           Case: 14-11784    Date Filed: 11/14/2014   Page: 1 of 8




                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11784
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:13-cr-00009-LGW-JEG-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

CORTEZ JIMEL ARBERY,

                                                          Defendant-Appellant.

                      ________________________

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

                            (November 14, 2014)


Before HULL, MARCUS and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      After entering a conditional guilty plea to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1), Cortez Jimel Arbery appeals

the district court’s order denying his motion to suppress the firearm. After review,

we affirm.

                         I. FACTUAL BACKGROUND

      In early January 2013, police officers responded to a call on Leeswood

Circle in Brunswick, Georgia, where Kyle Williams and another unidentified male

fired a gun in the officers’ presence. As a result, a warrant was issued to arrest

Williams for aggravated assault.

      Approximately one to two weeks later, on January 10, 2013, law

enforcement received information that Williams and several other individuals were

standing in the yard of a home on Stafford Avenue, just one or two miles away

from Leeswood Circle. The neighborhood around Stafford Avenue was considered

a high-crime area, and officers had experienced resistance from people in that area

while on calls.

      Sergeant Corey Sasser gathered five or six officers to help arrest Williams.

Sergeant Sasser showed the officers Williams’s photograph and described

Williams as a six-foot-tall, medium-complected, African-American male of thin-

to-medium build who wore dreadlocks. Sergeant Sasser further advised that

Williams and his associates were likely to react with “fight or flight.”


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      When the team of officers arrived at the residence, they saw four people

standing around a car in the driveway. One of the people was Defendant Arbery.

Another man in the group matched the physical description of Williams, the man

they were trying to arrest, but was in fact Dashawn Palmer. Mistaking Palmer for

Williams, the officers attempted to execute the arrest warrant. Four of the officers

approached the group with their firearms drawn, identified themselves as police,

and ordered the group to get down on the ground, which they did.

      As Sergeant Sasser moved toward Palmer on the passenger side of the car,

Officer Eric Melendez moved to the driver’s side and approached Defendant

Arbery and another man, Willie Massey. As Officer Melendez approached, he

noticed that Defendant Arbery was wearing two pairs of pants, although it was a

warm day. Officer Melendez ordered Defendant Arbery and Massey to the

ground. Immediately after the men complied, Officer Melendez frisked Defendant

Arbery, and felt what he believed to be the barrel of a gun in Arbery’s groin area.

After Officer Melendez handcuffed Arbery, and stood him up, Arbery stated, “It’s

in my right pocket.” Officer Melendez reached into Arbery’s right pocket and

found a .38 revolver. Officer Melendez’s actions from the time he exited his car

until he retrieved the firearm from Defendant Arbery’s pocket took approximately

one minute. “[W]ithin several minutes,” once everyone was detained, another

officer at the scene discovered that Palmer was not Williams.


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       Meanwhile, Officer Melendez obtained information from Defendant Arbery

and Massey, checked for warrants, and learned that both men had outstanding

arrest warrants in North Carolina. After learning that North Carolina would not

extradite Defendant Arbery or Massey, Palmer and Massey were let go, but

Defendant Arbery was arrested for carrying a concealed weapon.

                                      II. DISCUSSION

       The district court correctly concluded that the officers were justified in

detaining Palmer to investigate whether he was Williams and, while doing so,

briefly detaining and searching Arbery for their own safety. 1

A.     Investigatory Stop of Palmer

       Under the Fourth Amendment, a police officer may stop and briefly detain

an individual for investigative purposes if the officer has a reasonable suspicion

that the person was or is involved in criminal activity. United States v. Lewis, 674

F.3d 1298, 1303 (11th Cir. 2012) (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.

Ct. 1868, 1878 (1968)). We determine whether an investigatory stop is lawful

under the Fourth Amendment by considering (1) “whether the stop was justified at

its inception,” and (2) “whether the stop was reasonably related in scope to the

circumstances that justified the stop in the first place.” United States v. Griffin,

       1
        In reviewing motions to suppress, we review the district court’s factual findings for clear
error and the district court’s application of the law to the facts de novo. United States v.
Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). We construe the facts in the light most
favorable to the party prevailing below. Id.
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696 F.3d 1354, 1358 (11th Cir. 2012), cert. denied, 571 U.S. ___, 134 S. Ct. 956

(2014).

       Further, “[w]hen the police have probable cause to arrest one party, and

when they reasonably mistake a second party for the first party, then the arrest of

the second party is a valid arrest.” Hill v. California, 401 U.S. 797, 802, 91 S. Ct.

1106, 1110 (1971) (quotation marks omitted) (explaining that the officers’

reasonable, good-faith belief that Miller was Hill, coupled with probable cause to

arrest Hill, satisfied the Fourth Amendment’s reasonableness requirement); see

also United States v. Gonzalez, 969 F.3d 999, 1004-06 (11th Cir. 1992) (explaining

that an officer’s objectively reasonable, good-faith misidentification while

conducting surveillance may support probable cause to arrest).

       Here, it is undisputed that the officers had a warrant to arrest Kyle Williams

for aggravated assault. Based on the information they received about Williams’s

whereabouts and the photograph and physical description of Williams, the officers

reasonably suspected that the man they saw standing with a group of people at the

Stafford Avenue residence was Williams. 2 Nothing suggests that the officers’

belief that the man was Williams was anything other than a reasonable mistake.




       2
         The officers did not improperly rely on the tip about Williams’s purported location. The
officers’ independent observations of a man matching Williams’ description standing with a
group of people in front of the Stafford Avenue home sufficiently corroborated the tip.
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And, the mere fact that the man turned out not to be Williams does not make his

brief detention unreasonable. Cf. Hill, 401 U.S. at 802-04, 91 S. Ct. at 1110-11.

      At a minimum, the officers were warranted in briefly detaining Palmer to

investigate whether he in fact was Williams. The officers quickly determined—

within several minutes—that Palmer was not Williams and released him. In short,

the officers’ brief detention of Palmer to confirm whether he was Williams was

justified at its inception and reasonably related in scope to the purpose of the stop,

which was to arrest Williams.

B.    Detention of Defendant Arbery

      In addition, Officer Melendez’s brief detention of Defendant Arbery for

approximately one minute and “frisk” for weapons were both based on the

officers’ safety concerns and did not require individualized suspicion. “[F]or

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 Terry stop as to other related individuals.”

Lewis, 674 F.3d at 1306-08 (upholding as reasonable officers’ brief detention of

four men found in the parking lot of a high crime area, even though only two men

admitted possessing guns, based on the officers’ safety concerns and the need to

“control the movements of nearby associates and exercise command over the

situation”).


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       Likewise, a “frisk” may be justified to protect officers and others nearby, so

long as it is limited in scope to an intrusion designed to discover weapons. Terry,

392 U.S. at 29, 88 S. Ct. at 1884. “[W]hen an officer legitimately encounters an

individual, whether he is investigating that individual or not, the officer may

reasonably believe himself to be in danger and may wish to determine quickly

whether that person is armed.” United States v. Bonds, 829 F.2d 1072, 1074 (11th

Cir. 1987).3

       When Officer Melendez encountered Defendant Arbery, he knew that: (1)

Williams, the man they were trying to arrest, had a propensity for violence; (2) a

few weeks before, Williams and another individual allegedly fired a gun in the

presence of officers, and was wanted for aggravated assault; (3) Williams and his

associates might be armed and might respond with either flight or fight; (4) the

area around Stafford Avenue was a high-crime area; and (5) people in the

neighborhood were known to be confrontational with police who responded to

calls. Under these circumstances, it was reasonable for Officer Melendez to briefly

assert control over Arbery, whom he believed was one of Williams’s associates,

for safety reasons by ordering Arbery to lay down on the ground and then frisking

Arbery for weapons on the outside of his pants.


       3
         Because Arbery’s detention was based on safety concerns, not on reasonable suspicion
that he was engaged in criminal activity, the fact that Officer Melendez testified at the
suppression hearing that he did not have reasonable suspicion as to Arbery is immaterial.
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      Finally, there is no merit to Defendant Arbery’s claim that his brief detention

(before Officer Melendez found the firearm) amounted to an arrest. See United

States v. Acosta, 363 F.3d 1141, 1146-47 (11th Cir. 2004) (explaining that

“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” and that “an investigatory stop does not necessarily ripen into an arrest

because an officer draws his weapon, handcuffs a suspect, orders a suspect to lie

face down on the ground, or secures a suspect in the back of a patrol car”)

(quotation marks and citations omitted). The scope and intrusiveness of Officer

Melendez’s brief detention of Arbery was reasonably related to the officer’s need

to ensure his own safety and the safety of others around him while other officers

determined that Palmer was not Williams.

      For these reasons, the district court did not err in denying Defendant

Arbery’s motion to suppress the firearm.

      AFFIRMED.




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