     Case: 11-31140       Document: 00512132067         Page: 1     Date Filed: 02/01/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 1, 2013
                                       No. 11-31140
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

               Plaintiff - Appellee

v.

CHILITA WILSON,

               Defendant - Appellant



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-99-1


Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Chilita Wilson appeals a judgment of conviction
based on a guilty plea that reserved the right to contest the district court’s denial
of her motion to suppress evidence obtained during an officer’s stop and
subsequent search of her vehicle.           The outcome turns on whether a store
manager’s tip provided the officer with the requisite reasonable suspicion to stop
the vehicle.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 11-31140

                                            I.
       On June 18, 2008, Wilson attempted to purchase a gift card at a Home
Depot in Zachary, Louisiana. A month or two earlier, a woman had purchased
two gift cards in the $4,000 to $8,000 range with a fraudulent credit card at the
same Home Depot. That transaction was recorded on video and both Detective
Dillon (the Zachary Police Department detective assigned to the case) and Eric
Robertson (the manager of the Home Depot store) viewed the videotape. These
types of frauds were occurring with some frequency in the region. As a result of
that prior incident, the store implemented a policy requiring manager approval
of any gift card purchase over $200. In turn, when Wilson attempted to
purchase the gift card, Cindy Hamilton, the front-end manager, left the register
area to retrieve Robertson from a staff meeting being held in an office on the left-
hand side of the store.1 At the suppression hearing, Robertson testified: “I think
she even told me the young lady didn’t want to give her, her driver’s license
number or show the I.D., something to that effect.” When Robertson and
Hamilton turned the corner from the staff offices to return to the cash registers,
Robertson saw that “the young lady had turned around and started walking out
of the store,” without making the gift card purchase, at a “little quick pace.” She
also appeared to be talking on her cell phone. Robertson followed her “from a
distance.” The woman did not turn around or look back as she walked away.
Robertson watched as a vehicle pulled up to the front of the store, then drove
into the parking lot and parked; the woman walked to the parked vehicle, got in,
and the vehicle “sped off.”
       Robertson decided to call Detective Dillon to report the incident. He
explained to Detective Dillon the suspicious actions he had observed and gave
Detective Dillon a description of the vehicle as well as the direction it was



      1
         At the evidentiary hearing, Robertson could not recall the amount of the attempted
gift card purchase, other than knowing it was for an amount over $200.

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traveling. After receiving Robertson’s phone call, Detective Dillon “got into [his]
patrol vehicle and proceeded to the area near the Home Depot,” and “within five
minutes” he had intercepted a vehicle a few miles from the Home Depot that fit
the description Robertson had provided. Detective Dillon pulled the vehicle over
for “suspicion of credit card fraud.”
      When Detective Dillon stopped the vehicle, Chilita Wilson was in the
passenger seat, a male was driving, and another male was in the backseat.
Detective Dillon first interviewed the driver of the vehicle, Eric Russell, outside
the vehicle, while the other two occupants remained in the vehicle. Russell told
Detective Dillon that he was trying to find his grandmother’s residence in Baton
Rouge, but he could not provide Detective Dillon with his grandmother’s name,
address, or the general location of her residence. Russell also informed Detective
Dillon that Wilson had rented the vehicle, and that fact was later verified from
paperwork in the vehicle. Following his interview with Russell, Detective Dillon
asked Wilson to get out of the vehicle and began interviewing her. Wilson told
Detective Dillon she had gone to the Home Depot to purchase either a road map
or a gift card (Detective Dillon could not remember which at the suppression
hearing), but she had changed her mind. Eventually, Wilson consented to a
search of the vehicle. The third man was removed from the vehicle. During the
search, Detective Dillon discovered approximately forty-five Wal-Mart gift cards
with receipts, bound together with a rubber band underneath the front
passenger seat, numerous credit cards inside Wilson’s purse, a laptop computer,
road maps, and an encoder.              Detective Dillon arrested the three
passengers—Eric Russell, Charles Fagbemi, and Chilita Wilson.
      Wilson was charged in an indictment with one count of conspiracy to use
and possess counterfeit access devices in violation of 18 U.S.C. § 371, one count
of possessing counterfeit access devices in violation of 18 U.S.C. § 1029(a)(3), one
count of possessing device-making equipment in violation of 18 U.S.C.
§ 1029(a)(4), and one count of using counterfeit access devices in violation of 18

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                                       No. 11-31140

U.S.C. § 1029(a)(1). Wilson moved to suppress all evidence seized during the
June 18, 2008 stop and search of her vehicle. Judge Parker held a suppression
hearing, and both sides submitted a post-hearing memorandum. After the
suppression hearing, the case was reassigned to Chief Judge Tyson. On that
same day, Chief Judge Tyson denied the motion to suppress “for the reasons set
forth in the government’s post-hearing brief.” Wilson, reserving the right to
appeal the denial of her motion to suppress, then conditionally pleaded guilty to
using counterfeit access devices, and the remaining charges were dismissed.
After Chief Judge Tyson conducted Wilson’s re-arraignment, the case was
reassigned to Judge Jackson. Judge Jackson sentenced Wilson to 33 months of
imprisonment and two years of supervised release. In addition, Judge Jackson
imposed restitution in the amount of $1,974.46. Wilson timely appealed. On
appeal, Wilson argues that the district court erred by denying her motion to
suppress the evidence obtained during the June 18, 2008 stop and search of her
rental vehicle.


                                              II.
       “The proponent of a motion to suppress has the burden of proving, by a
preponderance of the evidence, that the evidence in question was obtained in
violation of his Fourth Amendment rights.”2 Generally, when reviewing a
motion to suppress, this Court reviews the district court’s legal conclusions de
novo and its factual findings for clear error,3 viewing the evidence in the light


       2
        United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993) (quoting United States v.
Smith, 978 F.2d 171, 176 (5th Cir. 1992)).
       3
         This Court has found that “[w]here a district court’s denial of a suppression motion
is based on live oral testimony, the clearly erroneous standard is particularly strong because
the judge had the opportunity to observe the demeanor of the witnesses.” United States v.
Santiago, 410 F.3d 193, 197 (5th Cir. 2005). However, it is unclear that the district court is
entitled to any such heightened deference in this case because the judge who denied Wilson’s
motion to suppress did not preside over the evidentiary hearing. In any event, even without
such a heightened level of deference, we find sufficient evidence to affirm the district court’s

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                                         No. 11-31140

most favorable to the prevailing party.4 In this case, however, the district court
judge who denied Wilson’s motion to suppress did not make any factual findings
in his ruling. Instead, he denied Wilson’s motion to suppress “for the reasons set
forth in the government’s post-hearing brief.” This Court has explained that
“[when] the district court enter[s] no factual findings and indicate[s] no legal
authority underlying its decision to admit the evidence obtained . . . , we must
independently review the record to determine whether any reasonable view of
the evidence supports admissibility.”5 Thus, we will “uphold the ruling of the
Trial Court if there is any reasonable view of the evidence to support it.”6 Here,
we find that a reasonable view of the evidence supports admissibility, and
accordingly, we affirm.


                                              III.
       Our review of Wilson’s motion to suppress involves a two step inquiry. We
first ask whether Detective Dillon had a reasonable suspicion that criminal
activity may have been afoot, such that his stop of the vehicle was legal. After
finding the initial stop was legal, we then consider whether Detective Dillon’s
subsequent search of the vehicle falls within an exception to the warrant
requirement.

                                               A.
       Under Terry v. Ohio, an officer may make an investigatory stop if he
“reasonably. . . conclude[s] in light of his experience that criminal activity may

denial of Wilson’s motion to suppress.
       4
           United States v. Raney, 633 F.3d 385, 389 (5th Cir. 2011).
       5
        United States v. Yeagin, 927 F.2d 798, 800 (5th Cir. 1991). See also United States v.
Smith, 543 F.2d 1141, 1145 (5th Cir. 1976); United States v. Bagley, 537 F.2d 162, 166 (5th
Cir. 1976); United States v. Horton, 488 F.2d 374, 379–80 (5th Cir. 1973), cert. denied, 416 U.S.
993 (1974).
       6
           United States v. Montos, 421 F.2d 215, 219 n.1 (5th Cir. 1970).

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be afoot.”7 The Supreme Court has extended that principle to allow for an
investigatory stop when an officer has a reasonable suspicion “that a person they
encounter was involved in or is wanted in connection with a completed felony.”8
When an officer conducts a stop without a warrant, the Government bears the
burden of proving reasonable suspicion.9 Turning to the particulars of the
reasonable suspicion inquiry, “reasonable suspicion exists when the officer can
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the search and seizure.”10 To
constitute a reasonable suspicion, “the likelihood of criminal activity need not
rise to the level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.”11 Here, a reasonable view
of the evidence supports a finding that Detective Dillon had a reasonable
suspicion based on the tip he received from Robertson.
       To be clear, Detective Dillon’s reasonable suspicion need not be based on
his personal observations. Instead, an informant’s tip may provide the requisite
reasonable suspicion to justify an investigatory stop.12 Here, Robertson’s tip to
Detective Dillon contained “enough indicia of reliability” to justify the stop.13 For


       7
           392 U.S. 1, 30 (1968).
       8
         United States v. Hensley, 469 U.S. 221, 229 (1985). Hensley applies here because the
prior crime the woman was wanted for—credit card fraud—is a felony under 18 U.S.C. § 1029.
       9
           United States v. Gomez, 623 F.3d 265, 269 (5th Cir. 2010).
       10
            United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005).
       11
            United States v. Arvizu, 534 U.S. 266, 274 (2002).
       12
            See Adams v. Williams, 407 U.S. 143 (1972).
       13
           Id. at 147. “Whether a particular tip . . . provides a sufficient basis for an
investigatory stop may depend upon the credibility and reliability of the informant, the
specificity of the information contained in the tip or report, the extent to which the information
in the tip or report can be verified by officers in the field, and whether the tip or report
concerns active or recent activity, or has instead gone stale.” United States v. Gonzalez, 190
F.3d 668, 672 (5th Cir. 1999).

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one, Robertson was known to Detective Dillon,14 and the two were working
together on the prior fraud case, such that Detective Dillon could reasonably
consider Robertson to be a reliable informant. Robertson also provided Detective
Dillon with specific information.
       Moreover, the particular information Robertson relayed to Detective
Dillon—specifically, the suspicious actions he had observed and Wilson’s
resemblance to the suspect in the prior case—was sufficient to give rise to a
reasonable suspicion.          Wilson contends that innocent explanations for her
behavior preclude us from finding that Detective Dillon had a reasonable
suspicion that she had attempted to engage in credit card fraud. We disagree.
“A determination that reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct.”15 Instead, the Supreme Court has made clear
that each of a series of acts, “perhaps innocent in itself,” may be taken together
to create a reasonable suspicion that “warrant[s] further investigation.”16 In
addition to providing Detective Dillon with a reasonable suspicion that Wilson
had attempted to engage in fraud, Robertson’s tip provided a reasonable
suspicion that Wilson was the suspect wanted for the prior fraud. During the
phone conversation, Robertson told Detective Dillon “that he proceeded to the
area where the female subject was, and she saw him, and apparently changed
her mind, and left the store at a brisk pace.” Robertson “basically indicated he
believed it was her,” but he did not give Detective Dillon any information about
a physical description of the suspect “due to the fact that [they] both had seen
the surveillance footage from the incident.” From that conversation, Detective
Dillon could reasonably infer that, based on the video image Robertson had seen,

       14
         See Adams, 407 U.S. at 146 (“The informant was known to him personally and had
provided him with information in the past. This is a stronger case than obtains in the case of
an anonymous telephone tip.”).
       15
            Arvizu, 534 U.S. at 277.
       16
            Id. at 274 (quoting Terry, 392 U.S. at 22).

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he was able to reliably identify Wilson as the suspect from the prior fraud. In
short, when taken together, the suspicious circumstances that Robertson
observed and conveyed to Detective Dillon, as well as his identification of the
woman, were sufficient to give rise to a reasonable suspicion on the part of
Detective Dillon.


                                            B.
       We next consider whether Detective Dillon’s subsequent search of the
vehicle fell within an exception to the warrant requirement. Wilson argues that
her consent was involuntary and, as such, the evidence seized during that search
should have been suppressed. However, Wilson’s consent argument ignores the
alternative rationale offered by the Government. Both in the district court and
on appeal the Government has argued that the search was valid under the
automobile exception to the warrant requirement. The district court expressly
adopted the arguments set forth by the Government in its post-hearing
memorandum. As such, it ruled that the search of Wilson’s vehicle was legal
because consent was voluntarily given and, alternatively, because Detective
Dillon had probable cause to search the vehicle under the automobile exception.
Because Wilson does not challenge the district court’s alternative determination
that Detective Dillon had probable cause to search her vehicle, she has waived
that issue.17 Therefore, we affirm the district court’s ruling on that alternative
ground without reaching Wilson’s argument that her consent to the search was
involuntary.
       Under the automobile exception, “police may conduct a warrantless search
of an automobile and any containers therein if they have probable cause to




      17
         See Williams v. Time Warner Operation, Inc., 98 F.3d 179, 183 n.5 (5th Cir. 1996);
Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir. 1980).

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believe it contains contraband or evidence of crime.”18 Here, a reasonable view
of the evidence supports a finding that Detective Dillon had probable cause to
believe the vehicle contained evidence of credit card fraud. Specifically, after
stopping the vehicle, Detective Dillon had a chance to view Wilson’s face and
found “her appearance consistent with the appearance of the suspect in the other
case.” In addition, he saw a laptop in the vehicle, which he knew to be a tool of
the trade for credit card fraud. And, he had suspicious conversations with both
Russell and Wilson concerning the purpose of the trip. In particular, when
questioned by Detective Dillon, neither Wilson nor Russell could provide details
of where they were going. They claimed to be on their way to visit Russell’s
grandmother in Baton Rouge, but neither could provide a name, address, or
general location for Russell’s grandmother. When taken together, the tip from
Robertson, Wilson’s resemblance to the prior suspect, Detective Dillon’s
suspicious conversations with Russell and Wilson, and the laptop Detective
Dillon saw in the vehicle gave him probable cause to believe that the vehicle
contained evidence of credit card fraud.


                                              IV.
      For the reasons set forth above, the judgment of conviction is AFFIRMED.




      18
           United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993).

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