FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 14, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10860

Non-Argument Calendar

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D. C. Docket No. 07-00164-CR-WTM-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISAIAH JOHNSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(January 14, 2009)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

A Southern District of Georgia jury found Isaiah Johnson guilty on three
counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1): Count 1, possession of a 9mm rifle and a 12-gauge shotgun via a pawn

shop purchase on December 31, 2003; Count 2, possession of a 9mm rifle on April

23, 2004, as Johnson attempted to pawn the 9mm rifle at the same pawn shop; and

Count 3, during a traffic stop by the police, he was found in possession of a

12-gauge shotgun on September 28, 2005. The district court sentenced Johnson to

concurrent prison terms of 63 months. He now appeals his Count 1 and Count 3

convictions.

On September 28, 2005, Lt. Hooks of the Richmond Hill police department

stopped Johnson’s pick up truck for violating a traffic code while he was

investigating an attempted car theft. Hooks instructed Johnson to step out of the

truck and produce his license, proof of insurance, and a registration. Johnson

presented his license but not the other items. He did, however, give Hooks the

registration for a 1999 Volkswagen and a bill of sale indicating that he had recently

purchased the pick up. During the stop, Hooks asked Johnson if there were any

weapons or drugs in the truck. Johnson said no, and that Hooks could call a drug

dog to walk around the truck. Ten minutes later – 25- 30 minutes into the traffic

stop, the dog and her handler arrived. The dog alerted, at which time Johnson said

that there were no narcotics in the truck and that the officers could search it. The

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search revealed a shotgun, with a pistol grip, which Johnson, after claiming the gun

was for hunting, said that it was for self defense, then that he bought it for his

girlfriend. Because Johnson had a felony conviction, the officers arrested him.

On appeal, Johnson argues that the district court erred when it denied his

motion to suppress evidence seized during a search of his truck, arguing that

Hooks stopped his truck for a pretextual reason, and that the subsequent

warrantless, non-consensual search and seizure of the truck and his arrest were

conducted without reasonable suspicion or probable cause. Additionally, he argues

that the evidence was insufficient to convict on Count 1, to-wit: that he lacked

actual or constructive possession of the firearms.

We review a district court’s denial of a defendant’s motion to suppress under

a mixed standard of review, reviewing the district court’s findings of fact for clear

error and the district court’s application of law to those facts de novo. United

States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir.), cert. denied, 127 S.Ct. 2924

(2007). The court’s factual findings are construed in the light most favorable to the

prevailing party. United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006).

The Fourth Amendment provides that “[t]he right of the people to be secure

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

seizures, shall not be violated.” U.S. Const. amend. IV. It additionally provides

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that “no Warrants shall issue, but upon probable cause, supported by Oath and

affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.” Id.

A temporary detention of an individual during a traffic stop by law

enforcement, even if only for a brief period and for a limited purpose, constitutes a

“seizure” within the meaning of the Fourth Amendment. Whren v. United States,

517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). A stop thus

must not be “unreasonable” under the circumstances. Id. at 810, 116 S.Ct. at 1772.

As a general rule, the decision to stop an automobile is reasonable when the police

have probable cause to believe that a traffic violation has occurred. Id.

The duration of the traffic stop must be limited to the time necessary to

effectuate the purpose of the stop and may not last “any longer than necessary to

process the traffic violation” unless there is articulable suspicion of other illegal

activity. Purcell, 236 F.3d at 1277. Where reasonable suspicion of criminal drugrelated activity exists, an officer has a duty to investigate further and is justified in

continuing to detain the suspect, calling for a drug-sniffing dog, and making a

request to search the vehicle. United States v. Hernandez, 418 F.3d 1206, 1211

(11th Cir. 2005).

The basic premise of search and seizure doctrine is that warrantless searches

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are “per se unreasonable.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,

514, 19 L.Ed.2d 576 (1967). However, the warrant requirement is subject to “a

few specifically established and well-delineated exceptions.” Id. One of these is

the “automobile exception,” which permits a warrantless search or seizure “if

(1) there is probable cause to believe that the vehicle contains contraband or other

evidence which is subject to seizure under law, and (2) exigent circumstances

necessitate a search or seizure.” United States v. Alexander, 835 F.2d 1406, 1408-

09 (11th Cir. 1988). Probable cause to search exists “when the facts and

circumstances would lead a reasonably prudent [person] to believe that the vehicle

contains contraband.” United States v. Clark, 559 F.2d 420, 424 (5th Cir. 1977).

Here, Lt. Hooks had probable cause to believe a traffic violation had

occurred and therefore lawfully conducted a traffic stop. Because he and the

officer handling the drug dog subsequently obtained probable cause to believe that

Johnson’s truck contained contraband, the search of the truck and detention of

Johnson were lawful. In sum, the court did not err when it denied Johnson’s

motion to suppress.

We review de novo the sufficiency of the evidence supporting a criminal

conviction, viewing the evidence in the light most favorable to the government.

United States v. Benbow, 539 F.3d 1327, 1331 (11th Cir. 2008). The evidence is

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sufficient so long as a reasonable trier of fact, choosing among reasonable

interpretations of the evidence, could find guilt beyond a reasonable doubt. United

States v. Lluesma, 45 F.3d 408, 409-10 (11th Cir. 1995). Furthermore, all

reasonable inferences from the evidence are drawn in favor of the verdict. United

States v. Robertson, 493 F.3d 1322, 1329 (11th Cir.), cert. denied, 128 S.Ct. 1295

(2008).

To obtain a conviction for being a felon in possession of a firearm, the

prosecution must prove beyond a reasonable doubt that “the defendant was (1) in

knowing possession of a firearm, (2) a convicted felon, and (3) that the firearm

affected interstate commerce.” United States v. Glover, 431 F.3d 744, 748 (11th

Cir. 2005). Knowing possession can be demonstrated by proof of either actual or

constructive possession, and constructive possession is established by proving

“ownership, dominion, or control” over the firearm. Id. at 748 (quotation omitted).

Given the evidence of Johnson’s subsequent control and possession of the

rifle and shotgun referenced in Count 1, the jury had ample proof on which to

convict Johnson on Count 1.

AFFIRMED.

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