                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 05-11459                   September 23, 2005
                          Non-Argument Calendar             THOMAS K. KAHN
                        ________________________                CLERK


                 D. C. Docket No. 04-00103-CR-J-32-MMH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MARIO JEROME BENTLEY,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                          (September 23, 2005)


Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Mario Jerome Bentley appeals his conviction and 180-month
sentence for being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1), 924(e). On appeal, Bentley argues that the district court erred by

denying his motion to suppress evidence, i.e., a firearm found on his person.

Bentley claims that the magistrate judge’s credibility determinations were

erroneous. He also contends that the arresting officer exceeded the duration and

the scope of a constitutional traffic stop. Bentley claims that he did not consent to

the search of his person, and even if he gave equivocal and ambiguous consent, it

was later withdrawn. Bentley argues that Officer Edwards did not have a

reasonable suspicion that a crime had been committed or was about to be

committed when he ended the traffic stop. Finally, Bentley asserts that his drug

offenses committed on October 5, 1999, and October 23, 1999, constituted one,

and not two, offenses, and therefore, he did not qualify for a mandatory minimum

15-year sentence under 18 U.S.C. § 924(e).

                                         I.

      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 law to those facts de novo. United States v. Gil, 204 F.3d 1347,

1350 (11th Cir. 2000). “When considering a ruling on a motion to suppress, all

facts are construed in a light most favorable to the successful party.” United States



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v. Behety, 32 F.3d 503, 510 (11th Cir. 1994).

      A. Credibility findings

      “Credibility determinations are typically the province of the fact finder

because the fact finder personally observes the testimony and is thus in a better

position than a reviewing court to assess the credibility of witnesses.” United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We have held that a

“trial judge's choice of whom to believe is conclusive on the appellate court unless

the judge credits exceedingly improbable testimony.” Id. (internal citations and

punctuation omitted) (emphasis in the original).

      After reviewing the record, we conclude that the magistrate judge did not err

by generally crediting the testimony of Sergeant Daniel Janson and the arresting

officer, Matthew Edwards, over the testimony of Tyrone Griffin, the driver of the

car in which Bentley was a passenger. The record reveals that Edwards’s and

Janson’s testimony conflicted as to the timing of certain events, such as when the

initial traffic stop occurred, when the citations were issued, and when the sergeant

arrived at the scene. However, these inconsistencies were minor and the specific

times at which the events occurred, except for the duration of the traffic stop, were

not relevant. With regard to the duration of the traffic stop, all three witnesses

were generally consistent. Griffin’s testimony was in conflict with Edwards’s and



                                           3
Janson’s testimony in some material aspects: (1) the extent of the conversation

Edwards had with Bentley upon seeing him in the passenger seat, i.e., Bentley told

Edwards that he had been recently released from prison; (2) whether Bentley was

read his rights; and (3) whether Edwards asked for consent to the search and

whether Bentley agreed to the search. More importantly, Griffin’s testimony was

inconsistent and evasive. First, Griffin changed his testimony with regard to

whether he told Edwards that Bentley may have put something illegal in the car

and that Bentley was a drug dealer. Second, Griffin testified that his memory of

the incident was “messed up” and “sometimes good sometimes bad,” and that he

was stressed. Third, Griffin testified that he had been threatened by Bentley’s

friend regarding his testimony but was not able to provide any useful description of

the man. Thus, the record supports the magistrate judge’s credibility findings.

      B. Continued Detention and Consent to the Search

       An officer's investigation of a traffic stop must be "reasonably related in

scope to the circumstances which justified the interference in the first place."

Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968). In

addition, the traffic stop must be of a limited duration and “may not last any

longer than necessary to process the traffic violation.” United States v. Boyce, 351

F.3d 1102, 1106 (11th Cir. 2003) (internal quotation and citation omitted).



                                           4
However, an officer may continue the detention of the occupants of the vehicle

after the citations have been issued when the encounter has become consensual.

Id. at 1106 n.3. An encounter between law enforcement and an individual is

considered consensual when there is no coercion and the liberty of the citizen is

not restrained by a show of authority or physical force. See Florida v. Bostick,

501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991). Merely

asking an individual questions after the conclusion of a traffic stop does not

amount to a seizure. See id. “The crucial inquiry in determining whether a person

has been seized within the meaning of the fourth amendment is whether,

considering all the circumstances, a reasonable person would have believed that

he was not free to leave if he failed to respond to the questions.” United States v.

Alvarez-Sanchez, 774 F.2d 1036, 1040 (11th Cir. 1985) (internal quotation and

citation omitted).

       “‘[V]oluntariness is a question of fact to be determined from all the

circumstances’ when evaluating the validity of a consent to search.” United States

v. Garcia, 890 F.2d 355, 358 (11th Cir. 1989) (citations omitted). “Thus, because

in the ordinary case a finding of voluntariness is based on credibility choices, we

will not overturn the trial judge’s finding that defendant’s consent was voluntary,

unless it is clearly erroneous.” Id. at 359.



                                           5
      “The Fourth Amendment of the United States Constitution protects

individuals from unreasonable searches and seizures by law enforcement

authorities of the United States government.” Id. at 360. “It is well settled under

the Fourth and Fourteenth Amendments that a search conducted without a warrant

issued upon probable cause is per se unreasonable . . . subject only to a few

specifically established and well-delineated exceptions.” Id. (internal quotations

omitted). “One of the well-established exceptions to the probable cause and

warrant requirements is a search which is conducted pursuant to voluntary

consent.” Id. “The government bears the burden of proving the voluntariness of

the consent.” United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984).

      “In order for consent to a search to be deemed voluntary, it must be the

product of an essentially free and unconstrained choice.” Garcia, 890 F.2d at 360.

“[I]n determining whether [a defendant’s] consent was voluntary, we must

scrutinize the facts, and strike a balance between [the defendant’s] right to be free

from coercive conduct and the legitimate need of the government to conduct

lawful searches.” Id.

      “Relevant factors in determining voluntariness, none of which is
      dispositive, include voluntariness of the defendant’s custodial status,
      the presence of coercive police procedure, the extent and level of the
      defendant’s cooperation with police, the defendant’s awareness of his
      right to refuse to consent to the search, the defendant’s education and
      intelligence, and, significantly, the defendant’s belief that no

                                          6
      incriminating evidence will be found.”

Chemaly, 741 F.2d at 1352. However, “[w]hile knowledge of the right to refuse

consent is one factor to be taken into account, the government need not establish

such knowledge as the sine qua non of an effective consent.” Schneckloth v.

Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973).

Similarly, the Fourth Amendment does not always require law enforcement

officers to “inform detainees that they are free to go before a consent to search

may be deemed voluntary.” Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417,

421, 136 L. Ed. 2d 347 (1996).

      First, crediting the officers’ version of the facts (see section A), the record

demonstrates that the continued detention of Bentley was a result of a consensual

conversation. At the time Officer Edwards issued the citations to Griffin and

asked him whether he had anything illegal in his car, Bentley initiated a

conversation with Sergeant Janson and stated that he was working with vice or

narcotics. However, there is no indication in the record that when Edwards gave

Griffin the citations they were not free to leave. When Edwards approached the

passenger side of the vehicle and asked Bentley to step out, Bentley voluntarily

complied. Then, Edwards asked Bentley if he had any weapons or drugs on him,

and Bentley stated that he did not. The record indicates that Edwards did not



                                          7
draw his service weapon, nor made any threats or promises to Bentley at any time,

nor exerted authority over him. Thus, up to this point, the encounter between the

officers and Bentley was consensual.

      Second, the record reveals that Bentley unambiguously consented to the

search of his person. To Edwards’s question whether he could search him,

Bentley gave an answer “along the lines of go ahead.” Even though Edwards did

not remember the specific language, Sergeant Janson also testified that they

obtained consent to search Bentley. Moreover, there is nothing in the record

indicating that Officer Edwards suggested that Bentley had no choice but to

consent to the search, used any coercive procedures, or made threats or promises

when asking for Bentley’s consent. On the other hand, the officers did not advise

Bentley that he was free to leave or had a right to refuse the search. However,

Bentley’s knowledge of the right to refuse consent is only one factor to be taken

into account; the government need not establish such knowledge as the sine qua

non of an effective consent. Thus, the government was not required to prove that

the suspect was aware of the right to refuse to consent. Similarly, the Fourth

Amendment does not always require law enforcement officers to inform detainees

that they are free to leave before voluntary consent to search may be deemed

established. See Robinette, 519 U.S. at 40, 117 S. Ct. at 421. Moreover, the



                                         8
record indicates that Bentley had numerous encounters with law enforcement and

on many occasions consented to pat-down searches. These facts tend to show that

Bentley was familiar with the criminal justice system and most likely was aware

of his right to refuse consent to the search. However, the record shows that

Bentley knew that Edwards would find a gun if he conducted a pat-down search,

and Bentley tried to block Edwards’s hand reaching towards his waistband.

Griffin also testified that Bentley asked him to pull over into a dark alley so he

could run away. Even though this factor militates against the finding of voluntary

consent to the search, it is not dispositive, and the totality of the circumstances

tend to show that Bentley’s consent to the search was voluntary.

      C. Reasonable Suspicion

      An officer may continue to detain a vehicle’s occupants after a traffic stop

has concluded if the officer has “articulable suspicion of other illegal activity.”

Boyce, 351 F.3d at 1106 (internal citation and quotation omitted). Reasonable

suspicion is “considerably less than proof of wrongdoing by a preponderance of

the evidence” and less than probable cause, which is “‘a fair probability that

contraband or evidence of a crime will be found.’” United States v. Sokolow, 490

U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (citation omitted). When

determining whether reasonable suspicion exists, the courts must review the



                                           9
“totality of the circumstances” of each case to ascertain whether the detaining

officer had a “particularized and objective basis” for suspecting legal wrongdoing.

United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740

(2002) (citation omitted). In addition, “a reviewing court must give due weight to

the officer’s experience” when examining the totality of the circumstances.

United States v. Briggman, 931 F.2d 705, 709 (11th Cir. 1991). “None of the

suspect’s actions, [however], need be criminal on their face.” United States v.

Lee, 68 F.3d 1267, 1271 (11th Cir. 1995). The rule is not concerned with “hard

certainties, but with probabilities” and, thus, law enforcement officials may rely

on “common sense conclusions.” United States v. Cortez, 449 U.S. 411, 418, 101

S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981).

      A defendant standing at night with his co-defendants, within ten feet of a

parked car, surrounded by largely abandoned buildings, in an area notorious for

violent crime and drug trafficking could be factors taken into consideration under

the totality of the circumstances test, although not sufficient in themselves. See

United States v. Gordon, 231 F.3d 750, 755-56 (11th Cir. 2000). Criminal history

alone is insufficient to give rise to the necessary reasonable suspicion. See United

States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). “[N]ervous, evasive behavior

is a pertinent factor in determining reasonable suspicion.” See Gordon, 231 F.3d



                                          10
at 756; but see Brent v. Ashley, 247 F.3d 1294, 1304 (11th Cir. 2001) (noting that

nervousness alone cannot give rise to reasonable suspicion) (emphasis added).

      An officer who has a reasonable suspicion that an individual is engaged in

illegal activity and is armed with a concealed weapon is justified in conducting a

limited search for weapons. United States v. Hunter, 291 F.3d 1302, 1307 (11th

Cir. 2002).

      “An officer may conduct a frisk or pat down of an individual in order
      to conduct a limited search for weapons “where he has reason to
      believe that he is dealing with an armed and dangerous individual,
      regardless of whether he has probable cause to arrest the individual
      for a crime. The officer need not be absolutely certain that the
      individual is armed; the issue is whether a reasonably prudent man in
      the circumstances would be warranted in the belief that his safety or
      that of others was in danger.”

Terry, 392 U.S. at 27, 88 S. Ct at 1883.

      After reviewing the record, we conclude that the district court did not err by

concluding that Officer Edwards had reasonable suspicion to seize and conduct a

frisk search of Bentley. As Edwards continued searching Bentley after obtaining

consent, Bentley suddenly moved his right hand towards his waistband. Edwards

perceived this movement as aggressive and seized Bentley by grabbing and

holding his hand behind his back. The record reveals that at that time Edwards

knew the following information. First, the traffic stop occurred at approximately

3:45 a.m. in an area that had pockets of high drug activity, where Edwards had


                                           11
previously made numerous drug arrests. Second, Bentley had an extensive

criminal history and was recently released from prison after serving a sentence for

selling drugs. Third, Bentley appeared to be very nervous and his behavior was

very different than his usual behavior during these type of encounters. Fourth,

Bentley had consented to many previous pat down searches. Fifth, Edwards had

previously found Bentley twice in the vicinity of drugs. Sixth, Griffin told

Edwards that Bentley was a drug dealer than that he might have put something

illegal in the car, even though the car search did not reveal any contraband.

Seventh, despite consenting to the search, Bentley reached to his waistband so

Edwards could not reach it, Edwards believed that Bentley’s hand movement was

an aggressive move jeopardizing his safety, and that Bentley was attempting to

hide something that could hurt him. Finally, Edwards knew that drug dealers

sometimes carried guns and that people in the area were carrying weapons in order

to protect themselves from a specific individual, Lockhart. These facts were

objective and constituted more than a hunch of criminal activity. The totality of

the circumstances reveals that Edwards had a reasonable suspicion that Bentley

was dangerous and was involved in criminal activity, so the pat-down search was

justified.

                                       II.



                                         12
      Finally, Bentley contends that the district court erred in finding that two of

the three crimes that formed the requisite for a mandatory 15-year sentence were

separate offenses within the meaning of 18 U.S.C. § 924(e). Title 18 U.S.C.

§ 924(e) provides mandatory penalties, i.e., at least 15 years of imprisonment, for

any person convicted under 18 U.S.C. § 922(g), who has “three previous

convictions . . . for . . . a serious drug offense . . . committed on occasions

different from one another.” See 18 U.S.C. § 924(e)(1).

      We review de novo the district court’s determination of whether two crimes

were “committed on occasions different from one another” for the purposes of 18

U.S.C. § 924(e). United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000).

      So long as predicate crimes are successive rather than simultaneous, they

constitute separate criminal episodes for purposes of 18 U.S.C. § 924(e). See

United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998). Successive crimes are

“separated by a meaningful opportunity to desist activity before committing the

second offense.” See Lee, 208 F.3d at 1307 (internal quotation omitted). The fact

that offenses are consolidated for conviction and sentencing, however, does not

render them the same offense for purposes of 18 U.S.C. § 924(e). See United

States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995).

      We conclude from the record that the district court did not err by finding



                                           13
that Bentley committed two separate drug offenses for purposes of 18 U.S.C. §

924(e). Bentley’s offenses were committed 18 days apart, thus, Bentley had the

time to desist his criminal activity. Second, the fact that Bentley’s offenses were

consolidated for conviction and sentencing did not render them the same offense

for purposes of 18 U.S.C. § 924(e). For the foregoing reasons, we affirm

Bentley’s conviction and sentence.

      AFFIRMED.




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