           Case: 16-11836   Date Filed: 04/05/2017   Page: 1 of 16


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11836
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:15-cr-80160-RLR-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                  versus

PATRICK D. TURNER,

                                                      Defendant - Appellant.

                       ________________________

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

                              (April 5, 2017)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Patrick Turner appeals the district court’s denial of his motion to suppress

evidence and the court’s decision to sentence him as an armed career criminal.

After careful consideration, we find no reversible error and therefore affirm.

      Police seized a firearm from Turner during a warrantless investigatory

detention. He contends that the district court should have suppressed evidence

about the firearm because the police officers created the circumstances giving rise

to the reasonable suspicion that supported his investigatory detention. But absent

improper provocation, police officers are entitled to form reasonable suspicion

based on a suspect’s reaction to their arrival. Here, another man’s reaction gave

rise to reasonable suspicion and justified Turner’s investigatory detention.

      At sentencing, the district court determined that Turner was an armed career

criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and

therefore sentenced him to a mandatory minimum 15 years in prison. Turner

contends that the district court erred in finding that three of his prior criminal

convictions were each a serious drug offense sufficient to qualify him as an armed

career criminal. He argues that to qualify as a “serious drug offense” under

ACCA, a state crime must have as an element knowledge of the illicit nature of the

drugs and that his Florida convictions lacked this element. This argument is

foreclosed, however, by our Court’s precedent.

                                     I. FACTS



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       After West Palm Beach Police officers discovered a firearm on Turner, he

was arrested and indicted for, as a convicted felon, possessing a firearm and

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Turner filed a

motion to suppress the firearm and ammunition, as well as statements he made in

connection with their seizure, arguing that this evidence was the fruit of an

unlawful warrantless search and seizure in violation of the Fourth Amendment. A

magistrate judge held a hearing on this motion, and the following facts were

elicited.

       Officer Jerrel Negron testified that he and two colleagues were patrolling a

25 block area of West Palm Beach in the early morning. The officers focused on

this area in response to recent homicides and shootings and considered it to be a

high crime area. They patrolled in a black, unmarked police vehicle and were

dressed in tactical vests that said “Police” on the front and back in white letters.

Negron was seated in the rear passenger seat while one of his colleagues drove.

Around one o’clock in the morning, the officers noticed three people standing in a

parking area off an alley. The alley was accessible to the public. The officers

drove into the alley with their headlights illuminated, and they observed three cars

in a row in the parking area parked perpendicular to the alley. The officers

observed that three men were gathered around the car that was the farthest away.




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Of the three men, Cornelius Daniels, Wesley Hicks, and Turner, Turner was the

closest to the alley and the officers.

      The officers parked their vehicle at the edge of the parking area and got out.

As the officers walked toward the three men, they observed Hicks drop down

toward the ground behind the third car. Negron pulled out his flashlight and

illuminated Hicks while his two colleagues both pulled out their firearms. The

officers ordered Hicks to stand up, which he did. After another officer patted

Hicks down, Negron turned to search the area and noticed the butt of a firearm

protruding from Turner’s pocket. Turner stated that he had a firearm on him, and

when Negron asked if he had a permit, Turner admitted that he did not. Turner

also stated that he was a convicted felon. After confirming this information,

Negron arrested Turner.

      Officer Stephen Mooney, the officer driving the unmarked police vehicle

that night, testified to the same sequence of events as Negron. He added that

seeing Hicks duck down raised his level of concern in light of the recent homicides

in the area.

      Daniels testified for the defense. He stated that the parking area where these

events took place was behind his apartment. Turner had just gotten off work, and

the three men were talking together around Daniels’s mother’s car. During the 30

to 40 minutes while they talked, Hicks did not see a firearm. As the men talked,



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the police officers drove slowly into the alley with no headlights on. The officers

pulled up to the parking area and exited their vehicle with their guns drawn. As

they exited, Hicks fidgeted, moving his shoulders from left to right. Daniels

denied that Hicks ever dropped between the cars. In response, the officers told the

men not to move again or they would be shot. The officers then grabbed Turner,

frisked him, and retrieved a firearm. During this time, Turner did not say anything

to the officers about having a firearm or being a convicted felon.

       After hearing this testimony, the magistrate judge found that the events

occurred much as Negron described them. He made the following specific

findings of fact about the incident.1 First, the headlights on the officers’ vehicle

were illuminated as they drove into the alley. Second, the officers did not draw

their firearms until after Hicks moved. Third, Negron observed the firearm in

Turner’s pocket, and Turner spontaneously stated that he had a firearm. The

magistrate judge credited all three witnesses’ descriptions of Hicks’s activity,

concluding that whether Hicks ducked or flinched, “[i]t was enough of a move to

be noticed by all concerned.” Report Recommending That Def.’s Mot. to Suppress

be Denied 5 (Doc. 35). 2 After setting out these facts, the magistrate judge

concluded that the officers reasonably detained Turner, Daniels, and Hicks to

       1
          The magistrate judge resolved additional inconsistencies relating to the precise location
of all the individuals in question and the number of officers on the scene, but neither of these
factual disputes is relevant to the outcome of this case.
       2
           Citations to “Doc.” refer to docket entries in the district court record in this case.


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neutralize the potential threat of physical harm and that Negron discovered

Turner’s firearm during the course of this permissible detention. Accordingly, the

magistrate judge recommended that Turner’s motion to suppress be denied. The

district court adopted this recommendation over Turner’s objections.

      Turner pled guilty. His Presentence Investigation Report classified him as

an armed career criminal subject to a 15 year minimum sentence based on several

prior convictions for violent felonies and serious drug offenses. The prior offenses

included three convictions under Florida law for selling cocaine within 1,000 feet

of a church or school. Turner objected to this classification. At Turner’s

sentencing hearing, the United States stipulated that it would rely on only the three

Florida cocaine distribution convictions for purposes of arguing that Turner should

be sentenced as an armed career criminal. The district court determined that these

Florida convictions qualified as serious drug offenses under ACCA and sentenced

Turner to 15 years in prison. This appeal followed.

                           II. STANDARD OF REVIEW
      In reviewing the district court’s denial of a motion to suppress, we review

the district court’s findings of fact for clear error and the application of law to

those facts de novo. United States v. Epps, 613 F.3d 1093, 1097 (11th Cir. 2010).

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). All



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facts are construed 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).

      We also review de novo whether a conviction qualifies as a serious drug

offense under ACCA. United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir.

2009).

                                 III. DISCUSSION

A.    Motion to Suppress
      Turner appeals the district court’s denial of his motion to suppress the

firearm seized from his person during the warrantless search. He argues that the

officers were responsible for creating the circumstances that justified this seizure

and therefore should not have been allowed to benefit from it. But a person’s

reaction to police presence can serve as the basis for an investigatory stop, as it did

here. Turner’s firearm was seized as the result of a legitimate investigatory

detention, so we uphold the district court’s denial of his motion to suppress the

firearm.

      The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend. IV. Not all interactions

between law enforcement and private citizens implicate this Amendment. See

United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006). “Only when the



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officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen may [a court] conclude that a ‘seizure’ has

occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). We have categorized

encounters between police and citizens into three types: “(1) police-citizen

exchanges involving no coercion or detention; (2) brief seizures or investigatory

detentions; and (3) full-scale arrests.” Perez, 443 F.3d at 777. In this case,

Turner’s encounter with the police involved all three categories. On appeal,

however, he challenges only the investigatory detention that led to his later arrest,

so we confine our analysis below to the first two stages of the encounter.

       First, the district court’s factual findings establish that the officers’ initial

approach did not implicate the Fourth Amendment.3 “[O]fficers may seek consent-

based encounters if they are lawfully present in the place where the consensual

encounter occurs.” Kentucky v. King, 563 U.S. 452, 463 (2011).

       Here, the magistrate judge found that the three officers drove down the alley

toward Turner, Daniels, and Hicks with their unmarked police vehicle’s headlights

illuminated, came to a stop near the men, and got out of the vehicle. The record

reveals that the alley in question was accessible to the public, so the officers

lawfully were present there. And the officers had not yet done anything to restrain

       3
         While the evidence regarding the events on the night in question was conflicting in
some respects, the magistrate judge held an evidentiary hearing and had an opportunity to
observe the witnesses who testified. The magistrate judge’s choice to credit the officers’
testimony where it conflicted with Daniels’s testimony was not clearly erroneous.


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the men’s freedom of movement. Up to this point, therefore, the encounter

between the officers and the men was consensual.

      What happened next transformed this consensual encounter into an

investigatory detention. The magistrate judge found that after alighting from their

vehicle, the officers saw Hicks make a sudden movement. In response, two of the

officers drew their weapons and ordered Hicks to stand up and show his hands.

The record does not reflect that any of the men ran or refused to comply, thus they

submitted to the show of authority by police officers. At that point, they had been

detained. See California v. Hodari D., 499 U.S. 621, 626 (1991).

      Despite Turner’s argument to the contrary, we conclude that this detention

was legitimate. We determine whether an investigatory detention was legal under

the Fourth Amendment by asking two questions: (1) “whether the [detention] was

justified at its inception,” and (2) “whether the officer’s actions were reasonably

related in scope to the circumstances that justified the [detention] in the first

place.” United States v. Griffin, 696 F.3d 1354, 1358 (11th Cir. 2012). In this

case, we answer both questions in the affirmative.

      The detention was justified at its inception. “[A]n officer may, consistent

with the Fourth Amendment, conduct a brief, investigatory stop when the officer

has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v.

Wardlow, 528 U.S. 119, 123 (2000). Reasonable suspicion is a less demanding



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standard than probable cause, but the Fourth Amendment requires objective

justification for police to make an investigatory stop. Id. Reliance on a mere

hunch is insufficient. United States v. Arvizu, 534 U.S. 266, 274 (2002). When

determining whether reasonable suspicion exists, a court must examine the

“totality of the circumstances” to ascertain whether the officer had a particularized

and objective basis for suspecting legal wrongdoing. Id. at 273. The fact that the

stop occurred in a “high crime area” is among the relevant contextual

considerations to this analysis. Wardlow, 528 U.S. at 124.

      In this case, the totality of the circumstances gave the officers reasonable

suspicion to detain the men. The magistrate judge found that the three men were

gathered around a parked car in an alley at one o’clock in the morning in an area

that had recently experienced shootings and homicides. The officers drove slowly

into an alley in an unmarked vehicle with its headlights illuminated. Hicks

flinched or ducked just after three officers wearing police vests exited an unmarked

vehicle. Importantly, the magistrate judge found the officers did not draw their

weapons until Hicks moved. Taken together, these facts gave the officers

reasonable suspicion that Hicks would engage in some sort of violence against the

officers, and the police were justified in temporarily detaining the three men until




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they could allay those fears.4 See United States v. Gibson, 64 F.3d 617, 624 n.8

(11th Cir. 1995) (listing a suspect’s reaching behind his back when confronted by

police among the circumstances that provided reasonable suspicion to detain him).

       Turner contends that the ominous approach of the unmarked police vehicle

caused Hicks to make the unexpected movement that officers used to justify the

detention and that officers may not rely on reasonable suspicion created as a result

of their own actions. Although “officers cannot improperly provoke . . . a person”

in order to justify a stop, United States v. Franklin, 323 F.3d 1298, 1302 (11th Cir.

2003), they are otherwise entitled to rely on a suspect’s reaction to their presence.

Indeed, we have cited frequently a suspect’s reaction to police presence among the

factors supporting reasonable suspicion in a case. See, e.g., United States v.

Lindsey, 482 F.3d 1285, 1291 (11th Cir. 2007) (sudden movement of vehicle from

parked location to gas pump when officer came into view); United States v.

Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (turning and walking quickly away

from officers); United States v. Gordon, 231 F.3d 750, 756 (11th Cir. 2000)


       4
          Flinching or ducking when police officers exit a vehicle would not itself provide
reasonable suspicion for an investigatory detention. In fact, this Court has in the past suggested
that getting on the ground would be a reasonable response to the potential for violent
confrontation that can accompany police presence. See United States v. Franklin, 323 F.3d
1298, 1303 (11th Cir. 2003) (“While a reasonable person might have believed the [SWAT]
team’s arrival indicated some imminent violence . . . . [that] reasonable person might have
dropped to the ground.”). But here it was one o’clock in the morning, in an alley, in an area
where shootings had recently occurred, and there was a car between Hicks and the officers that
prevented them from seeing what he was doing. Given the totality of these circumstances, the
officers were justified in fearing for their safety.


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(making eye contact with officer, moving quickly toward an adjacent car, and

driving away). Put simply, in this case the officers were entitled to rely on Hicks’s

reaction to their arrival in forming reasonable suspicion to detain him and those

nearby, including Turner.

      Because police were justified in detaining Hicks, they were also justified in

detaining Turner, who was standing nearby. See Lewis, 674 F.3d at 1306. “Case

precedent from both the Supreme Court and this Circuit has established that, for

safety reasons, officers may, in some circumstances, briefly detain individuals

about whom they have no individualized reasonable suspicion of criminal activity

in the course of conducting a valid [investigatory detention] as to other related

individuals.” Lewis, 674 F.3d at 1306. Here, a concern for their own safety

permitted the officers “to control the movements of nearby associates and exercise

command over the situation once the officers had reasonable suspicion of criminal

activity that warranted further investigation.” Id. at 1308. Thus, Turner was

legitimately detained alongside Hicks.

      Having determined that Turner’s initial detention was legitimate to ensure

officer safety, we also conclude that the officers’ actions here were reasonably

related to this safety concern. The magistrate judge determined that Officer

Negron was merely walking behind Turner, who was the closest of the three men

to the officers. It was at this moment that Negron noticed Turner’s firearm, which



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was sticking out of his pocket. Walking up behind Turner and looking at his

pocket was well within the scope of ensuring officer safety, so Negron’s actions up

to discovering Turner’s firearm did not violate the Fourth Amendment.

Accordingly, we affirm the district court’s order denying Turner’s motion to

suppress his firearm.

B.    Armed Career Criminal Enhancement
      Turner also appeals the district court’s determination that three of his prior

convictions qualified as serious drug offenses sufficient to enhance his sentence

under ACCA. Turner contends that a state crime must have a mens rea element in

order to qualify as such a serious drug offense. Because the Florida cocaine

distribution statute he was convicted of violating required no mens rea regarding

the illicit nature of the controlled substance, Turner argues that it properly could

not serve to enhance his sentence. But binding prior panel precedent forecloses

this argument. Turner acknowledges this precedent but insists that it has been

undermined by Supreme Court case law. We disagree and conclude that the

district court properly enhanced Turner’s sentence under ACCA.

      The district court ruled that Turner’s three prior Florida drug convictions

each constituted a “serious drug offense” and could serve as the basis for an

enhanced sentence under ACCA. 18 U.S.C. § 924(e). ACCA imposes a

mandatory minimum sentence of 15 years on a defendant convicted of being a



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felon in possession of a firearm who also has three prior state or federal

convictions for “a violent felony,” “a serious drug offense,” or both. Id.

§ 924(e)(1). The term “serious drug offense” includes “an offense under State

law” that “involv[es] manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance” and that has “a maximum term

of imprisonment of ten years or more.” See id. § 924(e)(2)(A)(ii).

      We agree with the district court’s determination that Turner’s three previous

convictions under Florida law for selling cocaine qualify as serious drug offenses

under ACCA. See Fla. Stat. § 893.13(1). Under Florida law, it is a crime to sell,

manufacture, or deliver (or possess with intent to sell, manufacture, or deliver)

cocaine. Fla. Stat. § 893.13(1)(a). An individual, like Turner, who is convicted of

selling cocaine within 1,000 feet of a school or place of worship faces up to 15

years’ imprisonment. Id. §§ 775.082(3)(d), 893.13(1)(c), (e).

      We have held that violations of § 893.13(1) qualify as a serious drug offense

under ACCA, even though Florida law imposes no mens rea requirement with

respect to the illicit nature of the controlled substance. See United States v. Smith,

775 F.3d 1262 (11th Cir. 2014). Turner argues that Smith was wrongly decided

because the panel failed to consider Begay v. United States, 553 U.S. 137 (2008),

in which the Supreme Court held that strict liability crimes could not be violent

felonies under ACCA’s since-invalidated residual clause. See id., 553 U.S. at 147–



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48.5 But Smith was decided in 2014, well after Begay, and is binding Circuit law.

See Smith v. GTE Corp., 236 F.3d 1292, 1301–04 (11th Cir. 2001) (categorically

rejecting an “overlooked reason” exception to the prior panel precedent rule).

       Turner argues that two post-Smith Supreme Court cases—Elonis v. United

States, 135 S. Ct. 2001 (2015), and McFadden v. United States, 135 S. Ct. 2298

(2015)—have undermined Smith to the point of abrogation. We disagree. In

Elonis, the Supreme Court read a mens rea requirement into the federal statute

criminalizing interstate threats despite the absence of such a requirement from the

statute’s text. See 135 S. Ct. at 2012. In McFadden, the Court similarly read a

mens rea requirement into the federal law treating analogues of controlled

substances the same as controlled substances. 135 S. Ct. at 2305. But these

interpretations of substantive federal criminal law have no bearing on ACCA’s

scheme providing sentencing enhancements based on certain types of prior state

law convictions, and they do not abrogate our holding in Smith. Thus, we conclude

that the district court did not err in determining that Turner’s § 893.13(1)

convictions qualified as serious drug offenses sufficient to enhance his sentence

under ACCA.




       5
         Several years after Begay, the Supreme Court held that ACCA’s residual clause was
void for vagueness. See Johnson v. United States, 135 S. Ct. 2551 (2015) (holding ACCA’s
residual clause void for vagueness).


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                                IV. CONCLUSION
      For all of the foregoing reasons, we affirm the district court’s denial of

Turner’s motion to suppress and his sentence.

      AFFIRMED.




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