United States v. Gross

Decision Date15 June 2011
Docket NumberNo. 08–4051.,08–4051.
Citation662 F.3d 393
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Demetrion GROSS, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit


ON BRIEF: Nathan A. Ray, Burdon & Merlitti, Akron, Ohio, for Appellant. Daniel R. Ranke, Assistant United States Attorney, Cleveland, Ohio, for Appellee.Before: MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.*MARBLEY, D.J., delivered the opinion of the court, in which MARTIN, J., joined. GIBBONS, J. (pp. 408–15), delivered a separate opinion concurring in part and dissenting in part.


ALGENON L. MARBLEY, District Judge.

Defendant-appellant Demetrion Gross appeals the criminal judgment and 180–month sentence issued by the district court upon his guilty plea to being a felon in possession of a firearm. Gross challenges the district court's denial of a motion to suppress evidence based on an alleged unlawful seizure. He also disputes the determination that he was an armed career criminal under 18 U.S.C. § 924(e), arguing that a prior conviction for escape was not necessarily a “violent felony” under the Armed Career Criminal Act (“ACCA”).

For the following reasons, we affirm the district court's denial of Gross's motion to suppress as to the DNA swab and confession, reverse the district court's denial of Gross's motion to suppress as to the firearm, vacate the sentence imposed, and remand to the district court for further proceedings.


In the early morning hours of November 15, 2007, Cuyahoga Metropolitan Housing Authority Police Officer Eric Williams was on general patrol of high-crime areas of high- and low-rise public housing. While passing through the parking lot of one of the housing complexes, Williams encountered a legally parked Oldsmobile automobile with the engine running but no apparent driver. Williams, however, noticed a barely-visible passenger who was slumped down in the front-passenger seat of the vehicle. He checked the vehicle's license plates against an electronic database and discovered that there were no outstanding warrants or issues related to the owner of the car. Williams then parked his police vehicle directly behind the Oldsmobile and turned on his vehicle spotlights. He observed the passenger react to the spotlights by sitting up abruptly and then slumping down further in his seat. Williams then exited his police vehicle and approached the passenger side of the Oldsmobile by foot.

Williams encountered Gross sitting in the passenger seat and introduced himself by speaking through the closed passenger window. Gross then cracked the door to speak to Williams. Williams asked what he was doing in the area, and Gross replied that he was “over [at] his girlfriend's house.” During the course of the conversation, Williams noticed a partially consumed bottle of Remy Martin cognac located on the passenger side of the center console. When Williams asked for identification, Gross said that he did not have any identification on him but he could get it if he could go into the house. Williams advised that it would not be necessary to do so if Gross would provide his name, date of birth, and social security number. After Williams asked for them several times, Gross verbally gave Williams his identifying details.

Williams ran a warrant check, which revealed that Gross had an outstanding felony warrant for carrying a concealed weapon. He then advised Gross that he was under arrest, asked him to step from the vehicle, and took Gross into custody by handcuffing him. Williams briefly patted down Gross but did not conduct a search incident to arrest at the scene. Williams then transported Gross to the sheriff's department.

When Williams and Gross arrived at the sally port of the sheriff's department, Gross was searched again and passed through a metal detector. The metal detector went off, but, despite repeated attempts to locate the metal object triggering the detector and repeated passes through the machine, the officers were unable to locate the source of the problem. Gross was then escorted into the police bullpen, where he immediately asked to use the restroom. Gross entered a restroom pod that obscured Williams's view of Gross from the shoulder down.

A short time later, officers discovered a .380 caliber firearm near the toilet that Gross had used. An investigation into how the firearm entered the jail revealed that Gross was the only inmate from the street to have access that day to the pod where the gun was located. On November 19, 2007, four days after Gross's arrest, and while Gross was still detained, officers advised Gross of their investigation of the firearm and informed him of his Miranda rights. Gross then waived his Miranda rights, said that he knew who brought the weapon into the jail, but denied that it was his. The officers requested that Gross consent to a DNA test, but Gross refused. The following day, a search warrant was obtained to take an oral swab for the collection of DNA evidence. After taking the swab, DNA analysis revealed that genetic material taken from the firearm and its ammunition matched Gross's DNA.

On January 17, 2008, approximately two months after his arrest and while still detained, Gross, of his own accord, contacted Bureau of Alcohol, Tobacco, and Firearms Agent (ATF) Kimani Howell, to whom he had been previously introduced, and requested a meeting. On January 18, 2008, Agent Howell met with Gross and again advised him of his Miranda rights. Gross again waived his Miranda rights and gave a statement admitting to bringing the firearm into the police bullpen.

Gross was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Gross initially entered a plea of not guilty. He then filed a motion to suppress “all evidence obtained after the initial stop of the Defendant ... that the government intends to introduce at trial.” Gross's suppression motion was denied by the district court.

Gross thereafter pled guilty pursuant to a written plea agreement with the government. In the plea agreement, Gross reserved the right to appeal the district court's denial of his motion to suppress. The plea agreement also noted that one of the bases for his eligibility for a 15–year minimum sentence under the Armed Career Criminal Act might be impacted by a legal question then pending before the Supreme Court. That question dealt with whether an escape conviction based on a failure to report qualified as a violent felony under the Act. See Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). The plea agreement therefore provided:

If the presentence report determines that the defendant's escape convictions, which are referenced in the Indictment, rest solely on his failure to report to a penal institution or halfway house and the Supreme Court determines that an escape conviction based solely on the failure to report does not qualify as a violent felony, then the defendant understands that he will not be an Armed Career Criminal, as that term is defined in 924(e)(1). In that case, the defendant agrees that his base offense level will be 24 pursuant to [United States Sentencing Guidelines (“U.S.S.G.”) ] Section 2K2.1.

The district court concluded that Gross was an armed career criminal under 18 U.S.C. § 924(e) and, pursuant to U.S.S.G. § 4B1.4, sentenced Gross to 180 months imprisonment concurrent with a state sentence then being served. Gross timely filed a notice of appeal.


When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Gross, 550 F.3d 578, 582 (6th Cir.2008) (citing United States v. Simpson, 520 F.3d 531, 534 (6th Cir.2008)). We further review de novo “the district court's determination as to whether certain facts establish a seizure or detention in violation of the Fourth Amendment.” United States v. Waldon, 206 F.3d 597, 602 (6th Cir.2000); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ([A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.”). “When a district court has denied the motion to suppress, we must ‘consider the evidence in the light most favorable to the government.’ United States v. Pearce, 531 F.3d 374, 379 (6th Cir.2008) (quoting United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) ( en banc )).


This Court has explained that there are three types of permissible encounters between the police and citizens: (1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if nonconsensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause.’ Waldon, 206 F.3d at 602 (quoting United States v. Avery, 137 F.3d 343, 352 (6th Cir.1997)).

Although [l]aw enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures” by approaching individuals in public places and asking questions, United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), a consensual encounter becomes a seizure when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); see also Florida v. Bostick, 501 U.S. 429, 434–35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ([E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage—as long as the police do not convey a message that compliance with their request is required.” (citations omitted)...

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