548 F.3d 440 (6th Cir. 2008), 07-3935, United States v. McCauley

Docket Nº:07-3935.
Citation:548 F.3d 440
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. McCAULEY, Defendant-Appellant.
Case Date:November 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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548 F.3d 440 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,


Thomas L. McCAULEY, Defendant-Appellant.

No. 07-3935.

United States Court of Appeals, Sixth Circuit.

November 25, 2008

Argued: Oct. 31, 2008.

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Andrew J. King, Law Offices, Columbus, Ohio, for Appellant.

Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.


Andrew J. King, Law Offices, Columbus, Ohio, for Appellant.

Sheila Gay Lafferty, Assistant United States Attorney, Dayton, Ohio, for Appellee.

Before: KENNEDY, SUTTON, and McKEAGUE, Circuit Judges.


KENNEDY, Circuit Judge.

Thomas McCauley appeals the district court's denial of his motion to suppress evidence discovered during a search of his residence and vehicle, arguing that police did not have reasonable suspicion to stop his vehicle and that his wife did not validly consent to the search of their residence and vehicle. He further contends that, even if he is convicted, his prior offenses do not subject him to sentencing under the Armed Career Criminals Act. 18 U.S.C. § 924(e). Upon review we find that reasonable suspicion that appellant was involved in criminal activity supported the stop and that his wife validly consented to a search of his residence and vehicle. Because his prior offenses constitute “ occasions different" under 18 U.S.C. § 924(e), he was properly sentenced under the ACCA. Accordingly, we AFFIRM the district court's judgment.


Just after midnight on June 19, 2006, Deputy Douglas Phillips of the Montgomery County Sheriff's Office was dispatched to recover a stolen vehicle on Riverside Drive in Dayton, Ohio. J.A. at 66. While he was on the scene, a vehicle pulled up behind him and a male and female exited the vehicle. Id. The female, later identified as Laurie Mitchell, was “ very hysterical" and “ crying," and told Deputy Phillips that a man whom she knew had just chased her with a gun. She described her assailant and told Deputy Phillips that he had been driving a small black SUV. She further related that the man lived on Riverside Drive, south of their current location. Deputy Phillips, based on this information, contacted his dispatch and made a broadcast in which he described the suspect as an armed black male driving a small black SUV.

Officer Helthinstine, a Five Rivers Metro Parks park ranger in uniform and driving a marked police car, responded that he was on duty in the area and had just passed the deputy's location. Officer Helthinstine pulled off the road a little further up Riverside Drive. A few minutes later, Officer Helthinstine received another broadcast from Deputy Phillips who relayed that he had observed a vehicle matching the description of the suspect vehicle drive past him, heading south on Riverside Drive. A few seconds later, Officer Helthinstine, who was on Riverside Drive, observed a small black SUV drive past him. He pulled up behind it, activating his lights in an attempt to stop the vehicle.

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Officer Helthinstine chased the vehicle a short distance until it entered the driveway of a residence at 2219 Riverside Drive and pulled into a garage. As Officer Helthinstine pulled up directly behind the SUV, the garage door began to close. Before the door closed completely, the officer observed a black male, later identified as appellant, exiting the front passenger side door. Officer Helthinstine exited the cruiser and ordered him to stop, but the appellant ignored him and ran inside the house through a door inside the garage, yelling loudly.

Seconds later, the garage door reopened and the officer saw Denise McCauley, appellant's wife, exit the driver's side door of the SUV. Mrs. McCauley identified the man who ran into the house as her husband. As the officer was speaking to her, appellant exited the house and, continuing to yell and curse, approached the officer. Officer Helthinstine pointed his weapon at appellant and ordered him to raise his hands. Within three minutes, additional law enforcement officers arrived on the scene, secured appellant with handcuffs, and took him into custody.

Montgomery County Sheriff's Office Detective Matthew Snyder was among the officers who had arrived. He asked appellant's wife if anyone was inside the house. The wife, whose demeanor was “ cooperative," replied that no one else was inside and added that the officers could go inside and check. In response, Detective Snyder and Officer Helthinstine entered the residence. Almost immediately, Detective Snyder observed narcotics sitting out in plain view on top of a bar and informed Officer Helthinstine.

Officer Heiser, a Dayton Police Department Officer, arrived at the scene and spoke with appellant's wife. Officer Heiser then observed Deputy Snyder ask appellant's wife if the vehicle belonged to her and if she would grant the officers permission to look inside the vehicle for weapons. She responded to both questions in the affirmative. Officer Heiser looked inside the vehicle and recovered a firearm from the back seat.

Officers arrested appellant and transported him to the Dayton police station, where he admitted both orally and in writing to possessing a firearm. Officers also interviewed appellant's wife, who confirmed that she had consented to the search of both her residence and vehicle.

On September 12, 2006, the grand jury for the Southern District of Ohio returned a two-count indictment against appellant charging him with (1) possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1); and (2) possession of cocaine in violation of 21 U.S.C. 844. Two months later, the government filed a notice of enhanced sentencing under the Armed Career Criminal Act (ACCA) based on appellant's prior convictions. On March 12, 2007, appellant filed a Motion to Suppress seeking to suppress evidence recovered during the search of his residence and vehicle. The district court judge denied the motion following an evidentiary hearing held the following day. On March 15, 2007, appellant entered conditional guilty pleas to both counts of the indictment pursuant to a plea agreement which preserved appellant's right to appeal the suppression ruling.

The Presentence Investigation Report (PSR) prepared by the United States Probation Office indicated that appellant would be sentenced under the ACCA and was thus subject to a minimum of 15 years of imprisonment.1 Applying Sentencing

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Guideline 4B1.4, the Guideline provision implementing the ACCA, the PSR assigned appellant a total offense level of 31 and a criminal history category of IV, resulting in a sentencing range of 180 to 199 months of imprisonment. On June 22, 2007, appellant objected pro se to being sentenced under the ACCA, arguing that his two burglary convictions could not qualify as two separate felonies because he was sentenced for them both on the same day. J.A. at 57. The district court disagreed and found that fact irrelevant for purposes of determining qualifying offenses under the ACCA. On July 16, 2007, the district court sentenced appellant on count one to a mandatory 15-year term of imprisonment followed by 5 years of supervised release and on count two to time served. Appellant timely appealed.


I. The district court properly denied appellant's motion to suppress.

A. Standard of Review

In reviewing a district court's ruling on a motion to suppress, the appellate court must consider the evidence in the light most favorable to the district court's decision. United States v. Moncivais, 401 F.3d 751, 754 (6th Cir.2005). “ In an appeal of the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo. " United States v. Hudson, 405 F.3d 425, 431 (6th Cir.2005).

B. The district court properly held that police officers could stop and investigate where they had reasonable suspicion of criminal activity

Under Terry v. Ohio, a police officer may stop a vehicle if specific and articulable facts give him reasonable suspicion that an occupant is committing a crime. 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The proof required to indicate “ reasonable suspicion" is “ obviously less demanding" than that needed for probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). To assess the validity of a Terry stop, the court considers the totality of the circumstances. United States v. Martin, 289 F.3d 392, 396 (6th Cir.2002).

We determine whether reasonable suspicion existed at the point of seizure-not, as appellant's counsel contended at oral argument, at the point of attempted seizure. “ A person is seized by the police and thus entitled to challenge the government action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement." Brendlin v. California, __ U.S. __, 127 S.Ct. 2400, 2405, 168 L.Ed.2d 132 (2007) (internal citations omitted); see California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (“ [The Fourth Amendment] does not remotely apply, however, to the prospect of a policeman yelling ‘ Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure." ); United States v. Washington, 12 F.3d 1128, 1132 (D.C.Cir.1994). “ [T]here is no seizure without actual submission." Brendlin, 127 S.Ct. at 2405. Here, appellant was not seized until he exited the house and complied with Officer Helthinstine's orders to hold his hands in the air. Before that, he had not submitted to any show of authority. True,

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he did not have an effective way to signal submission until the vehicle his wife was driving, and in which he was a passenger, stopped moving. See id. at 2409 (noting that Brendlin, the passenger, “ had no effective way to signal submission while the car...

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