U.S. v. Jones

• Decision Date: 16 April 2009
• Docket Number: No. 08-5771.,No. 07-5994.,07-5994.,08-5771.
• Citation: 562 F.3d 768
• Parties: UNITED STATES of America, Plaintiff-Appellant/Appellee, v. Tobias JONES, Defendant-Appellee/Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

562 F.3d 768

UNITED STATES of America, Plaintiff-Appellant/Appellee, v. Tobias JONES, Defendant-Appellee/Appellant.

No. 07-5994.

No. 08-5771.

United States Court of Appeals, Sixth Circuit.

Argued: September 15, 2008.

Decided and Filed: April 16, 2009.

ARGUED:

Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky,

for Plaintiff. Frank W. Heft, Jr., Western Kentucky Federal Community Defender, Inc., Louisville, Kentucky, for Defendant.

ON BRIEF:

Terry M. Cushing, Jo E. Lawless, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Plaintiff. Frank W. Heft, Jr., Laura R. Wyrosdick, Western Kentucky Federal Community Defender, Inc., Louisville, Kentucky, for Defendant.

Before: GUY, RYAN, and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court, in which GUY, J., joined. RYAN, J. (p. 777), delivered a separate opinion concurring in the judgment.

OPINION

McKEAGUE, Circuit Judge.

Charged with being a felon in possession of a firearm, defendant Tobias Jones made a pretrial motion to suppress key evidence against him. The district court granted the motion and the government now appeals. Jones also appeals the district court's denial of his motion to revoke its pretrial detention order. For the reasons that follow, we conclude the district court erred in granting the motion to suppress and we therefore reverse that ruling. We affirm the district court's decision to deny release pending appeal.

I

In the afternoon of November 29, 2006, Detective Jonathan Mattingly of the Louisville Metro Police Department was patrolling in his unmarked pickup truck in what was regarded as a drug-trafficking neighborhood in Louisville, near Seventh and Kentucky Streets. He noticed a maroon Nissan automobile traveling northbound on Seventh Street and watched as it came to a stop in front of a house at 1245 South Seventh Street. The car was occupied by a white female driver and two black male passengers. Mattingly saw one of the passengers, later identified as defendant Tobias Jones, exit the Nissan and enter the house. While Jones was in the house—his mother's house, as it turned out—the driver and the other passenger remained in the car with the engine running. After a couple of minutes, Jones came out and returned to the waiting car.

Based on his seven years' experience in law enforcement and his observation of these events, Mattingly suspected he could be witnessing an incident of "flagging."¹ Intending to make inquiry of the Nissan's occupants, Mattingly had in the meantime radioed for assistance. Before the Nissan could leave the curb, Mattingly pulled up in front of it, so that the front bumper of his pickup truck was about two or three feet from the Nissan's front bumper. Almost simultaneously, Detective Kevin McKinney arrived and pulled his car, also unmarked, up to within four or five feet behind the Nissan. As he pulled in behind the Nissan, McKinney turned on his emergency lights.

As the Nissan was thus hemmed in, Jones did not remain seated in the back seat of the Nissan. Rather, he opened the car door and "jumped out." It was at this point that Mattingly, having already noticed the confused, nervous, "like a deer in the headlights" look on Jones's face, also noticed a "lump" or "bulge" on Jones's person, "in the front," and saw him "acting weird ... kind of holding his stomach." Thinking that Jones was about to run, Mattingly identified himself as a police officer and ordered him to stop. Jones immediately complied. Mattingly then patted Jones down and discovered a .38 caliber pistol in the front pocket of Jones's hooded sweatshirt. He removed the pistol and continued the pat down, finding a 9 mm pistol in the waistband of Jones's pants. It was later determined that the second gun was reported stolen in Indiana. Mattingly also found a bag of marijuana in Jones's right front pants pocket, and McKinney found a bag of marijuana in the passenger compartment of the Nissan. As Mattingly applied handcuffs to Jones, Jones asked him to go easy, because he had been shot in the chest a couple of weeks earlier. Indeed, later examination revealed a number of staples securing a wound on Jones's chest and abdomen.

Jones was arrested and eventually charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Before trial, Jones moved the district court to suppress the firearms the police seized during the stop and the statements he made during the incident. Jones contended the officers did not have reasonable suspicion when they initiated the stop, rendering the Terry stop and pat-down search unreasonable and violative of his Fourth Amendment rights. Following an evidentiary hearing, the district court agreed and granted the motion to suppress, but refused to release Jones from detention. Both parties appeal.

II

On appeal from an order granting a suppression motion, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. McCauley, 548 F.3d 440, 443 (6th Cir.2008). Whether a seizure was reasonable under the Fourth Amendment is a question of law that must be reviewed de novo. United States v. Pearce, 531 F.3d 374, 379 (6th Cir.2008). A warrantless seizure is presumptively unreasonable, but "[t]he Supreme Court has identified three types of reasonable, and thus permissible, warrantless encounters between the police and citizens: (1) consensual encounters in which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked questions; (2) a temporary involuntary detention or Terry stop which must be predicated upon `reasonable suspicion;' and (3) arrests which must be based upon `probable cause.'" Id. at 380.

The manner in which officers Mattingly and McKinney originally approached the Nissan is not suggestive of a consensual encounter. In any event, a consensual encounter becomes a seizure when "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Circumstances indicative of a seizure include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id. at 554, 100 S.Ct. 1870. Here, by blocking in the Nissan, the officers had communicated to a reasonable person occupying the Nissan that he or she was not free to drive away. See United States v. Baldwin, 114 Fed.Appx. 675, 678 (6th Cir.2004) (concluding that seizure of occupants of parked park was effected when police vehicles pulled up in front of and behind vehicle, surrounding and blocking it). See also Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 2406-07, 168 L.Ed.2d 132 (2007) (holding that automobile passengers are seized during traffic stops even though the police command to stop is directed to the driver, because reasonable persons in the passenger seats would not feel free to move once the police have stopped the vehicle). Hence, in this respect, a warrantless "seizure" had occurred at the time the Nissan was hemmed in by the unmarked police vehicles.² We thus consider whether a brief investigatory Terry stop was justified by reasonable suspicion.

In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that an officer may conduct a brief investigatory stop of a person without a warrant if the officer has reasonable articulable suspicion that criminal activity is afoot. See Pearce, 531 F.3d at 380. Whether a temporary investigative detention is justified by such reasonable suspicion requires consideration of the totality of the circumstances. Id. The officer must have a particularized and objective basis for suspecting wrongdoing, but the likelihood of criminal activity need not rise to the level of probable cause. Id. Absent reasonable suspicion, such a brief investigatory seizure is impermissible and any evidence derived from the seizure would be subject to suppression. Id. at 381. We evaluate whether reasonable suspicion existed at the point of seizure, not at the point of attempted seizure. McCauley, 548 F.3d at 443.

The district court concluded that, at the time the Nissan was initially blocked in, the officers' observations of conduct in a drug-trafficking neighborhood consistent with flagging but otherwise innocent did not give rise to reasonable suspicion. On reconsideration, the government urged the court to consider also Mattingly's observations of Jones's frightened, "jumping out of the car" reaction as part of the totality of the circumstances. The district court adhered to its original ruling, stating that Jones's reaction was reasonable, not suggestive of criminal activity. Although the question is a close one, we conclude the district court's ruling is marked by two errors.

III

In its initial decision, the district court erred by limiting its consideration to the circumstances known to the officers as of the time when they initiated the seizure by hemming in the Nissan. Yes, at that point, the Nissan was seized, and so were its occupants—but only insofar as they can be deemed to have submitted to the officers' show of authority. Brendlin makes it clear that, generally, when a police officer pulls over a vehicle during a traffic stop, the officer seizes everyone in the vehicle, not just the driver. 127 S.Ct. at 2406-07. Yet, the Brendlin Court also observed, "there is no seizure without actual submission." Id. at 2405. Without actual submission, "there is at most an attempted seizure." Id. See also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that a seizure is not effected through...