U.S. v. Keith

• Citation: 559 F.3d 499
• Decision Date: 18 March 2009
• Docket Number: No. 07-5202.,07-5202.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan KEITH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

559 F.3d 499

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan KEITH, Defendant-Appellant.

No. 07-5202.

United States Court of Appeals, Sixth Circuit.

Argued: January 16, 2009.

Decided and Filed: March 18, 2009.

ARGUED: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Robert Kennedy McBride, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Robert Kennedy McBride,

Charles P. Wisdom, Jr., Assistant United States Attorneys, Lexington, Kentucky, for Appellee.

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

COLE, J., delivered the opinion of the court, in which GILMAN, J., joined. KENNEDY, J. (pp. ___ _ ___), delivered a separate dissenting opinion.

OPINION

COLE, Circuit Judge.

Jonathan Keith pleaded guilty to several counts, including possession of crack cocaine with intent to distribute and possession of a firearm in furtherance of drug-trafficking. He reserved the right to appeal the district court's denial of his motion to suppress evidence obtained as a result of an investigatory Terry stop. He claims that the officer who stopped him lacked the requisite reasonable suspicion of criminal conduct. He also asserts that the district court committed errors at sentencing. For the following reasons, we REVERSE the district court's denial of Keith's motion to suppress evidence. This renders the sentencing issues moot.

I. BACKGROUND

At 1:45 a.m. on March 29, 2006, Newport, Kentucky police officers Gregory Ripberger and Leonard Stephens were on patrol. They had just finished assisting with an arrest (unrelated to this case) and were standing on a corner next to multiple marked police cars with their lights flashing. On the opposite corner of the intersection, about fifty yards away, was "Big Daddy's" liquor store. The officers could see the two sides of the building facing the intersecting streets: one side was the front of the store, and the other side contained a drive-through window sheltered by an overhang. They were not surveilling Big Daddy's in particular, but the officers could see the store clearly. Their unit dealt frequently with narcotics crimes, and the officers knew that, in addition to the standard liquor-store fare, Big Daddy's sold certain items that could be used to smoke crack cocaine, including filters and glass vials. Officer Ripberger had effected narcotics arrests in the surrounding area before, and, based on his "experience and training as a Newport police officer," he considered "Big Daddy's and [its] parking lot to be a high drug trafficking crime area." (Joint Appendix "JA" 74.)

As they stood on the corner, the two officers observed a man on foot, later identified as Brandon Crawford, approach a car that had pulled up to the Big Daddy's drive-through window. Another man, later identified as Keith, was in the driver's seat of the car. Officer Ripberger testified that Crawford "walked up to the vehicle and appeared to start talking to the driver, stuck his head inside the [passenger-side window of] the vehicle, and at one point in time he looked back at us and then removed himself from the vehicle that he was leaning into." (JA 77, 97.) His head was in the car "[j]ust a few brief seconds." (JA 78.) The car then pulled away from the drive-through window. The testimony of Officer Ripberger suggests that Keith did not pull out of the drive-through line prior to reaching the drive-through window: "[Crawford] approached a silver Pontiac that was parked in the drive-through at the window." (JA 77-78 (emphasis added).) Additionally, Officer Stephens stated twice that he was uncertain whether Keith had purchased something in the drive-through; if Keith had pulled out of line prior to reaching the window, Officer Stephens would have been certain that Keith had not purchased anything. Rather than leaving the parking lot through an exit near the drive-through window, Keith turned and drove across the parking lot in front of Big Daddy's, turned again at the corner of the building, and proceeded along the side of the store, which the officers could not see from their vantage point. The officers were aware that there were parking places and a dumpster located on that side of Big Daddy's.

At the suppression hearing, the officers repeatedly spoke of Keith going "behind" Big Daddy's, but the south side of the building, which is where the officers lost sight of Keith, is more accurately described as the "side" of the Big Daddy's because the building's facade faces westward onto Central Avenue. Keith was only "behind" Big Daddy's from the perspective of the officers, who were looking at the store from the northwest. As Keith was driving around the building, Crawford also walked across the front of Big Daddy's toward the south side of the building, and, while doing so, he looked in the officers' direction again. Officer Ripberger interpreted this as an attempt "to see what [the officers] were doing." (JA 78-79.) When Crawford reached the corner of the building he turned, and the officers lost sight of him on the far side of the building. Officer Stephens testified that Keith's car was out of their sight for "a few seconds," and Crawford was out of sight for "[j]ust a few seconds." (JA 123-24, 132.) In his incident report, Officer Ripberger stated that Crawford was out of sight and then appeared again "within seconds." (JA 102.) Ripberger testified that Keith's car was out of sight for approximately fifty seconds. (JA 102.) Both officers acknowledged that they did not know if the two men had any contact on the far side of the building. Officer Ripberger testified that he and Officer Stephens suspected that the two men had met on the side of the building to engage in a drug deal or exchange alcohol that had been purchased for someone under age. Accordingly, the officers entered their respective patrol cars intending to confront the two individuals.

When Keith's car emerged from the far side of the building, it exited the parking lot and drove into the street. Officer Ripberger followed Keith and stopped his car, based solely on his suspicion that some kind of criminal activity had occurred in the few seconds that the officers had lost sight of Keith and Crawford (Keith did not commit any kind of traffic infraction). Officer Ripberger then ran a check on Keith's driver's license and learned that it was suspended. He also viewed what appeared to be marijuana in plain sight in the car. A subsequent search of Keith's car revealed a gun, and a later body-cavity search revealed approximately 19.8 grams of cocaine base hidden in Keith's rectum. Officer Stephens conducted a separate stop of Crawford, found nothing suspicious on him, and allowed him to go.

Keith was charged in a five-count indictment with: 1) possession with intent to distribute crack cocaine; 2) possession of a firearm by a convicted felon; 3) possession of a firearm in furtherance of drug-trafficking; 4) forfeiture of firearm and currency; and 5) forfeiture of firearm. Claiming that Officer Ripberger did not have reasonable suspicion to believe that he had engaged in criminal activity, Keith moved to suppress the fruits of the initial stop of his car. He did not challenge any of the officers' actions subsequent to the stop and does not make any such challenge on appeal. A magistrate judge issued a Report and Recommendation denying the motion to suppress, and the district judge adopted the Report and Recommendation in full. Keith entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion.

II. ANALYSIS

A. Standard of review

In reviewing a district court's decision on a motion to suppress, we review factual findings for clear error and the application of the law to those findings de novo. United States v. Garcia, 496 F.3d 495, 502 (6th Cir.2007). We "`must consider evidence in the light most likely to support the district court's decision[.]'" Id. (quoting United States v. Marxen, 410 F.3d 326, 328 (6th Cir.2005)). Keith does not challenge the facts as stated by the magistrate judge and the district court— the issue before us is the application of the law to those facts.

B. Legal standard for existence of reasonable suspicion

A Terry stop is permissible only if law enforcement officers had a "particularized and objective basis for suspecting the particular person stopped of criminal activity," United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), and "were aware of specific and articulable facts which gave rise to reasonable suspicion." United States v. Davis, 514 F.3d 596, 608 (6th Cir.2008) (internal quotation marks omitted). Reasonable suspicion does not materialize merely because a person "looked suspicious" and was in a "high drug problem area." Brown v. Texas, 443 U.S. 47, 49, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime."). "An officer must not act on an `inchoate and unparticularized suspicion or `hunch,' but [on] the specific reasonable inferences [] which he is entitled to draw, from the facts in light of his experience.'" United States v. Urrieta, 520 F.3d 569, 573 (6th Cir.2008) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We consider the totality of the circumstances to determine the reasonableness of the stop. Id.

In United States v. Urrieta, we reversed a district court's denial of a motion to suppress evidence in the context of a stop and detention of a motorist suspected of drug-trafficking. 520 F.3d at 579. Urrieta was driving a sports utility vehicle ("SUV") fully packed with belongings and towing another car packed similarly. Id. at...