549 F.3d 364 (6th Cir. 2008), 06-6094, United States v. Campbell

Docket Nº:06-6094.
Citation:549 F.3d 364
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donnell CAMPBELL, Defendant-Appellant.
Case Date:December 02, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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549 F.3d 364 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donnell CAMPBELL, Defendant-Appellant.

No. 06-6094.

United States Court of Appeals, Sixth Circuit.

December 2, 2008

Argued: Feb. 6, 2008.

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ARGUED:

Spiros P. Cocoves, Toledo, Ohio, for Appellant.

Edwin Greg Gilluly, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee.

ON BRIEF:

Spiros P. Cocoves, Toledo, Ohio, for Appellant.

Edwin Greg Gilluly, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; BATCHELDER and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Defendant Donnell Campbell appeals his jury trial conviction on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). For the reasons set forth below, we affirm.

I.

Donnell Campbell's conviction stems from events that transpired on the evening of February 15, 2005, in Memphis, Tennessee. While on routine patrol at approximately 7:30 p.m., Memphis Police Officer Valerie Brady observed an automobile parked in a dark secluded area under a viaduct. The vehicle was parked with its lights out and the engine off on a privately owned railway access road near abandoned apartment buildings. The location was neither open to through traffic nor designated for parking. Officer Brady described the location as a “ hot spot" -a high-crime area that was the site of drug sales, prostitution, and car theft. She observed two occupants in the car-a driver and a passenger, later identified as Campbell, who was partially obscured from view because he was slumped down in the front passenger seat. She could only see the passenger's head. Officer Brady radioed the dispatcher to request a check on the license plate. She was advised that the “ tags were not on file," indicating, from her perspective, a possibility that the vehicle might be stolen.

Concerned for her safety, Officer Brady called for backup. She turned on the patrol car's overhead lights and two spotlights to illuminate the parked vehicle. The driver started the engine and attempted to leave, but stopped when Brady activated the siren. Officer Brady approached the driver's side of the vehicle and asked the occupants what they were doing under the bridge. The female driver stated that she and the passenger, a co-worker, were just having a conversation. The passenger, on the other hand, responded that he was there for a sexual favor. Upon the officer's request, the driver, Jane Johnson Wright, produced identification, but Campbell allegedly stated that he had none. Officer Brady did not obtain any identification

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from Campbell at that time. Officer Brady then asked Wright to step out of the vehicle and placed her in the back seat of the squad car while she verified the vehicle registration and Wright's identification.

A second patrol car arrived almost immediately on the scene. Officer Brady apprised Officers Kosso and Giacollini of the circumstances and then returned to her patrol car to await a response from the dispatcher on the status of the license plate tags. She estimated that the verification took approximately ten to fifteen minutes. In the meantime, Officer Kosso approached the parked vehicle. According to Kosso, Campbell was slouched down in the passenger seat with his hands out of sight, as if attempting to avoid detection. Kosso asked Campbell for identification, but Campbell allegedly replied that he had no identification with him. Kosso then ordered Campbell to get out of the car and conducted a patdown. He detected a large bulge in Campbell's right front pocket which, based upon experience and feel, he believed to be drug contraband. Officer Kosso removed a large baggy that contained seven individually wrapped bags of marijuana from Campbell's pocket. The marijuana was packaged in a manner consistent with resale or distribution. Based upon this discovery, Kosso placed Campbell under arrest, handcuffed him, and conducted a full body search for possible weapons and additional contraband. He found an identification card in Campbell's back pocket, but no other items. Officer Kosso moved Campbell to the back seat of his squad car and eventually transported him to the jail.

Officer Kosso testified that his interaction with Campbell lasted approximately five minutes. While this encounter was taking place, Officer Brady remained in her patrol car with Wright, still awaiting a response from the dispatcher as to whether the vehicle was legally registered.

Shortly after Campbell's arrest, a fourth officer, John Quinn, arrived at the scene. He was briefed on the situation by the other officers and approached Wright's car with a flashlight. Standing outside of the car, he shined the flashlight inside the car through the open passenger-side door and observed the butt end of a handgun protruding from under the front passenger seat. He retrieved the weapon, which was a loaded Colt .380-caliber semi-automatic handgun.

Officer Brady determined ultimately through communications with central dispatch that the vehicle was registered to Wright and was not stolen. She therefore allowed Wright to return to her vehicle and leave the scene.

In his testimony at the suppression hearing, Campbell disputed the officers' accounts regarding their requests for identification. According to Campbell, when Officer Brady asked him if he had identification, he responded that he did, but she did not ask to see it and returned to her patrol car with Wright. Campbell further testified that when Officer Kosso approached the passenger side of the vehicle, he told the officer that he had identification in his pocket, but Kosso nonetheless ordered him to step outside the car and then proceeded to search him. Campbell claimed that Kosso reached into his pockets before patting them down and then removed the contraband and his identification card.

Campbell was indicted on two counts-being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count One) and possession of a firearm after having been convicted of a domestic violence crime in violation of 18 U.S.C. § 922(g) (Count Two). He pleaded not guilty on both counts and filed a motion to suppress

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evidence discovered during the traffic stop. Following an evidentiary hearing, the district court issued an order denying the motion. The grand jury thereafter issued a superseding indictment, which restated the charges in the first indictment and added a count of possession of marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Three). Campbell again pleaded not guilty on all counts, and the case proceeded to trial on May 1, 2006.

On the first day of trial, the government voluntarily dismissed Count Two. At the conclusion of the trial, defense counsel moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, but the district court denied the motion. The jury returned a verdict of guilty on Count One, but found Campbell not guilty on Count Three. On August 17, 2006, the district court sentenced Campbell to 293 months of imprisonment and five years of supervised release.

In his timely appeal, Campbell challenges the district court's order denying his motion to suppress evidence and the sufficiency of the evidence. He further contends that he received ineffective assistance of counsel at trial. In his pro se brief, Campbell also raises a claim of prosecutorial misconduct.

II.

Campbell first contends that the district court erred in denying his motion to suppress evidence, asserting that the patdown and the search of the vehicle exceeded the permissible scope of the investigatory traffic stop under Terry v. Ohio, 392 U.S. 1...

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