United States v. McCallister

• Decision Date: 07 July 2022
• Docket Number: 21-4011
• Citation: 39 F.4th 368
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dazhan C. MCCALLISTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

39 F.4th 368

UNITED STATES of America, Plaintiff-Appellee,

v.Dazhan C. MCCALLISTER, Defendant-Appellant.

No. 21-4011

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2022

Decided and Filed: July 7, 2022

ARGUED: Edward R. LaRue, EDWARD R. LARUE INC, Cleveland, Ohio, for Appellant. Elizabeth M. Crook, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Edward R. LaRue, EDWARD R. LARUE INC, Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: McKEAGUE, NALBANDIAN, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge.

Officers suspected a group of men gathered in a public park of smoking marijuana. So the officers stopped many of them, including Dazhan McCallister. After the stop, an officer recovered a pistol from McCallister's waistband. McCallister moved to suppress that evidence on the basis that the pistol was discovered after an unlawful search and seizure. The district court denied the motion, and, following final judgment, McCallister appealed. We now affirm.

I.

Talbot Whitney Park is a small rectangular park "tucked away in a residential neighborhood" in Akron, Ohio. Akron Police Department officers consider the park "a high-crime area" due to the frequent presence of firearms, drugs, and violent crime there. For example, the day before the events at issue here, an officer recovered a gun and drugs from the park. Days earlier, the Department received a video depicting several men in the park brandishing assault rifles and pistols.

That takes us to the day in question. The Department received an anonymous call that a group of men was smoking marijuana in the park. Marijuana is an illegal drug under both federal and, save for stringently regulated medical usage, Ohio law. See 21 U.S.C. § 812(b)(1) ; Ohio Rev. Code Ann. §§ 2925.11, 3796.01 –.31; Ohio Admin. Code § 4729:9-1-01(D)(23). An officer drove by and observed a group in the park. Several hours later, an undercover officer confirmed that a group of at least ten people was still there. Neither officer, however, got close enough to determine if the group was smoking marijuana.

Back at the Department, Detective Magaw organized several officers, including Detective Elam, to investigate the happenings at the park. Officers arrived at the park in the early evening. Consistent with previous reports, the officers observed a group of ten to 15 men, including McCallister, gathered together. According to the officers, many of the men were in close proximity of each other, congregating as a group. As the officers approached the group, they detected the odor of marijuana. So the officers began stopping people. Four men, including McCallister, tried to walk away. An officer pointed at McCallister and the three other men, instructing them to stop moving and place their hands on their heads. McCallister did so.

Immediately after McCallister was stopped, Elam saw him "huddled in the group" with a "little bump out on his shirt" on his right side, which the detective concluded was a gun. In addition, Elam observed McCallister "turn[ ] his body in towards the huddle so no one would see what's in front of him or see anything on the sides of him." Elam asked McCallister if he was carrying any weapons; McCallister did not respond. As McCallister raised his hands, his shirt lifted, and Elam saw a firearm magazine tucked into McCallister's waistband. Elam retrieved the gun—a Glock 9mm pistol with an installed conversion device—making it an illegal machinegun.

McCallister was indicted on one count of illegal possession of a machinegun, 18 U.S.C. § 922(o), and one count of possessing an unregistered firearm, 26 U.S.C. § 5861(d). At his initial appearance, McCallister pleaded not guilty. He filed a motion to suppress the Glock, which the district court denied. McCallister then pleaded guilty to both counts, preserving his right to appeal the suppression ruling. After the district court entered final judgment, McCallister timely appealed the denial of his suppression motion.

II.

McCallister believes that the Glock is inadmissible because it was discovered as a result of an unconstitutional search and seizure. To that end, he challenges several of the district court's factual findings that informed its suppression ruling (which we review for clear error) as well as the district court's legal conclusion that no Fourth Amendment violation occurred (which we review de novo). United States v. Powell , 847 F.3d 760, 767 (6th Cir. 2017).

A. Start with the district court's factual findings. Under the "highly deferential" clear error standard of review, we must affirm the district court's findings of fact unless we are "left with the definite and firm conviction that a mistake has been committed." Taglieri v. Monasky , 907 F.3d 404, 408 (6th Cir. 2018) (en banc) (citation omitted), aff'd , ––– U.S. ––––, 140 S. Ct. 719, 206 L.Ed.2d 9 (2020). A district court does not clearly err "so long as the finding is ‘plausible in light of the record viewed in its entirety.’ " United States v. Grant , 15 F.4th 452, 457 (6th Cir. 2021) (quoting Anderson v. Bessemer City , 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ).

McCallister challenges three factual findings. The first is the finding that McCallister was part of the group gathered in the park. With both officers having testified that McCallister stood close to the others, testimony that was corroborated by body camera footage, we see no clear error in the district court's assessment.

The second is the finding that officers smelled marijuana near where McCallister stood. Here too, sufficient evidence supports the district court's finding. Magaw testified that the officers smelled marijuana as they approached the group in the park, with McCallister standing in the middle of that group. See United States v. Sheckles , 996 F.3d 330, 346 (6th Cir. 2021) (affirming the district court's finding that officers detected the odor of marijuana where an officer recalled smelling marijuana). Whether the odor instead could have been from a legal substance like hemp, as McCallister suggests, at best presents us with "two permissible views of the evidence"—the officers smelled a substance that could have been illegal or legal. Anderson , 470 U.S. at 574, 105 S.Ct. 1504. That is an insufficient basis upon which to reverse a district court's factual finding. Id.

The third challenged finding is that an undercover officer confirmed that the men in the park were smoking marijuana. Any such finding is irrelevant to our Terry analysis, as the record reveals that once the officers arrived at the park, they smelled marijuana, confirming the anonymous tip prior to the stop. But in any event, the district court did not reach the conclusion McCallister describes. Rather, it found that the undercover "officer confirmed that a group of males was hanging out in the park," a finding consistent with the officers’ testimony. True, the district court in one instance stated more generally that "[a]n undercover officer confirmed the complaint," which reported both that a group of men was in the park and that they were smoking marijuana. Yet it is not entirely clear if that sentence refers to the entire tip or merely to the part indicating the group's location. Perhaps the district court was imprecise. But imprecision alone is not enough for us to conclude that the district court committed clear error. See Taglieri , 907 F.3d at 409 (stating that a finding is clearly erroneous only where it "strike[s] us as wrong with the force of a five-week-old, unrefrigerated dead fish" (citation omitted)).

B. Next up are McCallister's challenges to the district court's conclusion that the search and seizure were lawful. The Fourth Amendment's prohibition on "unreasonable ... seizures," U.S. CONST. amend. IV, allows temporary investigative detentions, known as Terry stops, so long as there is "a reasonable suspicion supported by articulable facts that criminal activity may be afoot," United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quotation marks omitted); see also Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment's prohibition on "unreasonable searches," U.S. CONST . amend. IV, likewise permits precautionary searches for weapons following a lawful Terry stop, known as Terry frisks, where there is "reasonable suspicion that the person searched may be armed and dangerous," United States v. Pacheco , 841 F.3d 384, 390 (6th Cir. 2016) (quotation marks omitted); see also Terry , 392 U.S. at 30, 88 S.Ct. 1868. Reasonable suspicion, however, is not self-defining. United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Rather, it is an "elusive" concept, id. , one that "is not readily, or even usefully, reduced to a neat set of legal rules," Sokolow , 490 U.S. at 7, 109 S.Ct. 1581 (quotation marks omitted).

Accordingly, several principles guide our evaluation of reasonable suspicion. In the context of a Terry stop, "the degree of suspicion" required, id. at 10, 109 S.Ct. 1581 (citation omitted), relatively speaking, is quite low: "a moderate chance of finding evidence of wrongdoing," Safford Unified Sch. Dist. No. 1 v. Redding , 557 U.S. 364, 370–71, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (recognizing that school searches require "reasonable suspicion" to be constitutional, distinguishing reasonable suspicion from probable cause, and then describing the reasonable suspicion standard); see also Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (describing reasonable suspicion as "a minimal level of objective justification"); New Jersey v. T.L.O. , 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (holding that Terry ’s "reasonable suspicion" standard is used to determine if a school search was constitutional); United States v. Noel , 659 F. Appx 284, 288 (...