United States v. Herman E. Lane

909 F.2d 895, 1990 U.S. App. LEXIS 12589, 1990 WL 105890
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 31, 1990
Docket89-4067
StatusPublished
Cited by96 cases

This text of 909 F.2d 895 (United States v. Herman E. Lane) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Herman E. Lane, 909 F.2d 895, 1990 U.S. App. LEXIS 12589, 1990 WL 105890 (6th Cir. 1990).

Opinion

MILBURN, Circuit Judge.

Herman Edward Lane appeals his conviction for unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), arguing that the district court erred by denying his motion to suppress evidence and his motion to dismiss sentence enhancement under the Armed Career Criminal Act, 18 U.S.C § 924(e). For the reasons that follow, we affirm.

I.

A.

On February 23,1989, at 12:21 p.m., Cuy-ahoga Metropolitan Housing Authority (CMHA) police officer Nickolas Barry and three other CHHA officers responded to a dispatcher’s request to investigate an anonymous complaint about an unauthorized person in the hallway, possible drug trafficking, at 6402 Haltnorth Walk, a three-story apartment building located within CMHA’s King-Kennedy Housing Project in Cleveland, Ohio. The officers knew that this particular apartment building had problems with drug trafficking and the presence of unauthorized occupants.

The building has a front and rear entrance with separate stairways which lead to a joint hallway on both the second and the third floors. Upon arriving at the building, two officers entered the front door while Barry and another officer used the rear entrance. The two officers who entered the front door encountered four males in the first floor hallway. The four men began running toward the stairs leading to the second floor, but the officers were able to detain two of them. The other two men continued to flee up the stairs toward the second and third floors.

Officer Barry and the officer accompanying him were climbing the rear stairway, and on a landing between the second and third floors they encountered a man running down the stairs. The officer accompanying Barry detained this individual, and Barry proceeded to climb the stairs toward the third floor. Before reaching the third floor, Barry received a radio message from one of the other officers that a male was fleeing up the front stairs to the third floor in an attempt to exit the rear of the building.

*897 At approximately the same time that Barry reached the third floor, Herman Lane, the defendant, arrived at the top of the front stairway on the third floor. Officer Barry, who was in uniform and had his gun drawn and pointed at a 45-degree angle to the ground, saw Lane across the hallway, and he ordered Lane to put his hands up and face the wall. Lane complied and placed his hands against the wall but he subsequently removed his right hand from the wall and attempted to reach into his left coat pocket. Officer Barry physically placed Lane’s right hand back on the wall and told him to leave it there, but Lane again attempted to reach into his pocket. Officer Barry again stopped Lane and told him to keep his hands on the wall. Barry then conducted a pat-down search of Lane’s outer clothing and discovered what felt like a weapon. Barry reached inside Lane’s clothing and removed a .12 gauge sawed-off shotgun. Barry then arrested Lane for carrying a concealed weapon.

B.

On May 31, 1989, a federal grand jury returned a three-count indictment against Herman Lane, charging him with (1) unlawful possession of a firearm by one who has previously been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1); (2) unlawful possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871; and (3) unlawful possession of a sawed-off shotgun not identified with a serial number in violation of 26 U.S.C. §§ 5861(i) and 5871. Count I of the indictment also charged that Lane had previously been convicted of three violent felonies, providing a basis for sentence enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B).

On June 20, 1989, Lane filed a motion to suppress evidence discovered during the search of his person and several motions relating to application of sentence enhancement under the ACCA. On July 7, 1989, Lane filed a motion to dismiss the sentence enhancement portion of the indictment for failure to allege three prior violent felony convictions. On September 7, 1989, the district court denied Lane’s motions relating to sentence enhancement under the ACCA, and, following a hearing, it also denied his suppression motion.

On September 11, 1989, Lane entered into a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(a)(2), whereby he pleaded guilty to Count I of the indictment, and Counts II and III were dismissed. Pursuant to the conditional guilty plea, Lane preserved his right to appeal the district court’s denial of his motion to suppress search evidence and his motion to dismiss the sentence enhancement portion of the indictment. On November 20, 1989, Lane was sentenced to fifteen years imprisonment, to be followed by three years of supervised release, and ordered to pay a special assessment of $50. This timely appeal followed.

The principal issues on appeal are whether the district court erred by denying Lane’s motion to suppress evidence discovered during a search of his person, and whether the district court erred by denying Lane’s motion to dismiss the sentence enhancement portion of the indictment.

II.

A. Suppression of Evidence

A district court’s “denial of a motion to suppress will be affirmed on appeal if proper for any reason.” United States v. Barrett, 890 F.2d 855, 860 (6th Cir.1989). “In reviewing a challenged investigatory stop, ‘the totality of the circumstances — the whole picture — must be taken into account.’ ” Id. (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). “In assessing the reasonableness of the stop, the facts are ‘judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate?’ " United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987) (quoting

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909 F.2d 895, 1990 U.S. App. LEXIS 12589, 1990 WL 105890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-herman-e-lane-ca6-1990.