U.S.A v. Hughes

• Citation: 606 F.3d 311
• Decision Date: 27 May 2010
• Docket Number: No. 08-6008.,08-6008.
• Parties: UNITED STATES of America, Plaintiff-Appellant,v.Myron HUGHES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

606 F.3d 311

UNITED STATES of America, Plaintiff-Appellant,v.Myron HUGHES, Defendant-Appellee.

No. 08-6008.

United States Court of Appeals, Sixth Circuit.

Argued: March 5, 2010.

Decided and Filed: May 27, 2010.

ARGUED: Blanche B. Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellant. Caryll S. Alpert, Office of The Federal Public Defender, Nashville, Tennessee, for Appellee. ON BRIEF: Blanche B. Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellant. Caryll S. Alpert, Michael C. Holley, Office of The Federal Public Defender, Nashville, Tennessee, for Appellee.

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

McKEAGUE, J., delivered the opinion of the court, in which POLSTER, D.J., joined. CLAY, J. (pp. 320-23), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

Myron Hughes was pulled over by Nashville Metropolitan Police Officer Matthew Atnip around 11:00 p.m. on March 6, 2007, shortly after Atnip observed Hughes's car standing for approximately three minutes at or near an L-shaped intersection in a deserted, high-crime, industrial neighborhood. Hughes, a convicted felon, admitted that he had been rolling a marijuana cigarette; a subsequent search of the vehicle produced a pistol and small amounts of marijuana, crack cocaine, and cocaine. Hughes was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924. On August 6, 2008, the district court granted Hughes's motion to suppress the evidence found in the car, concluding that Atnip lacked reasonable suspicion that Hughes was engaged in criminal activity and that Atnip did not in fact stop Hughes because of any alleged traffic violations. Because the district court incorrectly focused on Atnip's subjective intent, we reverse in part and remand for consideration of whether, at the time of the stop, Atnip had probable cause to believe that Hughes had violated Nashville Municipal Ordinance 12.40.080.

I.

On March 6, 2007, Officer Atnip was sitting in an unmarked police vehicle on Transit Drive in Nashville, Tennessee, facing away from the L-shaped intersection of Transit Drive and Lannie Boswell Avenue. This neighborhood is mostly industrial and, according to Atnip, at night is completely desolate and known to attract significant crime, including prostitution, burglary, and drug trafficking. At around 11:00 p.m., while making a personal phone call, Atnip witnessed Hughes's white SUV come up Transit and then stop near or at the intersection, blocking one side of the road. Atnip observed the car for approximately thirty seconds, and then radioed in his belief that he had a suspect casing businesses; Atnip continued to observe the vehicle for another two minutes, and then did a U-turn to pull in behind the SUV. Approximately thirty seconds after Atnip pulled up behind the SUV, the SUV moved, turned left onto Lannie Boswell, and then drove to Elm Hill Pike, the road at the end of Lannie Boswell. After following for at least half a mile, Atnip-who later testified that he did not act sooner because he was awaiting back-up-turned on his lights and pulled the SUV over. Atnip approached the vehicle and noticed loose marijuana on Hughes's shirt; Hughes then admitted that he had been rolling a marijuana cigarette, and that his vehicle contained both marijuana and a gun. A subsequent search of the vehicle produced a small-caliber pistol, marijuana, and small amounts of cocaine and crack-cocaine. At the time of this stop and arrest, Atnip did not issue Hughes a traffic citation.

Over time, first Atnip and then the government raised seemingly new explanations and justifications for the stop. On March 7, 2007 (the day following the stop), Atnip filed an Investigative Report, in which he declared that he had “stopped the defendant for possible theft investigation and to check his welfare (lost or intoxicated).” (Hughes Appx. at 17.) Several days later, Atnip testified at a State Preliminary Hearing, where he again stated that he had stopped Hughes both for suspicious activity and to check on Hughes's welfare. On cross-examination, Atnip added that he could have cited Hughes for “obstructing a passageway,” but that he could not think of anything else for which he could have written a ticket. (Supp. Hr'g Tr. (SHT) at 108-09 (reading testimony into the record)).

Following the State Preliminary Hearing, federal prosecutors assumed control of the case, and on December 12, 2007 Hughes was indicted on the federal charge that, as a convicted felon, he was knowingly in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924. Hughes then moved to suppress the evidence found in the SUV, arguing that Atnip's stop of the vehicle was illegal. The government responded by arguing that: (1) given the high-crime neighborhood, the time of night, and Hughes's odd behavior behind the wheel, Atnip had reasonable suspicion that the occupants of the SUV were engaged in criminal activity, and thus was justified in making a stop under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (2) regardless Atnip could have stopped Hughes for violating various traffic ordinances or statutes, and so the stop was justified. During the district court's Suppression Hearing-held more than a year after the stop-the government focused almost entirely on the first of these arguments. In addition to testifying about his suspicion that Hughes was casing businesses, however, Atnip also testified that he could have stopped Hughes for violating: (1) Tennessee statute T.C.A. § 39-17-307,¹ which prohibits obstructing traffic; (2) Nashville Municipal Ordinance 12.24.060, ² which prohibits drivers from entering intersections unless they have room to get through on the other sides; and Nashville Municipal Ordinance 12.40.080,³ which prohibits parking in such a way as to obstruct traffic. Atnip then again stated that he had actually stopped Hughes for suspicious activity, to check Hughes's welfare, and for obstruction of a passageway.

On August 8, 2006, following the Suppression Hearing, the district court granted Hughes's motion to suppress, concluding that: (1) under the circumstances Atnip did not have reasonable suspicion of criminal activity; and (2) at the time of the stop Atnip had no intention of pulling Hughes over for any alleged traffic violation. Specifically, the district court stated that “[a]lthough a stop may be justified by either a moving or a parking violation ... the Court finds that such violations did not play any role in Officer Atnip's decision to stop [Hughes] in this case.” (Dist. Ct. Memo. at 4.) Following the district court's ruling, the government appealed, arguing that the court improperly looked to Atnip's subjective intent at the time of the stop, rather than to the objective question of whether Atnip had the cause required to justify a traffic stop.⁴ As part of this appeal, the government for the first time argued that Atnip could have stopped Hughes for violating Nashville Municipal Ordinance 12.40.040(A)(1)(c) ⁵, which prohibits parking in an intersection.⁶

II.

“When reviewing the district court's decision regarding a motion to suppress, we review its factual findings for clear error and its legal conclusions de novo.” United States v. Campbell, 549 F.3d 364, 370 (6th Cir.2008) (citing United States v. Blair, 524 F.3d 740, 747 (6th Cir.2008)). As an initial matter, we find that the district court applied the wrong standard by looking to whether moving or parking violations “play[ed] any role in Officer Atnip's decision to stop” Hughes. (Dist. Ct. Memo. at 4.) The district court here was clearly looking to Atnip's subjective intent-whether Atnip really stopped Hughes for a moving violation or a parking violation, or instead whether Atnip stopped Hughes because Atnip suspected that Hughes was preparing to commit a crime.⁷ As the Supreme Court has made clear, however, the permissibility of a traffic stop turns not on subjective intent, but rather on objective fact. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.... Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); see also United States v. Sanford, 476 F.3d 391, 395 (6th Cir.2007) (“[The officer's] ulterior motivations, if any, are irrelevant.”). In other words, if, at the time of the stop, Atnip had probable cause ⁸ to believe that Hughes was violating one of the traffic ordinances or statutes raised by the government before the district court, then it simply does not matter whether Atnip intended to stop Hughes on the basis of that traffic violation or instead intended to stop Hughes because Atnip suspected that Hughes was preparing to commit a crime.

Saying that courts should not look to subjective intent, but should instead look to whether an officer had sufficient cause for a stop does not, however, end our inquiry-for we still need to say what it is for an officer to have sufficient cause. In order for a stop based on a moving or parking violation to be permissible under the Fourth Amendment, it is not sufficient for a police officer to know the facts that give rise to probable cause or reasonable suspicion; the officer must also, at the time of the stop, know or reasonably believe that those facts actually give rise to probable cause or reasonable suspicion. In other words, in order for traffic stop to be permissible under the Fourth Amendment, a police officer must know or reasonably believe that the driver of the car is doing something that represents a violation of law. This is not to say that officers must be able to, at the time of a stop, cite chapter and verse-or title and section-of a particular statute or municipal code...