                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12182         ELEVENTH CIRCUIT
                                   Non-Argument Calendar    DECEMBER 13, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                            D.C. Docket No. 0:09-cr-60191-WPD-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                           versus

JESSE WITHERSPOON,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                     (December 13, 2010)



Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:

         Following a bench trial in the district court, appellant was convicted of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),

and sentenced to prison for a term of 180 months. He now appeals his conviction,

raising one issue: whether, following a hearing on appellant’s motion to suppress

evidence, i.e., the gun that led to appellant’s conviction, the district court clearly

erred in crediting the testimony of Detective Gonzalez that appellant possessed a

gun in his waistband and in denying the motion to suppress based on that

testimony. Appellant contends that, because Gonzalez did not have reasonable

suspicion, the district court should have suppressed the gun and ammunition found

during the pat-down search. Appellant contends, moreover, that court clearly

erred in its implicit decision not to credit consistent testimony from a second

detective, Mazzola, and from appellant’s friend, Bien-Aime, which contradicted

the officer’s testimony. Appellant says that Gonzalez stopped him based on a

mere “hunch.” Accordingly, the court erred in denying the motion to suppress,

and the conviction should be vacated.

      In determining whether the district court erred in denying the motion to

suppress, we review the district court’s findings of fact for clear error and

application of the law to those facts de novo. United States v. Epps, 613 F.3d

1093, 1097 (11th Cir. 2010). The district court’s credibility determinations are

among the factual findings that we must accept unless they are “so inconsistent or

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improbable on their face that no reasonable factfinder could accept them.” United

States v. White, 593 F.3d 1199, 1203 (11th Cir. 2010) (citation and brackets

omitted).

      We analyze the legality of pat-down searches according to the principles of

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “under which the

police may stop and briefly detain a person to investigate a reasonable suspicion

that he is involved in criminal activity, even though probable cause is lacking.”

Id. at 1202 (quotation omitted). A Terry stop is justified when the officer has a

“reasonable, articulable suspicion based on objective facts that the person has

engaged in, or is about to engage in, criminal activity.” Id. Furthermore, an

officer may proceed with a pat-down search of a person he has detained “if he has

reason to believe that his own safety or the safety of others is at risk.” Id.

However, “[t]he officer need not be absolutely certain that the individual is

armed” in order to justify a pat-down search. Id. (quoting Terry, 392 U.S. at 27,

88 S.Ct. at 1883) (emphasis in original). Rather, the issue is whether a reasonably

prudent man in the circumstances would be warranted in believing that his safety

or the safety of others was in danger. Id.

      In this case, the district court’s determination that Detective Gonzalez’s

testimony was credible was not clearly erroneous. Nothing in the record shows

                                             3
the testimony “so inconsistent or improbable on [its] face that no reasonable

factfinder could accept” it. The court considered the credibility of the witnesses,

and even though it found that Bien-Aime was a credible witness “in a lot of

respects[,]” its decision to credit Gonzalez’s testimony, to the extent that it

differed from Bien-Aime’s, was not clearly erroneous.

      AFFIRMED.




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