U.S. v. Roberts

• Decision Date: 06 May 1993
• Docket Number: No. 92-5202,92-5202
• Citation: 986 F.2d 1026
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy ROBERTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1026

986 F.2d 1026

UNITED STATES of America, Plaintiff-Appellee, v. Tommy ROBERTS, Defendant-Appellant.

No. 92-5202.

United States Court of Appeals Sixth Circuit.

Argued Oct. 10, 1992.

Decided Feb. 26, 1993.

Rehearing and Rehearing En Banc

Denied May 6, 1993.

James E. Arehart, John M. Compton, Asst. U.S. Attys., Karen K. Caldwell, U.S. Atty., Lexington, KY, Jacquelyn A. Jess, Asst. U.S. Atty. (argued and briefed), Covington, KY, for plaintiff-appellee.

Mike Dean (argued and briefed), London, KY, for defendant-appellant.

Before: KENNEDY and MILBURN, Circuit Judges; and POTTER, Senior District Judge. ^*

KENNEDY, Circuit Judge.

Defendant Tommy Roberts appeals his conviction of possession with intent to distribute cocaine, carrying a firearm in relation to a drug trafficking crime, and possession of a firearm by a felon. On appeal he raises the following issues: (1) whether the District Court erred in finding that Kentucky State Troopers did not violate his Fourth Amendment rights when they stopped his car near his home for investigation; (2) whether there was sufficient evidence for the jury to find that the gun found in the car driven by defendant was used "in relation to" the drug trafficking offense; (3) whether remarks made during the government's closing argument denied defendant a fair trial; (4) whether the District Court erred in determining the total offense level for defendant under the United States Sentencing Guidelines. For the following reasons, we affirm the defendant's conviction and remand for resentencing.

I.

On the night of December 12, 1990, just before midnight, Kentucky State Police dispatcher, Steve House, received a call from a woman who stated that a man who rented from her, named Roberts, was drunk and fighting with his girlfriend on Curry Branch Road in Clay County, Kentucky. Dispatcher House then relayed the complaint to Troopers Steve Walker and Mark Hopkins, telling them that a Roberts subject was drunk, disorderly, and fighting on the Curry Branch Road. Approximately one hour later, after completing a previous call, the troopers responded to the complaint.

Trooper Walker knew defendant Tommy Roberts from previous arrests and had been to defendant's house five to ten times in the past to investigate similar complaints. Troopers Walker and Hopkins arrived at the defendant's residence just before 1:00 a.m., and observed that all the lights were out and there were no cars in the driveway. Trooper Walker believed defendant was probably in the vicinity, so the troopers decided to drive around in the area in an attempt to locate defendant. They also decided they would stop any cars they saw to ascertain if defendant was the driver. Approximately one quarter mile from the defendant's house, the troopers observed a white automobile being driven in the middle of the road and they saw the car swerve to the right. The troopers stopped the car and Trooper Walker recognized defendant as the driver of the vehicle. ¹

As Trooper Walker approached the car he shone his flashlight inside the car and saw a .38-caliber pistol in the front seat between defendant and a passenger. Walker talked to defendant and smelled alcohol on his breath. Walker then asked defendant to step out of the car, whereupon he administered three field sobriety tests which defendant failed. Walker placed defendant under arrest for driving under the influence of intoxicants. Pursuant to this arrest, Walker conducted a pat-down search of defendant and found two bags containing white powder that later tested positive for cocaine.

Defendant was charged with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); one count of using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The District Court denied defendant's motion to suppress the evidence obtained during the stop of his vehicle.

The jury returned a verdict of guilty on all three counts. Defendant was sentenced as a career offender to a term of incarceration of 262 months on Count One; a term of 60 months on Count Three, to be served concurrently with the sentence imposed on Count One; and a term of 60 months on Count Two, to be served consecutively with the sentences imposed on Counts One and Three.

II.

The defendant argues that the District Court erred in failing to suppress the gun and cocaine obtained as a result of the stop because neither the arresting officers, nor the police dispatcher who issued the bulletin to which the officers responded, had reasonable suspicion based on articulable facts to stop his car. This Court must apply the clearly erroneous standard to findings of fact when reviewing the ruling of a District Court on a motion to suppress evidence, United States v. Hughes, 898 F.2d 63, 64 (6th Cir.1990) (quoting United States v. Coleman, 628 F.2d 961 (6th Cir.1980)), and a de novo review of its legal conclusions. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). The facts known to Trooper Walker when he stopped the car were as follows:

1. Dispatcher House had received a complaint from Roberts' landlord which was relayed to Walker. House told Walker that Roberts was drunk and fighting.

2. After receiving this dispatch, the troopers arrived at Roberts' house and found no one home and no automobiles.

3. The troopers inferred that Roberts was out driving drunk.

4. Walker observed the car being driven in the middle of the road and that it swerved to the ditch line.

A police officer may make a brief investigatory stop of an individual so long as the stop is reasonably required. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Specifically, "the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). While the officer need not have probable cause to believe the individual has committed a crime or intends to commit a crime, the Fourth Amendment requires that the decision to stop the individual must be based on something "more substantial then inarticulate hunches." Terry, 392 U.S. at 22, 88 S.Ct. at 1880. In determining the validity of a challenged stop, "the totality of the circumstances--the whole picture--must be taken into account." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981).

In this case, Trooper Walker made a number of objective observations and possessed certain knowledge, all of which taken together gave him reasonable suspicion to stop Tommy Roberts' vehicle. Walker was answering a complaint that defendant and his girlfriend were drunk, disorderly and fighting; Walker had answered similar complaints involving defendant in the past; the house was dark and no cars were in the driveway; it was almost 1:00 in the morning; Walker observed a car one quarter mile from the defendant's residence which was being driven in the middle of the road and then swerved to the right. In Cortez, the Supreme Court noted that based on all the information available, "a trained officer draws inferences and makes deductions." Cortez, 449 U.S. at 418, 101 S.Ct. at 695. The Court stressed "the imperative of recognizing that, when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion." Id. at 419, 101 S.Ct. at 696. In light of Trooper Walker's previous experience with defendant, it was reasonable for him to infer that defendant was out driving drunk.

The District Court found that the troopers had reasonable suspicion, based upon the dispatch they received and the absence of persons or automobiles at the defendant's residence, to think that defendant was driving drunk. The District Court further found that the troopers had reasonable suspicion to think that defendant, by driving drunk, was committing a crime at the moment of the stop. The District Court's conclusions are supported by the record. ²

In support of his contention that a Fourth Amendment violation occurred, defendant relies on United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). This reliance is misplaced. In Hensley, the Supreme Court held that police may stop a person to investigate if they "have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony" id. at 229, 105 S.Ct. at 680 (emphasis added), but not for a completed misdemeanor. In this case, however, defendant was not stopped because the troopers suspected he was involved in a completed crime. The District Court correctly found that "the Troopers had reasonable suspicion to think that defendant, by driving drunk, 'was committing a crime at the moment of the stop.' " Joint App. at 46 (quoting Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)).

Thus, we agree with the District Court that Trooper Walker was entitled to stop Tommy Roberts. A difficulty arises however in that Walker did not know it was Roberts until Roberts stopped. The government argues that Roberts' erratic driving, commented on by the District Court, provided a justification for stopping the defendant's car. We agree. The dissent places great stress on the officers' intent to stop all cars. We must test the stop against the objective facts that relate to it, namely the erratic driving, not against what the officers may have intended to do even if there had been no erratic driving. Alternatively, it was inevitable...