                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 6, 2005
                             No. 05-10376                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 03-20715-CR-JAL

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                  versus

BRIAN MACKEY,

                                                         Defendant-Appellant.


                       ________________________

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

                            (September 6, 2005)

Before ANDERSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Brian Mackey appeals his conviction for being a convicted felon in

possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). On

appeal, he argues that the district court erred by denying his motion to suppress.

For the reasons set forth more fully below, we affirm.

      A Grand Jury indicted Mackey for one count of being a convicted felon in

possession of a firearm and ammunition. Mackey initially pled not guilty, and

proceeded to file a motion to suppress evidence seized as the result of an allegedly

illegal detention and search. During a status conference, Mackey’s attorney

admitted that the issue would be one of credibility.

      The district court held an evidentiary hearing, and the government first

called Detective Garcia, one of the officers involved in Mackey’s arrest. Garcia

testified that, on April 24, 2003, while on patrol, he saw Mackey driving a Buick

that matched a BOLO description for a vehicle wanted for several robberies. He

also testified that he observed that the vehicle’s left brake light was not working.

Garcia radioed in that he was making a stop and stated that, while he often ran

“tags” of vehicles subjected to a traffic stop, he could not recall doing so when he

stopped Mackey’s vehicle. As soon as Garcia had stopped Mackey’s vehicle,

Detective De La Vega pulled his vehicle alongside. Garcia then testified that, as he

approached the driver’s side of Mackey’s stopped vehicle with his flashlight



                                           2
drawn, he noticed Mackey placing what appeared to be a chrome item between the

seats.

         At the same time, Detective De La Vega, who was also approaching the car,

shouted “55,” which Garcia testified is a police signal for a firearm or weapon, and

Garcia then ordered Mackey out of the vehicle, placed him in handcuffs, and patted

him down for weapons, finding nothing at the time. Garcia mirandized Mackey,

and Mackey then told Garcia that his nephew, who was a passenger in the car, had

nothing to do with the firearm and the reason why Mackey had the firearm was

because his brother had threatened to kill him. Once Mackey was arrested, he was

more thoroughly searched and a brown paper bag, containing seven .25 caliber

rounds of ammunition, was seized. While Garcia was speaking with Mackey,

Detective De La Vega removed the passenger and had him sit on the trunk of the

car. De La Vega also retrieved the firearm from inside the vehicle.

         On cross-examination, Garcia stated that running a VIN number was a

normal procedure, but it’s not a procedure done on every vehicle stop. He also

testified regarding standard police procedures for writing reports and indicated that

he prepared an “A Form,” which is essentially an affidavit for an arrest warrant.

Garcia also testified regarding police incident reports and the preparation of a

“State Attorney Case Summary Sheet,” which is part of a packet containing several



                                          3
police documents that is forwarded to the State Attorneys’ Office in order to help

determine whether a person will be prosecuted. Garcia testified that none of the

police-prepared documents indicated that (1) Mackey was stopped because there

was a BOLO; (2) there was a passenger in the vehicle; (3) a flashlight was used

when approaching the vehicle; or (4) Mackey’s tag was run through records,

revealing that it had the wrong license plate.

      Garcia was also questioned regarding an earlier deposition he gave, in which

he testified that Mackey was stopped for a minor traffic violation, but never

mentioned the BOLO. Garcia could not recall running Mackey’s tag on the night of

the stop. He also admitted that he should have written the BOLO down in his

reports, but failed to do so. However, Garcia’s deposition, the offense incident

report, and arrest complaint form (A Form) all indicated that Mackey was stopped

because of a non-working brake lamp or taillight.

      Next, the government called Detective De La Vega, who assisted Garcia on

the night of Mackey’s arrest. De La Vega testified that he responded to Garcia’s

radio communication indicating that Garcia was performing a stop and, because he

was in the area, arrived on the scene within seconds. De La Vega approached

Mackey’s vehicle carrying a flashlight from the passenger’s side while Garcia

approached from the driver’s side. He saw in the passenger’s seat a black male



                                           4
who was later identified as Mackey’s nephew and, as he looked into the car, saw

Mackey place a chrome object, which De La Vega believed to be a firearm,

between the driver’s and passenger’s seat. De La Vega signaled to Garcia the

police code for gun, “55,” and removed the passenger from the car, patting him

down for weapons. De La Vega, after being sure that Mackey and the passenger

were secured at the rear of the vehicle, went into the vehicle through the passenger

door and removed a firearm loaded with .25 caliber bullets.

      On cross-examination, De La Vega stated that, as he understood it, the

reason Mackey was stopped was for a traffic infraction. De La Vega stated that the

tag on Mackey’s car was run and, when showed his deposition testimony, admitted

that the tag was run before Mackey’s car had been stopped. He further stated that

he filled out the property receipt for the seized firearm and, on it, marked that the

firearm and the ammunition had been impounded at 9:05 p.m. on April 24, 2003.

De La Vega could not recall whether he told Mackey or the passenger that they

were stopped because of a taillight being out, nor did he recall whether anyone

talked about the wrong tag being on the vehicle. He also could not recall whether

his hand gun was drawn when he approached the vehicle, but stated that he had

done so during previous stops for minor traffic infractions. Finally, with respect to

calling in tags, De La Vega stated that it was his practice to call in tags, that tags



                                            5
are commonly called in wrong and, when that happens, the tags are called in again.

      Mackey’s first witness was Teth Milligan, his nephew, who was the

passenger in the car on the night of Mackey’s arrest. Milligan testified that, after

they were pulled over, the officers approached with their guns drawn and asked

him and Mackey to exit the car, at which point Mackey asked the officers why he

had been stopped. The officers said that the tag didn’t match the car, it related to a

trailer. Milligan was patted down, his belongings removed from his pocket and

returned to him. After Mackey was taken into custody, the officers had Milligan

sign a waiver and he drove the car home.

      On cross-examination, Milligan testified that he did not know whether or not

the brake lights were working. Milligan further testified that he overheard the

officer’s statement that Mackey had been stopped because the tag on his car

matched a trailer while he was having a conversation with the other officer.

      Mackey then proffered, with the government’s consent, three exhibits

showing the following. At Mackey’s request, a Rebecca Weir conducted an off-

line search of “TAR” reports indicating that, at 8:49 p.m., a tag T02DET was run

by Lisa Nesbitt from the Metro-Dade Police Department from a particular

computer. The response she received indicated that the tag belonged to a

homemade trailer. At 8:54 p.m., Nesbitt used the same computer to run tag



                                           6
T02QET and the VIN number for the car Mackey was driving, and T02QET was

the correct tag number for that VIN number, which indicated the car belonged to

Lloyd Mackey. Finally, at 9:05 p.m., Nesbitt ran the serial number of the firearm

seized from Mackey’s car to see if the firearm had been reported stolen or used in a

crime, and the report was negative.

      As a rebuttal witness, the government called Detective Errol Gardner of the

Miami Dade Police Department, who conducted a telephonic interview of Milligan

while assigned to the Department of Alcohol Tobacco and Firearms (“ATF”).

Gardner discussed the events of April 24, 2003, with Milligan, and Milligan

indicated to Gardner that, at the time Mackey’s vehicle was stopped, officers

jumped out and made reference to the taillight. Gardner had not mentioned the

taillights to Milligan before Milligan had made his statement. The defense

attempted to imply that Gardner did not attempt to contact Milligan until after there

had been allegations made that the officers might have committed perjury

regarding their reasons for stopping Mackey’s vehicle, but Gardner denied that it

was true. Finally, Gardner testified that he asked Milligan to meet with him in

person, but Milligan declined to do so.

      No further evidence was presented and, on the basis of the foregoing

testimony, the government argued that there was simply no basis to challenge the



                                          7
credibility of Garcia’s statement that he stopped Mackey’s vehicle for having a

taillight out, a permissible basis for a traffic stop. After the permissible stop,

Garcia and De La Vega observed Mackey tucking what appeared to be a gun

between the driver’s and passenger’s seats. The government argued that there was

no dispute that the officers had the ability to see into the car and see the weapon.

      Addressing the defense’s evidence, the government first argued that

Milligan’s testimony was not entirely credible because (1) he had no evidence to

refute the taillight was out; (2) he is biased toward his uncle, Mackey, and biased

against the police; and (3) despite the defense’s questions regarding Gardner’s

diligence in pursuing Milligan, Gardner stated that Milligan heard the police say

that Mackey was stopped because of a taillight, contradicting Mackey’s testimony

during the hearing that he never mentioned the taillight to anyone. As to the

“TAR” reports, the government first argued that, if the police had run the wrong

tag, and believed that Mackey’s vehicle had a tag violation, that would have been a

permissible reason for the stop. It went on to argue, however, that Garcia did not

recall running the tag, but that if he had, there was testimony that incorrect tag

numbers are commonly given and, in any event, there was still no evidence to

refute that the vehicle was stopped for anything other than a taillight violation,

making the TAR reports irrelevant.



                                            8
      Mackey, in response, argued that the evidence showed that, only after the

police discovered that the tags were correct, was the serial number of the firearm

run. Mackey then argued that the BOLO description was not listed on any of the

relevant police reports and, more importantly, Milligan was not listed as a

passenger or witness on any of the police reports either. Mackey argued that the

police deliberately left Milligan off the reports because they didn’t want a witness

who would come forward and testify that the reason Mackey was stopped was

because the tag on his vehicle was run incorrectly. He also pointed out that the

officers approaching the car with their guns drawn was more consistent with a

belief that the vehicle had the wrong tags than with a broken taillight. With respect

to the weapon, Mackey argued that it was unbelievable that Mackey would wait

until the officers were next to his window before attempting to conceal it. Mackey

further argued that the timing of the TAR reports, combined with the property

receipt, clearly indicated that the firearm was not impounded and discovered until

after the tag and VIN had been run correctly. Finally, Mackey argued that the TAR

reports confirmed Milligan’s testimony because, absent the officers stating that

Mackey had been pulled over for having the wrong tag, there was no way for

Milligan to have known that, in fact, the tag had been run at all, let alone

incorrectly.



                                           9
      In rebuttal, the government argued that Milligan’s testimony demonstrated

that his stories “flip-flopped” and lied openly about major issues in the case. It

also argued that Mackey’s attempt to use the TARs as evidence of a police

conspiracy to lie and cover up improper tag was unsupported and that the

uncontroverted evidence still showed that the reason for the stop was, in fact, the

broken taillight. Finally, it argued that, even under Mackey’s theory of events, on

which the government did not rely, the stop and the seizure were legal because the

officers didn’t know they had the wrong tag until Mackey was out of the car, which

was after the gun had been seen anyway.

      The district court orally denied Mackey’s motion to dismiss, finding that the

credible testimony established probable cause to stop Mackey’s vehicle for a traffic

violation. It found the officers’ testimony with regard to the brake lamp being out

consistent and further found that the TAR reports did not affect the finding of

probable cause for the initial stop. Once the vehicle had been legally stopped, the

court found that the officers discovered the firearm in plain view, rendering the

seizure legal as well. The court had credibility issues with Milligan’s testimony,

and did not believe it inconsistent with the officers having probable cause to make

a stop on the basis of traffic violation separate from the issue of the tag. The court

later issued a written decision consistent with its oral decision. After the motion



                                          10
had been denied, Mackey signed a conditional plea of guilty, reserving his right to

appeal the court’s ruling on the motion to suppress. The same plea was entered in

open court. Mackey was adjudged guilty, sentenced to 180 months’ imprisonment,

and ordered to forfeit the firearm and ammunition.

      On appeal, Mackey argues that the district court erred by denying his motion

to suppress because the TAR reports, combined with the veracity of Milligan’s

testimony that the police stopped Mackey because the tag on the vehicle did not

match the trailer to which it was supposed to be assigned, prove that the police

seized the firearm after the probable cause for the traffic stop had evaporated and,

thus, the seizure was outside the scope of the original stop and without probable

cause. Specifically, Mackey argues that Milligan’s testimony was credible and that

the officers’ testimony, regarding the taillight and Mackey’s attempted

concealment of the firearm, is not credible. Thus, he argues that, at the time police

became aware that the tag on the vehicle was correct, any continuation of the stop

was without probable cause or reasonable suspicion and, therefore, the seizure of

the firearm after 8:54 p.m. was violative of the Fourth Amendment. Finally,

Mackey argues that the seizure was also not made incident to arrest because he was

not placed under arrest until after the firearm had been found.

      “A district court’s ruling on a motion to suppress presents a mixed question



                                          11
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We accept the district court’s findings of fact to be true, unless shown to be clearly

erroneous, and review the district court’s application of the law to those facts

de novo. Id. These factual findings include the district court’s credibility

determinations, to which we “accord considerable deference.” United States. v.

Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (citation and internal quotation

marks omitted). In fact, we have stated that “we should defer to the . . . judge’s

[credibility] determinations unless his understanding of the facts appears to be

“unbelievable.” Id. (citation omitted). “[A]ll facts are construed in the light most

favorable to the prevailing party below.” United States v. Bervaldi, 226 F.3d 1256,

1262 (11th Cir. 2000). “The individual challenging the search has the burdens of

proof and persuasion.” United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir.

1998).

         The Fourth Amendment protects individuals from “unreasonable searches

and seizures” by government officials, and its protections extend to “brief

investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,

273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). For brief investigatory stops,

the Fourth Amendment is satisfied if the police officer has a “reasonable

suspicion” to believe that criminal activity “may be afoot.” Id. (citing Terry v.



                                          12
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). When determining

whether reasonable suspicion exists, courts must consider the totality of the

circumstances to determine whether the police officer had a “particularized and

objective basis” for suspected legal wrongdoing. Arvizu, 534 U.S. at 273,

122 S.Ct. at 750. A decision to stop a vehicle is reasonable under the Fourth

Amendment where an officer has probable cause to believe that a traffic violation

occurred. United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999).

      Secondly, “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.” United States v. Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003) (quotation

and citation omitted). The stop must be of limited duration and may not last “any

longer than necessary to process the traffic violation unless there is articulable

suspicion of other illegal activity.” United States v. Purcell, 236 F.3d 1274, 1277

(11th Cir. 2001). The duration of the traffic stop “must be limited to the time

necessary to effectuate the purpose of the stop.” Id. However, where the initial

traffic stop is legal, the officer has “the duty to investigate suspicious

circumstances that then [come] to his attention.” United States v. Harris, 928 F.2d

1113, 1117 (11th Cir. 1991).

      Here, Garcia testified that the reason he stopped Mackey’s vehicle was



                                            13
because it had a brake lamp/taillight out. This testimony was consistent with

testimony given at Garcia’s deposition as well as the “A Form” and the incident

report. Furthermore, while the TAR reports indicate that the tag was called in,

Garcia’s testimony was that he could not recall whether he had called in the tag,

not that he didn’t call in the tag. There was no showing made that the taillight of

Mackey’s vehicle was operational on April 24, 2003, and, therefore, no evidence

that Garcia’s testimony is not entitled to deference. The district court found the

testimony credible and, therefore, giving the deference that we are required to give,

there is no evidence that Garcia’s testimony is unbelievable. Thus, taking the facts

in a light most favorable to the government, under Florida law, Garcia had

probable cause to believe a traffic violation occurred and the stop was legal.1

       Moreover, we could also assume that the reason Garcia stopped Mackey is

that he called in the wrong tag and mistakenly believed that Mackey’s vehicle

reflected the tag of a trailer. There was testimony from De La Vega that mistakes

calling in tags are common and, in this case, Garcia would have been off by one

letter, having called in T02DET instead of T02QET. When he called in the tag and



       1
          Florida law provides that every motor vehicle is required to have two or more functional
“stop lamps.” Fla. Stat. Ann. § 316.222. It is a violation of Florida law to operate a vehicle that
is not equipped with two or more functional stop lamps. Id. § 316.215. Florida permits police
officers to stop vehicles upon a reasonable belief that the vehicle’s equipment is not in proper
repair. Id. § 316.215.

                                                14
it was reported that T02DET belonged to a trailer, not Mackey’s Buick, Garcia had

probable cause to conduct a traffic stop and investigate. The unrefuted testimony

from the point Mackey was stopped was that Garcia and De La Vega, with or

without guns drawn, approached the back of the car with their flashlights on and

saw what they believed to be a chrome weapon being concealed between the

driver’s seat and the passenger’s seat. It was not until Mackey was outside the

vehicle that the officers had any notice that they had called in the wrong tag. By

that point, even if the original reason for the stop had been rendered moot because

the tag was correct, they had reasonable suspicion of other possible illegal activity

because of the weapon and were justified to investigate further.2 See, e.g. Purcell,

236 F.3d at 1277-78 (“The traffic stop may not last ‘any longer than necessary to

process the traffic violation’ unless there is articulable suspicion of other illegal

activity.”).

       Accordingly, Officer Garcia’s testimony was not incredible and we must

afford it deference. Taking the facts in a light most favorable to the government,

Garcia had probable cause of a traffic violation and, therefore, the stop was legal

and did not violate the Fourth Amendment. Even giving Mackey the benefit of the

doubt, however, the traffic stop was still legal because the improper tag, followed


       2
        Carrying a concealed firearm without a license is a violation of Florida law. Fla. Stat.
Ann. § 790.01.

                                                15
by the officers’ suspicion of a weapon in the car, provided an articulable basis for

prolonging the stop even after the officers learned that the tag and VIN were

properly matched.

      Finally, with respect to the firearm found in the car, both Garcia and De La

Vega testified that, as they approached Mackey’s vehicle with their flashlights,

they saw what appeared to be a chrome firearm. De La Vega signaled “55,” the

police signal for a firearm to Garcia, and both officers testified consistently on both

of these points. After a traffic stop has occurred, an officer may seize any

contraband, including weapons, in plain view. Purcell, 236 F.3d at 1277. While

Mackey argues that it doesn’t make sense that he would wait until the officers were

upon him before trying to conceal the weapon, it was his burden of proof and

persuasion and he offered no evidence refuting the officers’ otherwise credible

testimony. Taken in a light most favorable to the government, and finding no

reason to conclude that the officers’ testimony was inherently unbelievable, the

weapon was found in plain view and, therefore, the officers were authorized to

seize the weapon under the “plain view” doctrine. Id. Furthermore, having

suspected that a weapon was in the vehicle, the officers were justified in

performing a protective sweep and, in fact, were required to investigate the

suspicious circumstances that had come to their attention. Id.; Harris, 928 F.2d at



                                          16
1117.

        Thus, we conclude that the district court’s did not commit reversible error

when it denied Mackey’s motion to suppress because there was probable cause to

perform a traffic stop and the weapon was in plain view. We, therefore, affirm.

        AFFIRMED.




                                           17
