United States v. Beauchamp

659 F.3d 560, 2011 U.S. App. LEXIS 21498, 2011 WL 5041918
Court of Appeals for the Sixth Circuit·Decided October 25, 2011·No. 10-5102·Published·Cited by 120 cases

Opinions

MARBLEY, D.J., delivered the opinion of the court, in which MOORE, J., joined. KETHLEDGE, J. (pp. 575-78), delivered a separate dissenting opinion.

OPINION

ALGENON L. MARBLEY, District Judge.

Defendant-appellant Gevoyl Beauchamp appeals the judgment entered following his plea of guilty to possession with intent to distribute crack cocaine. Beauchamp challenges the district court’s denial of a motion to suppress evidence obtained pursuant to a seizure. Because the police officer’s seizure of Beauchamp was neither consensual nor based on reasonable and articulable suspicion, and because the consent given to search was involuntary and did not purge the taint of the illegal seizure, we reverse the district court’s order denying the motion to suppress and remand for further proceedings.

I. BACKGROUND

A. Factual Background

At approximately 2:30 a.m. on February 15, 2008, Officer Robert Fain was on patrol near the Jacob Price housing project in Covington, Kentucky. At the time, the police were saturating the area because they were receiving a “ton” of narcotics complaints. His partner, Officer Chris Dees, was patrolling separately and noticed a black man (later identified as Beauchamp) with another individual. As Officer Dees approached, Beauchamp hurriedly walked away without making eye contact with the officer. Officer Dees then told his partner to stop the “suspicious subject,” but beyond the facts that Beauchamp was out in Jacob Price at 2:30 a.m., the basis for this label was never explained.1

While driving, Officer Fain spotted Beauchamp walking across the street two blocks from where Officer Dees had seen him. Officer Fain sped up his patrol car and parked by the subject. Beauchamp walked around a wrought iron fence that was by the side of the road. Officer Fain, in uniform, got out of his car and instructed Beauchamp to stop. Beau-champ complied. Officer Fain then instructed Beauchamp to walk around the fence and toward him. Beauchamp again complied. As he was walking around the fence, the officer noticed that “he seemed very nervous, visibly shaking,” wide-eyed, and scared. Beauchamp’s pants kept falling down around the lower part of his thighs, and his legs were shaking. Officer Fain asked him where he was coming from and where he was going. Beau-[565] champ gave somewhat vague answers in response, simply saying “down there.” Another officer, Officer Cook, arrived at some point during the interview, and he stood by and watched.

After the questioning, Officer Fain frisked Beauchamp for weapons. While conducting the frisk, the officer asked Beauchamp if he had anything on him that the officer should be aware of, and Beau-champ said no. The officer did not find a weapon. Officer Fain then asked Beau-champ if he could conduct a search, and Beauchamp said yes. The officer then conducted the search; Beauchamp continued to visibly shake. The officer found $1,300 in cash and a cell phone. Beauchamp’s pants were around his thighs, so Officer Fain pulled out his boxers and saw a piece of plastic sticking up between his butt cheeks. Officer Fain assumed that the plastic contained drugs, as people on the east side were carrying drugs in this manner at that time.

It is unclear if Officer Dees arrived on the scene during the search or after it was completed.2 Once there, he recognized Beauchamp from previous encounters. At some point, either upon Officer Dees’s arrival or after Officer Fain looked into Beauchamp’s boxers, Officer Fain gave his partner a look to indicate that he had found something. Recognizing that the look meant “hey, we got something here,” Officer Dees grabbed Beauchamp by his jeans. Officer Fain then pulled Beau-champ’s boxers back again and asked him what he had in his pants, between his butt cheeks, and Beauchamp attempted to run. Both officers had their hands on him, so he never escaped their grasp. The officers secured Beauchamp against the hood of a police cruiser. Officer Fain continued his search and removed the plastic from between Beauchamp’s butt cheeks. It contained about 18 individually-wrapped rocks of crack cocaine.

B. Procedural Background

Beauchamp was indicted on two counts: (1) possession with intent to distribute five grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1); and (2) distributing less than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). The district court dismissed Count 2. Beauchamp moved to suppress the evidence seized from him in the warrantless search. After a hearing, the magistrate judge issued a report and recommendation that the district court deny the motion. Beauchamp objected in writing. The district court overruled the objections and adopted the report and recommendation.

The parties entered into a plea agreement, which preserved Beauchamp’s right to appeal the denial of the motion to suppress. The district court accepted the plea agreement and Beauchamp’s plea of guilty to Count 1. Beauchamp’s Guidelines range was 70 to 87 months. The district court sentenced him to 84 months.

II. ANALYSIS

A. Standard of Review

“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. Henry, 429 F.3d 603, 607 (6th Cir.2005) (internal quotation marks omitted). In so doing, we consider the evi[566] dence in the light most favorable to the government. United, States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.2003).

“ “While we review the determination of the ultimate question of whether there was consent de novo, we must afford due weight to the factual inferences and credibility determinations made by the district court.’ ” United States v. Moon, 513 F.3d 527, 536 (6th Cir.2008) (quoting United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.2006)).

B. The Seizure

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United States v. Beauchamp, 659 F.3d 560, 2011 U.S. App. LEXIS 21498, 2011 WL 5041918 (6th Cir. 2011).

659 F.3d 560 (United States v. Beauchamp) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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