U.S. v. Montgomery

Decision Date27 July 2004
Docket NumberNo. 02-4234.,02-4234.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Craig MONTGOMERY, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Southern District of Ohio, S. Arthur Spiegel, J Timothy D. Oakley (argued and briefed), U.S. Attorney's Office Southern District of Ohio, Cincinnati, OH, for Plaintiff-Appellee.

Richard W. Smith-Monahan (argued and briefed), Office of the Federal Public Defender Southern District of Ohio, Cincinnati, OH, for Defendant-Appellant.

Before: BOGGS, Chief Judge; KENNEDY, Circuit Judge; RUSSELL, District Judge.*

OPINION

KENNEDY, Circuit Judge.

Defendant Craig Montgomery ("defendant") appeals the district court's denial of his motion to suppress the crack cocaine that law enforcement officers seized during a search of his person, following a traffic stop of the vehicle in which he was a passenger. Preserving his right to appeal the validity of that search, defendant pleaded guilty to one count of possession with the intent to distribute over five grams of crack cocaine in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(B)(iii). For the following reasons, we AFFIRM the district court's denial of defendant's suppression motion.

I. Background

At approximately 8:00 p.m. on April 16, 2002, Trooper Brian Workman ("Workman"), of the Ohio State Highway Patrol, lawfully stopped a vehicle in Scioto County, Ohio, for a speeding violation. Workman learned that the driver of the vehicle, Meyah McCrory ("McCrory"), had been operating the vehicle on a suspended license. According to Workman, the vehicle's passengers appeared very nervous. Trooper Terry Mikesh ("Mikesh"), also of the Ohio State Highway Patrol, arrived at the scene to offer assistance. After requesting driver McCrory to exit the vehicle, Workman advised her that she had been driving on a suspended license, and placed her in the back of his patrol car. While checking the other occupants' identifications, Mikesh, with the use of a flashlight, observed a stem, approximately one-inch long, on the driver's floorboard near the center console. Based upon her training in and experience with the detection of narcotics, Mikesh was confident from her visual inspection that it was marijuana. Rand Simpson Jr. ("Simpson"), the right front passenger, reached for the stem, and Mikesh yelled at him to put it down. Mikesh showed Workman the marijuana stem. As Workman testified, he was able to observe the stem, which was large and still had vegetation attached to it, from outside of the vehicle, and he believed it to be marijuana based upon his narcotics-detection training.

Mikesh advised the occupants that the troopers were going to search the vehicle based upon their observation of marijuana in the vehicle, and that the occupants were in "investigative custody" pending the completion of the search. Mikesh also advised them of their Miranda rights. Workman testified that, at that point, no one was under arrest. Rather, according to Workman, they were in "investigative custody" and received Miranda warnings based upon the troopers' discovery of marijuana in the vehicle. Workman observed Jamaal Richardson ("Richardson"), the left rear passenger, shove a blue object underneath the back seat's armrest.

The troopers ordered the occupants, including defendant, the right rear passenger, out of the vehicle. Workman and Mikesh performed "protective pat-downs for weapons," and, with each occupant's consent, examined the contents of his pockets. The troopers then placed the occupants in another patrol car, which had subsequently arrived at the scene, to prevent them from fleeing the scene or from standing on the dangerous roadside. Upon searching the vehicle's interior, the troopers recovered the large marijuana stem on the driver's side, marijuana seeds, and a blue digital scale, which Richardson had hidden underneath the backseat armrest and which had residue in the form of green leafy material and white powder on it. Workman identified the white and green residue on the scale as cocaine and marijuana, respectively.

After searching the vehicle, the troopers asked defendant to exit the patrol car. Workman, with the intent of checking defendant for any narcotics or paraphernalia, again patted defendant down and then ordered him to remove his shoes. A bag containing crack cocaine lay in one of defendant's shoes. According to Workman, defendant was then placed under custodial arrest. Mikesh advised defendant of his Miranda rights for the second time. Subsequent field and laboratory tests revealed that the large stem was, in fact, marijuana.

Defendant filed a motion to suppress the crack cocaine found in his shoe.1 The district court held that the troopers' search of defendant's shoes did not violate the Fourth Amendment because it was a search incident to a lawful arrest. In particular, the court found that the troopers had arrested defendant at the time that they placed him in the back of the patrol car, and that they had probable cause to arrest defendant based upon: 1) the marijuana in plain view; 2) passenger Simpson's attempt to conceal the marijuana from the troopers; 3) passenger Richardson's concealment of something under the armrest; and 4) the apparent nervousness of all of the occupants.

II. Analysis

We review the district court's legal conclusions in a suppression hearing de novo, and its factual findings for clear error. United States v. Smith, 263 F.3d 571, 581-82 (6th Cir.2001); see United States v. Forest, 355 F.3d 942, 952 (6th Cir.2004) (holding that whether the facts establish probable cause to justify an arrest is a question of law that we review de novo); United States v. Avery, 137 F.3d 343, 348 (6th Cir.1997) (holding that whether the facts establish an unconstitutional seizure is a question of law that we review de novo). When considering the denial of a suppression motion, we must view the evidence in the light most favorable to the government. United States v. Wellman, Jr., 185 F.3d 651, 654-55 (6th Cir.1999). "We may affirm a decision of the district court if correct for any reason, including one not considered below." United States Postal Serv. v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir.2003).

Defendant does not contest that Workman had probable cause to stop the vehicle in which defendant was a passenger for a speeding violation. Defendant also does not dispute that the troopers had probable cause to search the vehicle. In addition, the troopers were clearly justified in ordering defendant out of the vehicle pursuant to either the routine traffic stop or the lawful vehicle search. See Maryland v. Wilson, 519 U.S. 408, 413-14, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (extending the rule in Pennsylvania v Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), that "a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle" to any passengers in such a vehicle). Based upon the nervousness of all of the occupants, the marijuana stem in plain view, Simpson's and Richardson's attempts to conceal the marijuana stem and an unknown object, respectively, it was reasonable for the troopers to believe that defendant may have been armed and dangerous so as to justify patting him down for weapons after he exited the vehicle. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Defendant, however, asserts that the troopers lacked the requisite justification to conduct the subsequent, warrantless search of defendant's shoes, from which the crack cocaine was seized.2

Under the "search-incident-to-a-lawful-arrest" exception to the warrant requirement, a law enforcement officer may conduct a full search of an arrestee's person incident to a lawful custodial arrest. United States v. Robinson, 414 U.S. 218, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (explaining that the reasoning behind this exception is the "need to disarm the suspect in order to take him into custody [and] ... the need to preserve evidence on his person for later use at trial"). Moreover, as the Supreme Court held in Rawlings v. Kentucky, 448 U.S. 98, 110-11 n. 6, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the search-incident-to-a-lawful-arrest rule also permits an officer to conduct a full search of an arrestee's person before he is placed under lawful custodial arrest as long as "the formal arrest follow[s] quickly on the heels of the challenged search of ... [his person]" and the fruits of that search are not necessary to sustain probable cause to arrest him. C.f. Knowles v. Iowa, 525 U.S. 113, 116-19, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (holding that the search-incident-to-a-lawful-arrest rule does not apply to an officer's search of the defendant's vehicle where the officer, while subsequently arresting the defendant for drug-law violations based upon that search, never actually arrested the defendant for the speeding violation, which gave the officer the probable cause to arrest the defendant before the search, but, rather, only issued a citation, and reasoning that the rule's underlying twin rationales of officer safety and evidence preservation were only minimally present and not present at all, respectively, in the context of a traffic citation); Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (holding that the search-incident-to-a-lawful-arrest rule does not apply to a warrantless search that provides the probable cause for the subsequent arrest because one cannot justify the arrest by the search and then simultaneously justify the search by the arrest).

The district court found that, at the time of the search of defendant's shoes the troopers had seized defendant within the meaning of the Fourth Amendment. A reasonable person would not have felt free to leave the scene based upon the following...

To continue reading

Request your trial
58 cases
  • U.S. v. Powell
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 17, 2007
    ...v. Currence, 446 F.3d 554, 557 (4th Cir.2006); United States v. Hernandez, 825 F.2d 846, 852 (5th Cir. 1987); United States v. Montgomery, 377 F.3d 582, 588 (6th Cir.2004); United States v. Ilazi, 730 F.2d 1120, 1126-27 (8th Cir.1984); Smith, 389 F.3d at 951; Lugo, 170 F.3d at 1003; United ......
  • United States v. Lewis
    • United States
    • D.C. Court of Appeals
    • September 29, 2016
    ...lower-court decisions, including several decisions of this court. See, e.g. , Minnick , 607 A.2d at 525 n. 11 ; United States v. Montgomery , 377 F.3d 582, 586 (6th Cir.2004) (“[A]s the Supreme Court held in [Rawlings ], the search-incident-to-a-lawful-arrest rule also permits an officer to......
  • State v. Charles
    • United States
    • Oregon Court of Appeals
    • June 18, 2014
    ...encounter to a seizure * * * in light of the public's association of Miranda warnings with an arrest.’); see also United States v. Montgomery, 377 F.3d 582, 587 (6th Cir.2004) (noting that the district court listed the reading of Miranda rights as one factor indicating that a reasonable per......
  • CALDWELL v. State of Fla.
    • United States
    • Florida Supreme Court
    • July 8, 2010
    ...within the meaning of Terry in light of the public's association of Miranda warnings with an arrest."); see also United States v. Montgomery, 377 F.3d 582, 587 (6th Cir. 2004) (noting that the district court listed the reading of Miranda rights as one factor indicating that a reasonable per......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT