673 F.3d 497 (6th Cir. 2012), 09-6549, United States v. Jones

Docket Nº:09-6549.
Citation:673 F.3d 497
Opinion Judge:BALDOCK, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James JONES, Defendant-Appellant.
Attorney:Barry J. McWhirter, The McWhirter Law Firm, Memphis, Tennessee, for Appellant. Marlinee C. Iverson, Assistant United States Attorney, Memphis, Tennessee, for Appellee.
Judge Panel:Before: MARTIN, SUTTON, and BALDOCK, Circuit Judges.[*]
Case Date:March 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 497

673 F.3d 497 (6th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

James JONES, Defendant-Appellant.

No. 09-6549.

United States Court of Appeals, Sixth Circuit.

March 7, 2012

Page 498

[Copyrighted Material Omitted]

Page 499

ON BRIEF:

Barry J. McWhirter, The McWhirter Law Firm, Memphis, Tennessee, for Appellant.

Marlinee C. Iverson, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: MARTIN, SUTTON, and BALDOCK, Circuit Judges.[*]

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OPINION

BALDOCK, Circuit Judge.

Defendant was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Defendant sought to suppress the seized firearm, but the district court denied Defendant's suppression motion. Thereafter, Defendant pleaded guilty to the felon in possession offense, preserving his right to appeal the suppression motion. The district court sentenced Defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to the mandatory minimum sentence of 180 months' imprisonment. Defendant now appeals, challenging both the denial of his suppression motion and his sentence under the ACCA. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), we affirm.

I.

Memphis Police Officer Robert Strickland was on patrol on Latham Street in Memphis, Tennessee, an area known for extensive drug trafficking and violent crimes. He observed a group of men in front of an apartment house, and two males standing apart from the group. The two males appeared to be engaging in a hand-to-hand transaction. Officer Strickland had observed more than 200 hand-to-hand drug transactions in his nine years as a Memphis police officer, and he grew suspicious the men were exchanging cash for drugs. Strickland stopped and exited his car to investigate. Defendant immediately began running away " like a sprinter." Strickland called to Defendant to stop several times, but Defendant kept running. Officer Strickland gave chase, and observed Defendant drop a brown paper bag and other unidentifiable items. After chasing Defendant approximately 200 yards, Strickland caught up to him in an alley. Strickland pushed Defendant down and handcuffed him. As he was doing so, Strickland noticed Defendant's pants had fallen down and his belt was unfastened.

Two other officers soon arrived in response to Strickland's call for backup. One officer retraced Defendant's flight path to search for dropped items. He found an ammunition holder containing twenty-five rounds, an ammunition pouch, a holster, and a loaded .38 caliber revolver. Officer Strickland also found a brown paper bag containing a cold, open beer near where he observed Defendant drop a brown paper bag. The officers read Defendant his Miranda rights, and he admitted to possessing the firearm.

Defendant moved to suppress both the revolver and his confession, arguing Officer Strickland had no reasonable suspicion to detain Defendant and that his confession was obtained by coercion. The district court denied the motion. The court found the officers' testimony to be credible, and Defendant's testimony not to be credible. The court held that Officer Strickland had reasonable suspicion Defendant was engaged in criminal activity based on his presence in a high crime area, the apparent hand-to-hand transaction, Defendant's flight, and Defendant's action in discarding various items during flight. The court also held Defendant's confession admissible, a holding Defendant does not challenge on appeal.

Defendant entered a conditional guilty plea to the felon in possession charge. His written plea agreement said if Defendant " is determined to be an Armed Career Criminal, the United States agrees to recommend a sentence of 180 months or the low end of the applicable advisory range, whichever is higher. " The probation office identified three prior convictions as qualifying offenses under the ACCA. The first was a 1978 Tennessee conviction for " Assault

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to Murder 2nd Degree." The second and third were 1986 Tennessee convictions for " Burglary II" and " Assault to Murder 1 with Injury." The presentence report summarized the facts of the 1986 convictions as follows:

The Affidavit of Complaint and Indictment (# 85 05021) indicated that at approximately 8:30 a.m. on 5/05/85, the defendant broke into the rear bedroom window of Bonnie Smith's and Curtis Walker's residence. Being confronted by Bonnie Smith, the defendant did leave the residence.

The Affidavit of Complaint and the Indictments (# 85 05013, # 85 05018, # 85 05020) indicated that at approximately 9:30 p.m. on 5/05/85, the defendant returned to that residence. When Bonnie Smith answered the knock at the door, the defendant was at the door and pointed a large caliber pistol at Bonnie Smith in a threatening manner. Bonnie Smith ran screaming from her living room which caused Curtis Walker to come to the living room. The defendant then fired two shots at Curtis Walker and missed. Curtis Walker returned fire once with a shotgun and missed. The defendant then went to the rear bedroom window and fired at least two more shots at Bonnie Smith, striking her in the left hand, and also striking Ida Smith (17 months old) in the right buttocks and left shoulder.

Presentence Report at 11. At sentencing, the district court asked defense counsel if he had any objections to the " facts in the presentence report." Counsel only corrected the date Defendant's mother died, and said to his knowledge no other facts needed correction. Based on the three prior convictions, the district court sentenced Defendant to the ACCA's mandatory minimum of 180 months. See 18 U.S.C. § 924(e)(1).

II.

Defendant first argues Officer Strickland had no " particularized and objective basis for suspecting that [Defendant] was committing or had committed a criminal offense when Officer Strickland made the scene and initiated the stop." On appeal from a motion to suppress, we review a district court's factual findings for clear error and its legal conclusions de novo. United States v. Galaviz, 645 F.3d 347, 352 (6th Cir.2011). Defendant does not challenge the district court's factual findings, so our inquiry is a purely legal one.

We have identified three types of police-citizen encounters: " (1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause." United States v. Smith, 594 F.3d 530, 535 (6th Cir.2010) (quoting United States v. Waldon, 206 F.3d 597, 602 (6th Cir.2000)). Defendant concedes he was only detained, but argues he was detained without reasonable suspicion. Because reasonable suspicion is measured at the time of the detention, however, we must first determine when the detention began.

A person is seized within the Fourth Amendment's meaning when an officer " by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied." Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (internal citations and quotation marks omitted). Defendant argues the detention occurred when Strickland ordered him to stop and began chasing him. Defendant cites

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United States v. Stittiams, 417 Fed.Appx. 530, 532 (6th Cir.2011) (unpublished), where the defendant initially ignored an officer's demand to stop, but then complied once the officer threatened him. In Stittiams, we said the stop took place when the officer " chasing after Stittiams, demanded that Stittiams stop" and not when the officer handcuffed him. Id. at 533. Stittiams, however, does not support Defendant's position. We went on in Stittiams to say a stop occurs when an officer " gives chase to a suspect while demanding that the suspect stop and the suspect does stop. " Id. (emphasis added). The Supreme Court has held police pursuit is not a seizure until the suspect actually stops. California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Hodari D., the Court said...

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