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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                        Nos. 14-15602; 14-15707
                         Non-Argument Calendar
                       ________________________

  D.C. Docket Nos. 1:14-cr-00025-DHB-BKE-1; 1:03-cr-00021-DHB-BKE-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                    versus

MICHAEL ANTHONY BROWN,

                                                        Defendant - Appellant.

                       ________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                            (January 11, 2016)

Before JULIE CARNES, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      After entering a conditional guilty plea, Michael Brown appeals the district

court’s denial of his motion to suppress evidence. Brown wished to suppress the

heroin police found in a backpack inside his car, which led to his conviction for

possession with intent to distribute heroin in this case and revocation of supervised

release from a prior case.1 Upon review of the record and consideration of the

parties’ briefs, we affirm.

                               I.      FACTUAL BACKGROUND

      The following facts were elicited at a magistrate judge’s hearing on Brown’s

motion to suppress. Richmond County Sherriff’s Office Sergeant William Leisey

testified that, on September 4, 2013, a “trusted friend” (the “informant”), whom he

had known for eight years, called him and reported that the informant had

witnessed Brown selling heroin out of his restaurant, the Eros Bistro. Suppression

Hr’g. Tr., Doc. 65 at 9. 2 The informant told Leisey that Brown lived in an

apartment above the restaurant and carried heroin in a backpack with him

everywhere he went. Leisey acknowledged that the tip neither predicted any future

criminal behavior nor relayed any information concerning the amount of drugs

Brown possessed, his comings and goings, or how the alleged sales transpired. But




      1
          We consolidated these cases for purposes of appeal.
      2
          “Doc.” refers to the docket entry in the district court record in this case.

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he testified that, based on his relationship with the informant, he “absolutely”

believed the information was truthful. Id. at 11.

      Leisey explained that the informant was the spouse of a friend whom he had

known for fifteen years and that both were “dear family friends.” Id. at 20. Leisey

noted that he had entrusted the informant with his own child on numerous

occasions. According to Leisey, the informant never had provided him with

criminal tips in the past and did not receive any benefit or compensation for the tip.

He did not run a criminal history check on the informant.

      Leisey testified that he relayed the tip to Investigator P.J. Hambrick.

According to Leisey, Hambrick advised that he had received similar information

from another person. Leisey testified that Hambrick asked if he could get more

information from the informant. Leisey contacted the informant, who sent him a

photograph of Brown’s car from Facebook and told him where Brown routinely

parked.

      Jason Kennedy, the narcotics investigator in this case, testified that he drove

by Eros Bistro to confirm the description of Brown’s vehicle and location after

receiving details about the tip from Hambrick. Kennedy testified that, a few days

later, while conducting surveillance on Brown with another investigator, he

observed Brown exit his building with his wife and baby and a backpack.




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Kennedy decided not to approach Brown at that time because he did not want the

child involved.

      Kennedy returned the next day and observed Brown drive up in his vehicle

outside the building. Kennedy and his fellow investigator approached the vehicle

to conduct an interview with Brown. During the evidentiary hearing, Kennedy

admitted that while surveilling Brown he never saw Brown engage in any drug

transaction, nor did he see any lookouts or drugs.

      Nonetheless, according to Kennedy, Brown appeared very nervous upon

seeing the officers; his eyes were large, he took a deep breath, and he had a “look

of shock on his face like a deer in the headlights.” Id. at 38. Brown leaned

forward in his seat with his hands extended towards the floor of the car. Kennedy

testified that, based on his experience, he believed Brown may have been putting

something under the seat or reaching for a weapon. Kennedy observed a backpack

sitting in the passenger seat of the vehicle. He testified that, after seeing Brown

acting nervous with his backpack in the car, Kennedy “believe[d] that the tip had a

very strong possibility of being very true and . . . just wanted to further investigate

that.” Id. at 44. Kennedy also testified that he believed the tip, plus his

observations during the surveillance and his interaction with Brown when he

approached, gave him reasonable suspicion to detain Brown briefly to investigate

further.


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         Kennedy asked Brown if he could speak with him outside the vehicle.

Kennedy then advised Brown of the tip the police had received and inquired

whether Brown had any narcotics or weapons on him. Brown replied that he had

none. Kennedy asked Brown if he could search the vehicle. When Brown asked

him why, Kennedy explained that the police were searching the car because of the

tip. Brown said nothing further, so Kennedy requested a canine unit to sniff for

drugs in the vehicle.

         After the canine unit arrived and the dog “alerted” to the vehicle, the officers

searched the vehicle and discovered a .38 caliber revolver lying on the driver’s side

floorboard. The gun was located in the same general area Brown had been leaning

toward, positioned “like it had just been placed there,” according to Kennedy. Id.

at 40. The officers then arrested Brown for possession of a firearm by a convicted

felon.

         At the evidentiary hearing, Brown agreed with the government that once the

narcotics dog alerted to the car, there was probable cause to search the car. After

placing Brown in custody, the officers also searched the backpack on the passenger

seat, revealing twenty-one aluminum foil packets of heroin, other plastic baggies

with heroin, several prescription bottles in Brown’s name containing various pills,

a digital scale, plastic tubing, a spoon, and syringes. After Brown gave the officers

permission to search his apartment, the officers discovered .38 caliber ammunition


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and several empty clear plastic baggies of the type commonly used to package

narcotics.

      Brown was indicted on three counts: (1) possession with intent to distribute

heroin, in violation of 21 U.S.C. § 841(a)(1); (2) possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 942(c); and (3)

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)

and 924(a)(2). At the time of this offense, Brown was under a term of supervised

release for his 2003 convictions for possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). As a result of his

arrest in the heroin case, Brown was charged with violating the conditions of his

supervised release, and the parole officer initiated revocation proceedings.

      Brown filed a motion to suppress all of the evidence seized on the ground

that the officers lacked reasonable suspicion to conduct the investigatory stop. He

argued that the informant’s tip was insufficient to create reasonable suspicion of

criminal activity and that the officers failed to observe anything that, in

conjunction with the informant’s tip, would give rise to reasonable suspicion of

criminal activity.

      After supplemental briefing, the magistrate judge issued a report and

recommendation that the motion to suppress be denied. Over Brown’s objections,


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the district court adopted the report and recommendation in its entirety and denied

the motion to suppress.

      Brown subsequently entered a conditional negotiated guilty plea to Count 1,

possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1),

expressly reserving the right to appeal the denial of his motion to suppress in

exchange for the government’s agreement to dismiss the remaining counts.

      At sentencing, the district court addressed both the instant offense and the

revocation of Brown’s supervised release in the 2003 case. The district court

imposed within-guidelines sentences of 188 months’ imprisonment in the heroin

case and 41 months’ imprisonment in the revocation case, to be served

concurrently, followed by three years of supervised release. Brown now appeals.

                           II.    STANDARD OF REVIEW

      When reviewing the denial of a motion to suppress, we review the district

court’s findings of fact for clear error and its application of the law to those facts

de novo while construing the facts in the light most favorable to the prevailing

party below—here, the government. United States v. Lewis, 674 F.3d 1298, 1303

(11th Cir. 2012). A district court’s choice between two permissible views of the

evidence cannot be clear error. United States v. Ndiaye, 434 F.3d 1270, 1305 (11th

Cir. 2006).




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                           III.    MOTION TO SUPPRESS

      At the evidentiary hearing, the government acknowledged that the officers

detained Brown when they ordered him to speak with them outside of his car.

Brown agreed with the government that there was probable cause to search his car

once the narcotics dog alerted to the car. Although Brown challenges the entirety

of the search, the key issue is whether the officers had reasonable suspicion to

make the initial stop based on the informant’s tip and any information corroborated

by the officers.

A.    Reliability of the Tip

      Consistent with the Fourth Amendment, law enforcement may conduct a

brief warrantless investigatory stop of an individual “where (1) the officers have a

reasonable suspicion that the suspect was involved in, or is about to be involved in,

criminal activity, and (2) the stop was reasonably related in scope to the

circumstances which justified the interference in the first place.” Lewis, 674 F.3d

at 1303 (internal quotation marks omitted). Reasonable suspicion exists when an

officer has a “particularized and objective basis” for suspecting a person of

criminal activity, given the totality of the circumstances. United States v. Arvizu,

534 U.S. 266, 273 (2002). “Reasonable suspicion need not involve the observation

of illegal conduct, but does require more than just a hunch.” Lewis, 674 F.3d at

1303 (internal quotation marks omitted).


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      When examining whether an informant’s tip was reliable enough to give rise

to an officer’s reasonable suspicion, the totality of the circumstances includes the

reliability of the informant and of the tip. The lower the reliability of the

informant, the higher the reliability of the tip must be, and vice versa. See

Alabama v. White, 496 U.S. 325, 330 (1990). Construing the evidence in the light

most favorable to the government, we conclude that the district court did not err in

denying Brown’s motion to suppress.

      1.     The Informant

      First we evaluate the reliability of the informant. When an informant is

known to an officer personally, the officer may act “justifiably in responding to his

informant’s tip.” Adams v. Williams, 407 U.S. 143, 146 (1972). Sergeant Leisey

had known this informant for the better part of a decade and entrusted the

informant with his child. According to Leisey, the informant was trustworthy and

had never lied to him. As the magistrate judge noted, “it is difficult to imagine an

informant who could be better known to the police.” Doc. 40 at 9. Such a known

informant presents “a stronger case than . . . . in the case of an anonymous

telephone tip” and may alone be sufficient to justify an investigatory stop. Adams,

407 U.S. at 146.

      It is true that Kennedy was unable to speak to the informant face-to-face—if

he had, it would make the informant even more reliable. See United States v.


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Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) (noting that face-to-face anonymous

tips demand less scrutiny “because the officers receiving the information have an

opportunity to observe the demeanor and perceived credibility of the informant”).

That said, we consider an officer’s ability to locate an informant at a later date to

be an indicator of reliability. See id. at 1279. Here, when Investigator Hambrick

requested more information, Leisey contacted the informant again and

subsequently received a picture of Brown’s car and the location where Brown

normally parked.

      The informant does deserve some degree of scrutiny because he or she had

not given a tip to the police before. Officials may, without rigorous scrutiny, trust

tips from an “unquestionably honest citizen” who has previously provided tips that

“would subject [him or her] to criminal liability” if false. Illinois v. Gates, 462

U.S. 213, 233 (1983). Despite the fact that this was the informant’s first tip to the

police, we agree with the district court that the informant was reliable enough to

create reasonable suspicion, especially considering the reliability of the tip, which

we discuss next.

      2.     The Tip Itself

      When an officer’s purported reasonable suspicion is based solely on a third

party’s tip, as was the case here, we determine whether the tip itself bore sufficient

indicia of reliability to support reasonable suspicion. White, 496 U.S. at 330-31.


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In this case, the tip was reliable enough despite consisting mainly of observable

facts and failing to predict future behavior because it described Brown’s usual

business practice and included an eyewitness account of the crime.

          “[A] known, albeit unproven, informant coupled with subsequent

corroboration of the tip’s details can justify a reasonable suspicion of criminality.”

United States v. Kent, 691 F.2d 1376, 1380 (11th Cir. 1982). Here, Officer

Kennedy confirmed significant facts provided by the informant. The informant

correctly notified the police of the color, make, model, and location of Brown’s

car, that Brown always carried a backpack, and that Brown lived above Eros

Bistro.

      Brown argues that the police lacked reasonable suspicion because they

corroborated the tip only via presently observable facts. A tip that relays only

presently observable facts “might not be sufficient in and of [itself] to lend the

necessary credence to the informant’s tip to create a reasonable suspicion of drug

trafficking.” United States v. Lee, 68 F.3d 1267, 1271 (11th Cir. 1995). In Lee, we

considered a tip that provided a description of an alleged drug dealer, where he was

staying, the car he drove, where the car would be parked, and that he would travel

with a woman and a child. Id. at 1269. The informant also disclosed that the

dealer’s “usual business practice” was to meet with local distributors and drive

their vehicles, rather than his own, to avoid suspicion. Id. Although the


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description and location of the car were “presently observable facts,” we concluded

that the tip was sufficiently reliable considering that it had also predicted the

dealer’s business routine. Id. at 1271-72.

      Here, the police corroborated presently observable facts such as the

description and location of Brown’s car. Such information was “readily available

to many persons” and could “easily have been obtained from an offhand remark

heard at a neighborhood bar.” Kent, 691 F.2d at 1380 (internal quotation marks

omitted). In fact, the informant described the car based on a picture found on

Facebook. But, as in Lee, the informant’s tip also confirmed Brown’s usual

business practice. The tip correctly described that Brown sold heroin out of a

backpack he carried “everywhere he goes.” Doc. 65 at 29. And the backpack was

observed in the passenger seat. Accordingly, the tip was sufficiently reliable to

create reasonable suspicion.

      The tip also exhibited reliability because the informant personally witnessed

Brown dealing drugs. “The courts have traditionally viewed information drawn

from an ordinary witness or crime victim with considerably less skepticism than

information derived from anonymous sources.” United States v. Martinelli, 454

F.3d 1300, 1307 (11th Cir. 2006). When an informant has personal knowledge of

the crime, including viewing the crime in progress, “[t]hat basis of knowledge

lends significant support to the tip’s reliability.” Navarette v. California, 134 S.


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Ct. 1683, 1689 (2014); see Gates, 462 U.S. at 234. Therefore the informant’s

claim of first-hand knowledge of Brown’s crime further indicates the reliability of

the tip.

       We acknowledge that the tip failed to predict future behavior. Previously we

have held that an informant’s tip may be sufficiently reliable to create reasonable

suspicion when officers can corroborate the “prediction of future conduct”

contained within the tip. Lee, 68 at 1272. In J.L., the Supreme Court held that an

anonymous, “bare” report that a young black man in a plaid shirt at a bus stop had

a gun could not be reliable, in part because the tip failed to predict the alleged

criminal’s future conduct. Florida v. J.L., 529 U.S. 266, 271 (2000). In this case,

the tip did not predict Brown’s behavior; it only provided past or present

information. As such, the tip is less reliable than if it had predicted Brown’s future

actions. We do not suggest, however, that tips must always predict future behavior

to be reliable. Prediction is but one indicator of reliability.

       Brown’s reliance on this Court’s decision in United States v. Valerio as a

basis for reversal is misplaced. 718 F.3d 1321 (11th Cir. 2013). In Valerio, a Drug

Enforcement Administration (“DEA”) agent witnessed Valerio shopping at a

hydroponics store and surmised, based on the circumstances, that Valerio likely

was growing marijuana. Id. at 1322. On Valerio’s second visit to the store, DEA

agents followed him to a warehouse suitable for growing marijuana. Id. DEA


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agents failed to observe any suspicious or criminal activity during one week of

surveillance over Valerio. Id. at 1322-23. A narcotics dog sniffed parts of the

warehouse, but only alerted to bays rented by people other than Valerio. Id. The

police subsequently conducted a “voluntary citizen encounter” with Valerio by

blocking his vehicle in the driveway, approaching his car with guns drawn, and

performing a pat down search before questioning him about the warehouse. Id. at

1323. Valerio then admitted to growing marijuana in the warehouse. Id. We

reversed the district court’s denial of Valerio’s motion to suppress evidence that

led to his arrest. Id. at 1325. The one-week delay between the agents’

observations of Valerio and his arrest “and the complete absence of any

contemporaneous observations of Mr. Valerio that would necessitate ‘swift’ law

enforcement action . . . made it entirely practicable for law enforcement officers to

proceed with their investigation in a manner consistent with the default

requirements of the Fourth Amendment.” Id. at 1325.

      Contrary to Valerio, in this case the police acted on more than a hunch that

Brown was engaged in criminal activity. Rather, the police received a reliable tip

from an informant who witnessed Brown selling heroin from a backpack that he

always carried with him. Although the officers waited approximately one week

before conducting the investigatory stop, this is not a basis for per se reversal, even




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in the light of Valerio, because the police had reasonable suspicion that criminal

activity was afoot based on the tip and the presence of the backpack in the car.

      Despite the tip’s lack of predictive power, the tip was reliable because the

informant witnessed Brown selling drugs and the police corroborated presently

observable facts, including Brown’s usual business practice.

                                         ***

      Considering the totality of the circumstances and viewing the facts in the

light most favorable to the government, we conclude that the tip was sufficiently

reliable to give rise to reasonable suspicion.

B.    Refusal to Consent to the Search

      Brown further argues that he was detained in violation of the Fourth

Amendment solely because he refused to consent to the search of his car. Because

Brown failed to raise this argument below, it is subject to review for plain error.

United States v. Young, 350 F.3d 1302, 1305 (11th Cir. 2003). To prevail under

the plain error standard, Brown must demonstrate that there was error; the error

was plain; the error affected his substantial rights; and the error seriously affected

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

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      We previously held that “[t]he police cannot base their decision to prolong a

traffic stop on the detainee’s refusal to consent to a search.” United States v.


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Boyce, 351 F.3d 1102, 1110 (11th Cir. 2003). But, “when the police have already

observed, before asking for permission to search, facts sufficient to raise a

reasonable suspicion,” an officer may detain a suspect even after a refusal to

consent. Id.

       Here we see no error, plain or otherwise. Although Brown argues that the

officers only searched the car after he attempted to leave, he has offered no

evidence to support his argument. As discussed above, the record demonstrates

that Brown was detained because the officers had reasonable suspicion that he had

heroin in his backpack. Thus, the district court did not err in denying Brown’s

motion to suppress.3 Accordingly, we affirm Brown’s conviction and sentence.

Consequently, we also affirm the revocation of his term of supervised release in

the 2003 case.

       AFFIRMED.




       3
         Brown asserts that because the revocation of his supervised release in his 2003 case was
based on the underlying criminal charge stemming from the invalid search, this Court must
vacate the revocation. Because we conclude that the search was valid, we reject Brown’s
argument.

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