roll call on June 16, 2013, MPD supervisors issued the BOLO to
the patrol units. Corporal Steven Pearson received the BOLO and, while out on
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patrol that morning, went by Hogan’s address, saw a white Ford Expedition in the
driveway, and waited for the car to leave. Around noon, an individual left the
home and drove away in the Expedition. Corporal Pearson verified the driver was
male, and the car matched one of those described in the BOLO; he then stopped
the car. Corporal Pearson intended to identify the driver as Hogan and transport
him to the police station. Based on the BOLO, Corporal Pearson believed law
enforcement had probable cause to arrest Hogan.
As he approached the car, Corporal Pearson instructed the driver to place his
hands on the steering wheel and escorted the driver out of the car. The driver
identified himself as Hogan. Corporal Pearson asked whether Hogan had any
weapons, needles, or items on him that could stick or hurt him during a pat-down.
Hogan responded there was a gun in the car, but he did not have anything on his
person. Corporal Pearson then patted Hogan down for safety, handcuffed him,
advised him he was being detained for questioning, and had him sit on the street
curb. At the time, Corporal Pearson was not aware Hogan was a convicted felon.
While waiting for backup, Corporal Pearson contacted Detective Schnupp.
When Detective Schnupp learned there was a firearm in Hogan’s vehicle, he told
Corporal Pearson “to make sure that [Hogan] was handcuffed and that if he did not
have the permit for it, that he was currently under arrest for being in possession of
a firearm.” Hr’g Tr. at 25. Backup units arrived within a “couple minutes”;
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Corporal Pearson placed Hogan in his police vehicle and transported him to the
criminal investigations division. Hr’g Tr. at 8.
A grand jury indicted Hogan on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(l). The indictment charged he
knowingly possessed a Taurus .38 revolver on June 16, 2013. Hogan filed a
motion to suppress the items seized from his car and the statements he had made;
he argued law enforcement obtained the evidence as a result of his unlawful
seizure. After a hearing, the magistrate judge issued a recommendation Hogan’s
suppression motion be denied. The magistrate judge determined the collective
knowledge of Corporal Pearson and Detective Schnupp, viewed objectively, did
not establish probable cause to arrest Hogan when he initially was stopped. The
magistrate judge reasoned the BOLO alone did not establish probable cause and
Detective Schnupp’s suspicion of Hogan only was based on a neighbor’s
observation of Hogan’s car at some point prior to one of the robberies. The
magistrate judge determined, however, Hogan was not under arrest when he was
initially stopped; he was subject to a reasonable investigatory-traffic stop. The
magistrate judge explained an objectively reasonable officer reading the BOLO
would have had reasonable suspicion Hogan was involved in criminal activity.
The investigatory stop did not become an arrest when Hogan was handcuffed,
asked about weapons, and patted down, because Corporal Pearson could take such
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measures to ensure his safety based on his reasonable belief Hogan was armed and
dangerous. The magistrate judge stated the delay of the stop for a few minutes to
allow backup to arrive did not transform the stop into an arrest; probable cause
existed to arrest Hogan for being a felon in possession of a firearm once Corporal
Pearson informed Detective Schnupp Hogan had a gun in the car, given Detective
Schnupp’s knowing Hogan had a felony record. This knowledge also gave law
enforcement probable cause to search the car for the gun. The magistrate judge
determined Hogan was not in custody when he made the admission of the gun in
the car; therefore, he was not yet entitled to Miranda warnings.1
Hogan moved to reopen the suppression hearing and argued he was not
given an opportunity to present evidence at the hearing. The district judge granted
the motion. During the supplemental suppression hearing, Hogan testified
regarding his version of the arrest. The magistrate judge then issued a
supplemental report and again recommended Hogan’s motion to suppress be
denied. He stated Hogan had not presented any new legal arguments, and his
testimony had no effect on the prior recommendation the motion to suppress be
denied. Hogan filed objections to the recommendation. The district judge
overruled Hogan’s objections, adopted the magistrate judge’s recommendation,
and denied the motion to suppress. The district judge deferred to the magistrate

1

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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judge’s credibility determinations and findings of fact. The judge also noted the
issue of precisely when Hogan was handcuffed was immaterial, because an
investigatory stop does not become an arrest because the suspect is handcuffed.
The judge determined Corporal Pearson’s subjective reason for detaining Hogan
was irrelevant to whether the stop and detention were objectively reasonable.
Hogan entered a conditional plea to being a felon in possession of a firearm and
reserved his right to appeal the denial of his motion to suppress. The judge
sentenced him to 36 months of imprisonment.
II. DISCUSSION
On appeal, Hogan contends the district judge erred by denying his motion to
suppress evidence law enforcement obtained during the stop of his car. He argues
he was unlawfully arrested during the stop without probable cause and subjected to
custodial interrogation without being given Miranda warnings.
“The denial of a motion to suppress is reviewed under a mixed standard.”
United States v. Ford, 784 F.3d 1386, 1391 (11th Cir. 2015). We review for clear
error a district judge’s findings of fact; we review de novo the application of law to
those facts and construe the facts in the light most favorable to the prevailing party.
Id. Evidence obtained as a result of a violation of constitutional rights generally
must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.
Ct. 407, 416 (1963).
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The Fourth Amendment provides the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated” and “no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV. The
Fourth Amendment permits a warrantless arrest in a public place if an officer has
probable cause to believe that a felony has occurred. Florida v. White, 526 U.S.
559, 565, 119 S. Ct. 1555, 1559 (1999). Probable cause also permits a warrantless
search of a car. United States v. Ross, 456 U.S. 798, 809, 102 S. Ct. 2157, 2164-65
(1982).
Law enforcement officers have probable cause to arrest when the facts and
circumstances within their knowledge are sufficient to warrant a reasonable belief
the suspect committed or is committing a crime. United States v. Lopez-Garcia,
565 F.3d 1306, 1314 (11th Cir. 2009). Probable cause to search exists when,
“under the totality of the circumstances, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” United States v.
Thomas, 818 F.3d 1230, 1243 (11th Cir.), cert. denied, 137 S. Ct. 171 (2016).
Probable cause may be based on the collective knowledge of officers. United
States v. Allison, 953 F.2d 1346, 1350 (11th Cir. 1992). The existence of probable
cause is determined using an objective standard and without regard to the
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subjective intent or beliefs of the officers. United States v. Franklin, 694 F.3d 1, 9
(11th Cir. 2012); see also Whren v. United States, 517 U.S. 806, 813, 116 S. Ct.
1769, 1774 (1996) (“Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.”). Thus, a reviewing court must evaluate any
alternative justifications for a seizure without regard to the rationale employed by
an officer at the time of the arrest or detention. See Devenpeck v. Alford, 543 U.S.
146, 152-56, 125 S. Ct. 588, 593-95 (2004).
Law enforcement may conduct a brief, investigatory Terry stop even if
probable cause is lacking. United States v. White, 593 F.3d 1199, 1202 (11th Cir.
2010) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). A Terry stop must
be justified by “reasonable, articulable suspicion based on objective facts that the
person has engaged in, or is about to engage in, criminal activity.” Id. (citation and
internal quotation marks omitted); accord Lopez-Garcia, 565 F.3d at 1313 (stating
reasonable suspicion requires “a particularized and objective basis for suspecting
legal wrongdoing” and more than a hunch of criminal activity (citation and internal
quotation marks omitted)). Reasonable suspicion is determined based on the
totality of the circumstances and the collective knowledge of officers. United
States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006). If a flyer or bulletin stating
a person is wanted in an investigation is issued based on reasonable suspicion the
person committed a crime, then reliance on that flyer or bulletin justifies a Terry
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stop to check identification, pose questions, or detain the person briefly while
attempting to obtain further information. United States v. Hensley, 469 U.S. 221,
232, 105 S. Ct. 675, 682 (1985).
In addition to being justified at its inception, a Terry stop must be reasonably
related in scope to the circumstances that permitted the stop. United States v.
Griffin, 696 F.3d 1354, 1358 (11th Cir. 2012). During a lawful traffic stop,
officers may take steps reasonably necessary to protect their safety, including
requiring the driver and any passengers to exit the car. United States v. Spoerke,
568 F.3d 1236, 1248 (11th Cir. 2009). An officer may conduct a pat-down for
weapons if he reasonably believes his safety or the safety of others is threatened.
Griffin, 696 F.3d at 1359. An officer also may handcuff a suspect if he possesses
an articulable and objectively reasonable belief that a suspect is dangerous. United
States v. Acosta, 363 F.3d 1141, 1146-47 (11th Cir. 2004).
A detention may exceed the permissible boundaries of a Terry stop and
become a de facto arrest that must be supported by probable cause. United States
v. Dunn, 345 F.3d 1285, 1289-90 (11th Cir. 2003). To determine whether a
detention was a Terry stop or an arrest, we consider factors such as the lawenforcement purpose served by the detention, the diligence with which the officers
pursued the investigation, the scope and intrusiveness of the investigation, and the
duration of the detention. United States v. Street, 472 F.3d 1298, 1306 (11th Cir.
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2006). We ultimately focus “on whether the police diligently pursued a means of
investigation likely to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the [suspect].” Id. (citation and internal quotation
marks omitted).
No person “shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. This privilege against self-incrimination requires
that a suspect be advised of certain rights before being subject to custodial
interrogation. Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624
(1966). Custodial interrogation is “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Id. at 444, 86 S. Ct. at 1612; see also
California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (stating
“the ultimate inquiry” in determining whether a suspect is in custody for the
purpose of receiving Miranda protection is whether “there is a formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest”
(citation and internal quotation marks omitted)). Whether a suspect is in custody is
determined objectively, and the actual, subjective beliefs of the suspect and the
interviewing officer are irrelevant. United States v. Lall, 607 F.3d 1277, 1284
(11th Cir. 2010). Individuals temporarily detained during ordinary traffic stops are
not in custody for the purpose of applying Miranda, although a traffic stop
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significantly curtails the freedom of action of the driver and any passengers.
Berkemer v. McCarty, 468 U.S. 420, 436, 440, 104 S. Ct. 3138, 3148, 3150 (1984).
Corporal Pearson initiated a Terry stop of Hogan’s car based on the BOLO
issued on reasonable suspicion Hogan had been involved in robberies. Corporal
Pearson had a reasonable concern for his safety during the stop, because the
notification stated Hogan should be considered armed and dangerous. Therefore,
Corporal Pearson acted reasonably in requiring Hogan to exit the car, handcuffing
him, and conducting a pat-down for weapons. Corporal Pearson conducted a brief,
reasonable traffic stop during which he diligently pursued the investigation into
Hogan as a suspect for robbery.
Hogan was not in custody during the pat-down; therefore, he was not
entitled to Miranda warnings when Corporal Pearson asked whether he had a
weapon, and Hogan responded that there was a gun in his car. When Corporal
Pearson informed Detective Schnupp Hogan had a gun, MPD had probable cause
to search the car and to arrest Hogan for being a felon in possession of a firearm.
MPD did not obtain evidence in violation of Hogan’s constitutional rights. The
district judge did not err by denying Hogan’s motion to suppress evidence.
AFFIRMED.

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