U.S. v. Ellison

• Decision Date: 05 September 2006
• Docket Number: No. 04-1925.,04-1925.
• Citation: 462 F.3d 557
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Curtis ELLISON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

462 F.3d 557

UNITED STATES of America, Plaintiff-Appellant, v. Curtis ELLISON, Defendant-Appellee.

No. 04-1925.

United States Court of Appeals, Sixth Circuit.

Argued: October 5, 2005.

Decided and Filed: September 5, 2006.

ARGUED:

Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellant. William M. Hatchett, Hatchett, Dewalt & Hatchett, Pontiac, Michigan, for Appellee.

ON BRIEF:

Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellant. William M. Hatchett, Hatchett, Dewalt & Hatchett, Pontiac, Michigan, for Appellee.

Before: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which GRIFFIN, J., joined. MOORE, J. (pp. ___-___), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Appellant United States appeals from a district court order granting defendant-appellee Curtis Ellison's motion to suppress. Because we conclude that the district court erred in its Fourth Amendment analysis, we vacate the order granting the motion to suppress and remand for further proceedings.

I.

The central issue in this case is whether the Fourth Amendment is implicated when a police officer investigates an automobile license plate number using a law enforcement computer database. While on routine patrol, Officer Mark Keeley of the Farmington Hills (Michigan) Police Department pulled into a two-lane service drive adjacent to a shopping center. Keeley testified that a white van, with a male driver inside, was idling in the lane closest to the stores, in an area marked with "Fire Lane" and "No Parking" signs. Keeley did not issue the van a citation for being illegally parked, nor did he request that the driver move the van. Rather, he moved into a parking spot to observe the van and entered the vehicle's license plate number into his patrol car's Law Enforcement Information Network ("LEIN") computer. The LEIN search revealed that the vehicle was registered to Curtis Ellison, who had an outstanding felony warrant. Following standard procedure, Keeley radioed for back-up and continued observing the van. After two minutes, another male got into the van, and it drove away. Officer Keeley followed the van until his back-up was nearby, and then activated his lights and stopped the van.

Officer Keeley approached the driver's-side window as his back-up arrived. He advised the driver that he was being stopped for parking in a fire lane and asked for license, registration and proof of insurance. The driver, identified as Edward Coleman, stated that he had only stopped in front of the store to wait for the passenger. At this time the passenger stated that he was the registered owner of the vehicle. Keeley verified the passenger's identity as Curtis Ellison and moved to the passenger side of the van. Keeley notified Ellison that he was being arrested on the outstanding warrant. Ellison stepped out of the van, and during the routine safety pat-down, two firearms were found. Coleman was released with a warning about parking in a fire lane.

Ellison was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Prior to trial, he made a timely motion to suppress the firearm as the fruit of an illegal search. After holding a hearing, the district court made a factual finding that the van was not parked illegally, and thus, the officer did not have probable cause to run the LEIN check of Ellison's license plate. The court issued a Memorandum Opinion and Order granting the motion to suppress under the "fruit of the poisonous tree" doctrine.

The government filed a timely appeal. This court has jurisdiction to hear the government's appeal from an order granting a motion to suppress evidence under 18 U.S.C. § 3731, as the government has certified that the appeal is not taken for the purposes of delay and that the evidence is a substantial proof of a fact material to the proceeding.

II.

This court reviews a district court's decision on a motion to suppress evidence under a dual standard. United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999). Factual findings are reviewed for "clear error" and will only be set aside when the reviewing court "is left with the definite and firm conviction that a mistake has been committed." Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.1999) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). As the government does not challenge the district court's finding that the van was not parked illegally, this appeal does not implicate any factual findings. Rather, it concerns only legal conclusions, which are reviewed de novo. Hill, 195 F.3d at 264.

The government argues on appeal that Ellison had no reasonable expectation of privacy in the information contained on his license plate, and thus, no probable cause was required for Officer Keeley to run the LEIN check. Ellison contends that the government waived this argument by not raising it in the district court. It is true that the government based its oral argument in the district court on the fact that the van was parked illegally, without addressing the specific interaction between license plate information and the Fourth Amendment.¹ However, defendant's motion to suppress did not allege or argue a reasonable expectation of privacy. In fact, neither party made any argument in the district court regarding the expectation of privacy in a license plate. The discussion at the suppression hearing focused instead on probable cause — whether the van was parked illegally.

Although the district court did not expressly state that Ellison had a reasonable expectation of privacy in the information contained on his license plate, such a conclusion was necessarily implied by the court's ruling that a Fourth Amendment violation occurred. "[T]he State's intrusion into a particular area . . . cannot result in a Fourth Amendment violation unless the area is one in which there is a `constitutionally protected reasonable expectation of privacy.'" New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). Thus, the district court could only find that the LEIN search violated the Fourth Amendment if it first concluded that Ellison had a `constitutionally protected reasonable expectation of privacy' in his license plate number.

Ellison correctly notes the long-standing rule that this court generally will not consider an argument not raised in the district court and presented for the first time on appeal. See, e.g., Foster v. Barilow, 6 F.3d 405, 408 (6th Cir.1993); United States v. Ovalle, 136 F.3d 1092, 1108 n. 17 (6th Cir.1998). An exception can be made, however, for "exceptional cases" or if failing to consider the argument would result in a "plain miscarriage of justice." Pinney Dock and Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.1988); In re Hood, 319 F.3d 755, 760 (6th Cir. 2003), aff'd sub nom. Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 124 S.Ct. 1905, 158 L.Ed.2d 764 (2004). This is such an exceptional case. The question — whether a motorist has a privacy interest in his license plate — is a purely legal one.² As the parties have fully briefed the issue, it is "presented with sufficient clarity and completeness" to ensure a proper resolution. Pinney Dock, 838 F.2d at 1461. It requires no further development of the record at the district court level, and thus, Ellison will not be prejudiced by the inability to present evidence to that court. On the other hand, failing to consider the issue would result in a plain miscarriage of justice — namely, allowing a conclusion of law to stand that is clearly in error. Based on these factors, we consider the government's argument that the LEIN investigation of Ellison's license plate does not implicate the Fourth Amendment.

III.

This court has not previously addressed in a published opinion the question of whether an individual has a reasonable expectation of privacy in his license plate. In two unpublished decisions, however, this court has agreed with the other circuits that have decided this issue by holding that no such privacy interest exists. The reasoning of these opinions, as well as that of the Supreme Court in related cases, leads us to agree that a motorist has no reasonable expectation of privacy in the information contained on his license plate under the Fourth Amendment.

A tenet of constitutional jurisprudence is that the Fourth Amendment protects only what an individual seeks to keep private. Katz, 389 U.S. at 351-52, 88 S.Ct. 507. "What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Id. at 351, 88 S.Ct. 507. It is also settled that "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure ...." Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Following this reasoning, the Court held that an automobile's Vehicle Identification Number, located inside the passenger compartment, but visible from outside the car, does not receive Fourth Amendment protection:

[I]t is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. The VIN's mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a "search."

Class, 475 U.S. at 114, 106 S.Ct. 960. Logically, this reasoning extends to a legally-required identifier located outside the vehicle.

No argument can be made that a motorist seeks to keep the information on his license plate private....