531 F.3d 374 (6th Cir. 2008), 07-3146, United States v. Pearce

Docket Nº:Carl PEARCE (07-3146), and Curtis Johnson (07-3193), Defendants-Appellants.
Citation:531 F.3d 374
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:July 03, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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531 F.3d 374 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,


Carl PEARCE (07-3146), and Curtis Johnson (07-3193), Defendants-Appellants.

Nos. 07-3146, 07-3193.

United States Court of Appeals, Sixth Circuit.

July 3, 2008

Submitted: June 5, 2008.

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John B. Gibbons, Law Offices, Cleveland, Ohio, Charles E. Fleming , Federal Public Defender's Office, Cleveland, Ohio, for Appellants. Kelly L. Galvin , Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before DAUGHTREY , CLAY , and McKEAGUE , Circuit Judges.


CLAY , Circuit Judge.

In this consolidated appeal, Defendants, Carl Pearce (“Pearce" ) and Curtis Johnson (“Johnson" ), challenge, on Fourth Amendment grounds, their convictions for possession of firearms and ammunition while having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (2000). In particular, Defendants contest the district court's denial of their motions to suppress evidence seized following a stop of Johnson for which the police allegedly lacked reasonable suspicion. Pearce also disputes the procedural reasonableness of his 235-month sentence. For the reasons that follow, we AFFIRM the district court's suppression ruling as well as Defendants' convictions and sentences.


On January 14, 2005, officers from the Cleveland Police Department (“CPD" ) and the Cleveland Metropolitan Housing Authority (“CMHA" ) were conducting a special detail in the area surrounding the Woodhill Family Homes Estates and the Morris Black Estates, housing projects in northeast Cleveland. In particular, the officers were targeting the streets surrounding the Mount Carmel Deli (the “Deli" ), a delicatessen located at 11007 Mt. Carmel Street. This special detail was intended to address a recently increased level of criminal activity-particularly narcotics trafficking-in the area, which had been evidenced by a homicide shooting near the Deli a few days earlier.

At approximately 8:15 p.m. that evening, Johnson, accompanied by a passenger, Pearce, parked a white Ford Taurus on the south side of Mt. Carmel Street, across from the Deli. Shortly thereafter, Officer Paul Shaughnessy (“Shaughnessy" ), a fifteen-year veteran of the CMHA, initiated the planned police sweep by pulling onto Mt. Carmel Street and parking his marked police cruiser in the middle of the street, a little behind where the Taurus had been parked. While Officer Shaughnessy was parking and exiting from his cruiser, he observed Pearce leaning slightly forward in the passenger seat of the Taurus while Johnson exited the vehicle on the driver's side. As soon as Johnson stepped out of

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the car, “he turned and he faced toward [Officer Shaughnessy], and he kind of hunched over a little bit, and he stuck his right hand into to the small of his back at his waistline, and then he started backing up, started backing up away from [Officer Shaughnessy], ... toward the front of his car." J.A. at 226. According to Officer Shaughnessy, “it appeared as though [Johnson] was trying to pull something out, or put something in his pants." J.A. at 74. Fearing that Johnson might have a weapon, Officer Shaughnessy immediately drew his own gun and ordered Johnson to show his hands and walk toward the police cruiser.

During this time, other CPD officers, including Officer Daniel Svoboda (“Svoboda" ), had arrived on the scene and had begun to move toward the Taurus to assist Officer Shaughnessy. When Johnson failed to comply with several of Officer Shaughnessy's verbal requests to show his hands, Officer Svoboda also drew his gun and advanced toward Johnson. Officer Svoboda observed that, instead of complying with Officer Shaughnessy's instructions, Johnson was “reaching behind his back," J.A. at 270, where it “appeared he was holding something down out of his back or hands." J.A. at 118. Once Officer Svoboda drew his weapon, Johnson complied with the request to show his hands and moved toward Officer Shaughnessy who began to frisk Johnson in search of weapons. From this protective pat-down of Johnson, Officer Shaughnessy recovered nine small plastic bags containing marijuana.

As Officer Shaughnessy was conducting his pat-down of Johnson, Officer Svoboda walked towards the now empty Taurus.1 Looking through the passenger's side window, Officer Svoboda saw “a magazine or clip from a gun laying on the passenger floorboard" in plain view. J.A. at 272. At that point, Officer Svoboda immediately shouted “gun." Upon hearing this warning, Officer Shaughnessy placed handcuffs on Johnson and other officers detained Pearce who was still in the immediate vicinity of the Taurus. Officer Svoboda and other CPD officers then searched the Taurus. Their search uncovered a Hi-Point 9mm pistol with seven rounds of ammunition underneath the passenger seat, as well as crack cocaine, a Bryco 9mm pistol, and twelve rounds of ammunition between the driver's seat and the middle console of the vehicle.

While still being detained by Officer Shaughnessy, Johnson voluntarily informed the officer that he was the owner of one of the guns. Johnson again confirmed that he possessed the Bryco firearm in a subsequent interview with Agent Christopher Arone from the United States Bureau of Alcohol, Tobacco, and Firearms. Pearce never admitted to ownership of either weapon.

Based upon the firearms discovered during the search of the Taurus, on March 9, 2005, Defendants were charged in the United States District Court for the Northern District of Ohio with one count each of being a convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) . On June 9, 2005, Pearce filed a motion to suppress evidence. On December 16, 2005, Johnson filed a motion to suppress all evidence which the law enforcement officers had obtained as a result of their stop of him and their subsequent search of the Taurus. After conducting an evidentiary hearing,

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the district court denied these motions on August 1, 2006.

On December 4, 2006, the case proceeded to a jury trial. At the conclusion of the evidence, Defendants again requested the district court to suppress the evidence obtained following the allegedly unconstitutional stop of Johnson. These motions, like their previous ones, were denied. The jury subsequently convicted Defendants of the felon in possession charges.

On January 31, 2007, the district court held Defendants' sentencing hearing. The district court found both Defendants to be armed career criminals, and thus required to serve a minimum of fifteen years imprisonment pursuant to 18 U.S.C. § 924(e) . With respect to Johnson, the district court noted that the advisory United States Sentencing Guidelines (the “Guidelines" ) range was 188 to 235 months. With respect to Pearce, the district court calculated the advisory Guidelines range to be 235 to 293 months. After considering arguments raised by Defendants, as well as the specific characteristics of each of them, the district judge sentenced Johnson to 188 months imprisonment, followed by five years of supervised release, and sentenced Pearce to 235 months imprisonment, followed by five years of supervised release.

On February 1, 2007, Pearce filed a timely notice of appeal. Shortly thereafter, on February 12, 2007, Johnson filed his notice of appeal. The appeals were subsequently consolidated as they involve the same general issues of law and fact.


On appeal, Defendants challenge the district court's denial of their motions to suppress the evidence obtained following the police officers' initial stop of Johnson. Specifically, Defendants argue that, because the officers lacked either reasonable suspicion or probable cause for this stop, it was unlawful under the Fourth Amendment, and thus any evidence obtained as a result of the stop and the subsequent search of the Taurus must be suppressed. Additionally, Pearce claims that the district court abused its sentencing discretion by imposing his 235-month sentence without...

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