U.S. v. Evans

• Decision Date: 22 September 2009
• Docket Number: No. 07-2565.,07-2565.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alethea EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

581 F.3d 333

UNITED STATES of America, Plaintiff-Appellee, v. Alethea EVANS, Defendant-Appellant.

No. 07-2565.

United States Court of Appeals, Sixth Circuit.

Argued: June 12, 2009.

Decided and Filed: September 22, 2009.

ARGUED:

Todd Shanker, Federal Defender Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.

ON BRIEF:

Todd Shanker, Federal Defender Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Defendant Alethea Evans appeals the district court's order affirming her conviction for threatening to assault a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B). Evans claims that the Federal Protective Service ("FPS") officers who conducted an investigative stop of her vehicle violated her Fourth Amendment rights by exceeding their jurisdictional authority under 40 U.S.C. § 1315. We disagree and affirm. In doing so, we hold that the FPS officers reasonably exercised their investigative and protective authority pursuant to § 1315 when they left federal property to surveil Evans's vehicle. We further hold that Evans's conduct, specifically, her tailgating of the FPS officers' marked police vehicle and her visible hand gestures, which simulated the firing of a gun, provided the FPS officers with probable cause to arrest her, regardless of her presence on non-federal property.

I.

The evidence adduced at trial established the following: On February 13, 2006, Veronica Cartwright and Qualette Pasha were in the Detroit Social Security Administration ("SSA") building. Dennis Cleveland, a security guard, observed Pasha using her cell phone in the SSA lobby. Cleveland asked her to end her call because cellular phone use is prohibited in the SSA building. He "waited a few minutes" and observed Pasha still using her cell phone. He approached her a second time and asked her to hang up. However, instead of ending her call, she activated the cell's speaker phone and continued to talk, which "every[one] heard." Cleveland left the lobby and contacted Federal Protective Services for assistance. When Cleveland returned to the lobby, Pasha "had got into it with somebody else...."

FPS Officers Kerwin Smith and Warren King received a radio dispatch reporting a "disturbance" at the SSA office. When they arrived, Cleveland pointed out Pasha and Cartwright to Officer Smith. Officers Smith and King escorted the women outside and asked them to leave the property. Officer Smith characterized Pasha's and Cartwright's behavior as "very disorderly" and testified that when the women were outside the building, "[t]hey continued to talk on the telephone, telling people to come up to the Social Security office. They were ... still being loud and belligerent, and they were [ ] cussing...."

Cleveland testified that when he stepped outside to check on the situation, he observed one of the women "with the cell phone [ ] turned [on to] speaker ... playing music—and [she] was just dancing in front of the two federal police officers." Officer Smith did not take any official action at that time, however, because "they were young girls" and he "figured that they were just trying to show off[,]" deciding that "it wasn't worth sending them through the problems of coming to court [and] paying [ ] serious fines." Officer Smith knew that "someone was coming to [pick them up]," and he and King waited with the women "[t]o ensure that they did get off the property and that they didn't cause any more problems inside of the building."

A short time later, defendant Alethea Evans arrived at the scene in "an older model [ ] burgundy Lincoln" automobile to transport Pasha and Cartwright. As Evans pulled up to the SSA building, she caused another vehicle "to stop and pull over to avoid being hit." She made "a U-turn" and pulled her car into the SSA parking lot, "blocking the driveway of the [SSA] office." Instead of leaving the property, Evans exited the vehicle and walked into the SSA office while Pasha and Cartwright waited in her car.

According to Officer Smith's testimony, Evans was acting "belligerent" and making hostile comments regarding whoever instructed Pasha to stop using her cell phone. Neither Smith nor King spoke directly with Evans, but Smith testified that he overheard her make vociferous statements, such as "I'm going to find out who ... told you you couldn't stand here," and "[l]et me see who it is that's telling you that you can't come into the Social Security office and talk on the phone." Officer Smith stated that her comments were disconcerting because he "took it as somewhat of a—a threat on the person or the security guard who was sitting inside the—the office, that maybe at a later date, that this person may come back to—to cause some kind of harm or disturbance[,]" and that he believed that "[s]he made some type of indication that, you know, she was going to return ... to find out who this was that told ... the other two girls [that they] could not use the telephone." Evans stayed inside the SSA office for "a minute to two minutes" and then returned to her car. Cleveland testified that while inside the SSA office, Evans requested "a printout of her social security number."

A few minutes later, Evans left the SSA building and drove away. Smith recorded Evans's license plate number "[f]or further investigation ... in case there was something that should happen, again, to either the guard or to the property of the Social Security Office." Officer King also provided Evans's license plate number to his dispatcher, testifying that it was standard procedure to "run" an individual's license plate number while investigating an incident.

Officers Smith and King decided to follow Evans's car "to keep an eye on [it] until [they] received some type of response from [] dispatch." After leaving SSA property, they watched her vehicle for one-half mile until they received a negative report from their dispatcher. At that point, they traveled past Evans's vehicle, "made a right [turn onto] Curtis [Street]," and basically considered the incident "over."

However, "[a]pproximately four to five blocks from the SSA office," Evans maneuvered her car behind the officers' FPS vehicle and began "tailgating" their marked police car. According to Officer Smith's and King's testimony, the women inside the car were reaching underneath their seats and making visible hand gestures in the direction of the FPS vehicle, their thumbs and index fingers raised, "as if they were pointing a gun." Smith testified "[t]o me, it looked like—as if they were indicating that they had a weapon." King offered similar testimony, stating that as he "looked out the back window ... [and] noticed that both of them were sitting there showing a gun motion ... as if they had guns ... hey—to me, [ ] this is a threat ... [t]hey were right on our bumper."

Officer Smith activated the patrol car's emergency lights and stopped Evans's vehicle. When Smith and King approached Evans, she made various obscene remarks and refused to lower her car window or produce her driver's license or registration.¹ She informed Smith and King that she would not comply with their instructions because they were not "real" police officers, despite their full-dress uniform, FPS vehicle (which displayed the word "police" in six different locations), and badges.

Officer King radioed the City of Detroit Police Department for assistance. Several Detroit police officers arrived at the scene and informed Evans that Smith and King were federal law enforcement officers. At that point, Evans provided Officer Smith with her driver's license and vehicle registration. With this information in-hand, Officer Smith contacted dispatch, who ran Evans's information through the Law Enforcement Information Network ("LEIN"). The dispatcher reported to Officer Smith that there was an outstanding warrant for Evans's arrest issued by the City of Detroit.²

The FPS officers took Evans into custody. While Smith and King were transporting Evans to the McNamara Federal Building "for processing," they received an additional report from their dispatcher concerning an unserved personal protection order against an individual with the same name as defendant. According to Smith, at some point during the transfer, he "asked [Evans] [if] she kn[ew] that she had a ... personal protection order issued against her." Officer Smith testified that when he asked Evans this question, he was attempting to ascertain whether she was the same person named in the order. Evans responded "Yeah, that's me. That's the same bitch-ass mother-f__ker who— who tried to lock me up the last time, and I was going—I was going to kill his ass just like I'm going to do to you and your mama" (hereinafter referred to as the "verbal threat"). According to Smith, Evans's response "indicated . . . that [the personal protection order] was [obtained by] a police officer who had [previously] arrested her." According to Smith's police report, he then asked Evans "[are you] threatening me," and Evans responded "`you'll see.'"³ Shortly thereafter, Officers Smith and King arrived at the federal building, processed Evans, and turned her over to the Detroit police.

II.

As a result of the SSA incident, Evans was charged with two federal violations: "failure to comply with directions of a police officer," pursuant to 41 C.F.R. § 102-74.390, and threatening to assault a federal law enforcement officer, under 18 U.S.C. § 115(a)(1)(B). She entered a plea of not guilty at her subsequent arraignment.

Evans filed several pretrial motions, arguing that Smith and King lacked jurisdiction to conduct an investigative stop of her vehicle on non-federal property. The magistrate judge conducted a one-day bench trial on October...