USA v. Walker

• Decision Date: 12 August 2010
• Docket Number: Nos. 08-4680, 08-4682.,s. 08-4680, 08-4682.
• Citation: 615 F.3d 728
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clint WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

615 F.3d 728

UNITED STATES of America, Plaintiff-Appellee,

v.Clint WALKER, Defendant-Appellant.

Nos. 08-4680, 08-4682.

United States Court of Appeals,Sixth Circuit.

Argued: Aug. 4, 2010.

Decided and Filed: Aug. 12, 2010.

ARGUED: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, Richard W. Smith-Monahan, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, Adam F. Seibel, Assistant United States Attorneys, Cincinnati, Ohio, for Appellee.

Before: SILER and SUTTON, Circuit Judges; CLELAND, District Judge. ^*

OPINION

SUTTON, Circuit Judge.

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.

I.

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 covering both indictments and pled guilty to two counts each of bank robbery and brandishing a firearm, but reserved the right to appeal the suppression ruling. The guilty plea covered counts stemming from robberies at the U.S. Bank in Ironton, Ohio, and the Peoples Bank in South Shore, Kentucky, in return for which the government dropped the charges stemming from the National City Bank robbery.

Walker's presentence report gave a guidelines range of 425 to 435 months, including 41 to 51 months for the bank robbery charges, 84 months for the first brandishing charge (the mandatory minimum) and 300 months for the second brandishing charge (also the mandatory minimum). Neither party objected to the calculation, though the government moved under § 3553(e) for a downward departure to 318 months. The district court agreed that a downward departure was appropriate, and it sentenced Walker to 277 months and one day in prison and ordered him to pay $59,355.65 in restitution.

II.

In addressing Walker's challenge to the district court's suppression ruling, the parties share some common ground. They agree that Officers Bower and Timberlake had “reason to believe that [they were] dealing with an armed and dangerous individual,” Terry, 392 U.S. at 27, 88 S.Ct. 1868, based on the BOLO and based on Walker's statements at the body shop parking lot linking him to the get-away vehicle, see Walker Br. 11; U.S. Br. 9. They agree that the two officers could take “necessary measures” to determine whether Walker had a weapon and to “neutralize the threat.” Terry, 392 U.S. at 24, 88 S.Ct. 1868; see Walker Br. 11; U.S. Br. 9. And they agree that the officers were entitled to make some form of limited search of Walker's duffel bag. See Walker Br. 11-12; U.S. Br. 10.

They part company over the scope of the search. While Walker concedes that the search was “justified at its inception,” Terry, 392 U.S. at 20, 88 S.Ct. 1868, he argues that, when the officers unzipped the duffel bag, they exceeded their authority because the search was no longer “reasonably related in scope” to its justification, id. What the officers should have done, he says, is perform a “frisk” of the outside of the bag to feel for weapons. Walker Br. at 11-12.

A search, however, is not unreasonable merely because officers did not use the “least intrusive” means. City of Ontario v. Quon, ---U.S. ----, 130 S.Ct. 2619, 2632, 177 L.Ed.2d 216 (2010). Based on the description of the robbery in the BOLO, including the warning that the thief was armed, Walker's statement that he was driving the car that matched the license plate of the robber's car and his response to the request for identification, the officers had a “perfectly reasonable apprehension” that Walker had a weapon in the duffel bag that he was carrying. Terry, 392 U.S. at 26, 88 S.Ct. 1868. Understandably, the concern for officer safety extends not only to a suspect himself but to “the area surrounding a suspect” where he might “gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Unzipping the bag more than it was already unzipped was “an efficient and expedient way” to determine whether a gun lay on the top of the bag, ready for use. Quon, 130 S.Ct. at 2623. After unzipping the bag and looking inside, the officers conducted no further search of the bag until they had a warrant. On this record, it is fair to say that the search was reasonably designed to discover weapons that might pose a threat to the officers' safety, namely weapons lying on the top of the already partially unzipped duffel bag. See Terry, 392 U.S. at 29, 88 S.Ct. 1868. As in Terry, the sequence of events reflects the “tempered act” of a police officer who in the midst of an encounter with an armed suspected bank robber “took limited” and reasonable “steps” to protect himself and his fellow officer. Id. at 28, 88 S.Ct. 1868. Outside the scope of the warrant requirement, the Fourth Amendment demands neither best practices nor formulaic adherence to one search method over another-just that the “searches and seizures” not be “unreasonable.” U.S. Const. amend. IV. This modest search into the top of the bag was reasonable.

We have been down this road before. In United States v. Williams, 962 F.2d 1218, 1223-24 (6th Cir.1992), the officer asked to look in a suspect's purse for weapons and even to “feel or squeeze” it, but she refused. Id. at 1222. The officer opened the purse and found cocaine, after which we upheld the search as a reasonable one. Id. at 1222-24. Walker says Williams differs from today's case because the defendant there did not suggest a lesser measure, a frisk of the outside of the purse. True enough, but that does not change the essential holding there or here-that the officers reasonably opened the bag under the circumstances. See Terry, 392 U.S. at 20, 88 S.Ct....