United States v. Gavin

314 F. App'x 759

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 5, 2008
• Docket: 07-1865
• Status: Unpublished

Opinion

PER CURIAM.

Defendant-Appellant Larry Gavin appeals the distinct court’s denial of his motion to suppress. Gavin sought to suppress evidence obtained by a Detroit Police Officer during a search of Gavin’s person. Gavin also seeks, for the first time on appeal, a determination that the search turned into an illegal arrest.

The district court, in a thorough and thoughtful opinion with which we agree, denied Gavin’s motion to suppress because the detention of Gavin was a lawful Terry stop. See United States v. Gavin, No. 2:06-cr-20471-RHC-RSW, 2006 WL 3511144 (E.D.Mich. Dec. 6, 2006). We adopt the district court’s Opinion as the opinion of this panel.

Further, because Gavin’s illegal-arrest claim was raised for the first time on appeal, this panel does not consider it. See United States v. Critton, 43 F.3d 1089, 1093 (6th Cir.1995), cert. denied, 514 U.S. 1121, 115 S.Ct. 1987, 131 L.Ed.2d 873 (1995). However, if the claim were to be considered under plain-error review, this panel would find that the search of Gavin was not a plainly illegal arrest. Merely requiring Gavin to place his hands on a vehicle upon arrival of a police officer so that he could be searched for weapons is not an arrest, particularly when the detention of Gavin was a lawful Terry stop, particularly when this action occurred immediately upon arrival of the police officer and particularly when Gavin voluntarily placed his hands on the vehicle and told the Detroit Police Officer that he had a weapon in his waistband.

We thus affirm.