U.S. v. Cohen

Decision Date13 April 2007
Docket NumberNo. 06-5594.,06-5594.
Citation481 F.3d 896
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Demetrius COHEN, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Thomas W. Dyke, Assistant United States Attorney, Louisville, Kentucky, for Appellant. Wanda M. Baker, Louisville, Kentucky, for Appellee. ON BRIEF: Thomas W. Dyke, Terry M. Cushing, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Appellant. Lindsey Scott, Louisville, Kentucky, for Appellee.

Before MOORE and GIBBONS, Circuit Judges; SARGUS, District Judge.*

OPINION

KAREN NELSON MOORE, Circuit Judge.

The United States appeals the district court's order granting Defendant-Appellee Demetrius Cohen's ("Cohen") motion to suppress. Cohen is charged with one count of being a felon in possession of ammunition and one count of being a felon in possession of a firearm, based on ammunition and a firearm that were found by police officers in a search of his car. The district court concluded that the officers did not have reasonable suspicion to stop Cohen's car and suppressed the evidence that was found during the subsequent search, bringing the proceedings below to a halt while the government filed this interlocutory appeal. Because the stop of Cohen's car was not supported by reasonable suspicion, we AFFIRM the determination of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

At 4:52 a.m. on December 17, 2004, Officers Michael Koenig ("Koenig") and Eric Pender ("Pender") of the Jeffersontown Kentucky, Police Department were dispatched to 8502 Wooded Glen Court on a "trouble run." Someone had called 911 from 8502 Wooded Glen Court, but hung up without speaking to the 911 operator.1 At 4:56 a.m., as Officer Pender approached the area, he saw a car make a right turn from Wooded Glen Court onto Wooded Glen Road.2 Officer Pender turned around, activated his emergency lights, and stopped the car, which Cohen was driving. At the same time, Officer Koenig arrived and pulled in front of Cohen's car.

Once stopped, Cohen alighted from his car. Officer Pender also exited his car, and Cohen then reentered his car and shut the door. While Officer Koenig took a position near the back of Cohen's car, Officer Pender approached the driver's side, explained to Cohen "who [Officer Pender] was, why [Officer Pender] stopped him, you know, due to the 911 hang-up," and asked him for his license, registration, and proof of insurance. Joint Appendix ("J.A.") at 83 (Pender Test. at 7). Cohen did not give his license, registration, or proof of insurance, and instead told Officer Pender, "just shoot me, just shoot me." Id.

Officer Pender then walked to the rear of Cohen's car to talk to Officer Koenig about Cohen's lack of cooperation and to decide what they should do next. As the officers were talking, Cohen exited his car and walked toward the officers with his hands in the air. Officer Koenig explained to him again why he had been stopped and what information the officers needed, and Cohen recited his driver's license number. At 5:00 a.m., while Cohen and Officer Pender stood outside, Officer Koenig returned to his car and called on his radio to request a check of Cohen's driver's license number, including whether he had any outstanding warrants. While they waited for the results of the license check, the officers suggested to Cohen that he sit in the back of Officer Pender's car for their safety and so that he could keep warm, and Cohen agreed.

At 5:03 a.m., the dispatcher radioed Officer Koenig and asked if he was "10-12," which means, "are you alone?" J.A. at 65 (Koenig Test. at 75). Officer Koenig asked Officer Pender to turn down the radio in Officer Pender's car so that Cohen could not hear what the dispatcher was about to say, and the dispatcher notified Officer Koenig that Cohen was possibly wanted on a probation violation out of Jeffersonville, Indiana. At 5:06 a.m., the dispatcher notified the officers that Cohen was the subject of an outstanding local domestic-violence order. Officer Koenig then went to Officer Pender's car and asked Cohen about the probation violation, the domestic violence order, and the 911 hang-up call. In the course of that discussion, Cohen told the officers that he was on parole. During this time period, Officer Dale Hutchison passed by, on his way to 8502 Wooded Glen Court, and Officer Koenig asked Officer Hutchison if he would stand by in order to assist if Officers Koenig and Pender decided to arrest Cohen. At 5:14 a.m., the dispatcher reported that Cohen's driver's license was suspended, and at 5:18 a.m., the dispatcher reported that there was indeed an outstanding arrest warrant for Cohen for a probation violation out of Indiana.3 At 5:27 a.m., Officers Koenig, Pender, and Hutchison formally placed Cohen under arrest.

Officer Koenig searched the passenger compartment of Cohen's car and discovered a box of eleven .380-caliber cartridges under the driver's seat. Officer Koenig then searched the trunk and discovered a .380-caliber handgun.

On April 20, 2005, a federal grand jury indicted Cohen on one count of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1), one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one forfeiture count pursuant to 18 U.S.C. § 924(d). On August 1, 2005, before the case proceeded to trial, Cohen filed a motion to suppress the firearm and ammunition discovered in the search of his car. Following an evidentiary hearing, the magistrate judge issued proposed findings of fact and a recommendation that Cohen's motion to suppress be denied. The magistrate judge concluded that Officer Pender had the reasonable suspicion necessary to effectuate a lawful stop of Cohen's car, that the scope of the stop was reasonable, that the officers had probable cause to arrest Cohen when they did, that the search of the passenger compartment of Cohen's car was a lawful search incident to arrest, and that the discovery of the ammunition box in the passenger compartment gave Officer Koenig probable cause to search the trunk for a firearm.

Cohen filed objections to the magistrate judge's recommendation, arguing that the stop of Cohen's car was unlawful and that the stop exceeded the lawful scope of a Terry stop well before the officers had probable cause to arrest Cohen. Although accepting the magistrate judge's findings of fact, the district court concluded that the stop of Cohen's car was not supported by reasonable suspicion and granted Cohen's motion to suppress. The government timely filed this interlocutory appeal pursuant to 18 U.S.C. § 3731.

II. ANALYSIS

The sole issue presented in this appeal is whether the stop of Cohen's car was supported by reasonable suspicion. Because the officers lacked reasonable suspicion justifying the stop of the car, we conclude that the district court properly granted Cohen's motion to suppress.

A. Standard of Review

We review the district court's findings of fact for clear error, but review de novo the district court's legal conclusion as to the existence of reasonable suspicion. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 752, 166 L.Ed.2d 582 (2006).

B. Reasonable Suspicion

"The Fourth Amendment prohibits `unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). To satisfy the requirements of the Fourth Amendment, a police officer may make an investigative stop of a vehicle only if the officer has "a reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Reviewing courts "must look at the `totality of the circumstances' of each case to see whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

The "totality of the circumstances" in this case consists of a limited set of facts. At 4:52 a.m., Officer Pender and Officer Koenig were dispatched to 8502 Wooded Glen Court in response to a silent 911 hang-up call. Wooded Glen Court is a cul-de-sac of five or six houses running off of Wooded Glen Road, which is a dead-end street. At 4:56 a.m., Officer Pender saw one car make a right turn from Wooded Glen Court onto Wooded Glen Road. When Officer Pender stopped Cohen's car, he knew no other facts relevant to determining whether he could lawfully make an investigatory stop. We conclude that these facts did not provide reasonable suspicion to make an investigatory stop.

The government argues that this case is most like United States v. Moore, a Fourth Circuit decision in which the court concluded that a police officer lawfully stopped Norman Delano Moore after a silent burglar alarm went off at 11:43 p.m. United States v. Moore, 817 F.2d 1105, 1106 (4th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 396 (1987). When the police officer approached the site of the alarm two to three minutes later, he saw Moore thirty to forty yards from the entrance and walking away from the building. Id. The Fourth Circuit concluded that the officer had reasonable suspicion because the silent alarm indicated a burglary, Moore was the only person in the vicinity two to three minutes later, Moore was close to one of the entrances and was walking away from the building, and the alarm occurred late at night in a high-crime area. Id. at 1107. Moore differs from ...

To continue reading

Request your trial
16 cases
  • Robinson v. Howes
    • United States
    • U.S. District Court — Eastern District of Michigan
    • November 30, 2010
    ...supply reasonable suspicion to make an investigatory stop, at least when the caller identifies himself or herself." United States v. Cohen, 481 F.3d 896, 901 (6th Cir. 2007) (citing United States v. Drake, 456 F.3d at 774-75, and United States v. Terry-Crespo, 356 F.3d 1170, 1174-77 (9th Ci......
  • US v. Martinez
    • United States
    • U.S. District Court — District of New Mexico
    • November 16, 2009
    ...but explaining the additional circumstances that truly justified entrance onto the plaintiff's curtilage); United States v. Cohen, 481 F.3d 896, 899-901 (6th Cir.2007) (analogizing a silent 911 hang-up call to an anonymous tip and holding that such call did not create reasonable suspicion f......
  • USA v. Johnson
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 8, 2010
    ...up” lacked reasonable suspicion because the “tipster did not even allege any criminal activity.” Id. at 846, 850. In United States v. Cohen, 481 F.3d 896 (6th Cir.2007), we held that a silent 911 hang-up call suggested that “there might be an emergency, which might or might not include crim......
  • USA v. Williams
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 6, 2010
    ...Standard of Review We review de novo a district court's legal conclusions in granting a motion to suppress. United States v. Cohen, 481 F.3d 896, 898 (6th Cir.2007). “Where the district court grants a motion to suppress, we view the evidence in the light most favorable to the defendant.” Un......
  • 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