United States v. Lewis

40 F.4th 1229

UNITED STATES of America, Plaintiff-Appellee,

v.Alfonzo LEWIS, Defendant-Appellant.

No. 20-12997

United States Court of Appeals, Eleventh Circuit.

Filed: July 14, 2022

Theodore Stuart Hertzberg, Jane Elizabeth McBath, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Plaintiff-Appellee.

Leigh Ann Webster, Strickland Webster, LLC, Atlanta, GA, for Defendant-Appellant.

Alfonzo Lewis, Lovejoy, GA, Pro Se.

Before Grant, Luck, and Hull, Circuit Judges.

Hull, Circuit Judge:

On appeal, Alfonzo Lewis challenges his convictions for conspiracy to possess with intent to distribute, and possessing with intent to distribute, five kilograms of cocaine. After careful review and with the benefit of oral argument, we affirm.

Lewis's four claims on appeal focus on three discrete portions of his criminal proceeding: the initial arrest, the jury selection, and the trial itself. For that reason, we describe the set of facts relevant to each issue, discuss that issue, and then move on to the next issue and its pertinent facts.

PART ONE: THE ARREST

I. Factual Background

A. The Traffic Stop

On December 14, 2015, Michael Hannan was monitoring a pole camera at the office used by the High Intensity Drug Trafficking Area task force, which is under the Drug Enforcement Administration (the "DEA task force"). This type of specialized DEA task force operates in "critical drug-trafficking regions of the United States" using the combined resources of federal, state, and local law enforcement agencies.¹

Hannan was employed by the Fulton County Sheriff's Office ("FCSO") but was also a deputized DEA task force officer.

In November 2015, the DEA task force had placed the camera that Officer Hannan was monitoring at a residential address in East Point, Georgia, as part of an investigation into a large-scale methamphetamine-trafficking organization. While watching the camera feed, Hannan observed a black Chevy Suburban pull into the driveway of the East Point residence. Hannan watched the Suburban's occupants walk toward the house with a brown backpack. He later learned that one of these men was Lewis. The Suburban was registered to the mother of Lewis's child.

Officer Hannan believed a drug deal was occurring, so he contacted Lieutenant Corey Henry of the FCSO. Lt. Henry was not a DEA task force member. Officer Hannan, who was a task force member, informed Lt. Henry that there was a chance a vehicle would be leaving a residence with narcotics, and he asked Lt. Henry if he was available to make a "walled-off stop."

According to Officer Hannan, a "walled-off stop is a law-enforcement technique ... where a state or local officer in a marked unit is used to assist in conducting a traffic stop on a vehicle that we believe is involved in some type of illegal activity." Officer Hannan explained that the federal task force used walled-off stops "to separate our overall larger investigation from the stop of the vehicle to basically not disclose our—reveal our investigation and compromise our investigation." Officer Hannan asked Lt. Henry if he could make a traffic stop on the Suburban if he could obtain probable cause through a traffic violation, and if he did find anything, to handle the arrest.

Officer Hannan instructed Lt. Henry to go to a MARTA station² near the East Point residence and wait there. Officer Hannan and other DEA task force officers went to the MARTA station as well and continued surveilling the residence on a laptop. Eventually, Officer Hannan saw the two men return to the Suburban and watched as Lewis placed a brown bag in the back seat before getting into the passenger's seat. Officer Hannan provided Lt. Henry with a description of the Suburban and its occupants, as well as its license plate number, and told him a brown bag was placed into the Suburban.

Officer Hannan saw the Suburban drive by the MARTA station about 30 seconds after it left the view of the camera. He and other DEA task force officers—in several different, unmarked cars—began following the Suburban. Lt. Henry, in his marked patrol car, followed at the back of the surveillance team. The Suburban got onto 85 South, and Officer Hannan followed it for "a while." Once the group was "far enough away" from the residence that a stop would not raise suspicion about the larger investigation, Officer Hannan "let Lieutenant Henry know that any time he's ready, you know, he could get closer and try to observe if there's any traffic violations."

Lt. Henry then moved closer to the Suburban and, using his calibrated speedometer (he did not have a radar gun), determined that the Suburban was traveling 83 miles per hour in an area where the speed limit was 70 miles per hour. He did not pull the Suburban over right away because he was waiting for Georgia State Patrol (GSP) Trooper Jordan Ennis to assist. FCSO officers do not have authority to pursue a fleeing vehicle, but GSP troopers do. So, Lt. Henry had contacted Ennis from the MARTA station. Trooper Ennis arrived sometime after Lt. Henry had determined that the Suburban had been speeding. By that time, Lt. Henry had slowed down and backed off the Suburban. Once Trooper Ennis arrived, Lt. Henry initiated his emergency lights and stopped behind the Suburban. Trooper Ennis stopped his vehicle behind Lt. Henry's.

After Lt. Henry pulled the Suburban over, Officer Hannan and the other DEA task force officers kept driving, got off at an exit, and gathered in a parking lot to wait for word about what happened at the traffic stop. They did not see or participate in the stop.

Lt. Henry and his partner walked to the Suburban, and Lt. Henry approached to speak to the driver, Telrone Houston. He told Houston that he stopped the Suburban for speeding. While standing at the window speaking with Houston, Lt. Henry smelled burnt marijuana inside the Suburban. He went to his vehicle to get his citation book, and then walked back and asked Houston to step out of the Suburban. He asked Houston about the marijuana odor, and Houston told him there was no marijuana in the car, but he had smoked marijuana earlier in the day. Based on the odor and Houston's statement, Lt. Henry advised Houston that he was going to conduct a search of the vehicle. He then had Lewis exit the vehicle as well.

Lt. Henry searched the Suburban and found the brown bag. He unzipped it and observed five kilogram-sized packages of cocaine. At that point, he told his partner and Trooper Ennis to detain Lewis and Houston. As Lt. Henry was carrying the brown bag back to his patrol car, Lewis stated that the bag was his. Lt. Henry then searched the rest of the Suburban. He did not find any marijuana, burnt or otherwise.

Over the course of the traffic stop, Lt. Henry called Officer Hannan three times to advise him of what had occurred. Officer Hannan instructed Lt. Henry to arrest Lewis but to allow Houston to leave. Lt. Henry arrested Lewis and advised him of his Miranda³ rights. Lewis agreed to provide a written statement claiming ownership of the contents of the bag.

Lt. Henry issued a traffic ticket to Houston for speeding and allowed him to leave the scene. The ticket was later dismissed.

B. Lewis's Statements at the Jail

Before being transported to the Fulton County Jail, Lewis told Lt. Henry that he wanted to provide information about drug trafficking. Lt. Henry called Officer Hannan and relayed that Lewis wanted to talk. Officer Hannan and a second DEA task force officer, Matthew Dembowski, came to the jail to speak to Lewis. Officer Hannan introduced himself to Lewis as an FCSO officer. Officer Hannan then read Lewis his Miranda rights using a card that he borrowed from Officer Dembowski. Hannan borrowed the card because all of his own Miranda forms had "DEA" written on them, and he did not want Lewis to know that federal authorities were involved in the investigation.

After agreeing to waive his Miranda rights, Lewis stated that he was planning to transport the cocaine to Albany, Georgia, that he had done so before, and that the people in East Point had large quantities of methamphetamine.

C. State Court Prosecution

On December 22, 2015, a Fulton County indictment charged Lewis with trafficking in cocaine. Lewis moved to suppress the cocaine and his subsequent statements. The state court denied his motion initially and on reconsideration. In testimony before the state court at a suppression hearing, Lt. Henry did not disclose the federal task force's role in his decision to stop the Suburban. Driver Houston testified that he did not tell Lt. Henry that he had smoked marijuana earlier in the day.

Lewis filed a second motion for reconsideration after receiving a DEA report revealing the task force's role in the investigation and arrest. Looking at the evidence in light of the newly-uncovered DEA report, the state court granted Lewis's motion to suppress the cocaine and his statements. The state court found that Lt. Henry did not smell marijuana and wanted an excuse to search the car, and that Houston was not speeding, stating as follows:

[Lt. Henry] never smelled burning marijuana. He simply wanted an excuse to search the car. More specifically, he wanted to inspect the "brown bag" and its contents.

...

It thus appears that the traffic stop may well have been entirely pre-textual and that Houston was not speeding at the time he was pulled over. Further, it clearly appears that [Lt. Henry] did not smell marijuana during his interview of [driver] Houston and hence the alleged reason for the search was simply not true.

There was no probable cause to stop and search the vehicle and the detention of [driver] Houston and the [passenger] Defendant was unlawful.

The state did not appeal. The state charges against Lewis were dismissed on November 1, 2017.

D. Federal Prosecution Begins

After the state charges were dismissed, Officer Hannan consulted with the U.S. Attorney's Office about bringing federal charges against Lewis. In February 2018, Officer Hannan...