United States v. Cochrane

• Decision Date: 20 December 2012
• Docket Number: Nos. 11–4081,11–4082.,s. 11–4081
• Citation: 702 F.3d 334
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth Kevin COCHRANE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

702 F.3d 334

UNITED STATES of America, Plaintiff–Appellee,

v.Kenneth Kevin COCHRANE, Defendant–Appellant.

Nos. 11–4081, 11–4082.

United States Court of Appeals,Sixth Circuit.

Argued: Nov. 27, 2012.

Decided and Filed: Dec. 20, 2012.

ARGUED:John R. Broderick, James Lewis Woolard, Jr., University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellant. Laura McMullen Ford, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF:John R. Broderick, James Lewis Woolard, Jr., University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, Melissa M. Salinas, Office of the Federal Public Defender, Toledo, Ohio, for Appellant. Laura McMullen Ford, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: CLAY and STRANCH, Circuit Judges; BELL, District Judge. ^*

OPINION

CLAY, Circuit Judge.

Defendant Kenneth K. Cochrane Jr. appeals his conviction and sentence for one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), as well as the consecutive sentence imposed for violating the terms of his supervised release. Defendant argues that police violated the Fourth Amendment by unreasonably prolonging a traffic stop and conducting a search of his vehicle without voluntary consent. Defendant further asserts that his sentence is procedurally unreasonable because the district court failed to clearly articulate a rationale for imposing consecutive sentences. For the reasons that follow, we AFFIRM Defendant's conviction but VACATE his sentence and REMAND for resentencing.

BACKGROUND

While on routine patrol on February 4, 2011, four members of the Violent Gun Reduction Interdiction Program (“VGRIP”), a task force that focuses on drug and gun crime in and around Youngstown, Ohio, stopped Defendant's SUV for a purported stop-sign violation. After a police dog alerted to the presence of narcotics in the vehicle, the officers searched it but turned up no evidence of drugs. Defendant was given a warning about the stop-sign violation and sent on his way.

Approximately five weeks later, on March 15, 2011, the same officers—three Youngstown police officers and one federal agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, again on routine patrol in an unmarked car—observed Defendant driving his vehicle. One of the officers noticed that Defendant's SUV did not have a license plate on the front of the vehicle, as required by Ohio law. Without activating their lights or siren, the officers followed Defendant to the parking lot of an apartment complex where Defendant's fiancé and two children were known to reside.

Defendant had already parked his SUV, exited, and had begun walking toward the apartment building when the officers pulled up behind the SUV. As the officers arrived, they turned on their lights to initiate a traffic stop. The officers quickly ordered Defendant to turn around and return to his vehicle. Defendant casually walked back to his vehicle, and the officers could see that he was not carrying any weapons. Defendant met Youngstown Police Lieutenant Kevin Mercer near the rear driver's side of Defendant's SUV and, according to Mercer, had “a brief, couple sentence conversation.” (R. 25, Suppression Hrg. Tr. 15–16.) Mercer testified that he asked what Defendant was doing. Defendant asked why he was stopped, and Mercer responded that he did not have a front license plate. Mercer then asked Defendant if he had any drugs or guns in the vehicle, a question which he routinely asks during traffic stops, and Defendant responded that he did not. Mercer then said, “You know we're gonna want to look.” ( Id. at 27.) Mercer testified that Defendant then said “go ahead,” but Defendant denies making this statement.

Having been told to “go ahead” and search the vehicle, Mercer informed the other officers that Defendant had consented to the search. One of the officers opened the front passenger door and, approximately “five or ten seconds” into the search, noticed the end of a silver gun barrel protruding from behind the center console. Defendant was then placed under arrest for improper handling of a firearm in a vehicle, read his Miranda rights, and placed in the back of the officers' patrol car. When he was in the backseat of the police cruiser, one of the officers asked for Defendant's driver's license, ran the license, and checked the SUV's registration. The record is unclear as to when Defendant received a traffic citation—whether at the scene, later that day at the police station, or (as he claims) three days later—but a citation was ultimately issued.

On April 6, 2011, Defendant was indicted on one count of being a felon in possession of a firearm. Defendant had previously been convicted of bank fraud, for which he was serving a term of supervised release at the time of his firearms conviction. Defendant moved to suppress the firearm, arguing that it was obtained as a result of an unconstitutional traffic stop and subsequent search without his consent. The district court denied the motion, and a jury convicted Defendant of the sole count in the indictment.

Defendant's firearms conviction constituted an automatic violation of the terms of his supervised release. Therefore, the district court imposed sentences for both the firearms conviction and the supervised release violation. At the sentencing hearing, Defendant's counsel requested that the two sentences run concurrently. The extent of the district court's discussion of the issue is as follows:

[W]hat I'm going to do in the case that we're in trial on [the firearms conviction], is place you in the custody of the Bureau of Prisons to be imprisoned fear [sic] a term of 41 months, $100 special assessment, to be followed by three years of supervised release. And on the violation [of supervised release], I'm going to place you in the custody of the Bureau of Prisons for 12 months to be served consecutive to the sentence in this case, and with the three years of supervised release to run concurrent with the three years of supervised release in the trial.

(No. 4:08–cr–00410–1, R. 21, Sentencing Hrg. Tr. 22.) Defendant timely appealed his conviction and both sentences.

DISCUSSION

I. Suppression of the Firearm

“When reviewing a district court's decision on a motion to suppress, we use a mixed standard of review: we review findings of fact for clear error and conclusions of law de novo.” United States v. See, 574 F.3d 309, 313 (6th Cir.2009). In particular, “[w]hether a seizure is reasonable under the Fourth Amendment is a question of law that we review de novo.” United States v. Evans, 581 F.3d 333, 340 (6th Cir.2009). “When a district court has denied a motion to suppress, this Court reviews the evidence in the light most likely to support the district court's decision.” United States v. Adams, 583 F.3d 457, 463 (6th Cir.2009) (internal quotation marks omitted).

A. The Traffic Stop

“Stopping and detaining a motorist constitutes a seizure within the meaning of the Fourth Amendment.” United States v. Bell, 555 F.3d 535, 539 (6th Cir.2009) (internal quotation marks omitted). Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), this Court must determine whether the stop was “justified at its inception,” and then “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 19–20, 88 S.Ct. 1868. Defendant does not dispute that the initial stop was justified; he admits that his vehicle lacked a front license plate in contravention of Ohio law. He argues, however, that the scope of the officers' conduct was not reasonably related to his violation of the traffic laws.

A valid Terry stop must be “limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see also United States v. Everett, 601 F.3d 484, 488 (6th Cir.2010). To be limited in scope, “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.” Royer, 460 U.S. at 500, 103 S.Ct. 1319. To be limited in duration, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Id.

During a valid traffic stop, police officers may ask extraneous questions unrelated to the purposes of the stop, “so long as those inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (citing Muehler v. Mena, 544 U.S. 93, 100–01, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005)). Applying Muehler and Johnson, we have declined to impose “a categorical ban on suspicionless unrelated questioning that may minimally prolong a traffic stop.” Everett, 601 F.3d at 492. Instead, we concluded that a reviewing court “must conduct a fact-bound, context-dependent inquiry in each case” to determine whether the “ ‘totality of the circumstances surrounding the stop’ indicates that the duration of the stop as a whole—including any prolongation due to suspicionless unrelated questioning—was reasonable.” Id. at 493–94 (quoting United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir.2008)).

The key to this inquiry is “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Id. at 494 (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)). “[T]he overarching consideration is the officer's diligence—i.e., his persevering or devoted ... application to accomplish [the] undertaking of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket.” Id. (internal quotation marks and emphasis omitted); see also United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir.2011) (“In the context of traffic stops, police diligence...