United States v. Richardson

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Richardson No. 02-6146 ELECTRONIC CITATION: 2004 FED App. 0325P (6th Cir.) File Name: 04a0325p.06 ON BRIEF: Steven L. Lane, U.S. DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, Washington, D.C., Debra Teufel Phillips, ASSISTANT UNITED STATES UNITED STATES COURT OF APPEALS ATTORNEY, Nashville, Tennessee, for Appellant. Hugh M. Mundy, C. Douglas Thoresen, FEDERAL PUBLIC FOR THE SIXTH CIRCUIT DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee. _________________ MARTIN, J., delivered the opinion of the court, in which UNITED STATES OF AMERICA , X MOORE, J., joined. KENNEDY, J. (pp. 11-16), delivered a Plaintiff-Appellant, - separate dissenting opinion. - - No. 02-6146 _________________ v. - > OPINION , _________________ WILLIAM EDWARD - RICHARDSON, - BOYCE F. MARTIN, Jr., Circuit Judge. The United States Defendant-Appellee. - of America appeals the district court’s grant of William - Edward Richardson’s motion to suppress evidence seized N from a vehicle in which he was a passenger. In light of the Appeal from the United States District Court specific facts of this case and for the reasons that follow, we for the Middle District of Tennessee at Columbia. AFFIRM. No. 02-00002—Thomas A. Higgins, District Judge. I Argued: December 4, 2003 On October 19, 2000, Officer Darryl Fisher noticed a Decided and Filed: September 24, 2004 vehicle recklessly swerving between two eighteen-wheel trucks on Interstate 65 in Tennessee. Officer Fisher pulled the Before: KENNEDY, MARTIN, and MOORE, Circuit vehicle over for following too closely in violation of section Judges. 55-8-124 of the Tennessee Code. The entire traffic stop was recorded by the video camera in Officer Fisher’s police car. _________________ The following people were traveling in the vehicle: the COUNSEL driver, Ricky Collier; the defendant, Richardson; Richardson’s wife, Shirley Richardson; and their son, ARGUED: Steven L. Lane, U.S. DEPARTMENT OF William Darnell Richardson, whom we refer to as Darnell. JUSTICE, CRIMINAL DIVISION, Washington, D.C., for Officer Fisher requested to inspect Collier’s license. At this Appellant. Hugh M. Mundy, FEDERAL PUBLIC point, Officer Fisher noticed that the occupants of the vehicle DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee. appeared nervous. In particular, he noticed that Collier’s

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hand trembled as he presented his license and Darnell’s lips While Officer Fisher and Collier were talking, Darnell quivered as he spoke. Upon learning that Shirley Richardson moved to the driver’s seat. Thus, when Officer Fisher was the owner of the vehicle, Officer Fisher requested to returned to the driver’s side of the car, he asked Darnell for inspect her driver’s license and registration. As she searched his driver’s license. Darnell complied and Officer Fisher was for this information, Shirley spilled all of the contents of her satisfied with his identification. Officer Fisher then asked purse onto the floorboard. Officer Fisher perceived this Darnell whether there were any guns in the car. Darnell action as a sign of nervousness. He asked the vehicle’s responded that he had a gun in the vehicle. Darnell explained occupants about their travel plans, to which Darnell that his employer, the Lawrence County Sheriff’s responded that they had been to Nashville to see his lawyer. Department, authorized him to carry the gun. Darnell gave The videotape’s sound recording reveals that Darnell also permission to Officer Fisher to inspect the gun. Upon muttered something about having a back problem. inspection, Officer Fisher discovered that the gun was loaded. He stated that he would have to inquire into Darnell’s Officer Fisher then asked Collier to step to the back of the employment and permit to carry the gun. Before doing so, car. There, Officer Fisher informed Collier that he was going however, Officer Fisher asked for permission to search the to issue a warning citation for traveling too closely to the first vehicle. The parties dispute whether Shirley Richardson gave truck. Collier remained behind the car while Officer Fisher her consent at this time. returned to his police car, where he narrated his impressions of the incident into the video camera, specifically noting the Officer Fisher then radioed for assistance and also nervous appearance of the vehicle’s occupants. contacted the Lawrence County Dispatch to inquire about Darnell’s employment. The dispatcher erroneously informed When Officer Fisher returned, he asked Collier about his him that Darnell was not employed there and had been travel plans. Collier responded that they had gone to arrested a few times for drug possession. At this point, Nashville to see a doctor. Officer Fisher then gave the Officer Tommy Goetz arrived on the scene to assist. citation to Collier and shook his hand, and Collier turned around to return to his vehicle. Officer Fisher asked the occupants to exit the vehicle and empty their pockets. Defendant Richardson stated that his At that point, Officer Fisher asked Collier to answer a few pants were too tight to empty his pockets. Officer Fisher more questions, and Collier agreed. Officer Fisher asked patted down Richardson and noticed that Richardson turned whether there were any drugs, money, or guns in the car, to his body to the left. Officer Fisher felt something on which Collier responded in the negative. Then, instead of Richardson’s left side. He proceeded to ask Shirley allowing Collier to return to the vehicle, Officer Fisher asked Richardson again whether he could search the vehicle and she Collier to remain behind the car while he asked Shirley responded in the affirmative. After Officer Fisher told Officer Richardson for permission to search the car.1 Goetz that he had felt something on defendant Richardson’s left side, Officer Goetz conducted a second pat-down and discovered a handgun in Richardson’s pocket. 1 There is some dispute over the precise language that Officer Fisher used to indicate that he d esired Collier to rem ain behind the car. T he United States asserts that the district court erred as a factual matter in finding that Officer Fisher told Collier to “wait where he was” and instead okay?” This dispute , however, is not significant to our analysis and asserts that Officer Fisher stated, “Okay, just hang out right here for me, conclusion. No. 02-6146 United States v. Richardson 5 6 United States v. Richardson No. 02-6146

Richardson was placed under arrest and subsequently detention because all occupants of a stopped vehicle are indicted for possession of a firearm by a convicted felon in subject to a Fourth Amendment seizure); see also Delaware violation 18 U.S.C. §§ 922(g)(1) and 924(a). He moved to v. Prouse, 440 U.S. 648, 653 (1979) (noting that each suppress the handgun evidence as fruit of an unlawful seizure. occupant has an interest in freedom from random, The district court granted the motion to suppress, holding that unauthorized, investigatory seizures); United States v. Officer Fisher seized the vehicle and its occupants for no Kimball, 25 F.3d 1, 5 (1st Cir. 1994) (“interest in freedom of reasonable suspicion. The United States filed this timely movement and the interest in being free from fear and appeal. surprise are personal to all occupants of a vehicle”). II Unlawful seizure occurs when an officer, without reasonable suspicion, “by means of physical force or show of In reviewing the judgment, we are asked to decide two authority . . . in some way restrain[s] the liberty of a citizen.” questions: 1) whether the vehicle and its occupants were Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). One’s liberty is unlawfully seized following the conclusion of the traffic stop, restrained when a reasonable person would not feel free to and 2) whether the handgun evidence found thereafter was walk away and ignore the officer’s requests. United States v. fruit of the unlawful seizure. We review the district court’s Mendenhall, 446 U.S.544, 554 (1980). In United States v. factual findings in a suppression hearing for clear error and Hill, 195 F.3d 258, 264 (6th Cir. 1999), cert. denied, 528 U.S. the district court’s conclusions of law de novo. United States 1176 (2000), this Court determined that “[o]nce the purposes v. Waldon, 206 F.3d 597, 602 (6th Cir.), cert. denied, 531 of the traffic stop [are] completed, a motorist cannot be U.S. 881 (2000); United States v. Guimond, 116 F.3d 166, further detained unless something that occurred during the 169 (6th Cir. 1997), cert. denied, 530 U.S. 1268 (2000); stop caused the officer to have a reasonable, articulable United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir. 1996). suspicion that criminal activity was afoot.” See also United Also, because we are reviewing the grant of a motion to States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (“Once the suppress, we review the evidence “in the light most likely to purposes of the initial traffic stop were completed, there is no support the district court’s decision.” Guimond, 116 F.3d at doubt that the officer could not further detain the vehicle or its 169 (quoting United States v. Roark, 36 F.3d 14, 16 (6th Cir. occupants unless something that occurred during the traffic 1994)). stop generated the necessary reasonable suspicion to justify a further detention.”). Thus, in determining whether the A. Seizure of the vehicle and its occupants Fourth Amendment forbids the action taken by Officer Fisher in this case, we must decide whether there was a seizure, and, The primary interests that the Fourth Amendment protects if so, whether Officer Fisher had reasonable suspicion for include an interest in freedom of movement and insulation effecting the seizure. from the fear and anxiety produced by unlawful seizure. In the traffic stop scenario, these interests are personal to all In determining whether a particular encounter between an occupants of the vehicle that is detained, United States v. officer and a citizen constitutes a seizure, we recognize that Mesa, 62 F.3d 159 (6th Cir. 1995), because the detention words alone may be enough to make a reasonable person feel affects an occupant’s interest in freedom from such seizures. that he would not be free to leave. See United States v. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450 Buchanon, 72 F.3d 1217, 1233 (6th Cir. 1995) (quoting (1990) (recognizing that a passenger may challenge his Mendenhall, 446 U.S. at 554). In the instant case, the traffic No. 02-6146 United States v. Richardson 7 8 United States v. Richardson No. 02-6146

stop concluded when Officer Fisher handed Collier the Cir. 1996)). At the outset, we recognize that “[r]easonable citation and shook his hand. Collier was then free to leave, suspicion is more than an ill-defined hunch; it must be based until Officer Fisher asked him to remain behind the vehicle. upon a particularized and objective basis for suspecting the The United States makes much of the fact that Officer Fisher particular person . . . of criminal activity.” United States v. did not display an intimidating demeanor or use coercive Cortez, 449 U.S. 411, 417-18 (1981). We view the evidence language, but rather said, “Okay, just hang out right here for offered in support of reasonable suspicion using a common me, okay?” Regardless of Officer Fisher’s demeanor, sense approach, as understood by those in the field of law however, his words alone were enough to make a reasonable enforcement. Id. person in Collier’s shoes feel that he would not be free to walk away and ignore Officer Fisher’s request. When the In support of its argument that reasonable suspicion driver is not free to leave, neither are his passengers; indeed, justified the seizure, the government combines the following the passengers are at the mercy of any police officer who is factors: withholding the return of their driver. See Sitz, 496 U.S. at 450; Prouse, 440 U.S. at 653; Kimball, 25 F.3d at 5. Thus, (1) Nervousness, as evidenced by Collier’s trembling defendant Richardson’s freedom of movement was subject to hand, Darnell Richardson’s quivering lip and the will of Officer Fisher for as long as Officer Fisher difficulty speaking, and Shirley Richardson’s detained Collier behind the car. spilling of the contents of her purse;

The United States argues that while the occupants may not (2) Allegedly conflicting explanations of their travel have wanted to leave the scene, that “says nothing about plans; and whether Officer Fisher’s conduct toward them was coercive.” However, so long as Collier obeyed Officer Fisher’s (3) Darnell Richardson’s movement to the driver’s seat. instruction to remain outside of the vehicle, his passengers were as unable as he to leave the scene. Also, that Darnell The district court concluded that there was nothing inherently moved from his original position to the driver’s seat does not suspicious about the group’s nervousness in this instance. We affect our conclusion. This movement by itself indicates agree, and note that although nervousness has been nothing about his willingness to drive away without Collier considered in finding reasonable suspicion in conjunction or his belief that he could lawfully take such action. with other factors, Mesa, 62 F.3d at 162, it is an unreliable indicator, especially in the context of a traffic stop, United B. Reasonable suspicion States v. Saperstein, 723 F.2d 1221, 1228 (6th Cir. 1983). Many citizens become nervous during a traffic stop, even Having concluded that a seizure occurred, we now address when they have nothing to hide or fear. Also, the allegedly whether Officer Fisher had the requisite reasonable suspicion conflicting explanations of their travel plans are not mutually to seize Collier and his passengers. In doing so, we must exclusive; it is entirely plausible that the group traveled both determine from the totality of the circumstances whether the to see a doctor and a lawyer. Finally, even Officer Fisher seizure was supported by “‘specific and articulable facts that stated that he was not concerned that Darnell Richardson give rise to a reasonable suspicion of criminal activity.’” moved to the driver’s seat, and the United States has made no United States v. Orsolini, 300 F.3d 724, 728 (6th Cir. 2002) attempt to explain why such behavior would be suspicious. (quoting United States v. Palomino, 100 F.3d 446, 449 (6th Indeed, there are innocent and plausible explanations for this No. 02-6146 United States v. Richardson 9 10 United States v. Richardson No. 02-6146

behavior—e.g., perhaps Darnell thought that Collier, after a gun, thereby purging the original taint of the unlawful driving recklessly, needed to take a break from driving. seizure. The United States argues that the district court erred by We shall, in our discretion, decline to address this argument considering each factor individually and that when because, as the United States conceded, it did not raise the considering the factors in combination, reasonable suspicion argument before the district court. See Singleton v. Wulff, 428 existed to further detain Collier and his passengers. We U.S. 106, 120-21 (1976) (“The matter of what questions may recognize that even a string of innocent behavior added be taken up and resolved for the first time on appeal is one together may amount to reasonable suspicion of criminal left primarily to the discretion of the courts of appeals, to be activity. See United States v. Arvizu, 534 U.S. 266, 273-75 exercised on the facts of individual cases.”). Indeed, courts (2002). Yet, regardless of whether the district court of appeals generally should decline to consider arguments that improperly analyzed each factor individually, our independent were not raised below and were not passed on by the district review leads us to conclude that reasonable suspicion did not court. Hormel v. Helvering, 312 U.S. 552, 556 (1941). exist. See United States v. Smith, 263 F.3d 571, 591, 594 (6th Cir. 2001) (concluding, over the government’s objection that IV the district court erred in analyzing each suspicious factor individually, that “[e]ven considering all of the government’s For the foregoing reasons, we affirm the judgment of the proffered factors as a whole, we must conclude that [the] district court. Officer . . . did not possess a reasonable, articulable suspicion that criminal activity was afoot”). Under the totality of the circumstances, the factors upon which the United States relies do not add up to a reasonable suspicion of criminal activity. Although “there is always a temptation in cases of this nature when . . . firearms are found to let the end justify the means,” we must resist such temptation. Mesa, 62 F.3d at 163. III Absent reasonable suspicion, the evidence obtained as a result of the unlawful detention in this case must be suppressed as fruit of the unlawful seizure. There is, however, an exception to the rule when the causal chain is broken by a voluntary statement. United States v. Brown, 422 U.S. 590 (1975); United States v. Arias, 344 F.3d 623 (6th Cir. 2003). The United States argues that even assuming that defendant Richardson was unlawfully seized, Darnell Richardson’s voluntary, intervening admission that he was carrying a gun broke the causal chain between their illegal detention and the discovery that defendant Richardson carried No. 02-6146 United States v. Richardson 11 12 United States v. Richardson No. 02-6146

_________________ writing out the citation, the deputy asked the driver and his passenger a number of questions concerning the purpose of DISSENT their trip.1 Id. at 261-63. After he completed the processing _________________ of the traffic violation, the deputy decided to detain the occupants in order to have his drug detection dog sniff the U- KENNEDY, Circuit Judge. Because I believe that the Haul for the presence of narcotics. Id. at 263. Refusing to conduct of Officer Fisher did not violate the defendant’s permit the driver and passenger to leave in order to have a Fourth Amendment rights, I would reverse the district court’s drug detection dog sniff the vehicle certainly constituted a decision finding that Officer Fisher seized the defendant when detention of the driver and passenger. For this detention to be he requested Collier to remain outside the car while he justified, it needed to be based upon reasonable suspicion, intended to ask the car’s owner for permission to search it. which the court found existed. Id. at 270. Neither the defendant nor the majority question the validity In Mesa, like Hill, the defendant was stopped for speeding. of the traffic stop nor the questioning of Collier at the rear of After the defendant retrieved her driver’s license, the officer the car. Rather, the majority holds that once Officer Fisher’s “directed the defendant to sit in the back seat of [his] police consensual questioning with Collier was completed, the vehicle.” 62 F.3d at 160. While the officer was writing out officer was then required to permit Collier to immediately re- the warning citation, he asked her a number of questions enter the car and thus permit the occupants, including the regarding her destination. Id. After he finished writing out defendant, to be on their way; and that a delay, caused by the the citation and received her signature on it, he did not allow officer’s decision to ask the owner for permission to search her to leave his vehicle, and she could not have voluntarily the car for drugs or guns, resulted in an unlawful detention of left the vehicle because the doors to the back seat of the the defendant. In reaching its conclusion, the majority relies police car could not be opened from the inside. Id. The upon our decisions in United States v. Hill, 195 F.3d 258 (6th officer then proceeded to ask the defendant “additional Cir. 1999) and United States v. Mesa, 62 F.3d 159 (6th Cir. questions totally unrelated to the initial traffic stop.” Id. at 1995). It cites these decisions for the same proposition, 161. Eventually, the officer asked for, and obtained, her namely: “Once the purposes of the traffic stop [are] consent to search her vehicle. Id. The court opined, as did completed, a motorist cannot be further detained unless the court in Hill, that “[o]nce the purposes of the initial traffic something that occurred during the stop caused the officer to stop were completed, ... the officer could not further detain have a reasonable, articulable suspicion that criminal activity the vehicle or its occupants ... [without] reasonable suspicion was afoot.” Hill, 195 F.3d at 264; See also Mesa, 62 F.3d at to justify [it].” Id. at 162. It then considered whether there 162. As the majority notes, the issue in this case is whether, was reasonable suspicion to justify the further detention. Id. after the completion of the traffic stop, the defendant was seized, and, if so, whether the seizure was supported by reasonable suspicion. 1 As we recently noted in United States v. Burton, 334 F.3d 514, 518 (2003), asking more que stions to the occupants of a stopped vehicle than In Hill, a deputy sheriff pulled over a U-Haul for speeding. are necessary to issue a traffic citation d oes not turn a reasonable 195 F.3d at 261. While processing the traffic violation, which detention into an unreasonable one, especially when such “[q]uestions included running a check on the defendant’s driver’s license, hold the po tential for dete cting crime, yet create little or no retrieving and reviewing the U-Haul rental agreement, and inconvenien ce.” (quoting United States v. Childs, 277 F.3d 947, 954 (7th Cir.) (en banc)) No. 02-6146 United States v. Richardson 13 14 United States v. Richardson No. 02-6146

Since the court immediately considered whether reasonable that he is “free to go” before requesting the person’s consent suspicion was present, it must have considered it obvious that to search his vehicle. Id. at 35. The Court concluded that it the defendant was detained, for the court does not tell us did not. Although it never specifically addressed whether the when the traffic stop no longer justified her detention. It is defendant was seized when the officer asked him both likely that the court believed that the traffic stop no longer whether he had any drugs or weapons and for his consent to justified her detention as soon as she signed the citation and search his vehicle, I believe, since the Court reversed the was then not able to exit the police vehicle.2 If the court Ohio Supreme Court’s judgment and since there certainly was believed that she was detained after she signed the citation no reasonable suspicion to further detain the defendant if he merely because she was asked questions that were unrelated were seized, that the Court concluded, sub silentio, that the to the initial traffic stop, or because she was asked questions defendant was not seized when he was asked those questions. at all, then Mesa would no longer accurately reflect the state of the law after Ohio v. Robinette, 519 U.S. 33 (1996). It is well settled that an officer may approach a person to ask questions or seek permission to search, provided that the In Robinette, a deputy sheriff stopped the defendant for officers do not imply that answers or consent are obligatory. speeding. Id. at 35. The deputy asked for and was handed the See e.g., INS v. Delgado, 466 U.S. 210, 212 (finding that defendant’s driver’s license. Id. After running a computer agents’ questioning of factory employees concerning their check on the license which indicated that he had no previous citizenship did not constitute a seizure); Florida v. Royer, 460 violations, the deputy asked the defendant to step out of his U.S. 491, 497 (1983) (observing that law enforcement officers vehicle, issued a verbal warning to him, and returned his do not violate the Fourth Amendment by merely approaching license. Id. The deputy then asked whether the defendant had an individual and asking if he is willing to answer some any drugs or weapons in his car Id. at 35-6. After the questions). In Florida v. Bostick, 501 U.S. 429, 434 (1991), defendant answered no, the deputy asked for, and received, the Court made clear that these requests are proper without the defendant’s consent to search his vehicle. Id. at 36. regard to the absence of reasonable suspicion because “mere Drugs were found in the car during the search. Id. The Ohio police questioning does not constitute a seizure.” See e.g., Supreme Court held both that the defendant’s consent to United States v. Erwin, 155 F.3d 818, 823 (1998) (en banc) search was the product of an unlawful detention, and that an (noting that an “officer does not violate the Fourth officer must first inform “citizens stopped for traffic offenses Amendment merely by approaching an individual, even when ... [that] they are free to go after a valid detention, before [the] there is no reasonable suspicion ..., and asking him whether officer attempts to engage in a consensual interrogation.” Id. he is willing to answer some questions. This includes a The question presented to the Court was whether the Fourth request for consent to search [an] individual’s vehicle”). Amendment demanded the per se rule that an officer, after the completion of a traffic stop, must inform the person stopped It is clear then, after considering the Court’s and this Circuit’s precedents, that Officer Fisher was entitled to ask the owner for her consent to search the vehicle.3 See Bostick, 2 Indeed, after the Supreme Court decided Oh io v. Robin ette, 519 U.S. 33, this court in United States v. Guimond, 116 F.3d 16 6 (6th Cir. 1997), 3 read Mesa to ap ply only on its facts – where the driver consented to a One may attemp t to distinguish Bostick or Royer, where the officers search only after she had been detained in a locked police cruiser for a approached the defendants for questioning while the defendants were not considerable period of time. in legal custody, from the present case, where the occupants were in legal No. 02-6146 United States v. Richardson 15 16 United States v. Richardson No. 02-6146

501 U.S. at 434; Royer, 460 U.S. at 497. Officer Fisher’s Since I believe that Officer Fisher was entitled to ask the request to Collier that he remain outside the car after he had owner for permission to search her car, and that his request to handed Collier the citation so that he could ask the owner for Collier to remain outside the car did not constitute a seizure her consent to search the vehicle did not transform the where 1) he was not restrained from leaving, and 2) the encounter into an unlawful detention. Unlike the occupants request was reasonable under the circumstances, I would of the U-Haul in Hill, neither Collier nor the occupants who therefore reverse the district court’s conclusion to the remained in the car were detained so that a drug detection dog contrary. could sniff the vehicle for the presence of narcotics. And, unlike the defendant in Mesa, neither Collier nor the occupants who remained in the car were physically locked in the back seat of a police car after the purposes of the traffic stop were completed. Moreover, Officer Fisher’s request to Collier to remain outside the vehicle as he went back to the car to ask the owner for her consent to search was reasonable where Officer Fisher knew 1) that the owner was sitting in the rear passenger seat and that Collier would take the front passenger seat,4 so that if Collier had re-entered the vehicle, he would have needed to speak around him in order to talk with the owner,5 and 2) if the owner had consented to a search, Collier would have needed to immediately re-exit the vehicle if he had first re-entered after Officer Fisher handed him the ticket.

custody until the pu rposes of the traffic stop were comp leted, and then were posited questions and asked to consent to a search, by arguing that in the latter case an individual may not feel as if he has a right to refuse the officer’s request because he was just in legal custody and, in fact, may believe he still is in legal custody. However, unless the officer’s conduct and questions intimated that answers were obligatory, then such a concern would merely go to the voluntariness of the conse nt, not whether the consent was a fruit of an illegal seizure.

4 It is clear that Officer Fisher, while he was talking with Collier at the rear of the car, noticed Darnell Richardson exit the passenger seat and take the driver’s seat.

5 Officer Fisher would have needed to talk around the front passenger because he always approached the car on the passenger’s sid e for safety reasons to avoid exposure to freeway traffic.