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United States v. Bams

United States Court of Appeals, Fifth Circuit

June 1, 2017

HENRYKORVETT BAMS, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Texas

          Before JOLLY, SMITH, and GRAVES, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Henry Bams appeals his convictions of conspiracy to possess with intent to distribute cocaine and use of an interstate facility in aid of racketeering. He contends that certain evidence should have been suppressed and that there was insufficient evidence for conviction. He also raises various challenges to his sentence. Because we find no reversible error, we affirm.



         Bams and Frederick Mitchell were stopped by Officer Dale Baggett in Nacogdoches County, Texas, for speeding. Bams was the driver, and when Baggett approached the vehicle, he detected a strong odor of marihuana and saw that Bams's eyes were bloodshot. Baggett asked Bams and Mitchell about their travel plans, and they gave conflicting answers. He asked Mitchell whether there was any contraband in the car, and Mitchell said no. Baggett then asked whether there was any luggage, and Mitchell said he had a blue duffel bag and Bams had an orange Nike bag, both of which were in the trunk. After a search of the vehicle, Baggett found the bags Mitchell had described and discovered five plastic bags of cash in them. The currency had been separated into stacks wrapped by rubber bands. Mitchell stated that the money was his but that he was unsure how much there was. A later count established $253, 341.

         Bams and Mitchell were arrested for money laundering, and the cash was seized. Several days later, the district attorney reached a settlement with Bams and Mitchell, whereby they agreed to forfeit $100, 000 of the seized cash; the county returned the remaining currency to them. That returned money was ultimately deposited into an account owned by Bams.

         Several weeks later, Bams and Mitchell were stopped by Officer Adam Pinner in Arkansas for making an unsafe lane change. Bams was driving the vehicle, which was registered to him, and Mitchell was the only passenger. When Pinner asked Bams for his license, he noticed that Bams's hands were shaking and that he appeared nervous. Pinner also saw that one of the rear quarter panels appeared to have been tampered with, that there was a single key in the ignition, and that there were energy drinks in the vehicle. Pinner testified that those observations were consistent with drug trafficking. After receiving consent from Bams, Pinner searched the vehicle and found ten kilograms of cocaine concealed within two false compartments in the rear quarter panels.


         Bams and Mitchell were indicted for (1) conspiracy to possess with intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 846, and for (2) use of an interstate facility in aid of racketeering, in violation of 18 U.S.C. §§ 2 and 1952(a)(3). Bams moved to suppress evidence obtained from the Arkansas traffic stop, and the district court denied the motion. After a four-day jury trial, Bams was convicted of both counts.

         The presentence report ("PSR") classified Bams as a career offender and thus calculated his offense level as 37 and his criminal-history category as VI, yielding a guideline range of 360 months to life. U.S. Sentencing Guidelines Manual ("U.S.S.G.") Ch. 5, Pt. A (Sentencing Table). The PSR recommended 360 months for the Section 846 conviction and 60 months for the Section 1952 conviction.[1] The district court accepted the PSR in its entirety but granted Bams's motion for a downward departure, sentencing Bams to 240 months on the first count and 60 months on the second, to run concurrently.


         Bams contends that the district court erred in denying his motion to suppress evidence obtained from the Arkansas stop. "In reviewing a district court's denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo."[2] "In reviewing findings of fact, we view the evidence in the light most favorable to the party prevailing below, which in this case is the Government." Id. When determining reasonable suspicion, "we must 'give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'"[3]

         "We analyze the constitutionality of a traffic stop using the two-step inquiry set forth in Terry v. Ohio, 392 U.S. 1 (1968)." Andres, 703 F.3d at 832 (citation partially omitted). At the first step, "we determine whether the stop was justified at its inception." Id. "For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle." Id. Reasonable suspicion can rest upon a mistake of law or fact if the mistake is objectively reasonable.[4] Assuming the stop was justified, we move to the second step, where we determine "whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place." Id. (quotation marks omitted). "A traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges." Id. (quotation marks omitted).

         Bams challenges the Arkansas stop on both prongs of Terry. Each of those challenges fails.


         On the first prong, Bams maintains that Pinner did not have reasonable suspicion that Bams had engaged in any illegal activity. The government counters that Pinner had reasonable suspicion to stop Bams because he had violated Ark. Code Ann. § 27-51-306. That statute provides, in relevant part, that "[t]he driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle." According to Pinner, Bams passed a tractor-trailer on the left side of the road and returned to the right side when he was only fifty feet in front of the tractor-trailer, which Pinner believed was insufficient to be "safely clear" of the truck. He based that belief on Ark. Code Ann. § 27-51-305, which prohibits tractor-trailers from following within two hundred feet of another motor vehicle. He testified that "if the violator vehicle had to come to a stop for some unknown reason, something in the traffic lanes or something, then the large truck would not have time to come to a stop and would rear-end the vehicle, which I see to be unsafe."

         Bams does not dispute Pinner's description of the events. Instead, he disagrees with Pinner's interpretation of the statute.

         No Arkansas court has construed the meaning of "safely clear" in Section 27-51-306. But even assuming that Pinner's interpretation were incorrect, his understanding was "objectively reasonable." Heien, 135 S.Ct. at 536. Section 27-51-306 does not provide a precise number of feet. That imprecision is presumably by design, since the "safe" distance may vary depending on the relative speeds of the vehicles, road conditions, and the like. The statute appears to leave to the officer the task of deciding when a vehicle is "safely clear." In any event, Pinner did not base his belief merely on his experience; he also considered Section 27-51-305, which does provide a specific distance: two hundred feet. Given that Bams was overtaking a tractor-trailer, Pinner could reasonably use Section 27-51-305 to inform the meaning of "safely clear."

         Bams's counterarguments are unavailing. First, he points to other Arkansas statutes that require overtaken vehicles to yield to overtaking vehicles and for overtaking vehicles to return to the right lane within one hundred feet of a vehicle approaching from the opposite direction. See Ark. Code Ann. §§ 27-51-306(2) and 307. But those provisions have no relevance to the meaning of "safely clear." Second, he suggests that the statute cannot mean what Pinner says because it would then "impose a burden on a lane-changing driver to be able to approximately estimate the distance between him and the car behind him." But that is exactly what Section 27-51-306 requires; drivers must determine whether there is sufficient distance to be "safely clear." Finally, Bams asserts that Pinner stopped him based on his race. But the "subjective motivations of police are deemed irrelevant as long as their conduct does not exceed what they are objectively authorized to do."[5]


         Bams additionally claims that the stop, even if initially justified, does not pass muster under the second prong of Terry. But his challenge is narrow. He concedes that he consented to a search and does not dispute that his consent was voluntary. Instead, he argues that, before his giving consent, Pinner had unreasonably prolonged his detention without reasonable suspicion, thus tainting his consent.

         Bams is incorrect. He relies on United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), United States v. Santiago, 310 F.3d 336 (5th Cir. 2002), and United States v. Jenson, 462 F.3d 399 (5th Cir. 2006), but those cases are inapposite. In each of them, we held that a detention had been unnecessarily prolonged because the officers had detained a vehicle after the computer checks were concluded-thus terminating the reasonable suspicion that had initially justified the traffic stop-and before additional reasonable suspicion arose.[6] Here, in contrast, Pinner had reasonable suspicion, before the computer check ended, that Bams was trafficking drugs. When he approached the vehicle, Pinner observed that (1) Bams's hands were shaking and ...

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