524 F.3d 740 (6th Cir. 2008), 06-6036, United States v. Blair

Docket Nº:06-6036, 06-6037.
Citation:524 F.3d 740
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcus BLAIR, Defendant-Appellant.
Case Date:May 02, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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524 F.3d 740 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marcus BLAIR, Defendant-Appellant.

Nos. 06-6036, 06-6037.

United States Court of Appeals, Sixth Circuit.

May 2, 2008

Argued: Oct. 31, 2007.

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. Nos. 04-00088, 04-00178-Thomas A. Varlan, District Judge.

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ARGUED:

Jonathan A. Moffatt, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant.

Tracee Plowell, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Jonathan A. Moffatt, Federal Defender Services of Eastern Tennessee, INC., Knoxville, Tennessee, for Appellant.

Tracee Plowell, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS, District Judge.[*]

OPINION

NANCY G. EDMUNDS, District Judge.

Defendant-appellant Marcus Blair appeals the district court's denial of his motion to dismiss the indictment and his motion to suppress. Blair was indicted on a federal firearm charge and entered into a plea agreement with the government. Later, Blair was indicted on a federal drug charge that stemmed from a traffic stop.

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Blair filed a motion to dismiss the drug indictment, claiming that it violated the plea agreement in the firearm case. Blair also filed a motion to suppress the evidence seized during the traffic stop. The district court denied both motions. For the reasons set forth below, we REVERSE the district court's denial of Blair's motion to suppress and VACATE Blair's sentence in the firearm case. This result makes it unnecessary for us to reach the plea agreement issue.

I. Factual and Procedural Background

On June 15, 2004, Blair was indicted in the Eastern District of Tennessee for possession of a firearm and ammunition by a person dishonorably discharged from the military, 18 U.S.C. § 922(g)(6). Blair made his initial appearance on July 19, 2004, when a Pretrial Services Report was disclosed to the parties. The Report included Blair's criminal history and reflected that he had a case pending in the Knox County Courts from a March 25, 2004 arrest for "Possession of a Schedule II Controlled Substance for Resale - Crack Cocaine." The Report did not include any details of the incident.

On September 8, 2004, Blair entered into a plea agreement with the United States and pleaded guilty to the firearm charge. The plea agreement contained the following two provisions:

12. The United States agrees that this plea agreement constitutes the full disposition of the known non-tax federal charges within the Eastern District of Tennessee.

13. The parties further agree that this plea agreement constitutes the full and complete agreement and understanding between the parties concerning the Defendant's guilty plea to the above-referenced charge, and that there are no other agreements, promises, undertakings, or understanding between the Defendant and the United States.

On October 28, 2004, the Presentence Investigation Report was disclosed to the parties. The Report contained a description of the pending Knox County drug case that included the amount of drugs Blair allegedly possessed: 68 grams. Blair's sentencing hearing was scheduled for December 6, 2004. On the morning of December 6, Blair's counsel was informed that the federal government would seek an indictment on the pending Knox County drug case. The sentencing hearing was adjourned, and Blair was indicted for the drug offense the next day, December 7, 2004, under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

The drug indictment stemmed from a traffic stop of Blair on March 25, 2004. That evening, two Knoxville Police Officers, Joshua Munday and Jeff Holmes, were conducting surveillance on a local residence on Bishop Street. The officers had been partners for three years, and both were members of the Community Response Team, a task force dedicated to combating prostitution and narcotics. Due to numerous complaints to the Knoxville Police Department about drug-trafficking at the residence, Officer Holmes had initiated a "problem solving kit" directed at the house. This led the Department to focus special attention on the house, including undercover surveillance and increased patrols. According to the Officers' testimony, the house was located in a high-crime area.

On the night of the stop, Officer Munday was working in an undercover capacity. This was a routine part of his job, during which he often would make hand-to-hand drug purchases. Officer Munday was dressed in plainclothes and watched the residence from an undercover police vehicle parked in a driveway approximately

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four houses down on Bishop Street. He used binoculars to aid his surveillance, the street was lit by street lights, and nothing blocked his view of the house.

At approximately 10:35 p.m., Officer Munday saw an older model Chevy Caprice stop in front of the house. A man, later identified by Officer Munday as Blair, exited the vehicle and began talking with the house's owner. Although Officer Munday knew Blair from a previous encounter, he could not recognize Blair from his vantage point. Fifteen to twenty minutes later, Officer Munday saw the two engage in what he believed was a hand-to-hand drug transaction. Despite this, Officer Munday did not believe that he had probable cause to make an arrest because he could not see the items being exchanged. Officer Munday then watched Blair return to his vehicle, leave the house, and roll through a stop sign at the intersection of Bishop and Sycamore. Officer Munday testified that he used his Nextel cell phone's walkie-talkie function to inform Officer Holmes of the possible drug transaction and the stop sign violation. Officer Munday did not instruct Officer Holmes to stop Blair.

During this time, Officer Holmes was located around the corner on Sycamore Street. Officer Holmes was in uniform and in a patrol car equipped with a video and audio recording system. The entire traffic stop was recorded. From his vantage point, Officer Holmes could not see the suspect house on Bishop Street, nor could he see Blair's vehicle in front of the house.

Officer Holmes learned from Officer Munday that a vehicle had left the suspect house. A short time later, Officer Holmes saw Blair's car approach from the direction of the suspect house on Bishop Street. Although Officer Holmes was not sure that this was the vehicle to which Officer Munday had referred, he pulled behind and began to follow Blair's car. After approximately twenty seconds, Officer Holmes pulled Blair over. Officer Holmes informed Blair that he was stopped for a "tag-light" (i.e., a license plate light) violation. Officer Holmes collected Blair's license and returned to the patrol car to run a records check. During this time, Officer Holmes observed that Blair was "a little fidgety" and was reaching underneath the seats of his vehicle. After a short delay, Officer Holmes received information that Blair's license was valid and that Blair had no outstanding warrants. (Video, 22:45:40.) Officer Holmes's testimony is contradictory regarding what happened next.

On direct examination, Officer Holmes first testified that immediately after he learned that Blair's license was valid, he was informed by Officer Munday that Blair had engaged in a hand-to-hand transaction at the house and had rolled through the stop sign at Bishop and Sycamore. Later on direct, however, Officer Holmes testified that he did not learn this information until approximately 22:49:37 on the videotape, four minutes after Blair's license came back valid. During cross-examination, Officer Holmes again testified that he learned of the possible hand-to-hand transaction immediately after the license check. The video evidence does not resolve this discrepancy.

From his position near the house, Officer Munday heard Blair's name over the radio. He informed Officer Holmes that he previously had encountered Blair, at which time Blair had possessed an assault rifle and attempted to flee. At this point, Officer Holmes asked Officer Munday to come to the scene to verify that the vehicle was the one Officer Munday saw at the house.

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Officer Holmes then approached Blair's vehicle and asked for permission to search the car. (Video, 22:47:40.) Blair refused. Officer Holmes told Blair that he was not under arrest, then stated that the area was known for drugs and that he had reason to believe Blair possessed narcotics. (Id. at 22:48:15.) Officer Holmes said that he would call a canine unit to the scene if Blair would not consent to a search. (Id. at 22:48:35.) When Blair refused consent, Officer Holmes called for a canine unit. (Id. at 22:49:00.) Officer Holmes returned to his car, and Blair yelled to him to inquire why he had been pulled over; Officer Holmes replied, "Tag-light." Officer Holmes again approached Blair's car to explain the violation, and Blair continued to question why he had been stopped. Officer Holmes testified that during this time, Blair was reaching underneath the seats and toward his ankle area. Officer Holmes instructed Blair to stop reaching, backed away from the car, and returned to his patrol car. Shortly after, Officer Holmes called for backup. (Id. at 22:52:15.)

Officer Holmes testified that during this time, Blair appeared more nervous than is usual for a traffic...

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