United States v. Jeter

• Decision Date: 10 July 2013
• Docket Number: No. 12–3909.,12–3909.
• Citation: 721 F.3d 746
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dominic JETER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

721 F.3d 746

UNITED STATES of America, Plaintiff–Appellee,

v.Dominic JETER, Defendant–Appellant.

No. 12–3909.

United States Court of Appeals, Sixth Circuit.

Argued: May 2, 2013.

Decided and Filed: July 10, 2013.

ARGUED: Rachel Braver, Hannah Miller, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellant. Laura McMullen Ford, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF: Rachel Braver, Hannah Miller, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, Melissa M. Salinas, Dennis G. Terez Office of the Federal Public Defender, Toledo, Ohio, for Appellant. Laura McMullen Ford, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before MERRITT, SUHRHEINRICH, and DONALD, Circuit Judges.

OPINION

BERNICE B. DONALD, Circuit Judge.

Defendant Dominic Jeter was charged as a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). After the district court's denial of his motion to suppress the firearm, Jeter pleaded guilty to the charge but reserved his right to appeal the denial of the motion. Jeter was convicted, and his advisory Guidelines range was 30 to 37 months. The district court varied upward and sentenced Jeter to 45 months of imprisonment. He now challenges the district court's denial of his motion to suppress. He also challenged his sentence on the basis that it is procedurally and substantively unreasonable. For the following reasons, we affirm the judgment of the district court.

I. BACKGROUND

On May 10, 2011, several police officers from the Toledo Police Department (“TPD”) were on patrol near downtown Toledo, Ohio. While patrolling their assigned area, they came to a shopping center on the corner of Franklin and Bancroft Street. The shopping center, which contained very few stores, was located in an area from which the police department received many complaints pertaining to robberies, thefts, drug activity, and loitering.

Throughout the day, the officers noticed a distinct group of people in the shopping center's parking lot. As the district court summarized, “They were not going in or out of the stores; instead, they were simply gathered [sic], and, apparently, remaining together without any visible purpose except to be in each other's company.” Among the group of people in the parking lot was a man on a bicycle, who was seen on several occasions traversing back and forth across the parking lot. After observing this group of people at least three or four times in the parking lot, TPD Officers Toth and Niles decided to address what they believed was a loitering problem because “nobody was shopping, nobody had shopping bags, nobody had any items they'd just bought.”

According to the district court, Jeter was on a bicycle, but was not a member of the group allegedly loitering in the parking lot, nor was he the individual seen earlier in the day traversing the parking lot. Jeter did not arrive at the shopping center parking lot until some time after the officers saw the first man on a bicycle. When Jeter arrived, he entered a grocery store in the shopping center and purchased a snack and a bottled water. After exiting the store, he stopped for three or four minutes, consumed the snack, placed his water on his bicycle, and then began to leave the parking lot on his bicycle.

At the same time Jeter was leaving the parking lot, Officers Toth and Niles, while in their own police car, called two other police cars to the scene, each containing two officers, at least one police sergeant, a police lieutenant, and the TPD's helicopter crew to “saturate” the shopping center plaza. The officers assembled down the street away from the shopping center to discuss their strategy concerning where each officer would be positioned. The intent was to “bum rush” the parking lot with several ground units and the helicopterso as to round up the group suspected of loitering. The ground units were strategically positioned around the shopping center to prevent any member of the group in the parking lot from fleeing on foot, while the helicopter hovered overhead to provide “over watch” in the event anyone did in fact flee. In short, the manner in which the officers entered the parking lot was designed to contain the people in that area. The TPD implements this “bum rush” or “saturation” tactic “every couple weeks” in an attempt to rid problem areas of suspected criminal activity, with “added benefits” including getting “more gun[s] off the street” or “more person[s] with outstanding warrants.”

As the TPD officers approached the shopping center, Officers Toth and Niles observed an African–American male on a bicycle who appeared to be the same individual the officers had spotted earlier that day. The individual on the bicycle was “the person who was of most interest all day because of his actions.” The individual on the bicycle—Jeter—was pedaling normally toward Franklin Street and away from the point of entry from which Officers Toth and Niles came. As Officers Toth and Niles approached Jeter, Officer Niles rolled his window down and asked to speak with Jeter. Jeter did not respond and “started wandering away on his bike.” Officers Toth and Niles then moved to prevent Jeter from exiting the parking lot. They pulled their police car into the grass in the parking lot, which effectively blocked Jeter's pathway onto Franklin Street.

Once the police car blocked Jeter's path, Jeter “had stopped at that point,” and Officer Niles exited the police car from the passenger's side to talk with Jeter. Jeter then looked at both officers, dropped his bicycle, and started running away. The officers chased Jeter down an alley. As Jeter fled, officers observed him clutching the right front pocket of his shorts. Police quickly caught up with Jeter. They seized him, searched him, and ultimately recovered a .22 caliber handgun in the right front pocket of Jeter's shorts. Jeter was transported to the TPD and charged with being a felon in possession of a firearm.

Jeter subsequently moved to suppress the gun found on his person. Following an evidentiary hearing and briefing, the district court denied the motion. Jeter then pleaded guilty to one count of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1), reserving the right to appeal the denial of the motion.

During sentencing, both Jeter and his defense counsel spoke at length about Jeter's mitigating personal history. The district court noted that Jeter was “a very young man, [who had] accumulated a very serious record.” The district court recited the 18 U.S.C. § 3553(a) factors it considered in sentencing Jeter, varied upward from the Guidelines range by a total of eight months, and imposed a sentence of 45 months. Jeter timely appealed.

II. ANALYSIS

A. Denial of the Motion to Suppress

On appeal, Jeter argues that the district court erred in denying his motion to suppress because he was illegally seized, and thus, the gun officers found on him is “fruit of the poisonous tree.” We review the denial of a motion to suppress under a mixed standard of review: the district court's findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. United States v. Johnson, 707 F.3d 655, 657 (6th Cir.2013). On a denial of a motion to suppress, all evidence is viewed in the light most favorable to the government. Id. at 658. Here, neither party argues, and we find nothing in the record to suggest, that the district court committed clear error with regard to its findings of fact; thus, we defer to the district court's factual findings. Cf. King v. Zamiara, 680 F.3d 686, 702 (6th Cir.2012).

In furtherance of his argument that he was unlawfully detained, Jeter asks this court to find that he was seized not once, but twice. He suggests that the first seizure occurred when officers approached him on his bicycle and he briefly stopped, and that the second occurred when officers caught him after the foot chase. He argues that the first seizure was illegal because the officers lacked both probable cause and reasonable suspicion to detain him at that point. Thus, all later interactions were tainted and, he argues, the gun should have been suppressed.

i. The First Encounter

There are two types of seizure recognized under Fourth Amendment jurisprudence: arrests, for which there must be probable cause, and temporary detentions, such as an investigatory stop, which require a lesser showing of reasonable suspicion. An officer has probable cause to arrest an individual where the officer believes “an offense has been or is being committed [by the person to be arrested].” Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (alteration in original) (internal quotation marks omitted). Reasonable suspicion exists where the officer can articulate specific, particularized facts that amount to more than a “hunch” that criminal activity may be afoot. United States v. Young, 707 F.3d 598, 604–05 (6th Cir.2012). In this case, officers indeed lacked both probable cause and reasonable suspicion when they first approached Jeter.

The district court did not determine the probable cause issue; however, given the large scope of the “bum rush” tactic and the facts found by the district court, we find it necessary to address the issue. The district court credited the testimony of both Jeter and the officers as it pertained to the events occurring on the evening in question. It found that (1) Jeter was not the man on the bicycle observed earlier by the officers, (2) Jeter patronized a store in the shopping center some time after the officers had noticed the other men in the parking lot, (3) there were no complaints of loitering on that day, and (4) the individuals in the parking lot were not violating Toledo's loitering statute. Taking all these facts as true, there was no probable cause or reasonable suspicion to...