U.S. v. Hurst

• Decision Date: 02 May 2000
• Docket Number: No. 98-6775,98-6775
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Scottie Ray Hurst, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 751

228 F.3d 751 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Scottie Ray Hurst, Defendant-Appellant.

No. 98-6775

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 2, 2000

Decided and Filed: September 22, 2000

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 97-00151--R. Leon Jordan, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Steve H. Cook, Michael E. Winck, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.

J. Ronnie Greer, Greeneville, Tennessee, for Appellant.

Before: MOORE and GILMAN, Circuit Judges; McKEAGUE,^* District Judge.

OPINION

DAVID W. McKEAGUE, District Judge.

This is an appeal from a conviction and sentence rendered in the United States District Court for the Eastern District of Tennessee. Defendant was charged in a seven-count indictment with conspiracy to transport stolen firearms and ammunition in interstate commerce, possession of stolen firearms and ammunition, and possession of firearms by a convicted felon. A jury found him guilty as charged, and the district court sentenced him to a 288-month term of imprisonment. On appeal, defendant contends that the district court erred when it denied both his motion to suppress evidence seized during a warrantless search and his motion to suppress statements made by him. He also claims error in connection with the district court's imposition of sentence and application of the United States Sentencing Guidelines ("U.S.S.G."). For the reasons that follow, we affirm the conviction and sentence in all respects.

I. FACTUAL BACKGROUND

Rodney Smith, whose Fentress County (Tennessee) home had been burglarized in the afternoon of March 27, 1992, reported having seen what he thought was a dark-colored Thunderbird in the driveway of his house shortly before he discovered the burglary had occurred. Shortly thereafter, an off-duty Fentress County Sheriff's Deputy observed a vehicle matching the reported description not far from the Smith residence southbound on US-127 traveling toward Cumberland County at a high rate of speed. He noted that the front end of the vehicle was damaged and the grill was missing. The information was conveyed to Cumberland County authorities. Soon thereafter, Cumberland County Sheriff's Deputy Scott Iles observed a vehicle matching the reported description eastbound on I-40 near the intersection of US-127, approximately 25 minutes' driving time from the Smith residence. Iles pulled the vehicle over.

The vehicle was actually a dark blue Mercury Cougar, similar in appearance to a Thunderbird. Defendant Scottie Ray Hurst was the driver, co-defendant Edwin Quinones, Jr., was in the front passenger seat, and a hitchhiker was in the back seat. After obtaining personal identification, Iles advised Hurst that his vehicle had been reported for suspected involvement in a burglary and asked if there was any stolen property in the car. When Hurst said there was not, Iles asked for consent to search. Hurst consented, but then resisted precautionary handcuffing and fled the scene. Iles pursued Hurst briefly on foot, and then returned to the automobile to assist the back-up officer, Detective David Gibson, with the other subjects. A preliminary search of the vehicle was conducted. Quinones was arrested; the hitchhiker was released. The vehicle was impounded and subjected to an inventory search. The inventory search, conducted by Iles and Gibson, yielded jewelry, clothing, cash, a Sony PlayStation, compact discs, a cellular phone, a handgun, a shotgun, and ammunition. Meanwhile, other officers continued to pursue Hurst, apprehending him several hours later. The search incident to his arrest yielded several gold necklaces and $2 bills.

On December 17, 1997, the federal grand jury in the Eastern District of Tennessee returned a seven-count indictment charging Hurst and Quinones, in count one, with conspiracy to transport stolen firearms and ammunition in interstate commerce, in violation of 18 U.S.C. § 371; in counts two, three and five, with possession of stolen firearms, in violation of 18 U.S.C. § 922(j); and in count four, with transporting stolen firearms, in violation of 18 U.S.C. § 922(i). Counts six and seven charged Hurst with being a convicted felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). Hurst and Quinones were tried separately. The district court denied defendant Hurst's pretrial motions to suppress evidence seized in a warrantless search and to suppress statements made by him. At the conclusion of a two-day jury trial on July 27-28, 1998, defendant was found guilty as charged. A sentencing hearing was conducted on December 11, 1998, at which the district court resolved various objections. Defendant was sentenced to a prison term of 60 months as to count one, 120 months as to count two, and 108 months as to each of counts three through seven. The sentences as to counts one, two and three were ordered to run consecutively, resulting in an effective prison sentence of 288 months. Defendant now appeals as of right.

II. ANALYSIS

Two of defendant's appellate claims relate to denials of motions to suppress evidence. When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999); United States v. Walker, 181 F.3d 774, 776 (6th Cir.), cert. denied, 120 S.Ct. 435 (1999)¹. The evidence must be reviewed, however, "in the light most likely to support the district court's decision." Navarro-Camacho, 186 F.3d at 705.

The remaining appellate issues relate to sentencing. The sentencing court's factual findings in relation to application of the Sentencing Guidelines are subject to the deferential "clearly erroneous" standard of review. United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997), cert. denied, 118 S.Ct. 1572 (1998). Legal conclusions are reviewed de novo. Id. A finding of fact will be deemed clearly erroneous only when, although there may be some evidence to support the finding, the reviewing court, upon review of the entire record, is left with the definite and firm conviction that a mistake has been committed. Id.

A. Validity of Automobile Search

Defendant contends that the district court erred when it denied his motion to suppress evidence seized from his automobile. First, he argues the circumstances surrounding the stopping of his vehicle were insufficient to create "reasonable suspicion," as required by Terry v. Ohio, 392 U.S. 1 (1968). Specifically, he contends his vehicle, a Mercury Cougar containing three persons at the time of the stop, did not match the description given to authorities, of a Ford Thunderbird containing two persons.

Under Terry, "where a law enforcement officer lacks probable cause, but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he may detain the suspect briefly to investigate the suspicious circumstances." United States v. Bentley, 29 F.3d 1073, 1075 (6th Cir. 1994). The Terry doctrine applies to investigative stops of moving automobiles. Id. The applicable law is well summarized as follows:

[A]n investigative detention is permissible when it is based upon "specific and articulable facts which, taken together with rational inferences from those facts," give rise to a reasonable suspicion that the individual is, was, or is about to be engaged in criminal activity. ... In reviewing a challenged investigative stop, "the totality of the circumstances -- the whole picture -- must be taken into account." ... Furthermore, "[i]n assessing the reasonableness of the stop, the facts are 'judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?'"

United States v. Barrett, 890 F.2d 855, 860 (6th Cir. 1989) (citations omitted). While an officer making a Terry stop must have more than a hunch, "reasonable suspicion" is considerably less than proof of wrongdoing by a preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7 (1989).

A car roughly matching the appearance of Hurst's in color and style was reportedly seen outside the Smith residence at the time the burglary occurred². Minutes later, an off-duty officer observed a vehicle matching the reported description traveling southbound away from the vicinity of the Smith residence at high speed, and noted the front grill was missing. When Deputy Iles, in the subject vehicle's reported direction of travel, received this distinctive description and then observed a vehicle matching the description at a location consistent with the time needed to travel to that point from the Smith residence, (i.e., less than a half-hour after the burglary was reported), he had knowledge of specific and articulable facts, which, taken together with reasonable inferences, certainly gave rise to reasonable suspicion of criminal activity. The presence of three persons in the car, rather than two, is a discrepancy that might reasonably be explained in any number of ways and does not defeat the assessment that Deputy Iles had reasonable grounds to investigate further. The investigative stop of Hurst's vehicle was not premised on a mere hunch, but on specific and articulable facts. Considering the totality of the circumstances, the investigative stop was clearly justified.

Next, defendant argues that even if the Terry stop was proper, justifying a reasonable search for weapons, the complete inventory search of his car without a warrant was not justified. The district court found, however, that defendant had voluntarily consented to the search. Although defendant denied having given consent at the suppression hearing, ...