102 F.3d 204 (6th Cir. 1996), 94-6487, United States v. Bradshaw

Docket Nº:94-6487.
Citation:102 F.3d 204
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Anthony E. BRADSHAW, Defendant-Appellant.
Case Date:December 06, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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102 F.3d 204 (6th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


Anthony E. BRADSHAW, Defendant-Appellant.

No. 94-6487.

United States Court of Appeals, Sixth Circuit.

December 6, 1996

Argued June 7, 1996.

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Stuart J. Canale, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Memphis, TN, for Plaintiff-Appellee.

Anthony E. Bradshaw, Leavenworth, KS, pro se.

Gerald L. Gulley, Jr. (argued and briefed), Baker, McReynolds, Byrne, Brackett, O'Kane & Shea, Knoxville, TN, for Defendant-Appellant.

Before: MILBURN and SUHRHEINRICH, Circuit Judges; ROSEN, District Judge. [*]

ROSEN, District Judge.

In this case we decide whether Appellant's motion to suppress evidence that was obtained after he was stopped for driving with an altered temporary vehicle license tag should have been granted. The District Court denied the motion, and we now AFFIRM.


During a routine traffic patrol on October 19, 1991, Memphis police officer Martin Kula ("Officer Kula") came up behind Defendant-Appellant Anthony E. Bradshaw's ("Appellant's") vehicle, while both vehicles were travelling in the same direction on a street in Memphis. Subsequently, Officer Kula stopped directly behind Appellant's vehicle at two intersections. During these stops, Officer Kula observed an altered temporary license certificate or "drive-out" tag in the rear window of Appellant's car. In particular, he noticed two different prints on the drive-out tag, one in ink and the other in felt marker. Officer Kula then put on his police lights and siren and pulled Appellant over to check the drive-out tag. As Officer Kula approached Appellant's vehicle, he observed the drive-out tag more closely and confirmed that it had indeed been altered, specifically the dates and the information concerning the issuer had been changed.

While Officer Kula was inspecting the drive-out tag, Appellant exited his vehicle and approached him. Officer Kula testified that Appellant was acting "nervous" and "jittery" and had actually begun to sweat. At that point, Officer Kula asked Appellant to take a seat in the back of his police car. Officer Kula testified that asking Appellant to sit in his police car under these circumstances was merely a routine matter of proper police procedure.

After Appellant was seated in the back of Officer Kula's police car, Officer Kula performed radio checks on Appellant's driver's license and vehicle certification. He also issued a citation for the altered drive-out tag--a violation of vehicle registration and inspection laws. Performing the radio checks and issuing the citation took approximately 20 minutes.

During this time, Officer Tim Cooper ("Officer Cooper"), who was also out on a routine patrol, stopped at the scene, exited his vehicle, and approached Officer Kula's car. 1 While Officer Kula was performing the radio checks and issuing the citation, Officer Cooper walked to Appellant's car and looked in the passenger side window to determine if there were other people in the vehicle or if there were weapons or alcohol laying on the seat. From this vantage point, he saw a small plastic bag which appeared to contain marijuana. As he reached for the plastic bag, Officer Cooper noticed the handle of a .357 magnum sticking out from under the driver's seat. Officer Cooper took the bag and the gun and returned to Officer Kula's

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vehicle. Shortly thereafter, the officers arrested Appellant because of the suspicious plastic bag 2 and the gun. As Appellant remained in the squad car, the officers told him to place his hands on the screen of the squad car while they went to inventory Appellant's vehicle.

Next, the officers proceeded to search Appellant incident to his arrest. As Officer Kula patted down Appellant, he felt a "hard spot" near the groin area of Appellant's pants. Then, while Officer Kula was handcuffing Appellant, Appellant broke free and tried to run from the officers. During his attempted flight, the officers observed Appellant reach into his pants and discard two pill bottles. The officers eventually apprehended, handcuffed, and returned Appellant to Officer Kula's police car. The officers then recovered the two Tylenol pill bottles that Appellant had thrown; together these bottles contained thirty "rocks" of crack cocaine. 3 After a thorough search of Appellant's vehicle, including its trunk, the officers found $440, more marijuana, and an additional handgun.

Both Officers testified to the above matters at an initial suppression hearing presided over by Magistrate Judge Aaron Brown, Jr. (the "Magistrate"). The Magistrate granted Appellant's motion to suppress, reasoning that Officer Kula lacked credibility as a witness because of inconsistencies in his testimony regarding the timing and location of and lighting conditions at the stop. Specifically, the Magistrate found, based on Officer Cooper's testimony 4, that it was likely too dark for Officer Kula to have seen the altered drive-out tag.

The Magistrate's ruling was subsequently overturned by the District Court after it held its own hearing devoted solely to resolving the issue of whether Officer Kula saw the altered drive-out tag before he made the stop. Despite some contradictions in the testimony of Officers Kula and Cooper regarding the precise time and location of the stop and their descriptions of the lighting conditions that evening, the District Court concluded that Officer Kula had seen the altered drive-out tag before Appellant was stopped, and that his earlier credibility problems were the result of his misunderstanding certain questions.

During the initial hearing before the Magistrate, Officer Kula testified that "it was light out" when he stopped Appellant's car, whereas Officer Cooper testified that it was dark when Appellant's vehicle was stopped. Before the District Court, Officer Kula testified it was still daylight, but was getting darker. Further, Officer Kula also said there were other light sources which illuminated Appellant's vehicle. Meanwhile, Officer Cooper likewise noted there were other light sources, but testified that it was "dark as far as the sun goes."

Similarly, the officers differed in their accounts of what time Appellant's vehicle was stopped. Officer Kula testified initially that the stop took place at 7:30 p.m. Before the District Court, he testified that the stop took place at 6:55 p.m. Officer Kula said he was certain of this time after consulting the traffic citation which was issued at 7:15 p.m, figuring that Appellant was stopped approximately twenty minutes before the citation was issued.

The location of the stop was another point on which the officers' testimony was in some conflict. Officer Kula testified that he simply ended up behind Appellant heading westbound on Court Street. He further testified that Appellant stopped twice at stop signs, and that he was located directly behind Appellant's vehicle at both of these stops. On the other hand, Officer Cooper's testimony indicates that Appellant was observed travelling northbound on Claybrook while the officers were travelling west on Court Street.

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Similarly, the arrest ticket also states Appellant was travelling northbound on Claybrook. 5

When it reversed the Magistrate's ruling on the motion to suppress, the District Court addressed these discrepancies in the officers' testimony. The Court found that, despite some initial confusion concerning questions about time and place, Officer Kula's testimony as to what he saw when he pulled over Appellant corroborated his earlier testimony. Further, it concluded that light coming from nearby church and medical center parking lots would have been sufficient to illuminate the area where Appellant was stopped. Accordingly, the Court ruled that Officer Kula did see the altered drive-out tag; and, as a result, that the circumstances justified the initial detention of Appellant and the plain view search of his car.

In the time following his arrest, but preceding the suppression hearing, Appellant was a fugitive, having failed to appear at his pre-trial conference. Eventually, with some difficulty, officers with the Trident Task Force 6 located Appellant after receiving information that he was at a particular apartment. When the Task Force officers arrived at this apartment, they went to the front door, knocked, and identified themselves. One of them, Officer Rush, also "peeped" through a mail slot in the front door, which enabled him to observe an African-American male enter a bathroom which was at the top of a flight of stairs that was directly in front of the door. Eventually, a woman opened the door and let the officers in after they had identified themselves and stated the purpose of their visit. Although the officers searched the apartment twice thoroughly, they could not find Appellant. However, Officer Rush decided to search the bathroom one more time. During this search, he opened the medicine cabinet in the bathroom and observed that the bathroom wall behind the medicine cabinet had been punched through into the adjoining apartment.

At this time, Officer Rush yelled to his fellow officers that Appellant was next door. As Officer Rush and the other officers were running to the next-door apartment, they encountered a woman running from this apartment, who told them that Appellant was indeed in that apartment. The officers entered the next-door apartment through its open front door and found Appellant a few feet from the front door. The officers immediately seized and arrested Appellant.

The residents of the next-door apartment later explained to the officers how Appellant came to be in their apartment. Specifically, they stated that Appellant had crawled into their apartment through the aforementioned hole in the bathroom wall and, once in their apartment,...

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