On March 29, 2020, around 3:49 p.m., in Arlington, Texas, 911 operators received several calls about a shooting. The gunshots were heard near a Boys and Girls Club. Callers reported arguing between men, yelling, and ultimately gunshots. A witness identified a dark-colored (black or gray), older pickup truck with a driver’s side that needed to be painted and was lighter than the rest of the truck. Additionally, the description of the suspect was a male who was 5’10”, had a dark-complexion (black or Hispanic), had facial hair and dark hair, weighed 160 pounds, and was in his late 20’s.
Within minutes of these calls, officers with the Arlington Police Department arrived on the scene. Police spoke with a witness who described the suspect consistently with the 911 calls: a Hispanic male, late 20’s or early 30’s, 5’10”, with black hair and black facial hair. Officers also obtained surveillance footage from the Boys and Girls Club that showed a darkish colored pickup truck leaving the parking lot. The vehicle had distinctive markings, some of which were consistent with the 911 calls; these markings included a driver’s side passenger door that was lighter in color than the rest of the vehicle, a truck bed cover, and four stickers in the back window (two lighter colored ones in the lower left and lower right, one lighter colored in the center, and a bluish colored sticker in the top left area).
Police then drove the area and located a darkish colored Ford pickup truck matching the features of the vehicle and with the same stickers. The officers ran the license plate for the truck, and the registration came back with Abedel Alkheqani as the owner, a man whose ID photo showed he was Middle- Eastern, of dark complexion, and about 27 years old. As one officer indicated, Alkheqani could reasonably be seen as a dark-complected Hispanic male and also had black facial hair in his ID photo.
Police then kept surveillance of the house where the truck was parked, and they ultimately saw a Middle Eastern man matching the suspect’s description leave the house in a red car. Officers followed the vehicle and conducted a traffic stop. The officers drew their pistols, aimed at the occupants, and ordered them to keep their hands up. The passengers were separated and detained.
Officers detected a strong odor of marijuana coming from the inside of the vehicle, so they conducted a probable cause search. Alkheqani was placed under arrest for possession of marijuana. Police released the other occupants. Alkheqani was placed in the back of a squad car, and a rear dash camera captured his exchanges with officers. Police asked for permission to search Alkheqani’s home and truck, and he granted it several times, even after officers said he could refuse.
Alkheqani was told he was under arrest for the marijuana. But, police also candidly told him that there was an incident earlier in which someone got hurt, that his vehicle matched the one seen, and that his physical description matched the suspect. Again after being told he could refuse, Alkheqani signed consent-to- search forms. Alkheqani said he had nothing to hide.
Throughout his exchange with law enforcement, Alkheqani spoke English well and understood the officers, even going so far as to ask questions about the contents of the consent form. He also acknowledged that “it’s not my first,” which is consistent with his five prior convictions (four of which were for felony Burglary of a Habitation). Officers asked him if he had any firearms in the house, and he replied, “I have a .22 rifle in the back room. It’s my wife’s, she uses it. Just for safety.” During the search of the home, the .22 caliber rifle was found in the master bedroom.
He was convicted of being a felon is possession of a firearm. On appeal, he argued there was no reasonable suspicion for stop and that consent was involuntarily obtained for car and truck. The 5th affirmed (he was re-sentenced for issues related to sentencing law which are not discussed below).
A. Reasonable Suspicion to Support the Traffic Stop
Alkheqani argues that the district court erred in finding reasonable suspicion on three main grounds. First, Alkheqani contends that the officers were operating on generic information about the suspect and his vehicle rather than the requisite particularized facts. Second, Alkheqani maintains that the police improperly used conflicting and contradictory information to support the stop. And third, Alkheqani asserts that temporal and geographic proximity do not weigh in support of a finding of reasonable suspicion because he was seized three hours after the shooting at a distance less than a mile away.
We disagree. In sum, we agree with the district court that (1) the stop was based on particularized, not generic, information; (2) minor conflicts in eyewitness accounts do not warrant a different finding; and (3) temporal and geographic proximity support a finding of reasonable suspicion.
A1. Generic Information
In Alvarez, the Fifth Circuit reversed the finding of reasonable suspicion because a) the case involved completed criminal activity rather than a report of ongoing or very recent criminal activity, b) the subject’s physical description (male Hispanic) was too general and vague, c) large handlebars was too vague when describing a bicycle.
In Jaquez, the officer stopped a red car for a shots fired call because (1) he was driving a red car, (2) in the general vicinity of the incident reported 15 minutes earlier, (3) late at night, (4) in an area known for its high crime rate. The Court found the sparse and broadly generic information provided by the dispatcher, without more, was insufficient to support a determination of reasonable suspicion, as required under Terry.
Unlike Alvarez and Jacquez, this case does not involve vague and generalized descriptions of Alkheqani or his vehicle. Alkheqani’s truck was identified from witness descriptions and surveillance footage taken near the scene of the crime. While trucks are certainly common in Texas, the truck in the video had several distinguishing characteristics. It had a dark-colored bed cover; it had a marred paint job on the driver’s side; and it had several distinctive stickers on the back window. Together, these attributes narrowed the field of possible trucks to a very small number. Likewise, officers located the truck and obtained Alkheqani’s ID photo, and he substantially matched the description of the suspect: in his 20s, with a dark complexion, and facial hair. Thus, Alvarez and Jacquez do not entitle defendant to relief.
A2. Contradictory Information
One witness described the suspect as dark complected, guessing he was Hispanic; in his late 20’s; average height, maybe a little bit shorter, maybe 5’10”ish, thin built, with a goatee, with dark hair, and probably about 160 pounds while another witness said the suspect was Hispanic, 6’2”, and about 190 pounds. Further, one witness described the truck as black, while another described it as gray with the driver’s side that needed to be painted.
Numerous other appellate courts have recognized that minor inconsistencies in witness descriptions are not automatically fatal to a finding of probable cause, and these cases apply here, as reasonable suspicion demands even less than probable cause. See United States v. Quinn, 18 F.3d 1461 (9th Cir. 1994) (finding that inconsistencies of the witnesses’ descriptions of the robber did not negate the probable cause when there was evidence independent of the descriptions connecting the defendant to illegal activity).
The corroboration here went well beyond eye witness descriptions of the truck’s color and included video showing the truck’s highly distinctive features and Alkheqani’s ID photo. Thus, the minor contradictions highlighted by Alkheqani do not warrant reversal.
A3. Temporary and Physical Proximity
A less specific description may support reasonable suspicion where there is temporal and geographic proximity to recent criminal activity. See Alvarez. Alkheqani’s vehicle was found only three hours after the video was taken and less than a mile away from the scene of the crime.
B. Consent to Search the Home and Vehicle
Consent is determined based on the totality of the circumstances, and this Court looks at six factors: (1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found. See Perales.
B1. Voluntariness of Custodial Status
Both sides agree that because Alkheqani was under arrest at the time for possession of marijuana, the district court correctly concluded that this factor weighed in favor of involuntariness.
B2. Coercive Police Procedures
Conduct falling under this category includes threats of force, promises, trickery, or deceit designed to pressure a suspect into consenting to searches or more subtle forms of coercion that might flaw his judgment. See SCOTUS U.S. v. Watson, 423 U.S. 411 (1976).
The traffic stop was initiated in a highly coercive way, with officers having guns drawn and ordering the occupants from the vehicle, and there were multiple officers around Alkheqani. However, all the other facts weigh against coercion, as (1) sufficient time passed between the stop and the consent so that everyone was much calmer, (2) the officers spoke to Alkheqani one on one, not in groups, in conversations with a polite tone, (3) police never made any promises, threatened to get a warrant, or used any deception, and (4) officers calmly explained his rights several times, including the right to say no.
B3. Extent and Level of Defendant’s Cooperation
Cooperation by the defendant is a factor favoring a finding that consent was voluntary. Even if a defendant expresses several instances of being nervous, this factor weighs in favor of voluntariness if the defendant is more cooperative than not. See Soriano. Here, Alkheqani concedes that, though he was nervous and frustrated at times, he was generally responsive and polite. Thus, this factor also weighs in favor of voluntariness.
B4. Defendant’s Awareness of his Right to Refuse
Alkheqani concedes that he was told several times he did not have to consent and that his consent could be withdrawn. Consequently, this factor weighs in favor of voluntariness.
B5. Defendant’s Education and Intelligence
Alkheqani argues he had a ninth- grade education, repeated questions to the officers, and statements that he did not understand what was happening.
Alkheqani was 26 years old, spoke fluent English, and competently interacted with police; while he had only a ninth- grade education, he had substantial experience in the criminal justice system; and though he asked many questions about the situation, his intelligent questions and responses actually show his intelligence and supports the conclusion that he appears to have understood what was happening.
B6. Defendant’s Belief Incriminating Evidence Would Be Found
An awareness or belief that no incriminating evidence will be found weighs in favor of a finding of voluntariness. Consequently, an awareness or belief that some incriminating evidence will be found weighs against a finding of voluntariness.
The district court concluded this factor was at best neutral, and perhaps weighed slightly in favor of voluntariness. On the one hand, Alkheqani expressed worry that police would find marijuana in his house, but, on the other, he said several times that he had nothing to hide and specifically admitted to police that he had a .22 rifle in the house.
B7. Conclusion for consent
We agree with the district court that four factors weigh in favor of voluntariness, one indicates involuntariness, and one is, at most, neutral. Considering the totality of the circumstances, we affirm.