Case: 14-10576   Date Filed: 08/22/2014   Page: 1 of 4


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-10576
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:12-cr-00048-CAR-CHW-2

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

ULYSSES ANTWAIN BLACKMON,

                                                            Defendant-Appellant.

                          ________________________

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

                                (August 22, 2014)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Ulysses Antwain Blackmon appeals his conviction for conspiracy to possess

cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(C). He argues that: (1) the district court erred by denying his motion to
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suppress evidence of cocaine; and (2) the district court abused its discretion by

denying his motion for a mistrial. After careful review, we affirm.

      We apply a mixed standard of review to the denial of a motion to suppress,

reviewing factual findings for clear error and the application of law to those facts

de novo. United States v. Boyce, 

, 1105 (11th Cir. 2003).             We

construe all facts in a light most favorable to the prevailing party. 

de novo a court’s determination of probable cause, Ornelas v. United States, 

, 699 (1996), and constitutional errors, United States v. O’Keefe, 

, 1346 (11th Cir. 2006). We accept testimony deemed credible by the district

court unless it violates laws of nature or is so inconsistent that no reasonable

factfinder would accept it. United States v. Ramirez-Chilel, 

, 749

(11th Cir. 2002). Finally, we review for abuse of discretion the denial of a motion

for mistrial. United States v. Chastain, 

, 1351 (11th Cir. 1999).

      First, we reject Blackmon’s claim that the court should have suppressed

cocaine found during a consensual search of the vehicle he was riding in because

the officer lacked probable cause for the initial traffic stop. An officer is permitted

to conduct a warrantless investigatory stop when he has probable cause to believe a

traffic offense has occurred or reasonable suspicion of criminal activity. United

States v. Spoerke, 

, 1248 (11th Cir. 2009). This standard is met




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when an officer personally observes a traffic infraction. United States v. Harris,

, 1338 (11th Cir. 2008).

      In this case, the officer testified that he witnessed two traffic infractions

committed by the driver of the vehicle Blackmon was riding in, and the district

court concluded that the officer’s testimony was credible. Blackmon argues that

the officer could not have distinguished the tag light and failed to corroborate his

observation of a lane violation, but the officer’s testimony to the contrary was

deemed credible by the district court. Because the officer’s testimony was not so

inconsistent that no factfinder could reasonably accept it, the district court did not

err by concluding that the officer had probable cause to justify an investigative stop

or by denying Blackmon’s motion to suppress.

      We also are unpersuaded by Blackmon’s claim that the district court abused

its discretion by denying his motion for a mistrial after a government witness

committed a Doyle 1 violation. A defendant’s due process rights are violated if the

prosecution attempts to use his silence after receiving a Miranda2 warning to

impeach him. 

. A statement references the defendant’s

silence if “it was the prosecutor’s manifest intention to refer to the defendant’s

silence” or if the statement would naturally and necessarily be understood by the


1
      Doyle v. Ohio, 

(1976).
2
      Miranda v. Arizona, 

(1966).
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jury to be a comment on the defendant’s silence. United States v. Dodd, 

, 869 (11th Cir. 1997). A single statement about the defendant’s silence does

not show a manifest intent to reference the defendant’s silence when it is a direct

response to an open-ended question from defense counsel. 

.

      As the record here shows, the government witness’s brief reference to

Blackmon’s refusal to submit to an interview was given in response to an open-

ended question on cross-examination. Furthermore, the witness’s statement -- that

he had “attempt[ed] to interview Mr. Blackmon” -- could not be understood

necessarily as a comment on Blackmon’s silence because it could also be

interpreted as a statement that the witness was unable to schedule an interview with

Blackmon. On this record, the district court did not err in concluding that such a

passing reference was not manifestly intended to reference Blackmon’s silence.

Therefore, the district court did not abuse its discretion by denying Blackmon’s

motion for a mistrial.

      AFFIRMED.




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