574 F.3d 309 (6th Cir. 2009), 08-3484, United States v. See

Docket Nº:08-3484.
Citation:574 F.3d 309
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Karl B. SEE, Defendant-Appellant.
Attorney:Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Robert F. Corts, Assistant United States Attorney, Cleveland, Ohio, for Appellee. Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Robert F. Corts, Assistant United...
Judge Panel:Before: MOORE and GILMAN, Circuit Judges; PHILLIPS, District Judge. MOORE, J., delivered the opinion of the court, in which GILMAN, J. and PHILLIPS, D.J., joined. GILMAN, J., (p. 315) delivered a separate concurring opinion.
Case Date:July 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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574 F.3d 309 (6th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Karl B. SEE, Defendant-Appellant.

No. 08-3484.

United States Court of Appeals, Sixth Circuit.

July 24, 2009

Argued: June 17, 2009.

Page 310

ARGUED:

Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, Ohio, for Appellant.

Robert F. Corts, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

ON BRIEF:

Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, Ohio, for Appellant.

Robert F. Corts, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MOORE and GILMAN, Circuit Judges; PHILLIPS, District Judge. [*]

Page 311

MOORE, J., delivered the opinion of the court, in which GILMAN, J. and PHILLIPS, D.J., joined. GILMAN, J., (p. 315) delivered a separate concurring opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

On April 22, 2007, an officer working for the Cuyahoga Metropolitan Housing Authority (" CMHA" ) noticed defendant-appellant Karl See and two companions sitting in a parked car outside a CMHA property. The officer parked his vehicle in front of See's car so that See could not depart and approached See. As a result of the ensuing encounter, the officer searched See's car and found a firearm with no serial number under the driver's seat of See's car. The officer arrested See, and See was charged with possession of a firearm from which the serial number had been removed. See filed a motion to suppress. After the district court denied this motion, See entered a conditional guilty plea and was sentenced to two years of probation, with six months of home confinement. On appeal, See argues that the district court erred when it denied his motion to suppress. We conclude that the initial Terry stop was not supported by reasonable suspicion, REVERSE the district court's denial of See's motion to suppress, and REMAND for proceedings consistent with this opinion.

I. FACTS AND PROCEDURE

On April 22, 2007, at about 4:30 a.m., See and two other men were sitting in See's car which See had parked at Cedar Estates, a public-housing complex in Cleveland, Ohio. As the men sat in the car, CMHA Patrol Officer Eric Williams 1 approached and parked his patrol car in front of See's vehicle so that See was unable to drive away. As a result of the interaction that followed, Williams searched See's car and found a firearm under the driver's seat. Williams arrested See, who subsequently pleaded guilty to possession of a firearm from which the serial number had been removed, in violation of 18 U.S.C. § 922(k).

At the suppression hearing, Williams testified that Cedar Estates is a high-crime area and that before he began his shift on April 22, due to a series of recent robberies in the area, he was instructed to pay " special attention" to the area and to remain alert for " [l]oud music from vehicles, loud music from the apartment building, persons loitering, the areas of drug related activity, suspicious person, persons, that is loitering that are not really residents or visiting residents in that area." Suppression Hr'g Tr. at 9-11. At about 4:30 a.m., after responding to a disturbance call in a different part of Cedar Estates, Williams began a routine patrol of Cedar Estates that included the parking lot where See was parked. Williams's attention was drawn to See's car because Williams saw three men sitting in an unlit car that was backed into a parking space in a dimly lit part of the parking lot farther from the building than other vacant spots.2 Although Williams did not testify

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that the lack of a license plate initially drew his attention to the car, at some point, Williams noticed that See's car did not have a front license plate. After See was arrested, Williams checked the rear of See's car, which revealed that See's car had valid temporary tags which are displayed only at the rear of the car.

After noticing See's car, Williams pulled his patrol car in front of See's car and parked the patrol car in front of See's car so that See could not move his vehicle. The encounter that followed led to the search of See's car during which Williams found a firearm underneath the driver's seat and arrested See. Williams's and See's descriptions of what happened after Williams parked the patrol car in front of See's car differ greatly. However, both parties agree that Williams initiated a Terry stop when he parked his patrol car in front of See's car, preventing See from moving his vehicle. Because we conclude that this Terry stop was not supported by reasonable suspicion, we have no occasion to consider the events that followed.

After his arrest, See was indicted for possessing a firearm from which the serial number had been removed, in violation of 18 U.S.C. § 922(k). See filed a motion to suppress the evidence seized from his car on the ground that the police did not have probable cause or reasonable suspicion to order him out of his car and handcuff him based solely on an allegedly furtive movement. See filed a supplemental brief in support of his motion to suppress arguing that the illegal seizure began at the moment that Williams parked his patrol car blocking See's car from exiting.

After a suppression hearing, the district court made findings of fact and denied See's motion to suppress. The district court found that Williams was a CMHA officer assigned to patrol Cedar Estates, a public-housing complex that " has a reputation for illicit drug activity, domestic disturbances, robberies and assaults." Record on Appeal (" ROA" ) at 79-80 (Dist. Ct. Op. and Order at 1-2). The district court noted that because of a series of robberies in the area, Williams had been directed to pay " special attention" to non-residents loitering at Cedar Estates. ROA at 80 (Dist. Ct. Op. and Order at 2). The district court found that, on April 22, 2007, Williams was conducting a routine patrol of Cedar Estates. The district court stated that See's car drew Williams's attention because Williams had been instructed to pay special attention to loiterers; " the car was parked in a dimly lit area of the lot away from the building, next to the street, with no interior light on" at 4:30 a.m. in a high-crime area; and, " as Officer Williams approached the Chevy, he noticed that there was no license plate on the front of it." Id.

The district court concluded that " the blocking of [See's car] to determine the identity of the occupants and maintain the status quo while obtaining this information was a warrantless Terry seizure." ROA at 85 (Dist. Ct. Op. and Order at 7). The district court explained that Williams had reasonable suspicion to conduct a Terry stop because Williams had been instructed to pay careful attention to loiterers, the car was located in a high-crime area, it was 4:30 a.m., and the men were sitting in an unlit car in a dimly lit parking spot away

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from the building. The district court denied See's motion to suppress.

After his motion to suppress was denied, See entered a...

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