Submitted: September 23, 2019
from United States District Court for the Northern District
of Iowa - Waterloo
GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
consolidated appeal, Tereall Green challenges the district
court'sdenial of his motion to suppress evidence,
and both Green and Javonta Herbert appeal their respective
sentences for being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
approximately 1:00 a.m. on January 13, 2018, Jordan Ehlers, a
police officer in Waterloo, Iowa, observed a black Nissan
Rogue SUV that, based on his visual estimation, was speeding.
Ehlers ran a search of the license plate number on the SUV,
which returned a record for a different vehicle. While
following the vehicle, he also noticed that a license plate
frame on the SUV covered a portion of the license plate and
registration. Based on these three facts, Officer Ehlers
initiated a traffic stop.
the SUV stopped, Ehlers shined his spotlight on the back of
the vehicle, and he observed passengers making what he
perceived as suspicious movements. Ehlers exited his patrol
car and approached the front passenger side of the vehicle.
As the front passenger opened his window, Ehlers immediately
smelled alcohol. He also observed open liquor bottles in the
car and noticed that the floorboard appeared wet. Ehlers
requested identification from the driver and from each of the
three passengers. The front seat passenger did not have
identification but identified himself as Tereall Green.
Officer Ehlers recognized Green's name from a prior
intelligence report indicating that Green was seen in a
Facebook video possessing a weapon. Ehlers then turned to the
back-seat passengers, requesting identification from each of
them. When one of them rolled down his window, Ehlers smelled
marijuana. This passenger identified himself as Deshawn
Marks. The other backseat passenger said his name was
"Spencer Green." Ehlers noticed that "Spencer
Green" appeared nervous, and he recognized
"Green" as Javonta Herbert from prior contact with
Officers Randy Girsch and Kenneth Schaaf arrived on the
scene, Officer Ehlers asked Tereall Green to exit the SUV. He
conducted a brief frisk of Green- quicker than normal due to
the cold temperature. He did not find anything. Ehlers then
frisked Marks, finding clear plastic baggies of marijuana.
Because both Green and Marks were shivering, Officer Girsch
offered to let them sit in his patrol car, an offer both men
the SUV, Ehlers asked "Spencer Green" to step out
of the car. Ehlers asked if he was Javonta Herbert, and
Herbert conceded that was his real name. Ehlers then
conducted a patdown of Herbert. As Ehlers frisked Herbert,
Officer Schaaf used his flashlight to look into the backseat
floorboard of the SUV. He saw a handgun where Herbert had
been sitting and immediately yelled "ten
thirty-two"- a police code that indicated he had
discovered a firearm in the vehicle. Ehlers placed Herbert
Girsch, who was standing beside the patrol car in which
Tereall Green and Marks were sitting, heard Officer Schaaf
call out the "ten thirty-two." Girsch decided to
handcuff Green while another officer handcuffed Marks.
Although he had observed Ehlers frisk Green earlier in the
stop, Officer Girsch frisked him again, this time conducting
a more thorough patdown. Girsch discovered a loaded firearm
hidden in Green's pants. Green subsequently fled on foot.
Officers pursued and captured him within minutes.
Green and Herbert were indicted on charges of being a felon
in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). In pre-trial matters,
the district court denied Green's motion to suppress
evidence gathered during the traffic stop, finding that
Ehlers had probable cause to stop the SUV and that neither
patdown of Green constituted an unreasonable search in
violation of the Fourth Amendment. Green and Herbert both
entered conditional guilty pleas.
sentencing, the district court applied to both Green's
and Herbert's guideline calculations a four-level
enhancement for possession of a firearm in connection with
another felony offense. See U.S.S.G. §
2K2.1(b)(6)(B). Herbert objected to the application of the
enhancement, and the district court overruled the objection.
For Green, the court calculated a total offense level of 23,
a criminal history category of III, and an advisory
guidelines range of 57 to 71 months. After rejecting
Green's motion for a downward variance, the court imposed
a sentence of 71 months' imprisonment. For Herbert, the
court initially calculated a total offense level of 15, a
criminal history category of VI, and an advisory guidelines
range of 41 to 51 months. The Government moved for a
three-level upward departure pursuant to U.S.S.G. §
4A1.3 based on Herbert's underrepresented criminal
history. The ...