[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-14657

Non-Argument Calendar

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D.C. Docket No. 1:19-cr-20365-RNS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

GABRIEL SAMAR MARTINEZ, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(April 1, 2021)

Before NEWSOM, ANDERSON, and EDMONDSON, Circuit Judges.

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PER CURIAM: 

Gabriel Martinez appeals his conviction after pleading guilty to possession 

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, 

Martinez challenges the district court’s denial of his motion to suppress the gun 

that was seized during a warrantless search of his car during a traffic stop. No 

reversible error has been shown; we affirm.

I. Background

At about noon on 21 June 2018, Officer Vargas was driving a marked police 

car southbound on the Florida Turnpike. Officer Vargas saw a gray Kia sedan 

flashing its lights and then pulling up alongside Officer Vargas’s patrol car. The 

Kia’s driver was a man in his sixties, and he appeared to be visibly frightened. 

Both the Kia driver and Officer Vargas slowed “to a very slow speed” and rolled 

down their windows. The Kia driver then told Officer Vargas that the driver of the 

white car driving directly behind the Kia had just pointed a gun at the Kia driver. 

Officer Vargas testified that the Kia driver appeared “very nervous,” had “body 

tremors,” and “was super afraid.” Based on the Kia driver’s demeanor, Officer 

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Vargas believed “100 percent” the man’s report about a gun. The exchange 

between Officer Vargas and the Kia driver lasted less than one minute. 

Officer Vargas obtained no contact information or license plate number for 

the informing Kia driver. Later attempts to locate the Kia driver -- based on 

Officer Vargas’s description of the car and the driver -- were unsuccessful.

After receiving the tip, Officer Vargas located immediately the white Nissan 

-- driven by Martinez -- that was pointed out by the Kia driver. Officer Vargas 

slowed down so that Martinez could pass him but “noticed the white Nissan didn’t 

want to pass [him], so [Officer Vargas] had to slow down more and more.” When 

Martinez finally passed Officer Vargas, Officer Vargas called for backup, activated 

his blue lights, and blew his horn to get Martinez’s attention. Nevertheless, 

Martinez continued driving for two minutes before stopping, driving past areas 

suitable for a driver to pull over. 

After Martinez stopped and after the backup officers arrived, Officer Vargas 

approached the car and asked whether Martinez had a gun in the car. In response, 

Martinez made a comment about “road rage.” After officers assisted Martinez in 

getting out of the car,1 officers searched the car. Within thirty seconds, officers 

1 Martinez has a physical disability requiring crutches.

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found a gun in a storage area underneath the steering column. Officers then placed 

Martinez under arrest. 

Martinez later moved to suppress the gun found in his car.2

 Martinez argued 

that the anonymous tip from the Kia driver lacked sufficient indicia of reliability 

that would give rise to reasonable suspicion to justify a traffic stop. Martinez also 

asserted that the warrantless search of his car was unlawful.

Following a suppression hearing, the magistrate judge issued a report and 

recommendation (“R&R”) recommending denying Martinez’s motion. To be 

exact, the district court overruled in part and sustained in part Martinez’s 

objections to the R&R. But apart from two minor factual corrections, the district 

court adopted entirely the R&R and denied Martinez’s motion to suppress.

Martinez entered a conditional guilty plea, reserving his right to appeal the 

district court’s denial of his motion to suppress. The district court then sentenced 

Martinez to a below-guidelines sentence of time served.

2 Martinez also moved unsuccessfully to suppress his “road rage” comment. Martinez, however, 

raises no challenge to the district court’s ruling on the comment. 

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II. Discussion

We review the district court’s denial of “a motion to suppress evidence 

under a mixed standard, reviewing the court’s findings of fact for clear error and 

the application of law to those facts de novo, construing the facts in the light most 

favorable to the prevailing party below.” United States v. Pierre, 825 F.3d 1183, 

1191 (11th Cir. 2016). We review de novo a district court’s determinations about 

reasonable suspicion and probable cause. See Ornelas v. United States, 517 U.S. 

690, 699 (1996).

A. Traffic Stop

Consistent with the Fourth Amendment, a police officer may conduct a brief 

investigative traffic stop when the officer has “a particularized and objective basis 

for suspecting the particular person stopped of criminal activity.” Navarette v. 

California, 572 U.S. 393, 396 (2014). Reasonable suspicion is determined based 

on the totality of the circumstances, including “both the content of information 

possessed by police and its degree of reliability.” Id. at 397. In deciding whether 

reasonable suspicion existed at the pertinent time, we consider whether reasonable 

suspicion existed objectively under the circumstances. See United States v. Nunez, 

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455 F.3d 1223, 1226 (11th Cir. 2006). An anonymous tip can give rise to 

reasonable suspicion justifying an investigatory stop if the tip contains “sufficient 

indicia of reliability.” Navarette, 572 U.S. at 397.

The evidence in this case, viewed in the light most favorable to the 

government, supports the district court’s determination that the Kia driver’s tip 

bore sufficient indicia of reliability. First, we have said that “[a] face-to-face 

anonymous tip is presumed to be inherently more reliable than an anonymous 

telephone tip because the officers receiving the information have an opportunity to 

observe the demeanor and perceived credibility of the informant.” See United 

States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004). Demeanor counts for a lot. 

Although Officer Vargas’s face-to-face interaction with the Kia driver was brief, 

Officer Vargas observed immediately that the Kia driver appeared “very nervous” 

and “super afraid.” Based on the driver’s demeanor and on Officer Vargas’s 

experience, Officer Vargas believed reasonably that the driver’s testimony was 

credible. 

Other pertinent circumstances that weigh in favor of the tip’s reliability are 

(1) that the Kia driver witnessed personally the reported incident, (2) was reporting 

an incident that had just happened, and (3) identified the specific car involved. In 

Navarette, the Supreme Court determined that an anonymous 911 caller’s report 

that a truck had just run her off the road bore sufficient indicia of reliability to 

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support a traffic stop. See 572 U.S. at 404. Among other things, the Supreme 

Court found the tip reliable because -- like the Kia driver in this case -- the 911 

caller identified a specific vehicle, “claimed eyewitness knowledge of the alleged 

dangerous driving,” and made a contemporaneous report of the incident “under the 

stress of excitement caused by a startling event.” See id. at 399-400. 

Martinez’s attempts to distinguish Navarette are unavailing. That the 911 

caller in Navarette could later be identified and traced through the 911 system was 

not, by itself, dispositive to the Supreme Court’s decision; that fact was, instead, 

“one of the relevant circumstances that, taken together, justified the officer’s 

reliance on the information reported in the 911 call.” See id. at 400-01. Anyway, 

more than one set of facts will satisfy the law in these kinds of cases. 

We also reject Martinez’s assertion that this case is controlled by the 

Supreme Court’s decision in Florida v. J.L., 529 U.S. 266 (2000). In J.L., the 

Supreme Court concluded that an anonymous “bare-boned” tip describing only the 

identity and location of a man possessing a gun was insufficient to provide 

reasonable suspicion. 529 U.S. at 270-71. Unlike the Kia driver’s tip in his case, 

the anonymous tip at issue in J.L. was made by an unknown caller (not face-toface), from an unknown location, and contained no information about how the 

caller knew about the alleged gun. See 529 U.S. at 270-71.

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A finding of reasonable suspicion is further bolstered by Martinez’s 

reluctance to pass Officer Vargas after the Kia driver’s report -- a report that 

Martinez likely would have witnessed happening directly in front of him in traffic -

- and by Martinez’s undue delay in stopping. See United States v. Pruitt, 174 F.3d 

1215, 1220 (11th Cir. 1999) (noting that a driver’s “reluctance to stop” is a factor 

that might “contribute to the formation of an objectively reasonable suspicion of 

illegal activity.”). 

Given the totality of the circumstances presented in this case, the Kia 

driver’s tip was sufficiently reliable to give rise to reasonable suspicion that 

Martinez had committed a crime: aggravated assault with a firearm in violation of 

state law. The district court committed no error in determining that the traffic stop 

was lawful.

B. Vehicle Search

Under the “automobile exception” to the Fourth Amendment’s warrant 

requirement, police officers may conduct a warrantless search of a vehicle if 

probable cause exists to believe the vehicle contains contraband or evidence of 

criminal activity. California v. Acevedo, 500 U.S. 565, 580 (1991). Probable 

cause exists when “under the totality of the circumstances, there is a fair 

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probability that contraband or evidence of a crime will be found in the vehicle.” 

United States v. Lindsey, 482 F.3d 1285, 1293 (11th Cir. 2007). 

Considering the totality of the circumstances presented in this case, the 

district court committed no error in determining that probable cause existed to 

justify a search of Martinez’s car. Martinez was pulled over based on the Kia 

driver’s seemingly trustworthy report that Martinez had just pointed a firearm at 

another motorist in traffic. The information in that tip was then corroborated by 

Martinez’s “road rage” comment made in response to Officer Vargas’s question 

about whether Martinez had a gun: not a flat “no.” Given those circumstances --

combined with Martinez’s failure to stop immediately after Officer Vargas 

signaled for Martinez to pull over -- an objective officer could conclude reasonably 

that a fair probability existed that evidence of a crime (the gun Martinez 

purportedly brandished) would be found in Martinez’s car. See Lindsey, 482 F.3d 

at 1293.

Even absent probable cause, the officers’ search of Martinez’s car 

constituted a permissible protective search for weapons under Michigan v. Long, 

463 U.S. 1032 (1983). Under Long, police officers may search “the passenger 

compartment of an automobile, limited to those areas in which a weapon may be 

placed or hidden” when officers can believe reasonably that a suspect is dangerous 

and may gain immediate control of weapons. 463 U.S. at 1049. In determining 

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whether a protective search of an automobile is permissible, we consider “whether 

a reasonably prudent man in the circumstances would be warranted in the belief 

that his safety or that of others was in danger.” Id. at 1050. 

Given that Martinez had just been accused of brandishing a firearm, that 

Martinez did not deny he had a gun, and that Martinez’s comment appeared to 

confirm that a “road rage” incident had occurred, an objective officer could 

conclude reasonably that Martinez was dangerous and had a weapon accessible 

within the passenger compartment of his car. That Martinez had already been 

removed from the car and, thus, might not have been able to access immediately a 

weapon when the car was searched does not change our conclusion. See Riley v. 

City of Montgomery, Ala., 104 F.3d 1247, 1253 (11th Cir. 1997) (noting that a 

suspect’s removal from the car is inconsequential to the lawfulness of a protective 

search because, “[i]f the suspect is not placed under arrest, he will be permitted to 

reenter his automobile, and he will then have access to any weapons inside.”). 

The district court committed no error in denying Martinez’s motion to 

suppress. We affirm Martinez’s conviction.

AFFIRMED.

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