U.S. v. Gross

• Decision Date: 22 December 2008
• Docket Number: No. 07-5972.,No. 07-5971.,07-5971.,07-5972.
• Citation: 550 F.3d 578
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael GROSS (07-5971); Shamone Wilkins (07-5972), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

550 F.3d 578

UNITED STATES of America, Plaintiff-Appellee, v. Michael GROSS (07-5971); Shamone Wilkins (07-5972), Defendants-Appellants.

No. 07-5971.

No. 07-5972.

United States Court of Appeals, Sixth Circuit.

Argued: December 4, 2008.

Decided and Filed: December 22, 2008.

ARGUED: C. Eugene Shiles, Spears, Moore, Rebman & Williams, Chattanooga, Tennessee, Leonard M. Caputo, Phillips, Caputo & Brown, Chattanooga, Tennessee, for Appellants. Robert C. Anderson, Perry H. Piper, Assistant United States Attorneys, Chattanooga, Tennessee, for Appellee. ON BRIEF: C. Eugene Shiles, Spears, Moore, Rebman & Williams, Chattanooga, Tennessee, Leonard M. Caputo, Phillips, Caputo & Brown, Chattanooga, Tennessee, for Appellants. Robert C. Anderson, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before MERRITT, MOORE, and COLE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendants-Appellants Michael Gross and Shamone Wilkins appeal the district court's denial of their motions to suppress evidence obtained by law-enforcement officers during a traffic stop. The defendants were traveling northbound on Interstate 75 through Hamilton County, Tennessee, when their vehicle, driven by Gross, was pulled over for allegedly straddling lanes in violation of Tennessee law. After obtaining Gross's consent, the officers searched the vehicle and found a brick of powder cocaine in the trunk, leading to the defendants' arrest and indictment on drug charges. Each defendant filed a motion to suppress evidence and statements obtained during the search, and the district court denied the motions, finding that the stop was neither unlawful at its inception nor unreasonably prolonged. The defendants subsequently pleaded guilty to conspiracy to possess with intent to distribute cocaine hydrochloride, but reserved the right to appeal the denial of the motions to suppress. On appeal, Gross and Wilkins argue that the district court erred in denying their motions to suppress because the search was unlawful for two alternate and independent reasons: (1) the initial stop was not supported by probable cause and (2) consent to search the vehicle was obtained unlawfully because the stop was unreasonably prolonged. Because we conclude that the initial stop was unlawful, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

On the afternoon of May 8, 2006, Gross and Wilkins, African-American males ages 24 and 26, respectively, were driving northbound on Interstate 75 through Hamilton County, Tennessee, when they were pulled over by Deputy Henry Ritter of the Hamilton County Sheriff's Office. During the subsequent search of the vehicle, one kilogram of powder cocaine was found in the trunk of the defendants' vehicle. On May 23, 2006, a federal grand jury indicted the defendants on one count each of possessing with intent to distribute 500 grams or more of a mixture containing cocaine hydrochloride, in violation 21 U.S.C. § 841(a)(1), (b)(1)(B). A superseding indictment was returned on July 27, 2006, adding a count for conspiracy to commit the above substantive offense, in violation of 21 U.S.C. § 846, and a count for aiding and abetting each other in committing the above substantive offense.

In June 2006, Gross and Wilkins each filed a motion to suppress evidence and statements collected subsequent to the stop and search of the vehicle, both arguing that there was no lawful basis for stopping the vehicle and that, regardless of the legality of the initial stop, the subsequent search and questioning were unlawful because the purpose of the initial stop had already been completed. After the government filed a response, the district court conducted an evidentiary hearing on the motions, at which Deputy Ritter was the only witness. The government also introduced several exhibits, including a videotape of the stop and two videotapes depicting vehicles traveling the stretch of Interstate 75 on which defendants were stopped. The district court found Deputy Ritter to be a credible witness and summarized his relevant testimony as follows:

On the afternoon of Monday, May 8, 2006, Officer Ritter was assigned to perform interdiction duties on Highway I-75. Although trained to perform drug interdiction duties, Officer Ritter's interdiction duties involve crimes of all sorts. On that afternoon, Officer Ritter was standing on the shoulder of I-75 North, near the 13-mile marker, talking with Phillip McClain, an officer of the Chattanooga Police Department. During their conversation, Officer Ritter's attention was diverted to a green 2006 Nissan Altima which was traveling northbound on I-75 and which was occupied by two individuals who were later determined to be the Defendants. Officer Ritter testified that his attention was drawn to that particular vehicle because the occupants had leaned back, or were "slouching" in their seats, so that their heads were positioned behind the center post of the vehicle. Officer Ritter stated that this aroused his suspicion because, based on his training and experience, parties sometimes assume such a posture in an attempt to conceal their identities.

His suspicion thus aroused, Officer Ritter decided to follow the green Nissan Altima, and he caught up to it near the 15-mile marker on I-75 North. This is an area of road near White Oak Mountain where, in an attempt to accommodate the slowing of traffic occasioned by the beginning of a relatively steep ascent, the highway widens from two to three lanes. As he neared Defendants' vehicle, Officer Ritter observed it to "straddle" two lanes of traffic—which he believed constituted a violation of Tennessee Code Annotated § 55-8-123—and he decided to stop it. In order to effectuate the stop, Officer Ritter activated the emergency equipment (i.e., blue lights, etc.) installed in his patrol car, which in turn automatically activated the on-board videotaping equipment. Officer Ritter testified that after thus signaling the green Nissan Altima to pull over, both vehicles came to a stop on the right shoulder of I-75 North at approximately the 17-mile marker.

. . . .

Officer Ritter stated that, after reviewing the documents which Defendants handed to him, he indicated to Defendants that it appeared to him that they did not know in which lane they were supposed to be driving. He testified that they responded by indicating that they were simply attempting to change lanes.

. . . .

During the search of Defendants' automobile, which was conducted by Officer Ritter and another Sheriff's Deputy, Officer Higdon (who had joined Officers Ritter and McClain at the scene), and assisted by a drug detection dog, Officer Ritter found and seized what was subsequently identified as one kilogram of cocaine hydrochloride which had been concealed in a compartment behind the trunk of the automobile. Following such discovery, both Defendants were placed under arrest, and Officer Ritter, who, as previously noted, had begun to fill out, but did not complete, a warning citation to Defendant Gross with respect to the lane straddling violation, completed a Tennessee Uniform Traffic/Misdemeanor Citation Affidavit of Complaint, introduced as Government Exhibit No. 8, which actually charged Defendant Gross with such violation.

Joint Appendix ("J.A.") at 19-22 (Dist. Ct. Order at 2-5) (footnotes omitted).

Because the on-board video equipment did not begin recording until the emergency signals were activated, there is no videotape of Gross's alleged lane-straddling violation. During Deputy Ritter's testimony, he was questioned specifically about what he observed. Deputy Ritter testified that, as the vehicle approached the mountain where a third lane opens up to the right for trucks and slower traffic, the vehicle was in this far right lane, but then straddled the lane between this lane and the center lane for "as far as if not longer than a football field" while driving sixty to seventy miles per hour. J.A. at 176 (Hr'g Tr. at 18). Deputy Ritter was then asked about two videos: Exhibit 6, which shows a black truck straddling lanes for approximately five seconds while changing from one lane to another, and Exhibit 7, which shows cars traveling on the stretch of Interstate 75 where the road becomes three lanes. Deputy Ritter agreed that the action of the black truck in Exhibit 6 "is basically what [the defendants] did." J.A. at 227 (Hr'g Tr. at 69). He stated that the black truck in the video "appeared to have made a lane change, however, it straddled the line the same distance, if not more than Mr. Gross's did that day." J.A. at 208 (Hr'g Tr. at 50). Deputy Ritter later testified, however, that Gross's lane straddling was "as far as if not more than that pick-up truck." J.A. at 213 (Hr'g Tr. at 55). Although Deputy Ritter testified that he did not remember the exact number of seconds that either the black truck or the defendants were straddling the lanes, he testified that taking four seconds to change lanes is a traffic violation "[i]f you straddle that lane for a considerable distance," as he claimed the defendants had done. J.A. at 229 (Hr'g Tr. at 71). Deputy Ritter admitted that the defendants were not driving erratically when the dashboard video camera was turned on, and at no point during his testimony did he indicate that he witnessed the vehicle being driven erratically or otherwise improperly.

The district court denied the defendants' motions to suppress, concluding "that the stop of Defendants' vehicle on the afternoon of May 8, 2006, was supported by probable cause, and that the ensuing search of said vehicle and arrest of Defendants were reasonable within the meaning of the Fourth Amendment." J.A. at 29 (Dist. Ct. Order at 12). Regarding the initial stop, the district court found Deputy Ritter had probable cause to believe that a violation of Tenn.Code Ann. § 55-8-128 occurred. The relevant...