U.S. v. Graham

• Decision Date: 12 April 2007
• Docket Number: No. 05-4566.,05-4566.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Douglas GRAHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

483 F.3d 431

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Douglas GRAHAM, Defendant-Appellant.

No. 05-4566.

United States Court of Appeals, Sixth Circuit.

Argued: March 14, 2007.

Decided and Filed: April 12, 2007.

ARGUED: Joseph A. Almeida, Steubenville, Ohio, for Appellant. Anne H. Fehrman, Assistant United States Attorney, Dayton, Ohio, for Appellee. ON BRIEF: Joseph A. Almeida, Steubenville, Ohio, for Appellant. Anne H. Fehrman, Assistant United States Attorney, Dayton, Ohio, for Appellee.

Before MARTIN and CLAY, Circuit Judges; POLSTER, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Defendant Anthony Graham was charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The firearm upon which this prosecution was based was found during a Terry search by an officer of the Dayton Police Department. Graham argues that this firearm, as well as statements made after its seizure, should be suppressed because the officer did not possess reasonable suspicion to conduct the search. For the reasons below, we affirm the district court's denial of Graham's motion to suppress.

I

The district court made the following findings of fact:

At approximately 7:50 p.m., on September 13, 2003, Officers Ryan Halburnt ("Halburnt") and Christopher Malson ("Malson") of the Dayton Police Department were traveling on Grand Avenue in their cruiser, when they noticed a Pontiac Grand Am parked illegally outside 1701 West Grand Avenue. The driver's door of that vehicle was open. Halburnt and Malson got out of their cruiser and approached the illegally parked Pontiac Grand Am. Halburnt could see that a male was sitting in the driver's seat, with a female sitting in the passenger's seat. As he approached the car, Halburnt saw the Defendant dip his shoulder, as if he were putting something under the seat.

When he neared the driver's door of the Pontiac Grand Am, Halburnt asked the Defendant whether he knew that the car was illegally parked and to put his hands on the steering wheel. Halburnt also asked him for identification. In response, the Defendant denied that he was aware that the car was illegally parked and said that he had no identification. He indicated, however, that he was Tony Graham. That name meant something to Halburnt, because, earlier that evening, Officer Craig Stivers ("Stivers") had broadcast over the radio information to the effect that it was possible that Tony Graham was armed and was planning to shoot someone at 1701 West Grand Avenue. As a consequence, Halburnt asked the Defendant to get out of the Pontiac Grand Am, a request with which Graham complied.

After the Defendant had gotten out of the car, he and Halburnt walked back to the police cruiser, which was parked about ten feet behind the Pontiac Grand Am. When they got to the back of the cruiser, Halburnt told the Defendant that he (Halburnt) was going to pat him (Graham) down and that the Defendant would have to sit in the back of the cruiser. The Defendant refused to be frisked and to get into the cruiser. Graham then began to walk away. At that point, Halburnt and Malson attempted to grab the Defendant, but he persisted in walking away and struggled to prevent them from grabbing him. As he was doing so, the Defendant told the officers that he was not going to get into the cruiser or let them pat him down. As the Defendant continued to resist, Halburnt sprayed him briefly with pepper spray. As a consequence, Defendant immediately complied, and the officers were able to handcuff him, pat him down and place him in their cruiser.[¹]

After the Defendant had been secured in the backseat of the cruiser, Halburnt returned to the Pontiac Grand Am and looked under the driver's seat, where the Defendant had been seated when he had dipped his shoulder as if he were placing something under his seat. From under that seat, Halburnt seized the firearm which serves as the basis for this prosecution.

Subsequently, Halburnt returned to the cruiser in which the Defendant was seated and read him the Miranda warnings. The Defendant indicated that he understood his rights and that he was willing to speak with Halburnt. In response to the officer's question, the Defendant said that he kept the firearm for protection.

D. Ct. Order, Mar. 12, 2004, at 2-4; D. Ct. Order, Aug. 19, 2004, at 2-3.

On October 28, 2003, Graham was indicted by a federal grand jury for violating 18 U.S.C. § 922(g)(1). He subsequently filed a motion to suppress any statements he had made and evidence seized during his detention. At a hearing held on December 15, 2003, Halburnt was the only person who testified. On March 12, 2004, the district court requested additional briefing on issues raised by the motion to suppress, which it was still considering. D. Ct. Order, Mar. 12, 2004, at 1-7.² Each party filed a brief in response to this request.

On August 19, 2004, the district court denied Graham's motion to suppress. Because the government did not come forth with evidence establishing the reliability of Stivers' statement, the court conducted its analysis as if the tip had been anonymous. D. Ct. Order, Aug. 19, 2004, at 11. The district court looked to the Supreme Court's decision in Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), which held that although an anonymous informant's tip that a suspect was carrying cocaine was in and of itself insufficient to justify a Terry stop, once the police observed the suspect act as the tip predicted, reasonable suspicion was established. The district court concluded that "Stivers' radio broadcast contained information which predicted Graham's future behavior, to wit: that he would be at 1701 West Grand Avenue. That prediction proved to be accurate, given that the Defendant was found at that address." D. Ct. Order, Aug. 19, 2004, at 12. Further, the court noted that the fact that the suspect's name was Tony Graham proved the accuracy of the predictive information, because the informant was aware of Graham's activities. Id. The district court ultimately found that this tip, when paired with the Graham's dipping motion, was sufficient to establish reasonable suspicion that Graham was armed and dangerous, and therefore, the search did not violate Graham's Fourth Amendment rights. Id. at 14.

Graham pled guilty to violating 18 U.S.C. § 922(g)(1), reserving his right to appeal the district court's denial of his motion to suppress. Graham was sentenced to forty-eight months' imprisonment, to be followed by three years of supervised release. He now appeals.

II

Graham first argues that the officers did not have probable cause to stop him for a parking violation. He further contends that even if the stop was lawful, the searches of his person and the vehicle were not supported by reasonable suspicion, and thus, the firearm discovered during the search is inadmissible. When reviewing a district court's denial of a motion to suppress, we review factual findings for clear error and legal conclusions de novo, and view the evidence in the light most favorable to the district court's conclusion. United States v. Jones, 159 F.3d 969, 973 (6th Cir.1998). "With regard to Terry-stop analysis in particular, although the standard of review on the ultimate reasonable suspicion inquiry is de novo, the district court is at an institutional advantage, having observed the testimony of the witnesses and understanding local conditions, in making this determination. Accordingly, `due weight' should be given to the inferences drawn from the facts by `resident judges.'" United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006) (internal quotation marks, citations, and alterations omitted).

III

A

Before explaining our reasons for affirming the district court, we must briefly dispose of one of the arguments that the government has brought before this Court. The government contends that we need not analyze the broadcasted tip under Florida v. J.L., 529 U.S. 266, 270-72, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (holding that an anonymous caller's bare-bones tip that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun, without more, was insufficient to justify an officer's stop and frisk of the man).³ In support of its argument, the government seizes upon the following language contained at the end of the majority opinion in J.L.:

Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer's prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped. We speak in today's decision only of cases in which the officer's authority to make the initial stop is at issue.

J.L., 529 U.S. at 274, 120 S.Ct. 1375. The government interprets the reference to a "person who has already been legitimately stopped" to mean that because the initial encounter with Graham was pursuant to a lawful traffic stop unrelated to the broadcast, and only later during the stop did the broadcast become relevant, J.L. should not impact our reasoning.

We do not read the cautionary language in J.L. as broadly as the government does. The government's argument suggests that once an individual is legitimately stopped, for any reason, police who receive an otherwise unreliable tip have carte blanche to perform a protective search of the person (or his effects). As we read J.L., however, "a person who has already been legitimately stopped," refers to a person who was already lawfully stopped for the same reasons that serve as the basis for the protective search. That is not the case here, where Graham was seized for an independent and unrelated purpose. There clearly must be some nexus between the criminal conduct of which the police suspect the defendant and the aim of the protective search—the most obvious example arising where they...