486 F.3d 949 (6th Cir. 2007), 06-3321, United States v. Campbell

Docket Nº:06-3321.
Citation:486 F.3d 949
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Steven G. CAMPBELL, Defendant-Appellee.
Case Date:May 24, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 949

486 F.3d 949 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellant,

v.

Steven G. CAMPBELL, Defendant-Appellee.

No. 06-3321.

United States Court of Appeals, Sixth Circuit.

May 24, 2007

Argued: March 16, 2007.

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 05-00468-James Gwin, District Judge.

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[Copyrighted Material Omitted]

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ARGUED:

Duane J. Deskins, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant.

Charles E. Fleming, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellee.

ON BRIEF:

Duane J. Deskins, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant.

Charles E. Fleming, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellee.

Before: COLE, CLAY, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which CLAY, J., joined. COLE, J. (pp. 958-63), delivered a separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Steven G. Campbell was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was found in possession of both a handgun and quarter-ounce-size bags of marijuana after a police officer arrested him and searched his car incident to the arrest. The key issues on appeal are (1) whether the initial interaction between the police officer and Campbell was a consensual encounter or an involuntary detention, and (2) did the officer have probable cause to arrest Campbell at the point that Campbell was "seized" for Fourth Amendment purposes.

Campbell moved to suppress the evidence obtained during his arrest, contending that the evidence was inadmissible because it resulted from an unreasonable seizure. The district court granted the motion, which prompted the government to file this interlocutory appeal. For the reasons set forth below, we REVERSE the district court's grant of Campbell's motion to suppress and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

At approximately 10:30 p.m. on the evening of July 22, 2005, police officer Michael Salser was on routine patrol in a marked

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police car in the vicinity of McClurg Road in Boardman Township, Ohio. The area had recently experienced a rash of break-ins and car thefts. Officer Salser stopped at the intersection of McClurg Road and Southern Boulevard behind a black Chevrolet Cavalier driven by Campbell. As the Cavalier turned east on McClurg Road, Officer Salser followed it. Campbell soon turned into the parking lot of Modern Building Supply, a home-building supply store that was closed at the time. Officer Salser observed Campbell exit the car and talk on his cell phone as he proceeded on foot toward McClurg Road. As Officer Salser drove past the Modern Building Supply lot, he watched Campbell cross McClurg Road on foot and enter the parking lot of American Church, Inc., a manufacturer of church stationery. American Church was also closed at the time.

Campbell stood near the street in the American Church parking lot and continued to talk on his cell phone. Officer Salser turned his patrol car around and parked in the American Church parking lot. He did not activate his emergency lights or siren. Although he informed a police dispatcher that he was in the parking lot with a black male, he did not run the Cavalier's license plates through dispatch as a means of identifying the driver.

While Campbell continued speaking on his cell phone, Officer Salser exited the patrol car, approached Campbell, and asked him if everything was okay. Campbell replied that he had gotten lost trying to pick up his girlfriend from work and was on the phone with her to get directions. He handed the phone to Officer Salser, who spoke with a woman who identified herself as Campbell's girlfriend and explained that she worked at Treeman Industries. After contacting the dispatcher to get the address of Treeman Industries, Officer Salser testified that he gave Campbell that address and returned the cell phone to Campbell.

Officer Salser told Campbell about the recent burglaries committed in the area and then said that he "would like to see [Campbell's] ID, just to log that I talked to him." According to Officer Salser, logging meetings with civilians is something he routinely does in his investigative work. Campbell, according to Officer Salser's testimony at the suppression hearing, responded that he did not have any identification. At the same hearing, Campbell said that he recalled telling Officer Salser that he "didn't have anything on me." Officer Salser then asked Campbell for his name, date of birth, and social security number. In response, Officer Salser testified that Campbell became "very nervous," that "[h]is hands went up," and that he said "officer, I don't want any trouble, please." At that point Officer Salser repeated his request to see some identification: "I asked him if he had a state ID, or his name and date of birth. And he could be on his way just as soon as [I] ID'd him."

Campbell then told the officer that his name was Steven Morris, that his birth date was May 17, 1981, and that he did not know his social security number. Officer Salser relayed the information to his dispatcher, who responded that she was unable to verify the name or date of birth. The dispatcher's inability to find any information with the name or date of birth provided by Campbell led Officer Salser to believe that Campbell "did not have an Ohio driver's license, or an Ohio ID, or he wasn't telling me the truth." As it turns out, Campbell's actual birth date is May 17, 1982. And although Campbell is his legal name, he testified that he sometimes goes by the name of Steven Morris because Morris is his father's last name, whereas Campbell is his mother's maiden name.

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Officer Salser testified that he continued to ask Campbell for his proper name and date of birth, at which time Campbell's demeanor changed. Campbell, according to Officer Salser, had become "[e]xtremely nervous. At one point I felt that he was going to run from me. He was walking in circles. Very, very nervous." Officer Salser said, however, that he would not have restrained Campbell if the latter had sought to leave at that time.

After another officer arrived for backup, Officer Salser asked Campbell if he could pat him down for weapons. Campbell did not object and proceeded to put his hands behind his back. Officer Salser felt a bulge in Campbell's left front pocket. When asked about the bulge, Campbell responded that it was money. Officer Salser did not remove the contents from Campbell's pocket. When Officer Salser then asked about a bulge in Campbell's other front pocket, Campbell said that he did not know what was in there. According to Officer Salser, he asked Campbell if he could take out what was in Campbell's right front pocket and Campbell said yes. Officer Salser testified that he found several bags of marijuana in the pocket. At this point Officer Salser arrested Campbell and placed the bags of marijuana on the trunk of his patrol car.

After placing Campbell under arrest, Officer Salser searched Campbell's person and found $862 in his left front pants pocket. He then searched Campbell's vehicle and found a loaded handgun underneath the driver's seat. Campbell was taken to police headquarters for booking, where police officers discovered that Steven Morris was one of Campbell's aliases and that Campbell had an outstanding warrant for a parole violation in New York City.

In September of 2005, Campbell was charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Campbell filed a motion to suppress all evidence obtained as a result of Officer Salser's stop and arrest. He argued that Officer Salser did not have a reasonable suspicion of criminal activity to justify an investigative stop or probable cause to arrest Campbell. Following an evidentiary hearing held in February of 2006, the district court granted Campbell's motion. The government timely filed this interlocutory appeal.

II. ANALYSIS

A. Standard of review

In reviewing a motion to suppress, we review the district court's legal determinations de novo, but will set aside its factual findings only if they are clearly erroneous. United States v. Long, 464 F.3d 569, 572 (6th Cir. 2006). "A factual finding is clearly erroneous when, although there may be evidence to support it, the reviewing court, utilizing the entire evidence, is left with the definite and firm conviction that a mistake has been committed." United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007) (quotation marks omitted). The district court's conclusion cannot be clearly erroneous where there are two permissible views of the evidence. Id. Furthermore, we "must review the evidence in the light most likely to support the district court's decision." United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996) (quotation marks omitted).

B. Seizure of Campbell

"[T]he Constitution forbids . . . not all searches and seizures, but unreasonable searches and seizures." Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Encounters between police officers and citizens can be grouped into three categories: "consensual encounters in

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which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked some questions; a temporary involuntary detention or Terry stop which must be predicated upon reasonable suspicion; and arrests which must be based on probable cause." United States v. Bueno, 21...

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