U.S. v. Marxen

• Decision Date: 14 June 2005
• Docket Number: No. 04-6053.,04-6053.
• Citation: 410 F.3d 326
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Uriah MARXEN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 326

410 F.3d 326

UNITED STATES of America, Plaintiff-Appellant, v. Uriah MARXEN, Defendant-Appellee.

No. 04-6053.

United States Court of Appeals, Sixth Circuit.

Argued: May 11, 2005.

Decided and Filed: June 14, 2005.

ARGUED: Thomas W. Dyke, Assistant United States Attorney, Louisville, Kentucky, for Appellant. Laura R. Wyrosdick, Office of the Federal Public Defender, Louisville, Kentucky, for Appellee. ON BRIEF: Thomas W. Dyke, Terry M. Cushing, Assistant United States Attorneys, Louisville, Kentucky, for Appellant.

Before: SILER and ROGERS, Circuit Judges; REEVES, District Judge.^*

OPINION

REEVES, District Judge.

The United States appeals the district court's order suppressing evidence seized following a traffic stop of Appellee Uriah Marxen's vehicle and statements that Marxen made following his arrest. Because we conclude that the district court erred in suppressing the subject evidence and statements, we reverse the district court's determination and remand this action for further proceedings.

BACKGROUND

On August 3, 2002, two persons described as a tall, thin black man and a white woman committed an armed robbery of a Dairy Mart convenience store located on Bardstown Road in Louisville, Kentucky. A witness to the robbery stated that the robbers were driving a silver or gray Nissan Altima with license number 002 FCJ. Detective Mark Hickman of the Louisville Police Department ("LPD") investigated the crime. Shortly after the robbery was reported, a police dispatcher sent out a description of the Altima, but indicated that the license number was 002 5CJ. However, in his subsequent report, Detective Hickman described the vehicle as a Toyota rather than Nissan. Detective Hickman later testified that this was simply an error on his part, inasmuch as the only information that he had been given during his investigation was that the car was an Altima.

Police determined that Uriah Marxen owned a Nissan Altima bearing license number 002 FCJ. However, Marxen—a white male—did not match the description of either of the alleged Dairy Mart robbers. On August 8, 2002, detectives from the LPD met with detectives from the Jefferson County Police Department ("JCPD") to discuss the Dairy Mart robbery and a similar string of robberies that had occurred within their jurisdiction. Based on these discussions, the detectives decided to conduct intermittent surveillance of Marxen. During this surveillance, Marxen did nothing suspicious and was not observed meeting with individuals fitting the reported description of the robbers.

On August 14, 2002, eleven days after the Dairy Mart robbery and six days after Marxen was placed under surveillance, police stopped Marxen's Nissan. Although Marxen had not committed any traffic violations, Detective Holt of the Street Crimes Unit of the LPD removed him from the driver's seat of the vehicle and immediately placed him in handcuffs. The traffic stop was accomplished by blocking Marxen's vehicle with several police cars. As Detective Holt approached Marxen's door, he observed what appeared to be a marijuana pipe on Marxen's lap. After Marxen was removed, officers discovered a bag of marijuana in a pocket beside the steering wheel. Following the discovery of marijuana in his vehicle, Marxen was placed under arrest for drug possession and taken into custody where he confessed to his involvement in several robberies, including the robbery of the Dairy Mart on August 3, 2002. Marxen was indicted on multiple counts of violating the Hobbs Act 18 U.S.C. § 1951(b)(1). In addition, Marxen was charged with four counts of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).

Marxen filed a motion to suppress the evidence obtained as a result of the stop of his vehicle. And in a separate motion, Marxen sought to suppress all statements that he made following his arrest.¹ A hearing on these motions was conducted before a magistrate judge who recommended that they be granted. The district court ultimately suppressed the evidence seized from the car and the confession over the United States' objections. The court found that the stop of Marxen's vehicle was unlawful because the police lacked reasonable suspicion to conduct a traffic stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

STANDARD OF REVIEW

When reviewing a motion to suppress, this court must consider evidence "in the light most likely to support the district court's decision," i.e., in this case, in a light most favorable to Marxen. United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999) (internal quotation omitted). "[A] district court's factual findings are accepted unless they are clearly erroneous; however, the district court's application of the law to the facts, such as a finding of probable cause, is reviewed de novo." United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir.1994) (citing United States v. Thomas, 11 F.3d 620, 627 (6th Cir.1993)). A district court's decision is clearly erroneous when, although there is evidence to support the finding, "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Moreover, "[w]here there are two permissible views of the evidence" the district court's conclusions "cannot be clearly erroneous." Id. at 574, 105 S.Ct. 1504.

DISCUSSION

The district court concluded that the initial stop of Marxen's vehicle was not justified. In recommending that the motions to suppress be granted, the magistrate judge noted that all the police knew at the time they stopped the vehicle was that it had been used in the commission of a robbery. However, the magistrate judge focused on the fact that Marxen's description did not match that of the suspected robbers and that the robberies occurred eleven days prior to stop. The magistrate judge opined that the "police grew tired of waiting for Mr. Marxen to make a misstep and simply decided to pick him up at a time when he could be apprehended easily and with the least amount of risk to them."

The United States contends that the officers who had been investigating the Dairy Mart armed robbery had reasonable suspicion, if not probable cause, to stop Marxen's car because the vehicle had been identified as the getaway car in an armed robbery. Also, because this would make the stop lawful, the United States argues that the district court erred in granting Marxen's suppression motions.

An investigatory stop of a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion. Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868. Since an investigatory stop is less intrusive to one's personal security than an arrest, the level of suspicion necessary for such a stop is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). For purposes of determining whether reasonable suspicion exists, the Supreme Court has instructed that a reviewing court must consider the totality of circumstances to determine whether the detaining officer has a "particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations omitted). In considering all the circumstances, the question is not whether there is a possible innocent explanation for each of the factors, but whether all of them taken together give rise to reasonable suspicion that criminal activity may be afoot. Id. at 274-75, 122 S.Ct. 744.

In Terry, the Supreme Court focused its discussion on brief investigatory stops made by police officers on the basis of reasonable suspicion not amounting to probable cause for arrest. There, the reasonable suspicion arose from conduct observed by the officer who made the stop. In subsequent cases, however, the Court has clarified that a Terry stop is also permissible where the stop relates to a crime already completed and where the information supplying the reasonable suspicion comes from another person rather than the officer's personal observations. See United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (holding that an officer has the authority to make a Terry stop "when [he] has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity") (quoting United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)); United States v. Cortez, 449 U.S. 411, 417, n. 2, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

In Hensley, police stopped an automobile based on information obtained from a flyer indicating that Hensley was "wanted" for investigation regarding an armed robbery that had occurred twelve days earlier. The department issuing the flyer had information that Hensley had driven the getaway car in the robbery but had been unable to locate him for questioning. The Supreme Court held that, in those instances "where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice." Hensley, 469 U.S. at 229, 105 S.Ct. 675. Further, the court noted that restraining police action until after probable cause is obtained would not only hinder the investigation but might also enable the suspect to flee and remain at large. In concluding that the stop of Hensley's vehicle to investigate his involvement in a past crime was a lawful Terry stop, the Court held that, in those circumstances, "[t]he law enforcement interests ... outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible...