United States v. Johnson, 11–5769.

• Decision Date: 20 February 2013
• Docket Number: No. 11–5769.,11–5769.
• Citation: 707 F.3d 655
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

707 F.3d 655

UNITED STATES of America, Plaintiff–Appellee,

v.Michael JOHNSON, Defendant–Appellant.

No. 11–5769.

United States Court of Appeals,Sixth Circuit.

Argued: July 20, 2012.

Decided and Filed: Feb. 20, 2013.

ARGUED:Michael J. Flanagan, Nashville, Tennessee, for Appellant. Clay T. Lee, United States Attorney's Office, Nashville, Tennessee, for Appellee. ON BRIEF:Michael J. Flanagan, Nashville, Tennessee, for Appellant. Philip H. Wehby, United States Attorney's Office, Nashville, Tennessee, for Appellee.

Before: BOGGS and WHITE, Circuit Judges; and BLACK, District Judge. ^*

OPINION

HELENE N. WHITE, Circuit Judge.

Michael Johnson appeals the district court's denial of his motion to suppress physical evidence as well as the district court's determination that his Kentucky state stalking conviction is a violent felony under the Armed Career Criminal Act (ACCA). We AFFIRM.

I.

On January 11, 2010, Officer Evon Parks stopped the car driven by Johnson based on a seat-belt law violation. As Officer Parks approached the vehicle, he smelled burnt marijuana and noticed a second license plate sitting on the back seat of the vehicle. Upon questioning Johnson and his female passenger, the passenger admitted she had smoked marijuana in the car a few minutes earlier.

During the stop, Officer Parks requested Johnson's license and registration and the passenger's identification information. The passenger initially provided Officer Parks with her sister's information rather than her own. Officer Parks left Johnson's vehicle to enter the information he had received into the national database, NCIC. At that point, Johnson gestured to Officer Parks and asked to speak with him away from the vehicle. After Officer Parks agreed, Johnson informed Officer Parks that he knew he would be arrested because a condition of release for a prior conviction required him to stay away from the passenger. Johnson also told Officer Parks that he was a convicted felon and had a loaded gun underneath the passenger seat, but could convince the passenger to claim ownership of the weapon. Once NCIC confirmed that Johnson in fact had a condition of release ordering him to stay away from a person named LuShanda Giles, Officer Parks handcuffed Johnson and placed him in the back of the police vehicle. Officer Parks then asked the passenger to exit the vehicle and, based on the aroma of marijuana in the vehicle, also asked to search her purse. Officer Parks then located the passenger's real identifying information and confirmed that she was LuShanda Giles. He searched the vehicle and recovered the weapon. After Officer Parks conducted the search, NCIC confirmed that Johnson was a convicted felon, and also informed Officer Parks that Johnson had an active warrant for his arrest.

The government indicted Johnson on May 26, 2010, on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924. On November 23, 2010, Johnson filed a motion to suppress the firearm on four grounds: 1) the initial traffic stop was not supported by reasonable suspicion or probable cause; 2) the stop of Johnson's vehicle was not the result of a valid traffic stop; 3) there was no valid consent to search Johnson's vehicle; and 4) Johnson's statements to Officer Parks were obtained in violation of his Fifth Amendment right to remain silent and in contravention of his Miranda rights.

The district court held a suppression hearing and denied Johnson's motion orally from the bench.

On March 7, 2011, Johnson pleaded guilty to the sole count of the indictment pursuant to a conditional plea petition wherein he reserved the right to appeal the denial of his motion to suppress. In its sentencing memorandum, the government argued that Johnson should be sentenced as an armed career criminal based on his four qualifying felony convictions under the ACCA: Aggravated Burglary; Sale of a Controlled Substance Over 0.5 grams; First–Degree Stalking; and Facilitation to Commit Aggravated Robbery.

Johnson disputed that his facilitation and stalking convictions were qualifying felonies under the ACCA. The district court agreed with Johnson that his Tennessee state conviction of facilitation to commit aggravated robbery was not a violent felony based on our then-recent decision in United States v. Vanhook, 640 F.3d 706 (6th Cir.2011). However, the district court found that Johnson's Kentucky conviction of first-degree stalking did so qualify. The court sentenced Johnson to 180 months in prison, the minimum mandatory sentence under the ACCA, with five years of supervised release.

II.

“When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo,” United States v. Simpson, 520 F.3d 531, 534 (6th Cir.2008) (internal quotation marks omitted), and we consider the evidence “in the light most favorable to the United States.” United States v. Freeman, 209 F.3d 464, 466 (6th Cir.2000).

On appeal, Johnson claims that the court erred in denying his motion to suppress because the search of his vehicle was not incident to a valid arrest. ¹ Johnson argues that Officer Parks arrested him prior to confirming the identity of the passenger and that without Officer Parks knowing that the passenger was actually LuShanda Giles, the person listed on Johnson's conditions of release, Johnson should not have been arrested for being with the passenger.

This argument lacks merit. Johnson does not challenge the stop, and “an officer's detection of the smell of marijuana in an automobile can by itself establish probable cause for a search.” United States v. Bailey, 407 Fed.Appx. 27, 28–29 (6th Cir.2011) (quoting United States v. Elkins, 300 F.3d 638, 659 (6th Cir.2002)). See also Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (“[I]f the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid”). As mentioned, the passenger admitted to Officer Parks that she smoked marijuana in the vehicle minutes before the traffic stop.

More generally, “[u]nder the automobile exception to the warrant requirement, ‘an officer may search a readily mobile vehicle without a warrant if he has probable cause to believe that the vehicle contains evidence of a crime.’ ” United States v. Redmond, Nos. 10–5636, 10–5644, 2012 WL 1237787, at *4 (6th Cir. Apr. 13, 2012) (quoting Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir.1998)). Aside from the probable cause that arose from Officer Parks smelling marijuana in the vehicle, Johnson also voluntarily informed Officer Parks that he was a convicted felon in possession of a firearm. Although Officer Parks did not obtain corroboration of Johnson's felon status prior to conducting the search, “ ‘[a]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search.’ ” United States v. Burton, 334 F.3d 514, 519 (6th Cir.2003) (quoting United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971)).

Because Officer Parks had probable cause to search Johnson's vehicle, the district court's denial of Johnson's motion to suppress is affirmed.

III.

Johnson next argues that the district court erred in determining that his conviction under Kentucky's first-degree stalking statute is a violent felony under the ACCA. We review this issue de novo. United States v. Bartee, 529 F.3d 357, 358–59 (6th Cir.2008).

Under the ACCA, a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions of serious drug offenses or violent felonies must receive a fifteen-year mandatory minimum sentence. United States v. Johnson, 675 F.3d 1013, 1016 (6th Cir.2012) (citing 18 U.S.C. § 924(e)(1)). The ACCA defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year ... that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B). We refer to 18 U.S.C. § 924(e)(2)(B)(i) as the “force” prong and the portion of 18 U.S.C. § 924(e)(2)(B)(ii) involving the non-enumerated offenses as the “residual clause.”

In United States v. Wynn, we explained:

To determine whether a prior conviction constitutes a “crime of violence,” [[² we must apply the categorical approach.... Under this categorical approach, the court must look only to the fact of conviction and the statutory definition—not the facts underlying the offense—to determine whether that definition supports a conclusion that the conviction was for a crime of violence.... There is, however, an exception to the categorical approach: When the statutory definition of the prior crime to which the defendant pleaded guilty is ambiguous ... the court may examine ... the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.

579 F.3d 567, 571 (6th Cir.2009) (internal quotation marks and citations omitted).

Johnson pleaded guilty to first-degree stalking in 1998. Neither party indicates which provision of the Kentucky stalking statute Johnson pleaded guilty under, and there are no documents from the Kentucky state court in this record that can provide further clarity. Because the categorical approach requires us to first look solely at the face of the statute rather than the facts of the offense,...