United States v. Perkins

209 F. App'x 502
Procedural entryThis page is a short order in United States v. Perkins. Read the opinion of the Court — 207 F. App'x 559
Court of Appeals for the Sixth Circuit·Decided December 22, 2006·No. 05-4095·Unpublished

Opinion

PER CURIAM.

Defendant James Perkins appeals the district court’s denial of his motion to suppress evidence discovered after a traffic stop for the violation of a city ordinance. Specifically, Perkins claims that the initial stop was not supported by probable cause or reasonable suspicion and the ensuing detention, search, and arrest were consequently tainted and unconstitutional. As a result of the search, Perkins was charged with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(a). Following the denial of his motion to suppress, Perkins entered a conditional plea of guilty on May 9, 2005. He now timely appeals. For the reasons set forth below, we affirm the judgment and order of the district court.

I.

On February 19, 2005, police officer Robert Petchler was monitoring for traffic violations in a marked patrol car in the city of Cleveland. At approximately 6:10 p.m., Petchler observed a metallic orange Cadillac Seville bearing Ohio license plate number DEK-2768 traveling northbound on E. 153rd Street. According to Petchler, as the car drove past him, he observed that the front left side window, the driver’s window, was heavily tinted and in violation of City of Cleveland Ordinance § 437.28. This ordinance prohibits the use of window tints allowing less than fifty percent light transmission, and Petchler had previously performed many stops for violations of this ordinance.

After observing the Cadillac drive past him with what he perceived to be windows in violation of the ordinance, Petchler followed the vehicle while checking the license plate number. He then activated his overhead lights and siren and initiated a traffic stop. The vehicle did not stop immediately, but drove approximately 450 more feet (ten to twelve houses), then pulled to the right side of the road. Once the vehicle stopped, Petchler observed the front passenger-side door open and the occupant lean out of the car. Although the passenger did not flee, as Petchler initially suspected that he might, Petchler believed that the passenger had placed something outside of the car.

Upon approaching the driver of the vehicle, Petchler explained why he had pulled her over and requested that she produce identification. The driver, later identified as Brandy Johnson, admitted that she did not have a driver’s license. Petchler then placed her under arrest and asked her to step out of the car. The passenger, defendant Perkins, then volunteered his identification to Petchler. Petchler placed Johnson in the rear of the police vehicle, and then checked Perkins’ license. Upon calling in Perkins’ license, he discovered that there were unconfirmed warrants for Perkins’ arrest, and that Perkins lacked driving privileges. According to Petchler, because he suspected Perkins may have placed something outside of the passenger door, he never took his eyes off the car for more than a second or two.

Next, Petchler removed Perkins from his vehicle and cuffed and placed him in *504 the rear of the police cruiser. Petchler then initiated the procedure of confirming the warrants. Once he placed Perkins in the rear of the police car, Perkins returned to the passenger-side door to investigate what Perkins may have placed outside of it. According to Petchler, he was concerned that a weapon may have been placed under the car. Petchler looked underneath the car in the area where he had seen a passenger lean out, and there he found a folded-up newspaper containing a plastic bag with a large amount of crack cocaine. The newspaper, despite being in the car’s line of travel, was not flat or crushed and Petchler concluded that the newspaper was placed there after the car had been stopped. Further, the bottom of the newspaper was wet with snow, but the top was dry. Later, Petchler found a page from the same newspaper on the floorboard of the car. Petchler returned to the vehicle and informed Johnson and Perkins that they were under arrest.

After completing the search, Petchler tested the tint on the front left window using a “tint-meter.” According to his testimony, the window measurement was thirty-one percent, far less than the allowable fifty percent. He did not measure any of the other windows with the tint-meter, but testified that both the front and the back windows appeared to be tinted to the same degree and manner and were “identical in appearance.”

On May 3, 2005, the district court held an evidentiary hearing on Perkins’ motion to suppress. At the hearing, the parties presented conflicting evidence with respect to the amount of tint on the windows on the day of the stop. Petchler testified to the foregoing facts, and the government presented three Polaroid photographs of the passenger side of the Cadillac, taken approximately one to two hours after the stop. Perkins relied on Petchler’s testimony that he noticed, through the tinted window, that the driver of the vehicle might not be wearing a seatbelt, that the sun had recently set, and that the tinted windows might appear darker under dark conditions. Perkins also presented two photographs, taken approximately two months after the hearing, in which the front windows appear significantly lighter than the back windows. Perkins also presented the car itself, which further showed a difference in shading. During the hearing, Petchler measured the vehicle’s windows. Although the rear window measured thirty-one percent, the reading from the front driver’s window was seventy-nine percent — a drastic change from the reading Petchler testified that he took on February 19, 2005. Petchler testified that, based upon these readings, the tinting had been removed from the front window. The owner of the car, Michele Lenix, testified that the window tinting had not been changed.

The district court issued an opinion and order on May 5, 2005, denying Perkins’ motion to suppress. Specifically, the district court found Petchler’s testimony to be credible and Lenix’s testimony to be incredible, thus concluding that Petchler had probable cause to initiate a traffic stop. Defendant has timely appealed.

II.

Reviewing the denial, or the grant, of a motion to suppress is a mixed question of fact and law. United States v. Hurst, 228 F.3d 751, 756 n. 1 (6th Cir.2000). Thus, this court reviews the district court’s findings of fact for clear error and the district court’s conclusions of law de novo. United States v. Dillard, 438 F.3d 675, 680 (6th Cir.2006). A factual finding is clearly erroneous when, although there may be evidence to support it, the reviewing court, utilizing the entire evidence, “is left with *505 the definite and firm conviction that a mistake has been committed.” United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999). The reviewed evidence must be viewed “in the light most likely to support the district court’s decision.” Dillard, 438 F.3d at 680 (internal quotation marks and citations omitted).

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United States v. Perkins, 209 F. App'x 502 (6th Cir. 2006).

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