U.S. v. Nichols

• Decision Date: 15 January 2008
• Docket Number: No. 06-5862.,06-5862.
• Citation: 512 F.3d 789
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elbert G. NICHOLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

512 F.3d 789

UNITED STATES of America, Plaintiff-Appellee, v. Elbert G. NICHOLS, Defendant-Appellant.

No. 06-5862.

United States Court of Appeals, Sixth Circuit.

Argued: October 25, 2007.

Decided and Filed: January 15, 2008.

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

Before: BOGGS, Chief Judge; KENNEDY, Circuit Judge; and JORDAN, District Judge.^*

OPINION

BOGGS, Chief Judge.

Elbert Nichols entered a conditional guilty plea to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924, reserving his right to appeal the district court's denial of his suppression motion. On appeal, he raises three arguments: (1) that the police officer's decision to run a warrant check on him was based on his race, violating the Equal Protection Clause of the Fourteenth Amendment; (2) that the search of his vehicle incident to his arrest violated the Fourth Amendment; and (3) that the questioning by the police after his arrest violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Finding no constitutional violations that would vitiate Nichols's conviction, we AFFIRM the judgment of the district court.

I

In the early morning hours of September 9, 2004, Metro Nashville Police Department Officers Aaron Wigginton and Yannick Deslauriers were on patrol in the West Nashville area near Tennessee State University. Officer Wigginton "saw a vehicle that kind of grabbed [his] attention." There were some men standing around the car who "quickly walked away" as the officer drove by. Officer Wigginton radioed to Officer Deslauriers: "I kind of alerted him that there was a vehicle up here that appeared as the people were kind of standing around it and didn't want to hang around, they avoided me. I gave him the tag off the car." Responding to this radio call, Officer Deslauriers then "ran the tag over [his] computer in the car," which provided information from two systems—the National Crime Information Center (NCIC) and a Tennessee state system. The NCIC system responded first, and "nothing came back as suspicious," so the officers "moved on" and continued patrolling the area for a few minutes. Officer Deslauriers passed by the location where the vehicle was parked and apparently saw the men trying to avoid him as well.¹

After a few minutes, the state system in Officer Deslauriers's patrol car responded and reported that the vehicle was registered to "Elbert Nichols?' Officer Deslauriers then "decided to run Elbert Nichols on our warrant system ... [and] it came back with having a [robbery] warrant on a male black. We had driven by the location and seen that there was two black guys in the yard next to the car." The officers positioned themselves to watch the vehicle. After a few minutes, the car started to drive away, and the officers executed a stop by turning on their blue lights. As they approached the vehicle, they could see that the passenger was quite agitated and kept yelling at the driver to "stomp it" or "punch it." Officer Deslauriers recognized the passenger as Elbert Nichols from the mug shot that had come up on his computer system. The driver made clear that he was not, going to try to run, and Officer Deslauriers then took Nichols into custody and placed him in the back of his patrol car. Officer Deslauriers informed Nichols of his Miranda rights and advised him he was under arrest for the outstanding robbery warrant. Nichols stated that he understood his rights, but denied that he was Elbert Nichols, even when the officer pointed out his mug shot on the computer system.

Officer Deslauriers then proceeded to search the vehicle and discovered a loaded .38-caliber handgun in the glove box directly in front of where Nichols had been sitting. The glove box was locked, but the officer opened it with a set of keys found at the scene.² Officer Deslauriers testified that the search lasted "[a] couple minutes. Not very long." After recovering the gun, Officer Deslauriers returned to his patrol car and confronted Nichols with it. Initially, Nichols continued to deny that he was Elbert Nichols. However, as Officer Deslauriers began to do the arrest report, and engaged Nichols in "general conversation about the paperwork," Nichols soon dropped the charade and admitted his identity, but insisted that the robbery warrants were a mistake. In response to the district court's inquiry regarding how long the defendant had denied his identity, Officer Deslauriers testified, "Several minutes while I spoke to him initially. Even after I searched the car. He finally admitted— I think he had a mole on his face. Finally he just got tired, I assume." Later, as he was being transported back to the police station, Nichols "refused to be interviewed any further."

On the basis of these facts, the district court refused to suppress any of the evidence. Regarding the alleged equal protection violation, the court held that the defendant had failed to establish a prima facie case that race was a motivating factor in the actions of the officers since the defendant's evidence was essentially no more than "that [the officers were] white and [were] patrolling in a predominantly black neighborhood...:" The court next summarily rejected Nichols's argument that the search of a locked glove box exceeded the proper scope of a search incident to arrest, citing Seventh Circuit cases holding that such a search was permissible under prevailing Supreme Court precedent. Finally, the district court rejected Nichols's Miranda argument, concluding that the "Defendant's repeated denials of his identity were not refusals to answer all police questions. Rather, Defendant wished to, and did, communicate affirmatively with the police officers by making statements to them which he believed furthered his self-interest." The court therefore concluded that Nichols impliedly waived his right to remain silent.

Having failed in his motion to suppress, Nichols entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2) and appealed to this court.

II

"When reviewing the denial of a motion to suppress, [this court] review[s] the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Foster, 376 F.3d 577, 583 (6th Cir.2004). "A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999). Additionally, the evidence produced at a suppression hearing must be viewed "in the light most likely to support the district court's decision." Ibid.

A

Nichols first contends that Officer Deslauriers's decision to run a warrant check on the name "Elbert Nichols" was motivated by race, claiming that Officer Deslauriers presumed Nichols to be black. Appellant's Br. at 19-20. Nichols relies principally upon United States v. Avery, 137 F.3d 343 (6th Cir.1997), in asserting this claim. Avery involved the surveillance of a young black male by narcotics officers in the Cincinnati airport based on what they perceived to be suspicious behavior. 137. F.3d at 346. The defendant in that case was eventually discovered to be transporting illegal drugs; he moved to suppress the evidence claiming that the "officers targeted, pursued and interviewed him solely due to his race." Id. at 346-47. Although the court ultimately determined that there was no equal protection violation, it elaborated on the applicable doctrine in an oft-repeated dictum:

[W]e find that citizens are entitled to protection of the laws at all times. If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred.

Id. at 355,³ Avery, in turn, relied on earlier dicta in this court's decision in United States v. Travis, 62 F.3d 170, 173-74 (6th Cir.1995), where we noted that consensual encounters initiated solely on the basis of race may violate the. Equal Protection Clause. Although not binding, these cases support the view that checking individuals for outstanding warrants in an intentionally racially discriminatory manner may violate the Equal Protection Clause. See also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (noting that the Equal Protection Clause prohibits "selective enforcement of the law based on considerations such as race").

While we, of course, agree with the general proposition that selective enforcement of the law based on a suspect's race may violate the Fourteenth Amendment, we do not agree that the proper remedy for such violations is necessarily suppression of evidence otherwise lawfully obtained. The exclusionary rule is typically applied as a remedy for Fourth Amendment violations, which Amendment does not apply to pre-contact investigatory steps like that presented here (the decision to run a warrant check). See Avery, 137 F.3d at 353 ("[A]n officer's actions during the pre-contact stage cannot give rise to Fourth Amendment constitutional concerns because the citizen has not yet been `seized.'"). Even if the Fourth Amendment were implicated, any challenge to a search or seizure based on legitimate probable cause, but in which it is alleged the officer's subjective motive was discriminatory, is doomed to fail. See Whren, 517 U.S. at 813, 116 S.Ct. 1769 (...