                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-12583         ELEVENTH CIRCUIT
                                                         MAY 25, 2011
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                  D.C. Docket No. 1:09-cr-00113-WSD-ECS-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

TIMOTHY D. DAVIS,

                                                            Defendant-Appellant.
                          ________________________

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

                                 (May 25, 2011)

Before EDMONDSON, CARNES, and FAY, Circuit Judges.

PER CURIAM:

      Timothy D. Davis appeals his convictions after pleading guilty under a plea

agreement to being a convicted felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1), and possessing a stolen firearm, 18 U.S.C. § 922(j).1 He challenges

the district court’s denial, in part, of his motion to suppress evidence, contending

that the court erred in finding that probable cause existed to arrest him for opening

or consuming an alcoholic beverage within 100 feet of a store selling such

beverages in package form, in violation of Atlanta Code § 10-7(a). He argues that

because there was no probable cause for that arrest, the two guns discovered on his

person during a search incident to his arrest and the post-Miranda2 statements he

made to law enforcement agents were inadmissible.

                                                I.

       At the suppression hearing before the magistrate judge, the government

called Senior Officer Christopher Lanier of the Atlanta Police Department to

testify about the circumstances of Davis’ arrest. Lanier, who is assigned to a

street-level police drug unit, stated that he and three fellow officers had been

patrolling one of their regular areas when they pulled into the parking lot of a

commercial shopping center. Lanier saw several people, including Davis,

standing in front of the “Old Simpson Road Store,” a package store. The group



       1
        The plea agreement was conditional in that it allowed Davis to appeal the denial of his
motion to suppress evidence.
       2
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

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was drinking, and Lanier focused on Davis, who was some 20 to 30 yards away

and holding a “long, slender” colored-glass bottle, which was “pretty obvious[ly]”

a beer, “a Heineken or something like that.” On cross-examination Lanier

confirmed that he had seen Davis put the bottle “up to his lips” and that it “looked

like he was drinking it.” According to Lanier, when Davis saw the police car, he

“had a very extreme reaction,” and turned around quickly and walked into the

store. Leaving his police car, Lanier ordered Davis to come back outside,

intending to arrest him for violating the Atlanta ordinance forbidding consumption

of alcohol within 100 feet of a package store. Davis complied, and Lanier grabbed

one of Davis’ arms in order to handcuff him. At that point Lanier felt a gun in one

of Davis’ pockets. After a full pat-down, Lanier found a second gun in another

pocket.

      Davis also testified at the suppression hearing, asserting that the bottle he

was seen with was actually a Sharp’s “Non-Alcoholic Beer”; that he had not had a

chance to drink from it before he was arrested; and that he did not turn and run

back to the store after he saw the police. In his version of events, he never saw the

police until Lanier summoned him back outside to arrest him. Davis claims he had

gone back in the store as the police arrived only because he was told there was a

telephone call for him.

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      The actual bottle Davis was seen with was not entered into evidence at the

hearing or preserved by the police. One other police officer and an investigator

for the Federal Public Defender’s office testified, and the parties then submitted

briefs to the court. The magistrate judge’s report and recommendation concluded

that Lanier and the other officers had probable cause to arrest Davis on the Atlanta

code violation and that the resulting search incident to arrest, which had revealed

the two firearms, was thus not in violation of the Fourth Amendment. In reaching

that conclusion, the magistrate judge observed:

      [T]he evidence shows that Defendant was drinking or about to drink
      what to all appearances was a beer. Even if the Court accepts
      Defendant’s testimony that the beer was nonalcoholic, it was still a
      beer, and only by a careful examination of the bottle could the officer
      have discovered it was “nonalcoholic.”

The magistrate judge further noted that even the photograph of a Sharp’s beer

label that Davis had used as an exhibit at the hearing indicated that Sharp’s

contained “less than 0.5 % alcohol” and was not, therefore, “completely

nonalcoholic.”

      The district court adopted the magistrate judge’s report and

recommendation, overruling Davis’ objections and denying his motion to suppress

the guns and post-Miranda statements.




                                         4
                                          II.

      In reviewing the denial of a motion to suppress evidence, we employ a

mixed standard of review: we accept the district court’s findings of fact unless

they are clearly erroneous and consider de novo the district court’s application of

the law to the facts. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000);

see also United States v. Talley, 108 F.3d 277, 281 (11th Cir. 1997) (holding that

our review of findings of historical fact is “only for clear error and [we] give due

weight to inferences drawn from those facts by resident judges and local law

enforcement officers”) (quotation marks and ellipsis omitted)). When considering

a ruling on a motion to suppress, we construe all facts in the light most favorable

to the party that prevailed in the district court, which as to the issue here, was the

government. See United States v. Hromada, 49 F.3d 685, 688 (11th Cir. 1995).

      “For probable cause to exist, an arrest must be objectively reasonable based

on the totality of the circumstances.” United States v. Street, 472 F.3d 1298, 1305

(11th Cir. 2006) (quotation and ellipsis omitted) “Because sufficient probability,

not certainty, is the touchstone of reasonableness under the Fourth Amendment,

probable cause itself is a doctrine of reasonable probability and not certainty.”

Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997) (en banc) (quotations

and citation omitted) (addressing a federal habeas petition).

                                           5
                                          III.

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

find no error, let alone a clear one, in the district court’s findings of fact. And we

conclude that given those facts, Officer Lanier had an objectively reasonable

belief, based on the totality of the circumstances, that Davis had violated Atlanta

Code § 10-7(a). Because the arrest was legal, the warrantless search incident to it,

during which the firearms were discovered, was valid. Finally, because the district

court did not err in finding probable cause, we decline to address Davis’ argument

that the post-Miranda statements he made to law enforcement officers were

inadmissible because they were tainted by an illegal arrest.

      AFFIRMED.




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