On January 30, 2023, the Eleventh Circuit Court of Appeals decided the United States v. Howard[i], which serves as an excellent review of the law related to drug investigations.  The relevant facts of Howard are as follows:

On October 11, 2016, deputies from the narcotics division of the Thomas County Sheriff’s Office received a tip from a confidential informant that a young African American male with dreadlocks and driving a blue Buick would be delivering methamphetamine that afternoon near 2050 Church Street in Meigs, Georgia. Agent Keith Newman established surveillance from a nearby street, and other agents observed the surrounding roads to monitor incoming traffic. Around 5:00 p.m., Agent Newman saw a blue Buick, whose driver matched the confidential informant’s description, approach 2050 Church Street and slow to a near-stop before continuing onto the next street and stopping.

Agent Newman and his partner pulled up and stopped in front of the Buick, turned their lights on, and approached the car. Inside the car were Howard and a passenger, Tokesha Bailey. As Agent Newman approached, he smelled an “overwhelming” odor of burnt marijuana emanating from the Buick. The deputies instructed Howard and Ms. Bailey to get out of the car, then searched it. Inside they found a digital scale with methamphetamine residue on it, over eighty grams of methamphetamine ice in the center console, some eighteen-hundred dollars in cash, and two cell phones. A later forensic analysis of the phones showed text messages with a contact named “Ice Cory” setting up a cash purchase on October 11 at 2050 Church Street. Another text to “Ice Cory” read, “Come to Moultrie an[d] bring ounce of ice.”

In April 2018, the Georgia Bureau of Investigation launched another investigation into Howard’s drug dealing activities. Agent Stripling Luke had begun an investigation into a methamphetamine distributor named Kim Wesley and eventually arrested him. Mr. Wesley, after he was arrested, agreed to cooperate with the government to find his drug source. Agent Luke showed Mr. Wesley a picture of Howard, whom Mr. Wesley knew as “Jerome Cruze,” his drug supplier. Mr. Wesley sent several text messages to Howard and set up an April 28 meeting at McDonald’s to purchase eight ounces of methamphetamine.

On the evening of April 28, Howard arrived at the McDonald’s in a blue Buick, then left his vehicle to go inside the restaurant. Mr. Wesley, observing the scene from across the street, again identified Howard as his dealer. Once Howard exited the McDonald’s, Agent Luke and his partner got out of their car, ordered Howard to the ground, and handcuffed him. When Howard was on the ground, Agent Luke asked him where his car keys were. Howard denied having a vehicle in the parking lot, but Agent Luke immediately found the keys clutched in Howard’s hand. Agent Luke pried Howard’s car keys from his hand and searched the car, where Agent Luke found eight ounces of crystal methamphetamine in a box in the front seat.[ii]

Howard was charged in a two-count indictment for distribution of methamphetamine under federal law.  Count one was for the 2016 incident, and Count two for the 2018 incident.  He filed a motion to suppress and argued that, in 2016, the agents lacked reasonable suspicion to stop him and search the vehicle, and in 2018, the agents lacked probable cause to arrest him and search his vehicle.  He also argued that his post-arrest statement about not having a vehicle should be suppressed because he had not been given his Miranda warning.  The district court denied the motion to suppress.  He appealed the denial of his motion to suppress to the Eleventh Circuit Court of Appeals.

On appeal, Howard argued that the district court erred in denying his motions to suppress in 2016 and 2018.

  1. The 2016 Arrest
  2. The Stop

Howard argued that the agents lacked reasonable suspicion to stop him.    The court of appeals first stated

Reasonable suspicion, while dependent upon the ‘totality of the circumstances,’ . . . ‘can arise from information that is less reliable than that required to show probable cause.'” United States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)).[iii]

The court of appeals noted that the agents had received information from a confidential informant that, on October 11, 2016, a man matching Howard’s description was selling methamphetamine out of a blue Buick near 2050 Church Street.  Agents did surveillance and observed a blue Buick, driven by a man matching Howard’s description, drive to the stated location, slow down, and stop on a nearby street.

The court of appeals stated

Even an anonymous tip can . . . give rise to reasonable suspicion, as long as the information provided contains ‘sufficient indicia of reliability to justify the investigatory stop.'” Heard, 367 F.3d at 1278 (quoting White, 496 U.S. at 332). Here, the tip was not anonymous, but from a known source. And the source’s account was largely corroborated. That’s enough, we’ve said, for reasonable suspicion. Cf. Heard, 367 F.3d at 1280 (holding that an anonymous, face-to-face tip created reasonable suspicion that defendant possessed a weapon).[iv]

  1. The Search of the Vehicle

The agent testified that he smelled the “overwhelming odor of burnt marijuana” as he approached Howard’s vehicle after he stopped it.  When the agent searched the car, he located methamphetamine, but no marijuana.  The court stated

[T]he smell of burnt marijuana emanating from a vehicle is sufficient probable cause to search a vehicle,” Merricks v. Adkisson, 785 F.3d 553, 560 (11th Cir. 2015); accord United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir.1991) (en banc), even if the marijuana was not ultimately found in the car.[v]

Thus, the court of appeals affirmed the denial of the motion to suppress regarding the 2016 violation.

  1. The 2018 Arrest
  2. The Stop of Howard as He Walked to His Vehicle

The court noted that Mr. Wesley, who was an arrestee that was cooperating with the police, positively identified Howard as his drug dealer, although he knew Howard by a different name.  Mr. Wesley then contacted Howard and arranged a methamphetamine purchase at a stated location.  The agents, with Mr. Howard, conducted surveillance of the location where the drug purchase was to occur.  Howard arrived at the McDonald’s, parked his car and went in the restaurant.  Wesley identified Howard as his dealer.  When Howard emerged from the restaurant, the agents approached Howard, ordered him onto the ground and handcuffed him.

The court of appeals stated

This information created a “fair probability” that Howard was engaged in criminal activity. See United States v. Goddard, 312 F.3d 1360, 1363 (11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)) (explaining that an informant’s tip, combined with “[o]bservations and other information supplied by officers” can give rise to probable cause).[vi]

Thus, the court of appeals held that the fact that the agents observed Wesley set up a drug purchase with Howard, saw Howard arrive at the purchase location, and Wesley identified Howard as his dealer at the location provided the agents with probable cause to arrest Howard.

  1. The Search of Howards Vehicle

The agent then asked Howard where his keys were located. Howard denied having a vehicle, but the agent found his keys in his hand.  The agent took the keys, and he searched the vehicle, locating methamphetamine.  The court of appeals stated

For the same reasons, there was also probable cause to search Howard’s vehicle for the meth he agreed to bring to the drug deal. See United States v. Lanzon, 639 F.3d 1293, 1299-1300 (11th Cir. 2011).[vii]

Thus, the court of appeals affirmed the denial of the motion to suppress the drugs found in the search of the vehicle in the 2018 arrest.

  1. Howard’s Post-Arrest Denial of Having a Vehicle

Howard also argued that his post-arrest statement to the agents that he did not have a vehicle should be suppressed because he was not provided his Miranda warnings and given a waiver.  However, the court of appeals stated

Agent Luke had lawfully detained Howard at that point, and he did not violate Miranda by asking where Howard’s keys were during his search. Cf. United States v. Jones, 543 F.2d 1171, 1173 (5th Cir. 1976) (explaining that “routine inquiries into the ownership of a stopped vehicle, the identity of its driver or occupants, and other such matters by law enforcement personnel do not constitute custodial interrogation” under Miranda).[viii]

Therefore, the court of appeals held that the district court properly denied the motion to suppress Howards statement.

In summary, the district court affirmed the denials of both Howards 2016 and 2018 motions to suppress.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 21-111010 (11th Cir. Decided January 30, 2023 Non-argument)

[ii] Id. at 1-3

[iii] Id. at 8 (emphasis added)

[iv] Id. at 9 (emphasis added)

[v] Id. (emphasis added0

[vi] Id. at 10 (emphasis added)

[vii] Id. (emphasis added)

[viii] Id. at 10-11 (emphasis added)

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