                                                    [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           AUG 14, 2006
                           No. 05-14728                  THOMAS K. KAHN
                       Non-Argument Calendar                 CLERK
                     ________________________

                D. C. Docket No. 04-80086-CR-DTKH

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

GLENN K. JOHNSON,
TYRONE JOHNSON, JR.,



                                                      Defendants-Appellants,

TYRONE JOHNSON, SR.,

                                                                 Defendant.

                     ________________________

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

                           (August 14, 2006)
Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

       Appellants Glenn K. Johnson (“Glenn”) and Tyrone Johnson, Jr. (“Tyrone”)

appeal their convictions for attempted armed bank robbery in violation of 18

U.S.C. § 2113(a), (d). Glenn also appeals his convictions for brandishing a firearm

during and in relation to a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) and conspiracy to commit armed bank robbery in violation of 18

U.S.C. § 371.

       On appeal, Glenn argues that the district court erred in denying his motion

for severance and in admitting Tyrone’s jailhouse confession into evidence, in

violation of his Sixth Amendment right to confrontation. Glenn also argues that

the district court erred in denying his motion to suppress evidence, asserting that

the evidence underlying his conviction was obtained as the result of an illegal

traffic stop and search. As to Tyrone’s arguments on appeal, he contends that the

district court plainly erred in denying his motion to suppress evidence because his

detention following an investigatory traffic stop constituted a de facto arrest

without probable cause. Tyrone further argues that the district court erroneously

instructed the jury that escape is a part of the crime of armed bank robbery.1


       1
       To the extent Tyrone also argues that the district court erred in denying his motion for a
judgment of acquittal, we reject that argument without further discussion.

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      For the reasons that follow, we affirm.

           I. Glenn’s argument concerning his motion for severance

      We review a district court’s denial of a motion for severance for abuse of

discretion. United States v. Taylor, 186 F.3d 1332, 1335 (11th Cir. 1999). “To

justify severance, the defendant must demonstrate that a joint trial will result in

specific and compelling prejudice to the conduct of his defense.” United States v.

Cobb, 185 F.3d 1193, 1197 (11th Cir. 1999) (quotation omitted).

      Because the record demonstrates that Tyrone’s confession did not inculpate

Glenn, and Glenn failed to otherwise establish that he was prejudiced by a joint

trial with his codefendants, we conclude that the district court did not abuse its

discretion in denying Glenn’s motion for severance.

        II. Glenn’s argument concerning Tyrone’s jailhouse confession

      We review questions of constitutional law de novo. United States v. Brown,

364 F.3d 1266, 1268 (11th Cir. 2004). Determinations of the admissibility of

evidence are reviewed for abuse of discretion. United States v. Miles, 290 F.3d

1341, 1351 (11th Cir. 2002). The Confrontation Clause of the Sixth Amendment

provides a defendant in a criminal trial the right “to be confronted with the

witnesses against him” and to cross-examine them. U.S. Const. amend. VI;

Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 1706-07, 95 L. Ed. 2d



                                           3
176 (1987).

      In Crawford v. Washington, the Supreme Court stated that the Confrontation

Clause applies not solely to in-court statements, but also to out-of-court hearsay

statements, noting, however, that not all hearsay statements implicated the Sixth

Amendment’s core concerns. Crawford, 541 U.S. 36, 50-51, 124 S. Ct. 1354,

1364, 158 L. Ed. 2d 177 (2004). The Court held that prior testimonial statements

may be admitted only if the declarant is unavailable and the defendant had an

opportunity to cross-examine the declarant. Id. at 68, 124 S. Ct. at 1374. Recently,

in Davis v. Washington, ___ U.S. ___, ___, 126 S. Ct. 2266, 2273-74 (2006), the

Supreme Court held generally that statements are testimonial where the “primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.”

      The record demonstrates that Tyrone voluntarily confessed his involvement

to a fellow inmate under circumstances that would not have led him to believe his

statement would be available for use at a future trial. There is no evidence in the

record that the inmate pressed Tyrone for information or otherwise compelled him

to confess. Thus, Tyrone’s confession was not testimonial in nature and we hold

that the district court did not violate Glenn’s rights under the Confrontation Clause

in admitting it into evidence.



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      III. Glenn’s argument concerning his motion to suppress evidence

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

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. “[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 bears 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 “reasonable suspicion to

believe that criminal activity ‘may be afoot’”. Id. (citation omitted). When

determining whether reasonable suspicion exists, courts must consider the totality

of the circumstances to decide if the police officer had a “particularized and

objective basis” for suspecting legal wrongdoing. Arvizu, 534 U.S. at 273, 122 S.

Ct. at 750. In so doing, “a reviewing court must give due weight to the officer’s



                                           5
experience,” United States v. Briggman, 931 F.2d 705, 709 (11th Cir. 1991), and

must consider the “collective knowledge of [all of] the officers involved in the

stop,” United States v. Williams, 876 F.2d 1521, 1524 (11th Cir. 1989). “[A]n

individual’s proximity to illegal activity may be considered.” United States v.

Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002).

      The record demonstrates that, based on the totality of the circumstances and

the facts known to police at the time, there was reasonable suspicion to conduct an

investigatory stop of the car in which Glenn and Tyrone were driving. A “be on

the lookout” (“BOLO”) was issued for two black males in a white Malibu, and the

car, which matched that description, was stopped approximately 1.7 miles from the

bank where the robbery had occurred.

      Furthermore, Glenn lacks standing to challenge the search of the car. A

passenger usually does not have a privacy interest in a car that the passenger

neither owns nor rents, regardless of whether the driver owns or rents it. United

States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). To the extent that Glenn

challenges the traffic stop, his argument is also without merit. “A person who is

aggrieved by an illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person’s premises or property

has not had any of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439



                                          6
U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978). The record indicates

that Tyrone was the registered owner and the driver of the Malibu, and that Glenn

was merely a passenger. Accordingly, we conclude that the district court did not

err in denying Glenn’s motion to suppress.

        IV. Tyrone’s argument concerning the legality of the traffic stop

      Because Tyrone did not argue that his detention was a de facto arrest in his

motion to suppress before the district court and now raises this argument for the

first time on appeal, we review his claim for plain error only. United States v.

Young, 350 F.3d 1302, 1305 (11th Cir. 2003). Under plain error review, we may

exercise our discretion to correct an error where (1) an error occurred, (2) the error

was plain, (3) the error affects substantial rights, and (4) “the error seriously affects

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

v. Olano, 507 U.S. 725, 732-36, 113 S. Ct. 1770, 1777-79, 123 L. Ed. 2d 508

(1993) (quotations and citations omitted); Fed. R. Crim. P. 52(b).

      “[I]f . . . an encounter [is] too intrusive to be classified as an investigative

detention, the encounter is a full-scale arrest, and the government must establish

that the arrest is supported by probable cause.” United States v. Hastamorir, 881

F.2d 1551, 1556 (11th Cir. 1989). We consider several factors to determine

whether a purported investigatory detention amounts to a de facto arrest requiring



                                            7
probable cause, including: (1) the purpose of the detention; (2) the diligence of the

officials in conducting the investigation; (3) the scope and instrusiveness of the

detention; and (4) the duration of the detention. United States v. Hardy, 855 F.2d

753, 759 (11th Cir. 1988). “Probable cause [to arrest] exists where the facts and

circumstances within the collective knowledge of the law enforcement officials, of

which they had reasonably trustworthy information, are sufficient to cause a person

of reasonable caution to believe an offense has been or is being committed.”

Hastamorir, 881 F.2d at 1557 (quotation omitted).

      We conclude from the record that the district court did not plainly err in

failing to suppress evidence based on an improper detention that amounted to a de

facto arrest. The record demonstrates that the police had reasonable suspicion to

conduct an investigatory stop of Tyrone’s car. The police initiated the traffic stop

upon hearing a BOLO for two black males in a white Malibu and spotting Tyrone’s

car, which matched that description, in close proximity to the location of the

robbery. Moreover, the record indicates that the entire detention, from the initial

stop until the defendants were formally arrested, took approximately 40 minutes.

Thus, we conclude that Tyrone’s detention was lawful and did not amount to a de

facto arrest because it was reasonable in both scope and duration.

         V. Tyrone’s argument concerning erroneous jury instructions



                                           8
      Jury instructions properly challenged below are reviewed de novo to

determine whether they misstated the law or misled the jury to the prejudice of the

objecting party. United States v. Grigsby, 111 F.3d 806, 814 (11th Cir. 1997).

“Counsel’s objections to proposed instructions should be sufficient to give the

district court the chance to correct errors before the case goes to the jury.” Id.

(quotation omitted). We will reverse the district court because of an erroneous jury

instruction only if we are “left with a substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” United States v.

Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (quotation omitted).

      After reviewing the record, including the district court’s instructions to the

jury, we conclude that the district court did not misstate the law or mislead the jury

to the prejudice of Tyrone.

                                  VI. Conclusion

      For the above-stated reasons, we affirm the convictions of Glenn and

Tyrone.

      AFFIRMED.




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