594 F.3d 530 (6th Cir. 2010), 08-4378, United States v. Smith

Docket Nº:08-4378.
Citation:594 F.3d 530
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Reginald SMITH, Defendant-Appellant.
Attorney:Bryan Robert Faller, Porter, Wright, Morris & Arthur, LLP, Columbus, Ohio, for Appellant. Karl P. Kadon, III, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. Bryan Robert Faller, Porter, Wright, Morris & Arthur, LLP, Columbus, Ohio, W. Kelly Johnson, Porter, Wright, Morris & Art...
Judge Panel:Before: SILER, ROGERS, and McKEAGUE, Circuit Judges.
Case Date:February 10, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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594 F.3d 530 (6th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Reginald SMITH, Defendant-Appellant.

No. 08-4378.

United States Court of Appeals, Sixth Circuit.

February 10, 2010

Argued: Jan. 21, 2010.

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[Copyrighted Material Omitted]

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ARGUED:

Bryan Robert Faller, Porter, Wright, Morris & Arthur, LLP, Columbus, Ohio, for Appellant.

Karl P. Kadon, III, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Bryan Robert Faller, Porter, Wright, Morris & Arthur, LLP, Columbus, Ohio, W. Kelly Johnson, Porter, Wright, Morris & Arthur, LLP, Cincinnati, Ohio, for Appellant.

Karl P. Kadon, III, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: SILER, ROGERS, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Defendant-Appellant Reginald Smith unsuccessfully sought to suppress evidence of a handgun taken from him by Cincinnati police officers as he was leaving an apartment building in Over-the-Rhine, Cincinnati at approximately 3:00 a.m. on November 21, 2006. The officers encountered Smith in the entrance hallway of the apartment building while responding to a 911 emergency call. The record reflects that Smith was not seized until Officer Putnick told him to stop and, at that point, the officers had a reasonable, articulable suspicion that he had been engaged in criminal activity. Therefore, the district court properly found that the officers' encounter with Smith did not violate the Fourth Amendment. We AFFIRM the district court's decision denying suppression and AFFIRM Smith's conviction.

I. BACKGROUND

On November 21, 2006, at approximately 3:00 a.m., Cincinnati police officers were on uniform patrol in Over-the-Rhine, a high-crime, high-drug area just north of downtown Cincinnati, when they were directed to respond to a 911 emergency call at a four-to-five story apartment complex in that neighborhood. Officers Luke Putnick and Brendan Rock were on patrol together

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and arrived first. They waited for their backup (Officers Herman Hill and Eric Weyda) to arrive before attempting to enter the apartment complex. However, when they attempted to enter the apartment complex, the officers could not get into the building because the front door was locked. The front double doors of the building were made of glass, so the officers were able to see into the entrance hallway. The entrance hallway was approximately " 6 feet by 6 feet or 7 feet by 7 feet" and led to another set of double doors which, apparently, were not locked and opened into a lobby. (R. 58 Weyda 17, 21.)

Over the next three to fifteen minutes, the officers sought some way into the building by ringing the door buzzers, knocking on windows, making noise (in particular, through the horn attached to their vehicle), using searchlights, and having dispatch try to contact the residence from which they had received the 911 call. Officer Putnick climbed the fire escape and knocked on the windows along the second floor. Finally, through the glass front doors, the officers observed Smith, coming towards them and carrying both a " bike ... and a bag of food." (R. 58 Hill 36-37.) It appears that Smith opened the front door and let the officers in.

As Smith " unlocked and opened the door, there was kind of an altercation" because, as the officers were rushing in, Smith " was trying to rush out of the door." (R. 58 Weyda 22.) Primarily for safety reasons, the officers took up a " tactical position" around Smith as they moved past him inside the hallway. (R. 58 Hill 45.) Officer Hill was on Smith's left and Officers Putnick and Rock were on his right; but Officer Hill testified that Smith was not surrounded because, " [t]he doorway was actually-was free egress actually to the door. They were to his right, and I was to his left." (R. 58 Hill 45; but see R. 30 Putnick 43 (noting that Officer Weyda was behind the officers).) In any event, there certainly was a " kind of a congestion ... just inside of the front door" because of the dimensions of the hallway and because Smith " did not step back and allow the officers to come through" but, instead, " was trying to push his way out as they were going in...." (R. 58 Weyda 22; see also R. 30 Putnick 17, 36 (noting that Smith " was basically forcing us out of the way in the door to try to leave the residence," " wasn't looking at us and kind of was keeping his head down trying to get out right away," and " forcing his way through" the officers with his mountain bike).)

As the officers entered the building, they began to ask Smith questions. Officer Hill testified that Officer Rock " tried to engage in conversation with [Smith] to ask where he came from. He was kind of evasive in his answers, really didn't look at Officer Rock and tried to keep on going outside. We asked him to slow down." (R. 58 Hill 28.) Officer Hill also testified as to the content of the questions that Officer Rock asked Smith: first, " what apartment did he come from" ; and, second, Smith's " name." (R. 58 Hill 43-44, 46 (Officer Hill testified that he thought Smith's responses were " vague." He could not remember Smith's answer to the first question but believed that he provided his name in response to the second).) Officer Hill also remembered that Officer Rock asked a third question but he could not remember what it was. Officer Hill noted that, " [d]uring the time that he was being questioned by Officer Rock," Smith was " [l]ooking away and still trying to roll his bike past. I mean, it was a tight spot. They were to his left. I was to his right. He was still trying to roll the bike." (R. 58 Hill 46.)

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Officer Weyda, who was standing outside the hallway, also observed some of the " exchange" and he " overheard small blurbs of Officer Rock asking Mr. Smith questions about what apartment were you coming from, what are you doing here." (R. 58 Weyda 8.) Officer Weyda " observed [that] Mr. Smith was very, very agitated as if he was in a hurry. He was very, very unsettled." (R. 58 Weyda 8.) Officer Weyda also remarked that he could only hear Officer Rock's questions, but not Smith's responses.

Officer Putnick testified that he also, " tried to make some conversation" in order " to see if I could get any reaction out of [Smith]." (R. 30, Putnick 18.) In particular, Officer Putnick asked, " ‘ How you [sic] doing, sir? Do you live here?’ And he really didn't acknowledge me. He just kind of kept his head down and tried to keep walking. At that point when he didn't acknowledge me, my suspicion raised a little bit and I asked him to stop." (R. 30 Putnick 18.) Officer Putnick further clarified that:

Basically I explained to him that we were here for a radio run and that I wanted to know if he lived there, and as long as he wasn't involved in any of the activity upstairs, that he would be free to leave, that we first had to go up and check that out. But due to my-due to him trying to force his way out and everything, I said, you know, " I'm just a little suspicious. I don't know if you're involved. As soon as we can determine that you're not, you'll be free to leave."

(R. 30 Putnick 19.) Once Officer Putnick told Smith " to stop" he testified that he did not believe that Smith was " free to leave" although the officers did not put Smith in handcuffs or draw their firearms at this time. (R. 30 Putnick 19, 40; see also R. 58 Hill 39, 43.)

Finally, after the questions, Officer Weyda, " just observed [Smith] as being very, very-in a hurry. You could tell that he was flustered, and then he kind of-he was making very (indicating) movements, furtive movements." (R. 58 Weyda 23.) Officer Putnick testified that Smith " wasn't really focused on what I was saying because he said, ‘ Well, I'll just-I got an ID.’ And at that point, he started to reach into his jacket." (R. 30 Putnick 19.) As Smith, " made a movement towards his coat," there " was a big rush where Officer Hill and Officer Rock grabbed him, both of his arms. During that time period, I did overhear them say, you know, ‘ Keep your hands out. What are you reaching for?’ And then they grabbed him. It all happened very, very fast." (R. 58 Weyda 8, 23 (testifying that although he " didn't exactly see what happened" he did observe a " distinct motion" and " saw the defendant move very abruptly" which caused Officers Rock and Hill to " grab him from one side and the other. And then I saw Officer Putnick, who was directly in front of me, just going inside of the door, lunge at Mr. Smith, and immediately stepped back to me and hand me a firearm." ).) 1 In all, it

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took " less than two minutes" from the time the officers " got in the building until the time Officer Putnick retrieve[d] the gun from [Smith's] waistband." (R. 58 Hill 44.)

Smith was charged in federal district court with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 942(a)(2). Smith moved to suppress evidence of the firearm. The district court conducted two evidentiary hearings related to Smith's motion to suppress and Smith's motion for reconsideration of the motion to suppress. At the first evidentiary hearing, the district court heard the testimony of Officer Putnick; at the second, it heard the testimony of Officers Weyda and Hill. After receiving Officer Putnick's testimony in the first evidentiary hearing, the district court denied Smith's motion to suppress. After the second evidentiary hearing, the district court denied Smith's motion for reconsideration.

II. ANALYSIS

On appeal from the denial of a motion to suppress, this court reviews the district court's findings of fact for clear error and its conclusions of law de novo. United States...

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