FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 5, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10792

Non-Argument Calendar

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D. C. Docket No. 07-00122-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHAWN HAMILTON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(November 5, 2008)

Before BIRCH, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Shawn Hamilton appeals his convictions for possession with intent to
distribute ecstasy and five or more grams of cocaine, possession of a firearm by a

felon, and using and carrying a firearm during a drug trafficking crime, in violation

of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A), and 21 U.S.C. §§ 841(a)(1), (b)(1).

Hamilton contends that (1) the police lacked probable cause to execute the traffic

stop which led to his arrest; (2) the subsequent search of his vehicle was illegal; (3)

the evidence supporting his conviction for possession with intent to distribute

cocaine and ecstasy was insufficient; and (4) the evidence supporting his firearm

convictions was likewise insufficient. Hamilton’s arguments do not persuade.

Accordingly, we AFFIRM.

I. BACKGROUND

At about 7:37 P.M. on 13 October 2007, Officer Sylvester Brown of the

Savannah-Chatham Metropolitan Police Department, and his partner, Officer Judd

West, were traveling east on 31st Street when they observed a Mercury Grand

Marquis traveling in the opposite direction. R2 at 3-4. West then saw the Mercury

make a right turn, proceed northbound for about half of a block, stop, and then

head back south again while in reverse. The Mercury continued to back out onto

31st Street and then resumed its westbound travel. Id. at 6-7. There were several

parked vehicles and light traffic on 31st Street at the time. Id. at 18. West and

Brown executed a traffic stop of the Mercury.

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The Mercury pulled over and stopped in response to the patrol car’s

emergency lights and siren. West approached the driver’s side of the vehicle while

Brown covered the passenger’s side. Id. at 7. Hamilton was in the Mercury’s

driver’s seat and Tarik Bentley was in the passenger seat. Id. at 8, 11. There were

no other passengers in the vehicle.

West tapped on the driver’s side window and instructed Hamilton to roll the

window down. Hamilton did not respond but instead began to manipulate

something next to his right leg in an apparent attempt to conceal the object. Id. at

8. West again instructed Hamilton to roll down his window. After about five

seconds, Hamilton complied. Once the window was rolled down, West

immediately smelled the strong odor of burnt marijuana. Brown also smelled the

odor from his position on the opposite side of the Mercury. Id. at 9, 31. West

asked if Hamilton had been smoking marijuana. Hamilton admitted to smoking

some earlier. West then instructed Hamilton to exit the car. Id. at 9.

As Hamilton was getting out of the car, he again attempted to conceal

something near his right leg. West responded by grabbing Hamilton’s wrist and

placing Hamilton’s hands on top of the Mercury. Id. at 10. West then asked

Hamilton for consent to search the vehicle. Hamilton consented, responding that

“[t]here is nothing in here. You can search [it.]” Id. at 21. Hamilton was not

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handcuffed at that point.

While West spoke with Hamilton, Brown instructed Bentley, Hamilton’s

passenger, to exit the Mercury as well. Bentley immediately attempted to flee on

foot, but Brown apprehended him after a few seconds, handcuffed him and placed

him under arrest. During the altercation, a clear bag containing crack cocaine and

ecstasy fell from Bentley’s waistband. A subsequent patdown of Bentley yielded a

9 millimeter pistol. Id. at 30.

Hearing the commotion on Brown’s side of the vehicle, West handcuffed

Hamilton and placed him in the patrol car. Id. at 10. West and Brown then

searched the Mercury, recovering a .45 caliber semi-automatic pistol that was

tucked into a crack on the right side of the driver’s seat. Id. at 12. They also found

a small amount of marijuana residue on the floorboard between the two front seats.

Id. at 25. Hamilton and Bentley were arrested and transported to the local precinct

for processing.

Before trial, Hamilton filed a motion to suppress, followed by an amended

motion to suppress. R1-15; R1-26. Hamilton claimed that the police lacked

probable cause for the initial traffic stop and that the subsequent search of his car

was illegal. Consequently, the fruits of that search – the drugs and the pistol –

were inadmissible. R1-26 at 2-4. A magistrate judge held an evidentiary hearing

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after which he recommended that Hamilton’s motion to suppress be denied. The

district court adopted the magistrate judge’s report and recommendation and the

case proceeded to trial. R1-36.

At trial, Bentley testified against Hamilton. Bentley acknowledged on direct

examination that he hoped to receive a more lenient sentence as a result of his

cooperation. R3 at 45. He then stated that he began purchasing drugs from

Hamilton in 2006 and that he had, on three previous occasions, purchased a

quarter-ounce of powder cocaine from him. Bentley denied ever purchasing crack

cocaine or ecstasy from Hamilton. Bentley then testified that just after they were

pulled over by the police on 13 October 2007, Hamilton handed him the clear bag

of drugs (cocaine and ecstasy) which ultimately fell from Bentley’s waistband

during his attempt to flee. R3 at 51-52. Bentley also confirmed that the .45 caliber

pistol found during the search of the Mercury belonged to Hamilton although

Hamilton asked Bentley to claim it as his. R3 at 55. Hamilton was ultimately

convicted on all counts and sentenced to 157 months of imprisonment. R1-78 at 1-

2.

Hamilton now appeals his convictions. Hamilton contends that (1) the

police lacked probable cause to execute the traffic stop which led to his arrest; (2)

the subsequent search of his vehicle was illegal; (3) the evidence supporting his

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conviction for possession with intent to distribute cocaine and ecstasy was

insufficient; and (4) the evidence supporting his firearm convictions was likewise

insufficient. We address each argument in turn.

II. DISCUSSION

A. Probable Cause Argument

“A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We accept the district court’s findings of fact to be true, unless shown to be clearly

erroneous, and review the district court’s application of the law to those facts de

novo. See id. Factual findings extend to the district court’s credibility

determinations, to which we accord considerable deference. See United States v.

Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Additionally, “all facts are

construed in the light most favorable to the prevailing party” on the motion to

suppress before the district court. United States v. Bervaldi, 226 F.3d 1256, 1262

(11th Cir. 2000).

The Fourth Amendment protects individuals from “unreasonable searches

and seizures” by government officials, “and its protections extend to brief

investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,

273, 122 S. Ct. 744, 750 (2002). It is well settled, however, that a decision to stop

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a vehicle is reasonable under the Fourth Amendment when an officer has “probable

cause to believe that a traffic violation [has] occurred.” United States v. Simmons,

172 F.3d 775, 778 (11th Cir. 1999); see also United States v. Strickland, 902 F.2d

937, 940 (11th Cir. 1990) (holding that “a police officer may stop a vehicle when

there is . . . probable cause to believe that a driver is violating any one of the

multitude of applicable traffic and equipment regulations relating to the operation

of motor vehicles”) (quotation marks and citation omitted). We have held that the

standard for determining whether probable cause exists “is met when the facts and

circumstances within the officer’s knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is committing, or is about to

commit an offense.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)

(quotation marks and citation omitted).

Georgia law provides that “[a] driver shall not back a vehicle unless such

movement can be made with safety and without interfering with other traffic.”

O.C.G.A. § 40-6-240(a). This traffic code provision prohibits unsafe backing

whether or not the maneuver results in accident or injury. See Collier v. State, 639

S.E.2d 405, 408 (Ga. App. 2006). In this case, the officers stopped Hamilton after

observing him reverse his direction of travel by backing his vehicle down a city

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street for half of a block and then into an intersecting street. Hamilton executed

this maneuver at night and on a street with parked cars and light traffic. Given

these facts and the magistrate judge’s assessment of the officers’ testimony as

“highly credible,” R1-33 at 4, we conclude that probable cause existed for West

and Brown to effect the traffic stop.

B. Illegal Search Argument

Hamilton’s second argument appears to challenge the jury’s findings as to

the validity of the search conducted by West and Brown. Because the district court

addressed this issue when it ruled on Hamilton’s motion to suppress, we consider

Hamilton’s illegal search argument as a challenge to the district court’s denial of

his motion to suppress rather than as a challenge to the jury’s verdict. As such, we

apply the same standard of review as that which we have previously outlined in the

context of Hamilton’s probable cause argument.

Consensual searches do not violate the Fourth Amendment’s general

prohibition on warrantless searches. See Schneckloth v. Bustamonte, 412 U.S.

218, 219, 90 S. Ct. 2041, 2043 (1973); United States v. Purcell, 236 F.3d 1274,

1281 (11th Cir. 2001) (holding that a “consensual search is constitutional if it is

voluntary”). In this case, the record indicates that Hamilton consented to a search

of his vehicle. When asked by West for his consent, Hamilton responded “Yes, sir,

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you can search, there is nothing in here.” R3 at 14. We conclude that because

Hamilton consented to the search of his vehicle, the search withstands

constitutional scrutiny.

We note that grounds for a warrantless search also existed. Both West and

Brown smelled a strong odor of burnt marijuana as soon as Hamilton rolled down

his window. We have held that “the recognizable smell of marijuana gives rise to

probable cause supporting a warrantless search.” United States v. Lueck, 678 F.2d

895, 903 (11th Cir. 1982). In addition, West witnessed Hamilton attempt to

conceal what later turned out to be a .45 caliber pistol in the cushion of the driver’s

seat and Brown was forced to physically detain Bentley as he attempted to flee.

These events would lead any reasonable officer to recognize the development of a

potentially dangerous situation. We have long acknowledged that “officers

conducting a traffic stop may take such steps as are reasonably necessary to protect

their personal safety . . . includ[ing] conducting a protective search of the driver,

the passengers, and the vehicle.” Purcell, 236 F.3d at 1277 (quotation marks and

citations omitted).

C. Sufficiency Argument (Drug Conviction)

Hamilton argues that the evidence was insufficient to support his conviction

for possession with intent to distribute crack cocaine and ecstasy because the only

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evidence linking the drugs to Hamilton was the uncorroborated testimony of

Bentley, his passenger. He contends that Bentley’s testimony was not credible

(given his stated interest in receiving a lighter sentence) and was inconsistent with

his previous statements.

We review a claim of insufficient evidence to convict de novo. See United

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States v. Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000) (per curiam). We view the

evidence in the light most favorable to the government and affirm the conviction if,

based on this evidence, “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. (quotation marks and

citation omitted).

In order to obtain a conviction under 21 U.S.C. § 841(a)(1), “the government

had to prove three elements: (1) knowledge; (2) possession; and (3) intent to

distribute.” United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per

curiam). Each of these elements may be proven by direct or circumstantial

evidence. See id. at 1391-92.

We have held that the “uncorroborated testimony of an accomplice is

 Hamilton did not file a motion for a judgment of acquittal with the district court. He 1

did, however, timely file a motion for a new trial. Accordingly, Hamilton preserved his

insufficient-evidence claim. See United States v. Williams, 144 F.3d 1397, 1401 (11th Cir.

1998). By filing a motion for a new trial, Hamilton preserved his challenge to the sufficiency of

the evidence.

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sufficient to support a conviction in the Federal Courts if it is not on its face

incredible or otherwise insubstantial.” United States v. LeQuire, 943 F.2d 1554,

1562 (11th Cir. 1991). Testimony is incredible or insubstantial only if it is

“testimony as to facts that [the witness] physically could not have possibly

observed or events that could not have occurred under the laws of nature.” Id. at

1562 (quotation marks and citation omitted) (alteration in the original). In

reviewing witness testimony, “[t]he jury gets to make any credibility choices, and

we will assume that they made them all in the way that supports the verdict.”

United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006), cert. denied,

127 S. Ct. 2155 (2007). “It is emphatically not within the province of an appellate

court to reweigh the evidence and the credibility of the witnesses at trial.” United

States v. Hernandez, 141 F.3d 1042, 1052 (11th Cir. 1998).

We conclude that sufficient evidence supports the jury’s finding that the

government proved each element of § 841 beyond a reasonable doubt. Bentley’s

testimony was not incredible or insubstantial and from it, a rational trier of fact

could conclude that Hamilton had knowledge of and possession of the drugs in

question and the intent to distribute them.

D. Sufficiency Argument (Gun Convictions)

Hamilton contends that the evidence was insufficient to support his

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convictions for knowingly possessing (18 U.S.C. § 922(g)(1)) and carrying a

firearm (18 U.S.C. § 924(c)(1)(A)). He argues that he had no actual or

constructive knowledge of the .45 caliber pistol found by West and Brown in his

vehicle and asserts that the relevant evidence only proves that he was in close

proximity to the weapon – not that he owned or possessed the pistol or that he was

even aware of its existence.

“Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a

firearm.” United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). To

establish a violation of § 922(g), the government must prove beyond a reasonable

doubt three elements: (1) that the defendant was a convicted felon; (2) that the

defendant was in knowing possession of a firearm; and (3) that the firearm was in

or affecting interstate commerce. 18 U.S.C. § 922(g)(1); Wright, 392 F.3d at 1273.

Possession can be actual or constructive, and can be shown by circumstantial or

direct evidence. Wright, 392 F.3d at 1273. In Wright, we found that there was

sufficient evidence that the defendant knowingly possessed the gun, because (1) it

was found under the driver’s seat, in his car; (2) the defendant was driving his car

at the time of his arrest; (3) the gun was next to an open bottle of cold beer; and (4)

the defendant resisted arrest. Id. at 1273-74.

Under 18 U.S.C. § 924(c)(1)(A), it is unlawful to use or carry a firearm

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during or in relation to a drug trafficking crime. To establish a violation of

§ 924(c)(1), the government must demonstrate beyond a reasonable doubt that the

defendant used or carried a firearm during and in relation to a drug trafficking

crime. See 18 U.S.C. § 924(c)(1)(A); Smith v. United States, 508 U.S. 223, 227-

28, 113 S. Ct. 2050, 2053 (1993). We have found sufficient evidence to support a

§ 924(c) conviction when a gun belonging to the defendant was found in the glove

compartment of a car in which the defendant was a backseat passenger, as the jury

could “find that the firearm was being carried by [the defendant] in the vehicle.”

United States v. Farris, 77 F.3d 391, 395-96 (11th Cir. 1996).

In this case, we conclude that sufficient evidence supports the jury’s finding

that Hamilton violated § 922(g)(1). Hamilton stipulated to his status as a felon, R3

at 68-69, and does not challenge the gun’s interstate nexus on appeal, so the only

issue is whether he knowingly possessed a firearm. As in Wright, the gun was

found near the driver’s seat of the car that the defendant was driving at the time of

his arrest. Wright, 392 F.3d at 1273-74. Moreover, West testified that he

repeatedly saw Hamilton trying to conceal an object (later confirmed as the .45

caliber pistol in question) before he exited the vehicle, and Bentley testified that

Hamilton owned the gun although he asked Bentley to claim it. Given the

testimony of West and Bentley, in conjunction with the location in which the pistol

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was found, a rational trier of fact could conclude that Hamilton knowingly

possessed the weapon.

The same evidence supports the jury’s conclusion that Hamilton violated

§ 924(c). The issue here is whether he used or carried a firearm. As in Farris, the

defendant, the gun, and the drugs were all located in the same vehicle from which

he conducted drug deals. See Farris, 77 F.3d at 395. In this case, Hamilton owned

the car, and the gun was found next to the seat in which he was sitting immediately

prior to his arrest. In light of this evidence, a rational juror could conclude that

Hamilton carried a gun in relation to his drug deals. See Nolan, 223 F.3d at 1314.

Accordingly, we conclude that sufficient evidence supports Hamilton’s conviction

under § 924(c).

III. CONCLUSION

Hamilton appeals his convictions for possession with intent to distribute

ecstasy and five or more grams of cocaine, possession of a firearm by a felon, and

using and carrying a firearm during a drug trafficking crime. We conclude that the

police had probable cause to execute the traffic stop which led to Hamilton’s arrest,

the subsequent search of his vehicle was legal, and the evidence was sufficient to

support his drug and weapon convictions. Accordingly, the judgment of the

district court is AFFIRMED.

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