           Case: 16-13226   Date Filed: 04/10/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13226
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:14-cr-00636-LSC-WC-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                versus

CHAD LAMAR HOGAN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                              (April 10, 2017)

Before MARTIN, FAY and ANDERSON, Circuit Judges.

PER CURIAM:
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      Chad Lamar Hogan appeals his conviction and sentence for possession of a

firearm by a convicted felon. We affirm.

                               I. BACKGROUND

      In June 2013, Detective Greg Schnupp, a detective with the Montgomery

Police Department (“MPD”), was investigating a group of armed-home-invasion

robberies. Following one of the robberies, MPD canvassed the victim’s

neighborhood and a neighbor reported having seen a white Ford Expedition near

the scene prior to the crime. The neighbor had written down the license-plate

number of the vehicle and provided it to MPD, which later discovered the vehicle

was registered to Hogan. Detective Schnupp created a be-on-the-lookout

notification (“BOLO”) for Hogan to be taken to the police department for

questioning. He included descriptions of the two cars registered to Hogan. The

BOLO stated Hogan should be considered armed and dangerous, because the

victims of the robberies had reported the offenders were armed and because of

Hogan’s criminal history. Although Detective Schnupp believed he had probable

cause to question Hogan and to obtain an arrest warrant, he did not obtain a

warrant, because he “was trying to build [a] case against Hogan.” Hr’g Tr. at 24

(Mar. 19, 2015).

      At morning roll call on June 16, 2013, MPD supervisors issued the BOLO to

the patrol units. Corporal Steven Pearson received the BOLO and, while out on


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patrol that morning, went by Hogan’s address, saw a white Ford Expedition in the

driveway, and waited for the car to leave. Around noon, an individual left the

home and drove away in the Expedition. Corporal Pearson verified the driver was

male, and the car matched one of those described in the BOLO; he then stopped

the car. Corporal Pearson intended to identify the driver as Hogan and transport

him to the police station. Based on the BOLO, Corporal Pearson believed law

enforcement had probable cause to arrest Hogan.

      As he approached the car, Corporal Pearson instructed the driver to place his

hands on the steering wheel and escorted the driver out of the car. The driver

identified himself as Hogan. Corporal Pearson asked whether Hogan had any

weapons, needles, or items on him that could stick or hurt him during a pat-down.

Hogan responded there was a gun in the car, but he did not have anything on his

person. Corporal Pearson then patted Hogan down for safety, handcuffed him,

advised him he was being detained for questioning, and had him sit on the street

curb. At the time, Corporal Pearson was not aware Hogan was a convicted felon.

      While waiting for backup, Corporal Pearson contacted Detective Schnupp.

When Detective Schnupp learned there was a firearm in Hogan’s vehicle, he told

Corporal Pearson “to make sure that [Hogan] was handcuffed and that if he did not

have the permit for it, that he was currently under arrest for being in possession of

a firearm.” Hr’g Tr. at 25. Backup units arrived within a “couple minutes”;


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Corporal Pearson placed Hogan in his police vehicle and transported him to the

criminal investigations division. Hr’g Tr. at 8.

      A grand jury indicted Hogan on one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(l). The indictment charged he

knowingly possessed a Taurus .38 revolver on June 16, 2013. Hogan filed a

motion to suppress the items seized from his car and the statements he had made;

he argued law enforcement obtained the evidence as a result of his unlawful

seizure. After a hearing, the magistrate judge issued a recommendation Hogan’s

suppression motion be denied. The magistrate judge determined the collective

knowledge of Corporal Pearson and Detective Schnupp, viewed objectively, did

not establish probable cause to arrest Hogan when he initially was stopped. The

magistrate judge reasoned the BOLO alone did not establish probable cause and

Detective Schnupp’s suspicion of Hogan only was based on a neighbor’s

observation of Hogan’s car at some point prior to one of the robberies. The

magistrate judge determined, however, Hogan was not under arrest when he was

initially stopped; he was subject to a reasonable investigatory-traffic stop. The

magistrate judge explained an objectively reasonable officer reading the BOLO

would have had reasonable suspicion Hogan was involved in criminal activity.

The investigatory stop did not become an arrest when Hogan was handcuffed,

asked about weapons, and patted down, because Corporal Pearson could take such


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measures to ensure his safety based on his reasonable belief Hogan was armed and

dangerous. The magistrate judge stated the delay of the stop for a few minutes to

allow backup to arrive did not transform the stop into an arrest; probable cause

existed to arrest Hogan for being a felon in possession of a firearm once Corporal

Pearson informed Detective Schnupp Hogan had a gun in the car, given Detective

Schnupp’s knowing Hogan had a felony record. This knowledge also gave law

enforcement probable cause to search the car for the gun. The magistrate judge

determined Hogan was not in custody when he made the admission of the gun in

the car; therefore, he was not yet entitled to Miranda warnings.1

        Hogan moved to reopen the suppression hearing and argued he was not

given an opportunity to present evidence at the hearing. The district judge granted

the motion. During the supplemental suppression hearing, Hogan testified

regarding his version of the arrest. The magistrate judge then issued a

supplemental report and again recommended Hogan’s motion to suppress be

denied. He stated Hogan had not presented any new legal arguments, and his

testimony had no effect on the prior recommendation the motion to suppress be

denied. Hogan filed objections to the recommendation. The district judge

overruled Hogan’s objections, adopted the magistrate judge’s recommendation,

and denied the motion to suppress. The district judge deferred to the magistrate


1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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judge’s credibility determinations and findings of fact. The judge also noted the

issue of precisely when Hogan was handcuffed was immaterial, because an

investigatory stop does not become an arrest because the suspect is handcuffed.

The judge determined Corporal Pearson’s subjective reason for detaining Hogan

was irrelevant to whether the stop and detention were objectively reasonable.

Hogan entered a conditional plea to being a felon in possession of a firearm and

reserved his right to appeal the denial of his motion to suppress. The judge

sentenced him to 36 months of imprisonment.

                                 II. DISCUSSION

      On appeal, Hogan contends the district judge erred by denying his motion to

suppress evidence law enforcement obtained during the stop of his car. He argues

he was unlawfully arrested during the stop without probable cause and subjected to

custodial interrogation without being given Miranda warnings.

      “The denial of a motion to suppress is reviewed under a mixed standard.”

United States v. Ford, 784 F.3d 1386, 1391 (11th Cir. 2015). We review for clear

error a district judge’s findings of fact; we review de novo the application of law to

those facts and construe the facts in the light most favorable to the prevailing party.

Id. Evidence obtained as a result of a violation of constitutional rights generally

must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.

Ct. 407, 416 (1963).


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      The Fourth Amendment provides the “right of the people to be secure in

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

seizures, shall not be violated” and “no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const. amend. IV. The

Fourth Amendment permits a warrantless arrest in a public place if an officer has

probable cause to believe that a felony has occurred. Florida v. White, 526 U.S.

559, 565, 119 S. Ct. 1555, 1559 (1999). Probable cause also permits a warrantless

search of a car. United States v. Ross, 456 U.S. 798, 809, 102 S. Ct. 2157, 2164-65

(1982).

      Law enforcement officers have probable cause to arrest when the facts and

circumstances within their knowledge are sufficient to warrant a reasonable belief

the suspect committed or is committing a crime. United States v. Lopez-Garcia,

565 F.3d 1306, 1314 (11th Cir. 2009). Probable cause to search exists when,

“under the totality of the circumstances, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” United States v.

Thomas, 818 F.3d 1230, 1243 (11th Cir.), cert. denied, 137 S. Ct. 171 (2016).

Probable cause may be based on the collective knowledge of officers. United

States v. Allison, 953 F.2d 1346, 1350 (11th Cir. 1992). The existence of probable

cause is determined using an objective standard and without regard to the


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subjective intent or beliefs of the officers. United States v. Franklin, 694 F.3d 1, 9

(11th Cir. 2012); see also Whren v. United States, 517 U.S. 806, 813, 116 S. Ct.

1769, 1774 (1996) (“Subjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis.”). Thus, a reviewing court must evaluate any

alternative justifications for a seizure without regard to the rationale employed by

an officer at the time of the arrest or detention. See Devenpeck v. Alford, 543 U.S.

146, 152-56, 125 S. Ct. 588, 593-95 (2004).

      Law enforcement may conduct a brief, investigatory Terry stop even if

probable cause is lacking. United States v. White, 593 F.3d 1199, 1202 (11th Cir.

2010) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). A Terry stop must

be justified by “reasonable, articulable suspicion based on objective facts that the

person has engaged in, or is about to engage in, criminal activity.” Id. (citation and

internal quotation marks omitted); accord Lopez-Garcia, 565 F.3d at 1313 (stating

reasonable suspicion requires “a particularized and objective basis for suspecting

legal wrongdoing” and more than a hunch of criminal activity (citation and internal

quotation marks omitted)). Reasonable suspicion is determined based on the

totality of the circumstances and the collective knowledge of officers. United

States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006). If a flyer or bulletin stating

a person is wanted in an investigation is issued based on reasonable suspicion the

person committed a crime, then reliance on that flyer or bulletin justifies a Terry


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stop to check identification, pose questions, or detain the person briefly while

attempting to obtain further information. United States v. Hensley, 469 U.S. 221,

232, 105 S. Ct. 675, 682 (1985).

      In addition to being justified at its inception, a Terry stop must be reasonably

related in scope to the circumstances that permitted the stop. United States v.

Griffin, 696 F.3d 1354, 1358 (11th Cir. 2012). During a lawful traffic stop,

officers may take steps reasonably necessary to protect their safety, including

requiring the driver and any passengers to exit the car. United States v. Spoerke,

568 F.3d 1236, 1248 (11th Cir. 2009). An officer may conduct a pat-down for

weapons if he reasonably believes his safety or the safety of others is threatened.

Griffin, 696 F.3d at 1359. An officer also may handcuff a suspect if he possesses

an articulable and objectively reasonable belief that a suspect is dangerous. United

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

      A detention may exceed the permissible boundaries of a Terry stop and

become a de facto arrest that must be supported by probable cause. United States

v. Dunn, 345 F.3d 1285, 1289-90 (11th Cir. 2003). To determine whether a

detention was a Terry stop or an arrest, we consider factors such as the law-

enforcement purpose served by the detention, the diligence with which the officers

pursued the investigation, the scope and intrusiveness of the investigation, and the

duration of the detention. United States v. Street, 472 F.3d 1298, 1306 (11th Cir.


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2006). We ultimately focus “on whether the police diligently pursued a means of

investigation likely to confirm or dispel their suspicions quickly, during which

time it was necessary to detain the [suspect].” Id. (citation and internal quotation

marks omitted).

      No person “shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. This privilege against self-incrimination requires

that a suspect be advised of certain rights before being subject to custodial

interrogation. Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624

(1966). Custodial interrogation is “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.” Id. at 444, 86 S. Ct. at 1612; see also

California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (stating

“the ultimate inquiry” in determining whether a suspect is in custody for the

purpose of receiving Miranda protection is whether “there is a formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest”

(citation and internal quotation marks omitted)). Whether a suspect is in custody is

determined objectively, and the actual, subjective beliefs of the suspect and the

interviewing officer are irrelevant. United States v. Lall, 607 F.3d 1277, 1284

(11th Cir. 2010). Individuals temporarily detained during ordinary traffic stops are

not in custody for the purpose of applying Miranda, although a traffic stop


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significantly curtails the freedom of action of the driver and any passengers.

Berkemer v. McCarty, 468 U.S. 420, 436, 440, 104 S. Ct. 3138, 3148, 3150 (1984).

      Corporal Pearson initiated a Terry stop of Hogan’s car based on the BOLO

issued on reasonable suspicion Hogan had been involved in robberies. Corporal

Pearson had a reasonable concern for his safety during the stop, because the

notification stated Hogan should be considered armed and dangerous. Therefore,

Corporal Pearson acted reasonably in requiring Hogan to exit the car, handcuffing

him, and conducting a pat-down for weapons. Corporal Pearson conducted a brief,

reasonable traffic stop during which he diligently pursued the investigation into

Hogan as a suspect for robbery.

      Hogan was not in custody during the pat-down; therefore, he was not

entitled to Miranda warnings when Corporal Pearson asked whether he had a

weapon, and Hogan responded that there was a gun in his car. When Corporal

Pearson informed Detective Schnupp Hogan had a gun, MPD had probable cause

to search the car and to arrest Hogan for being a felon in possession of a firearm.

MPD did not obtain evidence in violation of Hogan’s constitutional rights. The

district judge did not err by denying Hogan’s motion to suppress evidence.

      AFFIRMED.




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