            Case: 16-15570    Date Filed: 09/26/2017   Page: 1 of 4


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15570
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:15-cr-80186-DMM-1

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                    versus

RICHARD ODELL DAVIS, III,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 26, 2017)



Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       After submitting a conditional guilty plea, Richard Odell Davis III was

convicted for being a felon in possession of a firearm and ammunition in violation

of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Davis argues the district court

erred when it denied his motion to suppress a firearm seized after police officers

saw him throw it onto the roof of his house as they followed him around the

building to execute a Terry 1 stop. After review, 2 we affirm.

                                        I. DISCUSSION

       Davis contends the officers violated the Fourth Amendment in attempting to

execute a Terry stop “in a residence.” In order to enter his home without a

warrant, Davis submits, the officers needed both probable cause and exigent

circumstances. Davis’s contention is without merit, however, because the officers

did not in fact enter his residence; rather, they walked through an area outside of it

that the district court found was not within the curtilage of the home. 3 As a result,

the officers needed only reasonable suspicion to stop him, which, in this case, was

supported by the totality of the circumstances known to both officers. See United
       1
           See Terry v. Ohio, 392 U.S. 1 (1968).
       2
         “A district court’s ruling on a motion to suppress presents a mixed question of law and
fact.” United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009) (quotation
omitted). We review the district court’s factual findings for clear error and the court’s
application of law to those findings de novo. Id. We construe the facts in the light most
favorable to the party that prevailed below. United States v. Tobin, 923 F.2d 1506, 1510 (11th
Cir. 1991) (en banc).
       3
          In his opening brief, Davis failed to address the issue of whether this area was within
the curtilage; he has thus forfeited the contention that it was not. United States v. Noreiga, 676
F.3d 1252, 1260 n.2 (11th Cir. 2012).
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States v. Williams, 876 F.2d 1521, 1524 (11th Cir. 1989) (“Reasonable suspicion is

determined from the totality of the circumstances and from the collective

knowledge of the officers involved in the stop.” (citations omitted)). The stop took

place at night, in a high-crime neighborhood, outside a residence known for

criminal activity. Officer Mooney knew through his many interactions with Davis

that he was a convicted felon with gang affiliations who had had prior involvement

in selling drugs. Further, Davis began to flee the officers as soon as he became

aware of their presence and appeared to be concealing an object near his

waistband. These facts, taken together, justified a Terry stop. See Illinois v.

Wardlow, 528 U.S. 119, 124–25 (2000) (holding that the fact that an area is known

for high crime is a relevant contextual consideration in ascertaining reasonable

suspicion, as is “nervous, evasive behavior” or flight, and that together, they

justified the Terry stop at issue).

      Davis next contends Officer Mooney violated the Fourth Amendment when,

without having first secured a warrant, he climbed up onto the roof of the residence

to retrieve the firearm. Davis does not dispute Officer Mooney had probable

cause, but he argues there were no exigent circumstances to justify the intrusion.

However, his appeal is unavailing on this score as well. Officers Mooney and

Myers testified they were concerned about the dissipation of DNA evidence from

the gun that could occur from precipitation on the exposed roof during the several


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hours it could have taken to secure a warrant, or that a resident of the house could

remove the firearm, alter the DNA evidence on it, or use it against the police.

Based on the officers’ testimony, and construing the facts in favor of the

Government, the district court did not err in finding that an exigency existed. See

United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc) (explaining

that exigent circumstances may arise when “there is danger that the evidence will

be destroyed or removed”); United States v. Beckles, 565 F.3d 832, 839 (11th Cir.

2009) (“We construe all facts in favor of the prevailing party (here the

government).”).

                                 II. CONCLUSION

      For the reasons stated above, we affirm Davis’s conviction.

      AFFIRMED.




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