United States v. Ali, 090611 FED6, 09-4398

Docket Nº:09-4398
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:UNITED STATES, Plaintiff-Appellee, v. JAMAL ALI, Defendant-Appellant.
Judge Panel:Before: WHITE and STRANCH, Circuit Judges, and COHN, District Judge.
Case Date:September 06, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES, Plaintiff-Appellee,

v.

JAMAL ALI, Defendant-Appellant.

No. 09-4398

United States Court of Appeals, Sixth Circuit

September 6, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Before: WHITE and STRANCH, Circuit Judges, and COHN, District Judge. [*]

OPINION

JANE B. STRANCH, Circuit Judge.

Defendant-Appellant Jamal Ali ("Ali"), a convicted felon, was found in possession of a loaded .44 caliber magnum revolver. Ali now challenges the police encounter that led to the discovery of that weapon. We AFFIRM the district court's decision to deny Ali's motion to suppress.

I. BACKGROUND

A. Factual Background

Officer Lester Hill ("Hill"), a patrol officer with the Greater Cleveland Regional Transit Authority Police Department, was on foot patrol at the Puratis rapid transit station when Taryn Emrich approached him and told him her cell phone had just been stolen. Emrich explained that she had been sitting on a newspaper stand outside the station waiting on her bus with her cell phone beside her on another newspaper stand. She had asked Ali's girlfriend, Makila Dozier, for a light for her cigarette and then turned to a second person, who provided her a light. When she turned back around, her cell phone was gone. Emrich told Hill that she did not see who took the phone, but that there were only three people in the vicinity at the time - two black men and a black woman - and so she believed one of them had taken the phone. Emrich pointed out Ali and Dozier, across the platform, as two of the people who had been standing near her when the phone disappeared.

Hill used his phone to dial Emrich's cell and the call rang through, but Hill did not hear the phone ringing anywhere on the platform. He called a second time but the call went straight to voicemail. Emrich then told Hill, "I think he has it, " and pointed to Ali. She asked Hill to confront Ali about the phone.

Hill approached Ali, who had gotten in line with Dozier to board a bus. The specifics of Hill's exchange with Ali are disputed. At the suppression hearing, Hill testified that he calmly approached Ali and said: "Hey, this lady is saying you have her phone. Can I check you?" When asked later exactly what he had said to Ali, Hill rephrased: "This lady thinks you have her cell phone. Do you mind checking, and you'll be on your bus. I'll hold the bus, I'll make sure you don't miss the bus." Emrich, who went with Hill to speak to Ali, recalled that Hill said: "Sir, this female thinks you have her phone. Could you please just empty your pockets? You don't have nothing to hide, just empty your pockets."

Dozier testified that Hill approached her and Ali and said, "Excuse me, may I talk to you all." Hill told them Emrich said her phone was missing and then asked if she and Ali had it. They both said no, and then Hill said they were two of the three people standing near Emrich and the phone at the time it went missing. Dozier testified that "[Hill] said take everything out of our pockets, " which Dozier proceeded to do. Hill and Ali then had a back-and-forth verbal exchange.1 Hill testified that Ali became agitated, started walking towards him, and said, "I ain't got her phone." Dozier testified that Ali began asking Hill why he focused in on Ali instead of questioning the third person who was standing by the newspaper stands with them. It is undisputed that Ali then began pulling items out of his jacket pockets and showing them to Hill.

Hill testified that as Ali pulled items out of his jacket pockets, the jacket rode up and the butt of a revolver became visible under Ali's jacket.2 Hill said "I reached down, grabbed onto the gun. I pulled out my Glock service revolver and put it up to [Ali's] head." The two struggled over the weapon and as Ali stumbled backwards, Hill was able to dislodge the gun from Ali's possession. Ali then ran from the station and was later discovered by police and arrested.

B. Procedural Background

Ali was indicted on charges of...

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