US v. Clifton Talley, No. 09-4734 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4734 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLIFTON THOMAS TALLEY, Defendant - Appellant. No. 09-4873 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLIFTON THOMAS TALLEY, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:08-cr-00030-sgw-1; 5:09-cr-00024-sgw-1) Submitted: July 20, 2010 Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge. Decided: DUNCAN, August 9, 2010 Circuit Judge, and Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, Andrea L. Harris, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Roanoke, Virginia, Nancy S. Healey, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Clifton Thomas Talley appeals the denial of his motion to suppress evidence obtained as a result of what he claims was an illegal seizure of his person. He also appeals the revocation of a term of supervised release imposed in a prior case as well as the sentence he received as the result of the revocation. Finding no error, we affirm. I. On the afternoon of July 5, 2008, a woman speaking in broken English called 911 to report that a man was viewing child pornography on a computer in the Staunton Public Library. Staunton Police Officers Robert Hildebrand and Ray Murray, both dressed in their police uniforms, responded to the call within 17 minutes. The 911 dispatcher informed the officers that the suspect was described as a white male, 40 to 50 years old, with brown hair, shorts, and slip-on shoes and that he was in the library s computer area, straight back from the front door. The dispatcher had a call-back number for the 911 caller although the caller had not provided her name. Upon their arrival at the library, the officers did not find anyone matching the description in the library s actual computer room. Hildebrand therefore asked the dispatcher to have the 911 caller meet them somewhere in the library. 3 The officers then proceeded to another area of the library that was also straight back from the main entrance. able to find a person, later identified fitting the caller s description. There, they were as Clifton Talley, Talley, a white male, looked to the officers to be around 50, and he was wearing shorts and flip-flops and using a laptop computer. made eye contact with Talley three J.A. 146. times and Hildebrand testified Talley seemed to be logging off the laptop, nervously. 90-91. that J.A. As the officers walked past Talley, it appeared to them that there were no applications running on his computer. When the officers went to speak with a library employee, Talley got up and left the library. Hildebrand followed him, approached Talley, and told him that he matched a description of a suspect pornography. who had been identified as looking at child Hildebrand asked Talley if he had been looking at child pornography, and Talley denied doing so. Hildebrand asked for Talley consent to look at Talley s laptop, but refused. Talley did, however, provide his driver s license when asked by Hildebrand for identification. For safety purposes, Hildebrand also took a backpack that Talley was carrying. returned to his patrol car to run Talley s Talley s backpack on the hood of the car. Hildebrand then license, Officer Murray, who had also exited the library, remained with Talley. 4 leaving When he processed the license, Hildebrand learned that Talley had prior child pornography convictions, was registered as a sexually violent predator, and was on probation. Hildebrand testified that when he returned to Talley and asked him if he was on probation, Talley became very nervous. 94. J.A. Around the same time, the 911 dispatcher told Hildebrand that the 911 caller was going to be by the entrance and that [s]he stated she believes you have the wrong person. 236. J.A. Approximately 30 seconds later, as Hildebrand continued to question Talley, Talley told Hildebrand, I am sick. (internal whether quotation he was marks omitted). physically sick When or quotation marks omitted). give him a break and Hildebrand mentally responded, I can t stop looking at porn. J.A. 95 sick, asked Talley J.A. 95 (internal He nevertheless asked Hildebrand to let him go. not heard J.A. 95. Hildebrand arrested Talley instead. Officer Murray had the dispatcher s that the caller believed they had the wrong person. statement However, he had heard that the caller was at the library s entrance, and he therefore had gone to find her. When he found her, she described in broken English the images that prompted her 911 call. She said that she saw a nude girl, approximately 10 years of age or so with what looked like paper covering her eyes and face. J.A. 150. She made no mention of believing that 5 the officers had the wrong person. After Talley s arrest, Murray again spoke in person with the caller and obtained her personal information. She also described the area in which she had seen the images that prompted her call, and it was the same area in which the officers had first seen Talley. After Talley was placed under arrest, Murray searched his backpack and found a notebook containing a list of suggestive web addresses, like youngboys.com. J.A. 154. Hildebrand had looked through the backpack for officer safety and observed that there was a laptop computer and perhaps a notebook. Hildebrand advised Talley of his Miranda rights and transported him to the Staunton Police Department. Talley subsequently waived his Miranda rights and admitted to having images of naked minors on his computer Murray and later accessing obtained a websites search depicting warrant for naked minors. Talley s laptop computer, the execution of which revealed several images that appeared to thereafter be child obtained pornography, and Talley s home. a pornography. for second Talley search Arrest for warrants possession warrant was of obtained were child for The execution of the search warrant yielded a disk containing child pornography. A Charlottesville federal grand jury subsequently returned an indictment against Talley charging him with two counts of knowingly possessing material containing 6 images of child pornography. See 18 U.S.C. § 2252A(a)(5)(B) and 2252(b)(2). Talley moved to suppress the evidence as fruit of his initial detention and arrest, unconstitutional. denied the both Following motion. The of a court which hearing, ruled he claimed were the district court that Officer Hildebrand reasonably suspected Talley of possession of child pornography when he initially detained him and that the reasonable suspicion was not dissipated by the dispatcher s statement that the caller believed they had the wrong man. The court further found that probable cause existed to arrest Talley when, in the context of Hildebrand s investigation of the child pornography crime, Talley asked Officer Hildebrand to give him a break and let him go because pornography. for he could not stop himself from looking at The court found that it would have been reasonable Hildebrand to conclude that Talley had admitted to committing the crime he was investigating. Talley entered a conditional plea to the charges, reserving the right to appeal the denial of his suppression motion. the sentencing hearing, the government argued for an At upward variance or departure primarily based on Talley s prior criminal history, offenses. his pattern The of recidivism, government emphasized and the that he nature of his had been on supervised release for a prior federal child pornography crime when he committed the present offenses and that he had committed 7 the prior crime when on supervised release for an earlier child pornography enhanced offense. statutory Talley minimum argued of 10 for a years. sentence In the end, the at the district court varied upward based on the 18 U.S.C. § 3553(a) factors, including Talley s offense history and recidivism, and the need for the sentence to afford adequate deterrence, sentencing Talley to 160 months imprisonment on each count, to be served concurrently, as well as lifetime supervision. A federal probation officer assigned to supervise Talley petitioned that he to had revoke Talley s violated three supervised conditions release, of his contending supervision, including the condition that he would not commit further crimes. At the revocation Talley s crimes proceeding did release violation. in fact the district constitute a court Grade See U.S.S.G. § 7B1.1(a)(2). found B that supervised Because Talley had a Category II criminal history, he faced a statutory maximum custody range of up to three years, and his advisory revocation sentencing range was six to twelve months. The government requested that the district court consider sentencing Talley up to a consecutive maximum of three years imprisonment based on the arguments the government had presented at the sentencing proceeding for the crimes underlying the revocation. Talley argued range. for Concluding a concurrent that that sentence Talley had 8 within shown the advisory himself to be very difficult to supervise, the district court found the advisory range inappropriate and imposed a 30-month consecutive term. J.A. 422. II. On appeal, Talley first argues that the officers never had a sufficient basis to detain him and, alternatively, that any reasonable suspicion they had immediately dissipated when they were told the 911 caller had stated that she believed they had the wrong person. Talley argues that all of his statements made after that point should be suppressed as fruit of the illegal seizure of his person. He also contends that the officers lacked probable cause to arrest him at the time they took him into custody and argues for the suppression of the fruit of that seizure. Finally, he maintains that because his convictions were obtained as the result of these illegal seizures of his person, the district court also erred in utilizing them as the basis for revoking his term of supervised release. We disagree with all of these arguments, however, and hold that the district court correctly ruled that Talley s constitutional rights were not infringed. We conclude that, under the totality of the circumstances, the officers were legally justified in detaining Talley prior to arresting him and that probable cause supported Talley s arrest. 9 Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may conduct a brief investigatory stop where the officer has suspicion that criminal activity may be afoot. reasonable United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004). Such a stop requires only a minimal level of objective justification, and it need not rise to the level of probable cause. Wardlow, 528 informant s U.S. tip 119, 123 supplies (2000). part of Illinois v. In basis the cases where for an reasonable suspicion, we must ensure the tip possesses sufficient indicia of reliability. Perkins, 363 F.3d at 323. In this case, several factors supported the reliability of the information the caller provided. First, although the 911 caller did not initially provide her name, the dispatcher had a phone United number States at which v. the Reaves, officers 512 F.3d could 123, contact 127 (4th her. See Cir. 2008) ( When an unidentified tipster provides enough information to allow the police to readily trace her identity, thereby subjecting herself to potential scrutiny and responsibility for the allegations, a reasonable tipster is credible. ). officer may conclude that the Second, her description of the suspect and his location in the library, along with the nature of the conduct reported strongly suggested that she had observed that conduct first-hand. in this case was See Perkins, 363 F.3d at 325 ( The caller clearly in a 10 position to know about the reported activity suspicion. ). that gave rise to [the officer s] Third, when the officers found a man generally fitting the caller s description, he appeared to act evasively. See United States v. Sims, 296 F.3d 284, 287 (4th Cir. 2002) (holding that suspect s evasive behavior sufficiently supported reliability of tip to authorize Terry stop). police, he appeared to nervously promptly exit the library. sign off When seeing the his computer and Thus, by the time Hildebrand first spoke with Talley, he was already authorized to conduct a Terry stop. * Once Hildebrand obtained Talley s license and processed it, he learned of Talley s prior child pornography convictions. And, the nervousness Talley exhibited during questioning gave him further basis to suspect that Talley was the person the caller had described. Talley nevertheless suggests that the dispatcher s statement that the caller believed they had the wrong person negated any reasonable suspicion that the officers had. We disagree. Talley not only generally fit the caller s description, he was the only person the officers found who did. * Talley argues that it is possible that what the caller believed to be child pornography actually did not satisfy the legal definition of that term. While Talley is correct that the caller could have made such a mistake, that possibility did not prevent the officers from at least reasonably suspecting that Talley was engaging in criminal activity, particularly considering his furtive behavior. 11 Based on this prior child fact, Talley s pornography furtive crimes, the behavior, officers and had Talley s reason to believe either that the caller was mistaken about them having the wrong man or that the dispatcher had misunderstood broken English in reporting that statement. her Thus, Hildebrand was at least authorized to briefly continue his questioning of Talley, which at that point, had lasted no more than two minutes. Within 30 seconds of the dispatcher telling the officers that the caller believed they had the wrong person, Talley had admitted to Hildebrand that he could not stop looking at pornography and asked Hildebrand to give him a break and let him go. In the context of Hildebrand s questioning regarding the possible child pornography offense, Hildebrand believe that Talley had just admitted his guilt. had probable cause to arrest him. had reason to He therefore See Devenpeck v. Alford, 543 U.S. 146, 152 (2004) ( [W]arrantless arrest . . . is reasonable . . . where there is probable cause to believe that a criminal offense has been or is being committed. ). III. Talley revocation also of unreasonable. maintains his that supervised We disagree. 12 his 30-month release term sentence was upon plainly A court imposing a revocation sentence ultimately has broad discretion to . . . impose a term of imprisonment up to the statutory maximum. United States v. Crudup, 461 F.3d 433, 439 (internal (4th Cir. Recommended 2006) sentencing ranges quotation for marks violations omitted). of supervised release are not true guidelines but rather policy statements only to give courts revocation sentences. greater flexibility in devising Id. at 435 (quoting U.S.S.G., Ch. 7, pt. A, introductory cmts. 1, 3(a)). Talley argues that in imposing the 30-month sentence, the district court failed to give weight to Talley s age (59), poor health (cardiac and gastric chronic conditions), and the high, over-guideline sentence he had already received for the same conduct. [t]he Brief of Appellant at 26. record does not reflect any Talley also notes that consideration of 3553(a) factors other than Talley s recidivism and the need to protect the public. imposed was We conclude, however, that the sentence Id. not even unreasonable, let alone plainly unreasonable. In imposing the 30-month sentence, the district court stated that it had concluded that the revocation guideline range was not an appropriate range under the specific circumstances of this case difficult because to Talley supervise. had J.A. 13 proven 421. himself Given to that be the very crimes underlying the sentence Talley challenges marked the second time Talley had committed such crimes during a term of supervised release, the district court s assessment was certainly correct. We conclude the sentence imposed, which was six months below the maximum allowed by statute, was a reasonable one. Cf. Crudup, 461 F.3d at 440 (holding that 36-month revocation sentence was reasonable when defendant had repeatedly violated conditions of supervised release). sufficient. The explanation of the sentence was also See id. at 439 (holding that a court s statement of its reasons for going beyond non-binding policy statements in imposing a sentence after revoking a defendant s supervised release term need not be as specific as has been required when courts departed from guidelines that were, before Booker, considered to be mandatory (internal quotation marks omitted)). IV. For the foregoing reasons, we affirm Talley s convictions and revocation sentence. AFFIRMED 14

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