374 F.3d 399 (6th Cir. 2004), 02-1511, United States v. Carter

Docket Nº:02-1511.
Citation:374 F.3d 399
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward CARTER, Defendant-Appellant.
Case Date:June 22, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 399

374 F.3d 399 (6th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward CARTER, Defendant-Appellant.

No. 02-1511.

United States Court of Appeals, Sixth Circuit

June 22, 2004

Argued Sept. 19, 2003.

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[Copyrighted Material Omitted]

Page 401

Daniel L. Lemisch (argued and briefed), U.S. Attorney's Office, Detroit, MI, for Plaintiff-Appellee.

Edward Carter (briefed), Pekin, IL, pro se.

Suzanna Kostovski (argued and briefed), Detroit, MI, for Defendant-Appellant.

Before BOGGS, Chief Judge; and NORRIS and CLAY, Circuit Judges.

BOGGS, C.J., delivered the opinion of the court, in which NORRIS, J., joined. CLAY, J. (pp. 411-16), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

Defendant, Edward Carter, a Michigan prisoner represented by counsel, appeals an April 12, 2002 judgment sentencing Defendant to seventy-seven months in prison for one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Before the district court, Defendant pleaded guilty to the offense but conditioned his plea upon the right to appeal the district court's denial of his Motion to Suppress and the district court's denial of his two Motions to Reopen the Suppression Hearing. For the reasons set forth below, we affirm the district court's judgment in its entirety.

BACKGROUND

The testimony of two Detroit police officers, William Zeolla and Kevin Reed, describes the following account of Defendant's arrest. On August 4, 2000, at approximately 1:23 a.m., the two testifying officers sat in a marked scout car near the intersection of Pembroke and Shaftsbury streets in Detroit, Michigan. Both officers observed a van traveling eastbound on Pembroke. As the van turned right on Shaftsbury from Pembroke, it disregarded a stop sign. The police activated their vehicle's overhead lights and attempted to stop the van.

The van took approximately thirty seconds to stop. Neither officer could see a license plate on the van as it pulled over.1 While the van was pulling over, the officers observed occupants of the van making movements. Officer Reed approached the front passenger and observed the shoulder strap of a bullet-proof vest protruding from the passenger's shirt. In fact, the front passenger wore a vest identical to those worn by Detroit police officers, so that the strap was immediately apparent to Reed as the strap of a bullet-proof vest. When Reed asked him if he was wearing body armor, the passenger stated that he was.

Officer Reed ordered the front passenger, later identified as Marcellas Dunbar, to step out of the car. As Dunbar exited the passenger side of the van, Reed saw him make a tossing motion. Reed heard a distinct "thud" from the front passenger area after Dunbar made the tossing motion. Officer Zeolla observed a handgun drop to the floor of the vehicle as the tossing motion was made. According to Officer Reed's account, Dunbar was then "combative," using vulgar language and trying to pull away from the officer. Officer Reed handcuffed Dunbar.

Officer Zeolla then ordered the driver, later identified as Rob McGruder,2 out of

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the van. Upon seeing a gun drop to the floor as the front passenger exited the car, Officer Zeolla handcuffed McGruder.

Officer Zeolla then removed Defendant, Edward Carter, from the van, where he had been seated as the rear passenger. Defendant wore a bullet-proof jacket. As Defendant exited the vehicle, Officer Zeolla believed that he saw that Defendant had been sitting on a handgun. When he pleaded guilty, Defendant admitted to possessing a gun in the car, though he stated that he was not sitting on it but rather it was located near him in the vehicle.

Among the other items that the police located in the vehicle was a police scanner on the rear floor in the area where Defendant sat. The scanner was on, tuned into the Detroit Police Department frequency. In addition to the two handguns and the scanner, the officers found gloves, two masks, and two walkie-talkies.

On October 5, 2000, a federal grand jury indicted Defendant on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Defendant filed a Motion to Suppress in an attempt to exclude the evidence found in the van on grounds that the officers lacked probable cause to stop the vehicle. The district court ordered a suppression hearing, which was held before a magistrate judge on January 30, 2001. Although McGruder and Dunbar testified at the hearing that they specifically remembered the van stopping at the stop sign at Pembroke and Shaftsbury, this was contrary to the testimony of the two officers. On March 12, 2001, in his Report and Recommendation, the magistrate judge found that McGruder and Dunbar were not credible and recommended denying Defendant's Motion to Suppress. Defendant filed timely objections to the magistrate judge's Report and Recommendation, but the district court adopted the report's findings and denied Defendant's Motion to Suppress.

Defendant filed a Motion to Reopen the Suppression Hearing, arguing that he should have the opportunity to ask additional questions of Special Agent Donna Averill of the ATF, who testified for the government at the suppression hearing. Averill had submitted an affidavit in support of the federal complaint based on information she obtained from the Detroit Police Department. According to Defendant's motion, Averill made a statement in her affidavit that conflicted with the testimony of Reed and Zeolla--Averill had listed the location of the stop sign as being Grandville and Shaftsbury, not the location of the stop sign that was reported by the officers (Shaftsbury and Pembroke). The district court denied Defendant's Motion to Reopen the Suppression Hearing but granted Defendant's Motion to Suppress certain statements that he made, due to violations of his Sixth Amendment rights.

Defendant filed a second Motion to Reopen the Suppression Hearing.3 Defendant based this motion on the failure of prior counsel to call Detroit Police Sergeant Herbert Maxwell as a witness. Maxwell handled the case when Reed and Zeolla returned to the Detroit Police Department. Although he was not present at the scene, Maxwell followed Detroit Police Department procedure and prepared an "Investigator's Report" of the incident. Maxwell indicated that Defendant traveled in a van with no license plate, but his report did not mention that the van ran a stop sign. In their written reports, Reed and Zeolla each indicated that the van failed to stop at

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the stop sign. On November 8, 2001, the district court denied Defendant's second Motion to Reopen the Suppression Hearing.

On December 3, 2001, Defendant pleaded guilty to the offense, conditioned upon the right to appeal the district court's denial of his Motion to Suppress evidence found in the van and the court's denial of his two Motions to Reopen the Suppression Hearing. The United States Probation Department found that Defendant qualified as a "career offender" under United States Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.1. On April 11, 2001, the district court sentenced Defendant under the Sentencing Guidelines' "career offender" provision to seventy-seven months in prison followed by a three-year term of supervised release.

On April 17, 2002, Defendant filed a timely notice of appeal.

DISCUSSION

Defendant raises three issues for review on appeal: the admissibility of the gun as evidence; the propriety of the district court's denial of his two Motions to Reopen the Suppression Hearing; and the compliance of the sentencing with applicable guidelines. We take these issues in order.

I

Defendant argues that the gun belonging to him and found in the van by the police was inadmissible as evidence, on the grounds that there was not probable cause to stop the vehicle.

Officers may stop a vehicle where there is probable cause to believe that a traffic infraction was committed. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.") (citations omitted).

A district court's probable cause determination potentially involves two steps, each subject to a different standard of review. The first step is a determination of historical facts. Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). This court reviews a district court's factual findings relating to probable cause for clear error, viewing the evidence in the light most favorable to the government. United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995). The second step in the analysis is the application of the law to the facts, a mixed question of law and fact that this Court reviews de novo. Ornelas, 517 U.S. at 696-97, 116 S.Ct. 1657.

The district court referred the suppression issue to a magistrate judge for a hearing. The magistrate judge's Report and Recommendation recounts the testimony of Officers Zeolla and Reed, stating that the van did not come to a complete stop at the stop sign at Pembroke and Shaftsbury. The report describes the testimony of McGruder and Dunbar, the two other occupants of the vehicle besides Defendant, stating that the vehicle did come to a full stop at the intersection. The document observes that the government attempted to impeach McGruder's testimony by calling Special Agent Averill to testify as to an allegedly prior inconsistent statement made to investigators. McGruder, when interviewed on January 5, 2001, had allegedly stated that he did not see a stop sign. Defendant had countered this allegation with testimony from McGruder and from a federal investigator, indicating that McGruder's statement made about not seeing a stop sign referred to the intersection of Grandville and...

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