                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 11-11900                ELEVENTH CIRCUIT
                                                            JUNE 14, 2012
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                 D. C. Docket No. 0:10-cr-60249-FAM-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

EZRA MOSTOWICZ,

                                                        Defendant-Appellant.

                      ________________________

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

                             (June 14, 2012)


Before EDMONDSON, MARTIN and BLACK, Circuit Judges.


PER CURIAM:
      Ezra Mostowicz appeals his convictions for possession with intent to

distribute controlled substances, 21 U.S.C. § 841(a)(1), and for possession of a

firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i), for

which he was sentenced to 90 months’ imprisonment. Mostowicz pleaded guilty

pursuant to a written plea agreement in which he reserved the right to appeal the

district court’s denial of his motion to suppress evidence. No reversible error has

been shown; we affirm.

      During a face-to-face meeting, a confidential source (“CS”) told Officer

Patrick Keegan that Mostowicz often sold cocaine and ecstacy at a local bar. The

CS described Mostowicz, Mostowicz’s car, Mostowicz’s usual parking spot, and

the time of day that Mostowicz was generally at the bar. The CS also said that

Mostowicz carried a gun either on his person or in the center console of his car.

      After their initial meeting, Officer Keegan spoke with the CS a couple of

times on the phone about Mostowicz’s drug activities. During one of these calls,

the CS told Officer Keegan that Mostowicz would arrive at the bar in about ten

minutes. Officer Keegan and Detective Wadel Romero drove immediately to the

bar and, moments later, saw Mostowicz’s car arrive and park in its usual spot. As

Mostowicz left the driver’s seat, Detective Romero ordered Mostowicz to stop and

handcuffed him. Meanwhile, Officer Keegan removed a female passenger from

                                          2
the car; and the officers directed both Mostowicz and his passenger to sit on a

nearby curb.

       Detective Romero then had his K-9 partner, Cody, conduct a sniff of the

outside of the car. As Cody approached the driver’s side door -- which Mostowicz

had left open -- she began showing behavioral signs that she detected the scent of

illegal drugs. Cody jumped immediately into the driver’s seat, sniffed the center

console area, and alerted, indicating that she was as close as possible to the source

of the odor. Officer Keegan searched the car and found a gun between the driver’s

seat and the center console and a bag of drugs hidden inside the center console.

Officer Keegan read Mostowicz his Miranda1 rights, and Mostowicz admitted that

the gun and the drugs in the car belonged to him.

       On appeal, Mostowicz challenges the district court’s denial of his motion to

suppress evidence. He argues (1) that the officers lacked reasonable suspicion to

perform an investigatory detention; (2) that the investigatory detention amounted

to an arrest that was not supported by probable cause; and (3) that the dog sniff of

the inside of his car violated his Fourth Amendment rights.2 In considering the

   1
    Miranda v. Arizona, 86 S. Ct. 1602 (1966).
   2
    Mostowicz also argues that the district court violated his due process rights when it adopted
the magistrate judge’s report and recommendation -- over Mostowicz’s objections -- without
conducting a second evidentiary hearing to resolve various credibility issues. This argument has
been foreclosed by the United States Supreme Court’s decision in United States v. Raddatz, 100

                                                 3
district court’s 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 the facts de novo.

United States v. Nunez, 455 F.3d 1223, 1225 (11th Cir. 2006). We also construe

the facts in the light most favorable to the prevailing party. Id.

       To justify an investigatory detention, “the government must show a

reasonable, articulable suspicion that the person has committed or is about to

commit a crime.” United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006).

When determining whether reasonable suspicion exists, we must consider the

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

and objective basis” for suspecting criminal activity. United States v. Arvizu, 122

S. Ct. 744, 750 (2002). Reasonable suspicion may be based on information

supplied to an officer by another person, if that information bears sufficient indicia

of reliability. Adams v. Williams, 92 S. Ct. 1921, 1923-24 (1972).

       Officer Keegan met face-to-face with the CS for almost an hour and -- based

on the CS’s demeanor -- believed the CS to be credible. Such a face-to-face tip “is

presumed to be inherently more reliable than an anonymous telephone tip because

the officers receiving the information have an opportunity to observe the


S. Ct. 2406, 2413-15 (1980), which concluded that a district court does not violate the Due
Process Clause when it makes a de novo determination on credibility issues without hearing live
testimony.

                                               4
demeanor and perceived credibility of the informant.” See United States v. Heard,

367 F.3d 1275, 1279 (11th Cir. 2004).

      We have also determined that an informant’s tip is sufficiently reliable to

create a reasonable suspicion of criminal activity when -- as in this case -- officers

corroborate both “presently observable facts and the prediction of future conduct.”

See United States v. Lee, 68 F.3d 1267, 1272 (11th Cir. 1995). Officers

corroborated “presently observable facts,” including Mostowicz’s physical

description, the make and model of Mostowicz’s car, and that Mostowicz’s car

was parked one evening in the location specified by the CS.

      In addition, the CS predicted Mostowicz’s future conduct, telling Officer

Keegan precisely when Mostowicz would arrive at the bar on the night of the

arrest. Given the totality of the circumstances, we conclude that the CS’s tip

provided Officers Keegan and Romero with reasonable suspicion to conduct an

investigatory detention of Mostowicz’s car.

      Mostowicz next argues that, even if the officers had reasonable suspicion to

detain him, the investigative detention amounted to an arrest requiring probable

cause. In determining whether a detention rises to the level of an arrest, we

consider these four factors: (1) “the law enforcement purposes served by the

detention”; (2) “the diligence with which the police pursue the investigation”; (3)

                                          5
“the scope and intrusiveness of the detention”; and (4) “the duration of the

detention.” United States v. Acosta, 363 F.3d 1141, 1146 (11th Cir. 2004).

      In examining the first factor, “the most important consideration is whether

the police detained the defendant to pursue a method of investigation that was

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

interference.” Id. (quotations omitted). Here, the officers ordered Mostowicz and

his passenger out of the car and initiated a dog sniff of Mostowicz’s car within

minutes of the stop. We have said that such a dog sniff “is the kind of brief,

minimally intrusive investigation technique” that supports an investigative

detention. United States v. Hardy, 855 F.2d 753, 759 (11th Cir. 1988). Thus, this

factor weighs in favor of the legality of the detention. The second and fourth

factors also weigh in favor of the detention’s legality because nothing evidences --

and Mostowicz does not argue -- that the police delayed the investigation or that

the duration of the detention was unreasonable.

      Under the third factor, “officers 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.’” Acosta, 363 F.3d at 1146. Thus, “an

investigatory stop does not necessarily ripen into an arrest because an officer

draws his weapon, handcuffs a suspect, [or] orders a suspect to lie face down on

                                          6
the ground.” Id. at 1147 (citations omitted). Based on the CS’s tip that

Mostowicz carried a gun, for the officers to believe that Mostowicz was dangerous

and that they needed to protect themselves was reasonable. Thus, we are not

convinced that the officers’ acts -- which included activating their emergency

lights, wearing tactical uniforms, drawing their weapons, and handcuffing

Mostowicz -- converted the detention into an arrest.

       We next address Mostowicz’s argument that Cody’s entry into his car

violated his Fourth Amendment rights because it constituted a search without

probable cause.3 The four circuit courts that have addressed this issue have each

concluded that a trained dog’s instinctive acts -- performed without police

encouragement or facilitation -- do not violate the Fourth Amendment. See United

States v. Pierce, 622 F.3d 209, 213-14 (3rd Cir. 2010) (concluding that no Fourth

Amendment violation occurred when a dog jumped instinctively through an open

car door “without facilitation by his handler”); United States v. Vazquez, 555 F.3d

923, 930 (10th Cir. 2009) (stating that “we have upheld the legality of [a dog] sniff

during a lawful detention when, as here, (1) the dog’s leap into the car was

instinctual rather than orchestrated and (2) the officers did not ask the driver to


   3
   Mostowicz does not challenge the dog sniff of the exterior of his car. See United States v.
Holloman, 113 F.3d 192, 194 (11th Cir. 1997) (concluding that a dog-sniff of the outside of a car
does not constitute a “search” within the meaning of the Fourth Amendment).

                                                7
open the point of entry . . . used by the dog”); United States v. Lyons, 486 F.3d

367, 373 (8th Cir. 2007) (seeing no Fourth Amendment violation when a dog

stuck his head instinctively through a van’s open window without being directed

to do so by officers); United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998)

(stating that “absent police misconduct, the instinctive acts of trained canines . . .

do[] not violate the Fourth Amendment”); United States v. Stone, 866 F.2d 359,

363-64 (10th Cir. 1989) (seeing no Fourth Amendment violation when a dog

jumped instinctively into defendant’s open hatchback and when the officers did

not ask defendant to open the hatchback for purposes of the dog sniff); cf. United

States v. Winningham, 140 F.3d 1328, 1330-31 (10th Cir. 1998) (concluding that a

dog sniff of the inside of a van was unlawful when the officers opened the van’s

door and unleashed the dog as it neared the open door).

      Mostowicz contends that the officers facilitated Cody’s search when they

handcuffed him before he had an opportunity to close his door. But nothing

evidences that the officers instructed Mostowicz to leave open his door. And, as

we have discussed, the officers handcuffed Mostowicz based on their reasonable

belief that he was armed and dangerous, not to facilitate the dog sniff. Because

Cody jumped instinctively into the car without encouragement or facilitation from

the officers, we see no Fourth Amendment violation.

                                           8
AFFIRMED.




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