Appellate Circuit

Don’t Blink Too Fast Says Judge Tjoflat for the Eleventh Circuit

Petition for en banc rehearing granted by the Court of Appeals for the Eleventh Circuit in this criminal case. Judge Gerald “Glossing” Tjoflat authored the opinion(s) for the 3-panel.

LIT COMMENTARY

The following case was granted en banc rehearing on December 2, 2020 and the courts’ earlier decision vacated. Attorney and Assistant Federal Defender Jared Westbroek was the Trial Attorney in the lower court case.

History of the Case at 11th Cir.

Federal Court Upholds Traffic Stop Over Fast Blinker

Properly indicating a turn with a signal that is in working order, but blinks rapidly, is potentially unlawful under federal appeals court ruling.

Originally Posted: October 1, 2019 | Reposted by LIT: December 4, 2020

MARTIN, BEVERLY, B.

Judge_Tjoflat-bw.fw

TJOFLAT, GERALD B.

Stephen-Murphy-200

MURPHY, STEPHEN

Driving with a turn signal that blinks “too fast” is a potentially criminal act under a ruling handed down Tuesday by the Eleventh Circuit US Court of Appeals. The three-judge appellate panel set the precedent after considering a traffic stop that took place on December 12, 2013, in Greene County, Georgia.

On that day, Deputy Sheriff Robert McCannon stopped the Erickson Meko Campbell’s Nissan Maxima on Interstate 20 in Georgia after noticing his turn signal blinked rapidly when making a lane change. The deputy also said he saw the gray sedan cross the fog line once, then after he turned on his dashcam, that it crossed a second time. When the video footage of the stop showed no such thing, prosecutors stuck with the blinker as justification for the stop. The case is unusual because Campbell’s blinkers were in fact working, and the video showed the signal was clear and visible. During the traffic stop, the deputy checked all of the lights on the Maxima, and none were burned out. There is no standard in the Georgia Code for how fast a turn signal should blink.

“But the rapid blinking is an alert that something, be it an expired bulb or faulty wiring, might not be in good working condition,” Judge Gerald Bard Tjoflat wrote for the court. “Thus, the rapidly blinking turn signal provided McCannon with reasonable suspicion to believe that Campbell’s car was in violation of the traffic code.”

The judges pointed to a provision in Georgia law requiring all equipment being kept in “good working condition,” suggesting Campbell’s blinker was not in compliance because it was in working condition, just not “good” working condition.

“If all the statute demanded is that the turn signal be visible from 300 feet and clearly indicate an intention to change lanes, the good working condition language would be superfluous,” Judge Tjoflat wrote. “It must mean more.”

The court did take issue with Deputy McCannon’s elaborate roadside questioning. Campbell was pressed on his travel plans, his knowledge of Augusta, where he worked, if he had time off work, how old his car was, what kind of deal he received on his car and his traffic and criminal history.

“Any counterfeit merchandise that you’re taking to your relatives in Augusta?” the deputy inquired. “And what I mean by that is — any purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs? Anything like that? Any illegal alcohol? Any marijuana? Any cocaine? Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You don’t have any dead bodies in your car?”

Under the US Supreme Court ruling in Rodriguez v. US (view ruling), police may not “measurably” prolong a traffic stop with such questions.

“We think the proper standard emanating from Rodriguez is this: a stop is unlawfully prolonged when an officer, without reasonable suspicion, diverts from the stop’s purpose and adds time to the stop in order to investigate other crimes,” Judge Tjoflat wrote.

The court found the unrelated investigation of potential dead bodies in the trunk wasted 25 seconds of Campbell’s time, violating the new standard set by the appellate court. Since this is a new precedent, however, the court did not apply the exclusionary rule to the case. That is bad news for Campbell, because when his Maxima was searched, the deputy found a High Point C9 9mm pistol inside a black and gray Michael Jordan gym bag. Campbell could not legally possess this weapon.

Petition for Rehearing, En Banc, Sept. 25, 2020

Extension of Time to File Response to Petition for Rehearing, En Banc, Oct. 5, 2020

16-10128-JJ

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v.

ERICKSON CAMPBELL,

Defendant-Appellant.

On Appeal from the United States District Court For the Middle District of Georgia, Athens Division District Court No. 3:14-cr-00046-CAR-CHW-1

 

UNOPPOSED MOTION FOR 14-DAY EXTENSION OF TIME TO RESPOND TO PETITION FOR REHEARING EN BANC

 Charles E. Peeler United States Attorney
Michelle L. Schieber Assistant United States Attorney
Attorneys for Appellee
Post Office Box 1702
Macon, Georgia 31202-1702
(478) 752-3511
mikki.schieber@usdoj.gov

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rules 26.1-1 through 26.1-5, the undersigned counsel of record hereby certifies that the following persons have, or may have had, an interest in the outcome of this case:

Campbell, Erickson Meko, Defendant-Appellant;
Dodson, Jonathan R., Appellate Attorney for Defendant-Appellant;
Hunt, Christina L., Executive Director, Federal Defenders of the Middle District of Georgia, Inc.;
Jarrett, Tamara A., Assistant United States Attorney, Middle District of Georgia;
Moore, Michael J., former United States Attorney, Middle District of Georgia;
Peeler, Charles E., United States Attorney, Middle District of Georgia; Peterman, G. F., III, former United States Attorney, Middle District of Georgia;
Royal, C. Ashley, Judge, United States District Court, Middle District of Georgia;
United States v. Erickson Campbell, Appeal No. 16-10128-JJ
Schieber, Michelle L., Assistant United States Attorney, Middle District of Georgia;
Thorpe, Graham A., former Assistant United States Attorney, Middle District of Georgia;
Vogelbaum, Martin J., former Attorney for Defendant-Appellant;
Weigle, Charles H., Magistrate Judge, United States District Court, Middle District of Georgia; Westbroek Jared, Trial Attorney for Defendant-Appellant; Victims: There are no identified victims.
No publicly traded company or corporation has an interest in the outcome of this appeal.

s/Michelle L. Schieber
Assistant United States Attorney Georgia Bar No. 629188
Post Office Box 1702 Macon, Georgia 31202-1702
(478) 752-3511
mikki.schieber@usdoj.gov

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Appeal No. 16-10128-JJ

UNITED STATES OF AMERICA            

v.

ERICKSON CAMPBELL                          

UNOPPOSED MOTION FOR 14-DAY EXTENSION OF TIME TO RESPOND TO PETITION FOR REHEARING EN BANC

COMES NOW the Appellee, the United States of America, by and through its attorney, the United States Attorney for the Middle District of Georgia, and moves for an extension of time, to November 4, 2020, in which to respond to Erickson Campbell’s petition for rehearing en banc. In support of its unopposed request for a 14-day extension of time, the United States shows as follows:

On January 8, 2019, a panel of this Court issued a published decision, finding, among other things, that a law enforcement officer’s questions about crime in general, asked during a traffic stop and without reasonable suspicion, unlawfully prolonged the stop by 25 seconds, in violation of Rodriguez v. United States, 135 S. Ct. 1609 (2015).

The Court also found that the decision in Rodriguez served to abrogate United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012), in which this Court approved inquiries unrelated to a traffic stop, so long as those inquiries do not measurably extend the duration of the stop. Griffin, 696 F.3d at 1361.

Although the panel found in this case that the officer unlawfully prolonged the stop, the majority did not invoke the exclusionary rule. Instead, the panel majority applied the good faith exception, finding that the officer acted in objectively reasonable reliance on binding appellate precedent.

A judge on the panel dissented from the majority’s decision to apply the good faith exception, arguing that the United States waived the argument by failing to raise it with the Court.

On August 14, 2020, the Court vacated the January 8, 2019 opinion and substituted a new opinion in its place but reached the same result: finding that the officer unnecessarily prolonged the stop but applying the good faith exception and affirming the conviction.

On September 25, 2020, after obtaining a 21-day extension, Campbell filed a petition for rehearing en banc. By order entered September 30, 2020, the Court directed the United States to file a response to the petition for rehearing en banc, within 21 days.

The United States seeks an additional 14 days within which to file its response to the petition for rehearing en banc.

This case has potentially broad implications for the good faith exception to the exclusionary rule. Before responding to the petition for rehearing en banc, the United States needs to consult with the Appellate Section of the Department of Justice to ensure that its response is consistent with the positions taken by other United States Attorney’s Offices.

Additional time is therefore needed to consult with the Department and to prepare the response to the petition for rehearing en banc.

Appellant, Erickson Campbell, has been out on bond during the pendency of this appeal, and will not be prejudiced by the extension. The United States has consulted with Campbell’s attorney, and he has no objection to the requested extension of time.

WHEREFORE, the United States respectfully requests that this Court grant its Unopposed Motion for 14-Day Extension of Time to Respond to Petition for Rehearing En Banc, and that the United States have up to and including November 4, 2020, in which to file its petition.

This the 5th day of October, 2020.

s/Michelle L. Schieber
Assistant United States Attorney Georgia Bar No. 629188

300 Mulberry Street, Suite 400 Post Office Box 1702
Macon, Georgia 31202-1702
(478) 752-3511
mikki.schieber@usdoj.gov

CERTIFICATE OF COMPLIANCE

 I certify that the foregoing Unopposed Motion for 14-Day Extension of Time to Respond to Petition for Rehearing En Banc complies with the word limit of Federal Rule of Appellate Procedure 27(d)(2). This motion contains 561 words, which is less than the 5,200 words permitted under Federal Rule of Appellate Procedure 27(d)(2)(A).

I further certify that this motion complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type- style requirements of Federal Rule of Appellate Procedure 32(a)(6). Using the Microsoft Word 2016 software program, this document has been prepared using a proportionally spaced typeface in 14-point characters in Book Antiqua font.

This the 5th day of October, 2020.

300 Mulberry Street, Suite 400 Post Office Box 1702
Macon, Georgia 31202-1702
(478) 752-3511
mikki.schieber@usdoj.gov
s/Michelle L. Schieber
Assistant United States Attorney Georgia Bar No. 629188

CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing Unopposed Motion for 14-Day Extension of Time to Respond to Petition for Rehearing En Banc with the Clerk of Court using the Eleventh Circuit CM/ECF system, which will send notification of filing to all parties of record.

This the 5th day of October, 2020.

s/Michelle L. Schieber
Assistant United States Attorney Georgia Bar No. 629188
300 Mulberry Street, Suite 400 Post Office Box 1702
Macon, Georgia 31202-1702
(478) 752-3511
mikki.schieber@usdoj.gov

A Taxing Texas Decision to Deny En Banc Rehearing Splits Fifth Circuit Right Down the Middle. But The Right Call Was Made.

The 8 Dissenting 5th Cir. Judges Owen, Smith, Elrod, Haynes, Willett, Ho, Engelhardt, Oldham would give Attorney Client Privilege to the Austin, Texas law firm over the objections of the IRS.

Court of Appeals for the Fifth Circuit Judge James Ho and Judge Andrew Oldham Accused of Being Cowardly, Unprincipled and Unfit to be Appellate Judges

Indeed, Judge Ho and Judge Oldham conclude this section of the opinion by saying: If we’re not going to do it right, then perhaps we shouldn’t do it at all – with it here meaning, actually interpret statutes as written.

The Fifth Circuit Debate Originalism, a Constitutional Standard in a Divided Court in Cole v. Hunter. We Maintain, Common Sense Should be the Standard

James Wilson’s design was that every court could serve as a court of common sense: not the haphazard common sense of shallow propaganda, nor the forged common sense of a few enlightened authority figures, but the dispassionate, benevolent, and well-reasoned common sense of a truly self-governing people.

Motion for Rehearing Denied as En Banc GRANTED, Dec. 2, 2020

12/02/2020 Open Document PUBLISHED ORDER: The Petition(s) for Rehearing are DENIED as MOOT and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges in regular active service, the Petition(s) for Rehearing En Banc filed by Appellant Erickson Meko Campbell are GRANTED. The panel’s opinion is VACATED. [9250548-1] [Entered: 12/02/2020 02:35 PM]

Court of Appeals Docket #: 16-10128 Docketed: 01/13/2016
Termed: 08/14/2020

USA v. Erickson Campbell

Appeal From: Middle District of Georgia
Fee Status: IFP Granted

Case Type Information:
1) Criminal
2) Direct Criminal
3) Originating Court Information:
District: 113G-3 : 3:14-cr-00046-CAR-CHW-1
Court Reporter: Tammy DiRocco
Court Reporter: Darlene Fuller

Sentencing Judge:

C. Ashley Royal, Senior U.S. District Court Judge

Date Filed: 08/13/2014

Date NOA Filed:
01/12/2016

08/14/2020 Panel opinion of 01/08/2019 withdrawn/vacated by court. VACATED. [Entered: 08/14/2020 02:12 PM]

08/24/2020 Open Document MOTION for extension of time to file request for rehearing to 09/25/2020 filed by Erickson Meko Campbell. Motion is Unopposed. [9170121-1] [16-10128] (ECF: Jonathan Dodson) [Entered: 08/24/2020 01:03 PM]

08/26/2020 ORDER: Motion for extension to file request for rehearing filed by Appellant Erickson Meko Campbell is GRANTED by clerk. [9170121-2] Petition for Rehearing due on 09/25/2020. [Entered: 08/26/2020 11:25 AM]

09/25/2020 Open Document Petition for rehearing en banc filed by Appellant Erickson Meko Campbell. [16-10128] (ECF: Jonathan Dodson) [Entered: 09/25/2020 12:07 PM]

09/30/2020 Open Document ORDER: The Appellee is DIRECTED to file a response to the Appellant’s petition for rehearing en banc within 21 days from the date of this order. ENTERED FOR THE COURT – BY DIRECTION [Entered: 09/30/2020 04:07 PM]

10/05/2020 Open Document TIME SENSITIVE MOTION for extension of time to file response to motion to 11/04/2020 filed by USA. Motion is Unopposed. [9204703-1] [16-10128] (ECF: Michelle Schieber) [Entered: 10/05/2020 01:59 PM]

10/06/2020 ORDER: Motion for extension of time to file response to Appellant’s petition for rehearing en banc filed by Appellee USA is GRANTED by clerk. [9204703-2] Appellee’s response is due on or before 11/04/2020. [Entered: 10/06/2020 08:38 AM]

11/02/2020 Open Document APPEARANCE of Counsel Form filed by Francesco Valentini for USA [16-10128] (ECF: Francesco Valentini) [Entered: 11/02/2020 10:26 AM]

11/04/2020 Open Document Response to Petition for Rehearing filed as to Attorney Francesco Valentini for Appellee USA. [16-10128] (ECF: Francesco Valentini) [Entered: 11/04/2020 11:11 AM]

12/02/2020 Open Document PUBLISHED ORDER: The Petition(s) for Rehearing are DENIED as MOOT and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges in regular active service, the Petition(s) for Rehearing En Banc filed by Appellant Erickson Meko Campbell are GRANTED. The panel’s opinion is VACATED. [9250548-1] [Entered: 12/02/2020 02:35 PM]

Don’t Blink Too Fast Says Judge Tjoflat for the Eleventh Circuit
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