[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 11-14783         ELEVENTH CIRCUIT
                                                        JUNE 11, 2012
                           Non-Argument Calendar
                         ________________________        JOHN LEY
                                                          CLERK

                  D.C. Docket No. 3:10-cr-00296-TJC-JBT-1

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

RODERICK RANDOLPH LESTER,

                                                        Defendant-Appellant.

                        __________________________

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

                                (June 11, 2012)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Roderick Lester appeals his conviction for being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
challenges the district court’s denial of his motion to suppress the gun and

ammunition found on his person, arguing that: (1) although the initial detention was

justified at its inception, it went too far and matured into arrest before there was

probable cause; and (2) the district court erred in its alternate ruling that the search

was justified as a search incident to arrest. After careful review, we affirm.

      We review a district court’s denial of a motion to suppress under a mixed

standard, reviewing the district court’s findings of fact for clear error, and its

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

, 1262 (11th Cir. 2000). “Further, when considering a ruling on a motion to

suppress, all facts are construed in the light most favorable to the prevailing party

below.” 

deference to the factfinder, in this case, the district

court, in reaching credibility determinations with respect to witness testimony.”

United States v. McPhee, 

, 1275 (11th Cir. 2003) (quotation omitted);

see United States v. Floyd, 

, 1348 (11th Cir. 2002) (holding that we

also credit implicit credibility determinations made by a district court). We may

affirm the denial of a motion to suppress on any ground supported by the record.

United States v. Caraballo, 

, 1222 (11th Cir. 2010).

      “[A]n officer may conduct a brief, warrantless, investigatory stop of an

individual when the officer has a reasonable, articulable suspicion that criminal

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activity is afoot, without violating the Fourth Amendment.” United States v. Hunter,

, 1305-06 (11th Cir. 2002). The reasonable suspicion of criminal

activity “may be formed by observing exclusively legal activity, even if such activity

is seemingly innocuous to the ordinary citizen.” United States v. Lindsey, 

, 1290 (11th Cir. 2007) (citation and quotation omitted). Further, we examine

“the totality of the circumstances to determine whether the police had a particularized

and objective basis for suspecting legal wrongdoing.” 

police may “draw on their own experience and specialized training to make inferences

from and deductions about the cumulative information available to them.” 

omitted).

      “An investigatory stop must be justified at its inception, and its scope must be

reasonably related to the circumstances that permitted the intrusion at the outset.”

United States v. Kapperman, 

, 792 (11th Cir. 1985) (quotation omitted).

An investigatory stop that exceeds its scope may mature into an arrest for which

probable cause is required. United States v. Acosta, 

, 1145-46 (11th

Cir. 2004). The difference, “is one of extent, with the line of demarcation resulting

from the weighing of a ‘limited violation of individual privacy involved against the

opposing interest in crime prevention and detection and in the police officer’s

safety.’” 

Dunaway v. New York, 

, 209 (1979)). To

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more objectively draw the line between a Terry stop and an arrest, we use these four

non-exclusive factors: “the law enforcement purposes served by the detention, the

diligence with which the police pursue the investigation, the scope and intrusiveness

of the detention, and the duration of the detention.” 

Lester concedes that the initial stop was justified at its inception, and the

record reflects that the district court did not err in finding that the stop did not mature

into an arrest until there was probable cause. As the record shows, the officer first

encountered Lester while patrolling in a violent area, where the officer had previously

made arrests for gun violence, drug activity, and gang activity. The officer saw

Lester, walking in the middle of the street even though there were sidewalks

available, and carrying something over his shoulder, which the officer at first thought

was a firearm. When the officer was approximately two blocks away from Lester, he

turned on his high beams and saw that Lester was carrying a manufactured piece of

wood, which reminded the officer that he had heard a be-on-the-lookout call

(“BOLO”) over his radio regarding a robbery that had recently taken place nearby and

that the robbery had involved a black male suspect or suspects, one of whom was

armed with a bat.

       At that point, the officer approached in his car, then exited and instructed

Lester to place the wooden piece on the ground. The officer asked Lester what he

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was doing, and Lester responded that he was returning to his home around the corner

after buying a soda, but the officer knew that the convenience store Lester referred

to was half a mile away, Lester was not carrying a soda at the time, and Lester

appeared “very agitated.” The officer attempted to verify that Lester lived in the area,

but Lester did not have identification with him. Lester provided the officer with his

name and date of birth, and the officer confirmed Lester’s identity by comparison to

a database photograph and that he lived on that street. Lester’s arrest history

indicated that he was a convicted felon, and that he had been arrested for numerous

felonies, including burglary, homicide, and weapons violations. Upon seeing the

arrest history, and given the circumstances of the stop, the officer immediately called

for backup because he was concerned for his safety.

      Two additional officers arrived in about five minutes but no more than ten

minutes. The original officer explained the circumstances to the other officers while

Lester was seated on the car. All three of the officers approached Lester and began

questioning him. Lester was confrontational and agitated, and when one officer

asked Lester what was in his pockets, Lester got even more agitated. He raised his

fists, reared back, and told the officers that they didn’t have any right to search him,

even though none of the officers had mentioned searching him. It appeared that

Lester was either going to fight or run. At the moment Lester raised his fists, two of

                                           5
the officers grabbed his arms and told him to put them behind his back and relax.

Lester struggled with them for the better part of a minute before they were able to

handcuff him. Once the handcuffs were secure, Lester sighed deeply and told the

officers, without solicitation, that he had a gun in his pocket. The officers searched

Lester and found a loaded .380 caliber semi-automatic pistol in his front right pocket.

The officers then verified that Lester was, in fact, a convicted felon.

      Turning to our application of the four-factor Terry test, the first factor requires

a determination of whether the officer utilized “brief, minimally intrusive

investigation techniques appropriate under Terry.” 

the

initial stop was based on Lester’s walking down the middle of the street in violation

of state law, and his presence in a high-crime area late at night while carrying what

appeared to be a wooden weapon. The detaining officer was also mindful of a BOLO

concerning a recent nearby robbery at which a black male had carried a bat. Given

these circumstances, the fact that Lester was not carrying identification, and his

suspicious reason for being there (that he had walked to a distant convenience store

for a soda even though he was carrying no soda), the officer was entitled to briefly

detain Lester to investigate whether his behavior was innocent or involved criminal

activity. See United States v. Harris, 

, 1117 (11th Cir. 1991) (“Where




                                           6
. . . the initial stop was legal, the officer had the duty to investigate suspicious

circumstances that then came to his attention.” (quotation and brackets omitted)).

      As for the second factor, the officer immediately acted to verify Lester’s

identify and address, and to access Lester’s criminal history. Contrary to Lester’s

argument, merely learning that Lester was truthful about his name and residence was

not sufficient to allay the officer’s reasonable suspicion. He remained concerned with

Lester’s dubious claim that he had walked to get a soda and with the fact that Lester

appeared to be carrying a wooden weapon. Upon learning of Lester’s criminal

history, the officer reasonably let Lester wait outside the officer’s car for the five to

ten minutes it took for backup officers to arrive so that he could safely continue

questioning Lester. See United States v. Purcell, 

, 1278 (11th Cir.

2001) (“Many courts have recognized that knowledge of the criminal histories . . .

will often be relevant to [an officer’s] safety.”). Once other officers arrived, they

immediately questioned Lester about his suspicious conduct.

      Under the third factor, we ask “whether the scope and intrusiveness of the

detention exceeded the amount reasonably needed by police to ensure their personal

safety.” 

. Because officers may take reasonable steps to

ensure their safety so long as they possess an articulable and objectively reasonable

belief that the suspect is potentially dangerous, an investigatory stop does not ripen

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into an arrest simply because an officer handcuffs a suspect. See United States v.

Hastamorir, 

, 1557 (11th Cir. 1989). Here, it was not until the officer

deemed it necessary to check Lester’s information on the computer, because Lester

had no identification, that the officer asked him to sit on the officer’s car with his

hands in view. This was not overly intrusive and was reasonable to ensure the

officer’s safety. Lester was not handcuffed until after he had taken a threatening

posture, by raising his fists and rearing back, and appeared to the officers that Lester

was either going to fight or run. Lester’s conduct confirmed the officers’ suspicions

that he was potentially dangerous, and they were entitled to take reasonable steps to

ensure their safety. See 

the detention remained the same, and

according to the district court’s fact finding, the officers only questioned Lester until

he, unsolicited, said that he had a gun in his pocket.

      As for the last factor, we consider “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 defendant.” 

. As

discussed above, “each investigatory act logically led to the next act which was done

without delay.” 

is no rigid time limitation regarding the

permissible duration of a Terry stop. 

. In fact, we have held

that a detention of approximately 75 minutes did not exceed that allowed by Terry.

                                           8
United States v. Gil, 

, 1350-51 (11th Cir. 2000). Here, the district court

found that the total duration of the detention was thirty to forty minutes, and the only

delay in the investigation was the five to ten minutes that it took for backup to arrive.

Under the circumstances, this wait was reasonable to ensure the officer’s safety. See

Michigan v. Long, 

, 1052 (1983) (“we have not required that officers

adopt alternate means to ensure their safety in order to avoid the intrusion involved

in a Terry encounter”). The brief amount of time actually spent questioning Lester

was also reasonable. See United States v. Street, 

, 1306 (11th Cir.

2006) (agents who stopped defendant to question him for a valid purpose could

pursue questioning “throughout the period leading up to the existence of probable

cause, which was established no more than an hour after the stop was made”).

Considering the totality of the circumstances, the scope of the detention did not

exceed that allowed under Terry. The district court made no clear error in its factual

determinations of the incident, and no error in applying the facts to the law governing

an investigatory detention.

      Moreover, the district court was also correct in its alternative holding that the

search was a lawful search incident to arrest, since by the time the officers handcuffed

Lester, he was subject to arrest for resisting. Under Florida law, when a defendant

resists detention during a Terry stop by struggling with the officer, the officer is

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justified in arresting the defendant for resisting an officer without violence. Fla. Stat.

§ 843.02 (2010); Jacobson v. State, 

, 1287 (Fla. 1985) (physically

restraining someone seeking to escape a legal Terry stop is the lawful execution of

a legal duty, and resistence violates § 843.02). Thus, when Lester raised his fists

toward the officers and then physically resisted them as they tried to restrain him, the

officers had probable cause to arrest him under § 843.02. The subsequent search and

discovery of the gun would have been valid as a search incident to a lawful arrest.

See United States v. Lyons, 

, 1253 (11th Cir. 2005).1

       AFFIRMED.




       1
         Finally, we reject Lester’s argument -- raised for the first time on appeal -- that the
search could not have been subsequent to arrest because the officers already had discovered the
gun by a “virtual frisk” before Lester resisted, when the officers asked Lester what was in his
pockets. Because Lester failed to assert this theory in the district court, we review the theory
only for plain error. United States v. Young, 

, 1305 (11th Cir. 2003). However,
Lester’s argument fails under any standard of review because the Supreme Court has “held
repeatedly that mere police questioning does not constitute a seizure.” Muehler v. Mena, 

, 101 (2005) (quotation omitted).

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