           Case: 15-13953   Date Filed: 08/09/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13953
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:14-cr-00028-RH-5



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

ANASTACIO MENDOZA,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 9, 2016)

Before WILLIAM PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Anastacio Mendoza appeals the district court’s denial of his motion to

suppress evidence. Mendoza pleaded guilty to and was convicted of conspiracy to

possess with intent to distribute more than 50 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846. On appeal,

Mendoza argues that the district court erred by denying his motion to suppress

because: (1) the Drug Enforcement Agency (“DEA”) agents did not have

reasonable suspicion to justify an investigative stop; and (2) even if they did, the

investigative stop matured into a de facto arrest before the agents had probable

cause. After careful consideration, we reject both contentions and affirm.

                                          I.

      On September 17, 2014, DEA agents arrested a man named John Love with

4 kilograms of methamphetamine and a loaded handgun in his pocket. Love

cooperated with authorities and said that he had recently made ten drug runs

between Atlanta, Georgia, and Panama City Beach, Florida. He told DEA agents

about a methamphetamine-distribution conspiracy organized by a man in Mexico

known as “Carlos.” Love would typically call or text message Carlos to arrange a

drug pickup, and then Love would travel to Atlanta to meet with one or two men

he identified as “Mexican” at a location they coordinated by phone. A woman

would sometimes speak with Love on the phone to clarify the pickup location. At




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the most recent pickup, Love had observed the two men driving a white Ford

Expedition.

       Under the direction of DEA agents, Love arranged a controlled drug buy.

He contacted Carlos on September 17 to set up a purchase of 4 to 5 kilograms of

methamphetamine, to be delivered by courier. Carlos agreed to send couriers to

meet Love at the InTown Suites in Dothan, Alabama, on the morning of September

21.1 Carlos described the couriers as “two Mexicans,” but the DEA agents did not

know whether one might be a woman or what car they would be driving.

       The DEA agents, posing as Love, began communicating directly with the

couriers in the minutes leading up to the drug buy. The couriers got lost on their

way to the hotel, so the agents gave them detailed directions and were able to

figure out that the couriers were traveling southbound on Ross Clark Circle. At

11:33 a.m., the DEA agents received a text message from the couriers reading, “I

see it.” At the same time, they observed a maroon Chevrolet Trailblazer (in which

Mendoza was a passenger) drive past the hotel heading south on Ross Clark Circle,

do a U-turn, and head toward the hotel. The DEA agents then received a text

message asking, “What room?” They replied “Room 138” and told the couriers to

drive around the right side of the hotel. The Trailblazer drove to the right side of

the hotel and began cruising through the parking lot. The agents observed a

       1
        The DEA agents took over communicating with Carlos and his associates (via text
message) after Love was incarcerated.
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Hispanic man and a Hispanic woman, looking toward the hotel as if at room

numbers. The agents also saw that the Trailblazer had Georgia plates registered in

Fulton County, which includes much of Atlanta. The Trailblazer pulled into a

parking spot in front of Room 136, next to 138. DEA agent Brian Lammers, who

was on the scene, testified that he believed the parking spot in front of Room 138

was occupied when the Trailblazer pulled in, but he couldn’t be sure.

      Once the Trailblazer parked, Agent Lammers pulled his vehicle forward and

blocked the Trailblazer from the rear. DEA agents ordered Mendoza and the

woman, Carmen Silva, out of the Trailblazer and handcuffed them. Agent

Lammers testified that Mendoza and Silva were handcuffed for officer safety,

because they were believed to be transporting a large quantity of drugs and their

purported co-conspirator, Love, had recently been arrested carrying a loaded

handgun. DEA agents also performed pat-downs and gave Miranda warnings 2 to

Mendoza and Silva. The agents then asked Mendoza and Silva for consent to

search the vehicle, but both refused. Finally, the agents deployed a drug dog,

which alerted positive for drugs in the Trailblazer. The agents searched the vehicle

and seized 4.6 kilograms of 97.5 percent pure methamphetamine. From the time

DEA agents received the “I see it” text message to the time they deployed the drug

dog, approximately ten minutes elapsed.


      2
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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                                          II.

      “On a district court’s denial of a motion to suppress, we review its findings

of fact only for clear error and its application of law to those facts de novo.”

United States v. Acosta, 363 F.3d 1141, 1144 (11th Cir. 2004). The facts should

be construed in the light most favorable to the prevailing party—here, the

government. United States v. Mathis, 767 F.3d 1264, 1274–75 (11th Cir. 2014)

(per curiam).

      In appropriate circumstances, the Fourth Amendment permits a law

enforcement agent to “approach a person for purposes of investigating possibly

criminal behavior even though there is no probable cause to make an arrest.” Terry

v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968). We ask two questions

when deciding whether such an investigative stop was reasonable: (1) whether the

agent’s initial action was justified by reasonable suspicion; and (2) whether the

stop matured into a de facto arrest because it was no longer reasonably related to

the circumstances that created reasonable suspicion. Acosta, 363 F.3d at 1144–45.

Mendoza challenges the district court’s treatment of both questions.

      For the first question, “reasonable suspicion” means “a particularized and

objective basis for suspecting the particular person stopped of criminal activity.”

Navarette v. California, __ U.S. __, __, 134 S. Ct. 1683, 1687 (2014) (quotation

omitted). The reasonable suspicion standard requires less than probable cause and

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“considerably less” than a preponderance of the evidence. Id. (quotation omitted).

But it does require more than an “inchoate and unparticularized suspicion or

hunch.” Terry, 392 U.S. at 27, 88 S. Ct. at 1883 (alteration adopted). In applying

this standard, courts must look to the totality of the circumstances rather than

considering individual facts in isolation; even where each fact alone can be

innocently explained, the cumulative information may give rise to reasonable

suspicion. United States v. Arvizu, 534 U.S. 266, 273, 277–78, 122 S. Ct. 744,

750, 753 (2002). Indeed, reasonable suspicion “need not rule out the possibility of

innocent conduct.” Id.

      The second question asks whether the investigative stop became a de facto

arrest before the agents had probable cause. See Acosta, 363 F.3d at 1145. We

consider four non-exclusive factors in answering this question: (1) the purpose of

the stop; (2) the diligence with which the agents pursued their investigation; (3) the

scope and intrusiveness of the stop; and (4) the duration of the stop. Id. at 1146.

The first factor turns on whether the agents “pursue[d] a method of investigation

that was likely to confirm or dispel their suspicions quickly, and with a minimum

of interference.” Id. (quotation omitted). The second factor looks at whether the

agents carried out their investigation “without unnecessary delay.” Id. The third

factor asks whether the stop was more intrusive than necessary to ensure the

agents’ safety. Id. The final factor is whether the stop took too long. Id. at 1147.

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                                          III.

A.    Reasonable Suspicion

      Viewing the evidence in the light most favorable to the government, we

conclude that the DEA agents reasonably suspected Mendoza of engaging in

criminal activity. A number of circumstances provided a “particularized and

objective basis” for their suspicion. Navarette, 134 S. Ct. at 1687 (quotation

omitted). Specifically, the Trailblazer’s direction of travel matched the directions

the agents gave the drug couriers; its arrival at the hotel corresponded with a text

message from the couriers saying “I see it”; the Trailblazer followed, in real time,

the agents’ instruction to drive along the right side of the hotel; the Trailblazer was

registered in Fulton County, Georgia (where Love had picked up

methamphetamine); the Trailblazer’s occupants seemed to be peering at room

numbers while driving through the parking lot; the occupants were observed to be

two Hispanic individuals, which roughly matched how Carlos and his associates

had described the couriers; and the Trailblazer parked in front of Room 136, which

was next to Room 138, the room where the couriers were told to come. Although

any one of these facts in isolation might be “susceptible of innocent explanation,”

together they provided an adequate basis for the agents’ reasonable suspicion.

Arvizu, 534 U.S. at 277–78, 122 S. Ct. at 753. The DEA agents were entitled to

“draw on their own experience and specialized training to make inferences from

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and deductions about the cumulative information available to them,” and thus

conclude from these facts that Mendoza was on his way to deliver drugs. 3 Id. at

273, 122 S. Ct. at 750–51.

B.     De Facto Arrest

       Alternatively, Mendoza claims that the investigative stop matured into a de

facto arrest before the agents had probable cause. He argues the stop became an

arrest because the DEA agents blocked his vehicle, ordered him out, handcuffed

him, and patted him down. After considering the relevant factors, we conclude

that this remained a valid investigative stop.

       1. Purpose

       First, the agents detained Mendoza to pursue a method of investigation that

was likely to confirm or dispel their suspicions quickly. See Acosta, 363 F.3d at

1146. In Acosta, officers had been surveilling the defendant in connection with

money laundering. Id. at 1142–43. After observing suspicious behavior, they

stopped Acosta as he was driving out of a parking lot. Id. at 1143. The officers

       3
          Mendoza emphasizes that the agents knew, through Love, that a previous drug pickup
had been carried out by people driving a white Ford Expedition, and that there was some
uncertainty over the number and gender of couriers. Considering the totality of the
circumstances, these uncertainties are not enough to defeat the agents’ reasonable suspicion. It
was reasonable to believe that the couriers were using a different vehicle during this drug buy.
And Carlos, who arranged the meeting, had described the couriers as “two Mexicans” without
specifying gender. The agents observed two people who were Hispanic, one man and one
woman. Reasonable suspicion does not require that agents rule out every possibility of innocent
conduct. See Arvizu, 534 U.S. at 277, 122 S. Ct. at 753; see also United States v. Cortez, 449
U.S. 411, 418, 101 S. Ct. 690, 695 (1981) (“[Reasonable suspicion] does not deal with hard
certainties, but with probabilities.”).
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blocked Acosta’s car, and at least one officer drew his gun. Id. The officers also

took Acosta’s identification and patted him down before asking for consent to

search the car, an apartment, and articles found inside. Id. This Court held that the

stop did not mature into a de facto arrest. Id. at 1145–48. Regarding the first

factor, we said that the officers’ investigative method “was designed to lead to a

quick and non-intrusive resolution of the officers’ reasonable suspicions.” Id. at

1146. The same is true here. The DEA agents blocked the Trailblazer to prevent

escape, ordered Mendoza out of the vehicle, asked for consent to search the

vehicle, and deployed a drug dog when consent was denied. This course of

investigative action was designed to (and in fact did) promptly confirm or dispel

the suspicion that Mendoza was transporting methamphetamine.

       2. Diligence

       Second, as in Acosta, “[n]othing in the record indicates that the police were

less than prompt in carrying out their on-the-scene investigation. Each

investigatory act logically led to the next act which was done without delay.” Id.

Mendoza does not allege any undue delay on the part of the agents. Based on the

timing of the text messages, Agent Lammers testified that the investigative stop

lasted approximately ten minutes, and he also noted that the drug dog was already

on the scene, ready to go. The agents’ diligence weighs in favor of the stop’s

legality.

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      3. Scope

      Third, the scope of the investigation was not excessive in the circumstances.

This factor asks whether “the scope and intrusiveness of the detention exceeded the

amount reasonably needed by police to ensure their personal safety.” Id. Agents

conducting an investigative stop “may take reasonable steps to ensure their safety

so long as they possess an articulable and objectively reasonable belief that the

suspect is potentially dangerous.” Id. (quotation omitted). Here, the agents

ordered Mendoza out of the vehicle, handcuffed him, and patted him down because

of concerns about officer safety. These concerns were based on the agents’ belief

that Mendoza was transporting a large quantity of drugs as well as their knowledge

that Love, a purported co-conspirator, had been arrested a few days ago carrying a

loaded handgun while transporting methamphetamine. On this record, we cannot

say that the agents’ actions exceeded what was reasonably necessary to ensure

their safety. See United States v. Hastamorir, 881 F.2d 1551, 1556–57 (11th Cir.

1989) (finding it reasonable for officers to handcuff defendant for safety reasons

during an investigative stop related to a large drug transaction); United States v.

Kapperman, 764 F.2d 786, 790 n.4 (11th Cir. 1985) (“[N]either handcuffing nor

other restraints will automatically convert a Terry stop into a de facto arrest.”

(emphasis omitted)); Acosta, 363 F.3d at 1147 (concluding that officers reasonably

suspected defendant might have a weapon because they believed he was

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transporting high-value property in his car, and that keeping him away from the car

was reasonable because it had not been searched for weapons).4

       4. Duration

       Finally, the duration of the stop was relatively short. “There is no rigid time

limitation or bright line rule regarding the permissible duration of a Terry stop.”

Acosta, 363 F.3d at 1147. We look to whether the agents detained the defendant

longer than necessary to confirm or dispel their suspicions. Id. In Acosta, this

Court concluded that a stop of twenty to thirty minutes was valid. See id. at 1147–

48. And in United States v. Gil, 204 F.3d 1347 (11th Cir. 2000) (per curiam), this

Court held that a detention of seventy-five minutes was reasonable because the

officers were actively investigating the defendant’s residence during that time. Id.

at 1350–51. The stop here lasted approximately ten minutes, and the DEA agents

were actively investigating their suspicions during that time. In sum, all four

factors support the stop’s legality in this case.

                                        *      *       *

       Viewing the evidence in the light most favorable to the government, the

DEA agents here had reasonable suspicion to conduct an investigative stop, and

that investigative stop did not mature into a de facto arrest before the agents had

       4
          Mendoza also argues that his rights were violated because he was not “free to leave.”
Agent Lammers admitted that Mendoza was not free to leave during the stop. But “freedom to
leave” is not the test for reasonableness under Terry. See Acosta, 363 F.3d at 1147 (“[T]he very
nature of a Terry stop includes stopping a suspect from leaving.”).
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probable cause. We AFFIRM the district court’s denial of Mendoza’s motion to

suppress.

      AFFIRMED.




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