Case: 13-13890   Date Filed: 04/18/2014   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13890
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 6:12-cr-00275-JA-GJK-1



UNITED STATES OF AMERICA,

                                                      Petitioner-Appellee,

                                  versus

KAMERON E. MCCALL,

                                                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (April 18, 2014)

Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
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      Kameron E. McCall appeals his conviction for possession of a firearm by a

convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). McCall challenges the

denial of his motion to suppress the firearm and his inculpatory statement to police

on the ground that officers lacked reasonable suspicion to stop the vehicle in which

he was a passenger. We affirm.

                                I. BACKGROUND

      Around 12:25 a.m. on November 20, 2011, Arthur Fisher called 911 to

report that he had been struck on the head and then robbed of his car keys and

cellular telephone at gunpoint outside his residence in the Willows Apartments off

Silver Star Road. Fisher stated that he had been robbed by three black men who

had arrived in a red Dodge Charger vehicle and that he thought they had stolen his

rental vehicle, a 2011 model Charger, which was painted white. Fisher was able to

describe two of the three robbers: one man was short with a beard and was wearing

a white shirt and pink plaid shorts, and a second man was wearing a white shirt and

his hair was styled in long dreadlocks. At 12:30 a.m., a dispatcher for the Police

Department of the City of Orlando issued a be-on-the-lookout for Fisher’s rented

Charger vehicle and the armed robbers.

      Officer Christopher Bigelow and Detective Jeffrey Backhaus responded to

the dispatch. At 12:32 a.m., as the officers traveled northbound on John Young

Parkway toward the Willows Apartments, they noticed in the traffic ahead of them


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a white Charger vehicle. Bigelow recognized the vehicle as a 2011 model because

of its “very distinct light bar” that was “very easy to find in taillights of vehicles.”

Bigelow also noticed that there were “multiple” occupants in the vehicle.

      Bigelow and Backhaus requested assistance to stop the Charger vehicle and

reported its license tag number. Dispatch responded that the vehicle had not been

reported stolen. Bigelow and Backhaus thought the report was consistent with

their rapid discovery of the vehicle following the 911 call, and they could not

confirm whether the license tag matched that of Fisher’s vehicle because officers

were still en route to Fisher’s apartment.

      The officers followed the Charger vehicle to a RaceTrac gas station at 5051

Edgewater Drive. The gas station was approximately four miles from the Willows

Apartments. After the Charger vehicle stopped next to a gas pump, Bigelow and

Backhaus’s patrol car and a second patrol car blocked the vehicle. Bigelow and

Backhaus approached the Charger vehicle with their firearms drawn.

      Bigelow opened the front passenger door of the Charger vehicle, noticed a

scent of marijuana, and removed McCall from the passenger seat. Bigelow

obtained McCall’s identification information and requested that dispatch run a

background check. At 12:36 a.m., Bigelow received a teletype stating that there

was a warrant outstanding for McCall’s arrest. Bigelow requested that dispatch

confirm the warrant while he searched the Charger vehicle. Bigelow discovered


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marijuana and other drugs in the center console of the vehicle. Bigelow also

discovered a rental agreement in the glove compartment. At 12.40 a.m., Bigelow

received a confirmation that the warrant was still outstanding and arrested McCall.

Another officer ran a background check on the driver of the Charger vehicle, Otis

Mitchell, and arrested him for driving with a suspended license.

      Backhaus returned to the Charger vehicle to look for a gun “because [he]

was still under the impression that [they] were dealing with an armed carjacking.”

After he entered the vehicle, Backhaus detected a scent of marijuana. While “in

the backseat of the vehicle, [Backhaus] looked forward” and, “in the glove box,

[he] could see . . . a shelf” on which was lying a semiautomatic handgun.

Backhaus also noticed a folded piece of yellow paper lying below the shelf.

Backhaus unfolded the paper and discovered that it was a “court slip” for McCall.

      Backhaus advised McCall of his constitutional rights, see Miranda v

Arizona, 

, 

(1966), which McCall waived. McCall,

who was “very calm,” “very cooperative,” and “mellow,” claimed the handgun.

McCall explained that he kept the firearm “for his protection because he was a

rapper.” McCall disclaimed any knowledge of the drugs.

      Meanwhile, Officer Adam Cusumano arrived at the Willows Apartments

and interviewed Fisher, who had a mark on his head and acted disoriented.

Cusumano and other officers canvassed the area to locate possible witnesses and


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discovered a Charger vehicle matching the description given by Fisher. The

officers notified dispatch that Fisher’s vehicle had not been stolen. At 12:57 a.m.,

Bigelow and Backhaus learned that the Charger vehicle they had stopped was not

stolen. Bigelow created a new incident report describing McCall’s arrest on the

outstanding warrant.

      After McCall was charged for being a felon in possession of a firearm, he

moved to suppress the firearm and his statement in which he claimed ownership of

the weapon. McCall moved for suppression on three grounds: (1) Bigelow and

Backhaus lacked reasonable suspicion or probable cause to stop the vehicle, and

the firearm and McCall’s statement had to be suppressed as fruit of the poisonous

tree; (2) the officers lacked authority to search the vehicle for weapons after

removing its occupants, see Arizona v. Gant, 

, 

(2009),

and Bigelow lacked authority to search the vehicle for marijuana because he failed

to request a drug canine to confirm the presence of the illegal substance; and (3)

McCall was “never properly advised of his Miranda rights and . . . never

voluntarily and knowingly waived [those] rights.”

      At the hearing on McCall’s motion to suppress, Bigelow, Backhaus, and

Cusumano testified about the dispatch reporting the stolen vehicle, the events that

led to McCall’s arrest, and the discovery of Fisher’s vehicle. Bigelow and

Backhaus identified their incident reports, the dispatcher log, the teletype and


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confirmation of McCall’s outstanding arrest warrant, and a map of the area where

the officers apprehended McCall. Bigelow testified that he arrested McCall on the

outstanding warrant before learning that Fisher’s vehicle had not been stolen and

that the incident report misstated that McCall had not waived his rights before

giving a statement.

      The district court overruled McCall’s motion to suppress. The district court

found that the officers’ testimonies were credible; the traffic stop occurred before

Bigelow and Backhaus learned that the Charger vehicle was not stolen; and

McCall’s inculpatory statement was made knowingly and voluntarily. The district

court ruled that the officers had reasonable suspicion to stop the Charger vehicle

because of its “temporal” and “geographic proximity” to the alleged carjacking and

because the vehicle and its occupants matched the information in the dispatch. The

district court also ruled that Bigelow’s detection of marijuana gave him probable

cause to search the vehicle; Bigelow lawfully arrested McCall on the outstanding

arrest warrant; and discovery of the firearm was inevitable in an inventory search.

                         II. STANDARDS OF REVIEW

      On denial of a motion to suppress, we review findings of fact for clear error

and the application of law to those facts de novo. United States v. Heard, 

, 1278 (11th Cir. 2004). We construe all facts in the light most favorable to

the government. 

the suppression of evidence that are not raised


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in the district court are reviewed for plain error. United States v. Young, 

, 1305 (11th Cir. 2003). Plain error occurs when the district court commits an

error that is plain, affects the defendant’s substantial rights, and “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” United States

v. Spoerke, 

, 1244–45 (11th Cir. 2009) (internal quotation marks and

citation omitted).

                                  III. DISCUSSION

      McCall argues that Bigelow and Backhaus lacked reasonable suspicion to

stop the white Charger vehicle, but McCall’s argument is based on grounds that he

did not raise in the district court. McCall argues, for the first time, that Fisher’s

call to 911 was akin to an anonymous tip that the officers failed to corroborate and

that “the stop was a mechanical one based only on a match between the observed

car and the general description . . . and geographical proximity to the scene.”

McCall also argues that, because the traffic stop was unlawful, the firearm and

inculpatory statement to the police should have been suppressed as fruit of an

unlawful seizure. Because we conclude that the officers had reasonable suspicion

to stop the Charger vehicle, we need not address whether the seizure of the

evidence was unlawful.

      The Fourth Amendment protects persons “against unreasonable searches and

seizures,” U.S. Const. Amend. IV, but it does not forbid a police officer “in


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appropriate circumstances and in an appropriate manner [from] approach[ing] a

person for purposes of investigating possibly criminal behavior even though there

is no probable cause to make an arrest.” Terry v. Ohio, 

, 22, 

, 1880 (1968). The Court in Terry held that a police officer may stop and

briefly detain a person to investigate further if the officer is “able to point to

specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” 

88 S. Ct. at 1880. That

rationale is applicable to traffic stops based on a reasonable suspicion that the

occupants of the vehicle have, or are about to, violate the law. See United States v.

Hensley, 

, 226, 

, 678 (1985).

      Reasonable suspicion is a flexible standard that accounts for the split-second

decisions that police officers regularly make. This standard requires that an officer

have “some minimal level of objective justification for making [a traffic] stop,” but

“[t]hat level of suspicion is considerably less than proof of wrongdoing by a

preponderance of the evidence” and is “obviously less demanding than that for

probable cause.” United States v. Sokolow, 

, 7, 

, 1585

(1989). Whether a traffic stop is objectively reasonable is dependent on the totality

of the circumstances presented to the officer. 

109 S. Ct. at 1585; United

States v. Cortez, 

, 418, 

, 695 (1981). Our assessment

requires consideration of “various objective observations, information from police


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reports, . . . [and] the modes or patterns of operation of certain kinds of

lawbreakers” from which “a trained officer draws inferences and deductions that

might well elude an untrained person.” 

, 101 S. Ct. at 695.

      The district court did not err in denying McCall’s motion to suppress.

Bigelow and Backhaus had a reasonable, articulable suspicion of criminal activity

to support their decision to stop the Charger vehicle in which McCall was a

passenger. Bigelow and Backhaus initiated an investigatory stop after hearing a

dispatch report advising them to be on the lookout for a white 2011 Charger

vehicle stolen by three black men who were armed. The officers stopped a vehicle

that contained “multiple” occupants and, as McCall acknowledges, “was the same

make, model, color, and year” as the vehicle reported stolen and “was . . . within a

few miles . . . [and] a few minutes of . . . the reported carjacking.” See United

States v. Osborne, 

, 378 (5th Cir. 1980). McCall argues that the

officers had to observe a traffic violation or suspicious behavior by the occupants

of the vehicle before conducting a traffic stop, but “[t]he Supreme Court has

rejected efforts to limit investigative stops to situations in which the officer has

personally observed suspicious conduct.” United States v. Aldridge, 

,

371 (11th Cir. 1983); see, e.g., Adams v. Williams, 

, 147, 

, 1924 (1972) (“reject[ing] [the] argument that reasonable cause for a stop and

frisk can only be based on the officer’s personal observation, rather than on


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information supplied by another person”). Because reasonable suspicion is not

based on “hard certainties, but [deals] with probabilities,” 

,

101 S. Ct. at 695, the discovery of a Charger vehicle matching the description of

the stolen vehicle in an area near the site and within minutes of the robbery was

sufficient to make the traffic stop.

      The district court did not err, much less plainly err, in failing sua sponte to

question the reliability of Fisher’s 911 call. Reasonable suspicion may be based on

information supplied by another person, as long as the information bears sufficient

indicia of reliability. 

–47, 92 S. Ct. at 1923–24. McCall

likens Fisher’s 911 call to the anonymous tip in Florida v. J.L., 

, 

(2000), but J.L. is distinguishable. “The reliability of a tip . . .

[involves] consideration of whether the officer can track down the tipster again,”

, and unlike the anonymous tipster in J.L., Fisher exposed

himself to scrutiny by the police. Fisher identified himself and his location to the

police and expected police officers to visit him as part of their investigation. See

, 120 S. Ct. at 1378 (distinguishing anonymous tips from “a tip

from a known informant whose reputation can be assessed and who can be held

responsible if her allegations turn out to be fabricated”); 

-

(noting that a tip was reliable, at least in part, because the

informant “might have been subject to immediate arrest for making a false


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complaint had [the] investigation proved the tip incorrect”). And Fisher reported

that the robbers were armed and dangerous, which demanded the immediate

attention of the police. See 

, 92 S. Ct. at 1923 (“The

Fourth Amendment does not require a policeman who lacks the precise level of

information necessary for probable cause to arrest to simply shrug his shoulders

and allow a crime to occur or a criminal to escape.”). Calls to 911 “are distinctive

in that they concern contemporaneous emergency events, not general criminal

behavior,” and “[i]f law enforcement [cannot] rely on information conveyed by . . .

911 callers, their ability to respond effectively to emergency [or exigent] situations

[will] be significantly curtailed.” United States v. Holloway, 

, 1339

(11th Cir. 2002). Fisher does not cite, nor has our research revealed, any decisions

requiring police officers to gather corroborating evidence before acting on an

emergency call made by an identifiable victim of a crime.

      McCall argues that the description given by Fisher was too vague to justify

the traffic stop because many vehicles could have matched his description, but we

disagree. Fisher provided the specific make, model, color, and year of the stolen

vehicle and stated that it was likely occupied by “multiple” black men. That

description narrowed the number of vehicles to provide reasonable suspicion for

the traffic stop. See Thomas v. Newsome, 

, 1554 n.4 (11th Cir.

1987); 

. McCall argues that the officers overlooked that


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the vehicle was traveling in the direction of the crime scene and that the vehicle

had two instead of three occupants, but the officers were not required to eliminate

all the circumstances “consistent with innocent travel.” See 

–10, 109 S. Ct. at 1586–87.

      Bigelow and Backhaus had an objective, reasonable suspicion that justified

stopping the Charger vehicle. Their discovery of the Charger vehicle within a few

miles and a few minutes of a reported carjacking gave the officers reason to

suspect that “criminal activity [was] afoot.” 

, 88 S. Ct. at

1884. The officers were justified in forming “a reasonable suspicion of criminal

activity . . . by observing exclusively legal activity, even [though] such activity

[would have been] seemingly innocuous to the ordinary citizen.” United States v.

Lindsey, 

, 1290 (11th Cir. 2007) (internal quotation marks and

citations omitted).

                                IV. CONCLUSION

      We AFFIRM McCall’s conviction.




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