615 F.3d 728 (6th Cir. 2010), 08-4680, United States v. Walker
|Docket Nº:||08-4680, 08-4682.|
|Citation:||615 F.3d 728|
|Opinion Judge:||SUTTON, Circuit Judge.|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Clint WALKER, Defendant-Appellant.|
|Attorney:||Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. Kevin M. Schad, Richard W. Smith-Monahan, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Benjamin C. Glass...|
|Judge Panel:||Before: SILER and SUTTON, Circuit Judges; CLELAND, District Judge. [*]|
|Case Date:||August 12, 2010|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued: Aug. 4, 2010.
Clint Walker challenges his bank-robbery and brandishing-a-firearm convictions in two respects: (1) the district court erred in denying his motion to suppress evidence of the firearm obtained during a search of his duffel bag and (2) it erred in imposing two consecutive sentences under 18 U.S.C. § 924(c). We affirm.
On December 5, 2005, Special Agent Michael Kelly of the FBI arrived at the scene of a bank robbery at the National City Bank in Sciotoville, Ohio. The bank's tellers told him that the thief had stolen $9,609 and gave a description of the perpetrator: a white male, between five foot eight and six feet and between 160 and 180 pounds, who wore dark clothing, gloves and a plastic or rubber skeleton mask with a hood, and who was armed with a semi-automatic silver pistol. Other witnesses identified the get-away vehicle as a blue Plymouth Voyager with wood-grain panels, and one witness provided a full license plate number. Local authorities put out a BOLO (Be On the Lookout) for the car and thief.
Among the officers in the area who received the BOLO was Officer Lee Bower of the Portsmouth Police Department, located about twenty minutes from the bank. Soon after receiving the bulletin, and twenty-seven minutes after the robbery, Officer Bower spotted a blue van with wood-panel siding parked outside of Pollock's Body Shop. He called dispatch to confirm the license plate number. It was a match. Officer Bower called for backup and drove into the body shop parking lot.
From his cruiser, Officer Bower watched Charles Burke cross the parking lot and head toward the van. The officer exited the car and approached Burke, then noticed Defendant Clint Walker, whom he knew as the owner of T & T Garage, walking toward him with a black duffel bag slung over his shoulder. Officer Bower asked Walker whether he was the one driving the van. He was. The officer asked him for identification. In response, Walker walked to the other side of the van. When Officer Bower followed and told him to stop, Walker explained, " Well, it's right here in my bag," and he unzipped the duffel bag part way. R.45 at 12. Officer Bower grabbed the bag, placed it on the ground and escorted Walker about eight feet away to the front of the police cruiser. The officer frisked Walker for weapons.
Backup arrived. Bower told Officer Steven Timberlake to pat Burke down, which he did. Burke provided Officer Timberlake with identification, but Walker renewed his insistence that his identification was in his wallet, which was in his bag. The officers told him that they would retrieve the wallet from the bag, but Walker responded, " I'd rather not let you get in the bag" because " I have some personal things in there." R.45 at 44. Officer Timberlake placed the bag on the hood of one of the police cruisers and pulled the zipper open further.
With the bag unzipped further, both officers noticed a skeleton mask lying on top. The officers handcuffed Walker and Burke and read them their Miranda rights. " Where's the gun?" Officer Bower asked, and Walker told him it was in the bag. R.45 at 36. " Where's the money?" Officer Bower asked, and Walker looked away, declining to answer. Id. Based on the information gathered during this exchange and the information they already had, the police obtained a warrant to search the rest of Walker's bag, where (in addition to the mask) they found dark clothing, the
money from the bank and a .22 caliber Jennings chrome firearm.
On January 4, 2006, a federal grand jury in the Southern District of Ohio indicted Walker for committing several crimes, including bank robbery and brandishing a weapon at the National City Bank and at several other Ohio banks. Walker filed a motion to suppress the evidence found in the duffel bag, claiming that Officer Timberlake exceeded his authority under the Fourth Amendment when he unzipped the bag. After a suppression hearing, the district court rejected the motion, ruling that the officers conducted a permissible Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
On April 19, 2007, a different grand jury in the Eastern District of Kentucky indicted Walker on separate charges of bank robbery and brandishing a firearm, after which the court transferred the case to the Southern District of Ohio. On July 8, 2008, Walker signed a plea deal...
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