United States v. Shank

543 F.3d 309, 2008 U.S. App. LEXIS 20239, 2008 WL 4273129
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 19, 2008
Docket07-3544
StatusPublished
Cited by40 cases

This text of 543 F.3d 309 (United States v. Shank) 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. Shank, 543 F.3d 309, 2008 U.S. App. LEXIS 20239, 2008 WL 4273129 (6th Cir. 2008).

Opinion

OPINION

CLELAND, District Judge.

Michael Shank (“Shank”) was arrested after Dayton, Ohio police officers found a firearm and crack cocaine in a car he had been driving in a neighborhood well known for drug distribution and firearm violence. The car, which Shank did not own and for which he had no documents or other indication of lawful possession, had been stopped because it had illegally tinted windows; officers carried out a protective search after they became aware that Shank — increasingly nervous and able to identify himself only verbally — had been contacted at least twice previously by Dayton police, each contact apparently associated with significant “dealer quantities” of crack cocaine.

Shank entered a conditional plea of guilty to Count 2, Use of a Firearm During and in Relation to a Drug Trafficking Crime, 18 U.S.C. § 924(c). He appeals the district court’s denial of his motion to suppress evidence, including the subject firearm. On appeal, Shank alleges that: (1) the officers lacked probable cause to effectuate a traffic stop; (2) his detention in the back of the police cruiser continued too long and violated his Fourth Amendment rights; and (3) the search of the vehicle violated his Fourth Amendment rights because the officers lacked reasonable suspicion that he was armed. For the reasons stated below, we reject each argument and AFFIRM.

I.

Late in the afternoon on May 2, 2003, police officers James Mullins (“Mullins”) and Rodney Barrett (“Barrett”) were patrolling near the Desoto Bass housing complex in Dayton, Ohio. This complex, the officers knew, is a high-crime area well known for its drug distribution activity and shootings. The officers noticed a tan Cadillac with unusually darkened windows. Ohio law requires that tinted windows allow at least fifty percent of the light to pass through the window, and the officers estimated that the Cadillac’s tinted windows would permit only about a third of the light to pass through. Although they could see through the tint well enough to tell that the driver seemed to be male and was the only occupant, the tint was sufficiently dark to obscure whether furtive or *312 dangerous gestures were present. The officers activated the cruiser’s overhead lights. The driver of the Cadillac turned onto the one-way, horseshoe shaped drive serving the Desoto Bass complex, and stopped the car in the middle of the roadway rather than pulling over to a curb.

The two officers approached the vehicle, one from each side. As Barrett reached the driver’s side of the car, he could more positively identify the driver as a man and as the window was lowered he could also see that the driver was not wearing the seat belt. When Barrett asked the driver for his license and registration, he replied that he did not own the vehicle and that he did not have identification, but claimed that his name was Michael Shank. Intending to have the driver sit in the patrol car, the officers asked him to step out of the car and patted him down. They found a large lump in one pocket, but determined that it was a wad of cash and not a weapon. They replaced the cash and directed Shank to sit in the back of the police cruiser so that they could verify his identity. Shank had been relatively calm and cooperative until this point, but soon became argumentative and nervous. He did, nonetheless, eventually comply, and after he was seated Barrett entered Shank’s proffered information into the patrol car’s portable computer system. He found that there was a person named Michael Shank who had a valid driver’s license, but also found that this person had twice previously been in contact with Dayton police during which distribution-quantity cocaine had been found.

During this time, Mullins was using a “tint meter” to more specifically measure the vehicle’s windows in support of the ticket Barrett was writing, and found that the tint prevented sixty-eight percent of the light from passing through. Barrett was continuing to process written traffic citations for Shank’s seat belt, driver’s license and window tint violations when a resident of the Desoto Bass complex walked up and requested of Mullins that the two vehicles be moved because they were blocking vehicle access. Mullins then went back toward the cruiser to retrieve a camera to record the window tint measurements, and was met by Barrett who had alighted from the patrol car. Barrett informed Mullins of what he had learned about Shank’s previous contacts with Dayton police involving “large quantities of crack cocaine in his possession.” Mullins well knew that drug dealers often carry weapons, and now suspected that drugs, weapons or both might be involved in this encounter. After retrieving the camera from the police car, Mullins entered Shank’s ear to move it. While in the car, he checked the “lunge area,” which is “the space immediately accessible” to a person seated in the car. He first opened the glove box, and found a semi-automatic handgun shoved in as though someone had “reached across with the right hand and pushed into it, the glove box.” He also found a small quantity of crack cocaine in the front console. At this point, the officers placed Shank under arrest.

II.

When reviewing an order denying a motion to suppress evidence, we use a de novo standard for the district court’s legal determinations, but will not set aside the district court’s factual findings unless they are clearly erroneous. United States v. Long, 464 F.3d 569, 572 (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 the definite and firm conviction that a mistake has been committed.” United States v. San *313 ford, 476 F.3d 391, 394 (6th Cir.2007) (citation and quotation marks omitted).

III.

Shank first argues that there was no probable cause to order him to stop the car he was driving. Police officers “may briefly stop an individual for investigation if they have ‘reasonable suspicion’ that the person has committed a crime.” Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 813 (6th Cir.1999).

Reasonable suspicion is “more than an ill-defined hunch; it must be based upon a particularized and objective basis for suspecting the particular person ... of criminal activity.” Houston, 174 F.3d at 813 (alterations in original) (internal quotations and citation omitted). It requires “ ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ an investigatory stop.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Moreover, reasonable suspicion “can arise from evidence that is less reliable than what might be required to show probable cause.” Id.

Weaver v. Shadoan, 340 F.3d 398, 407 (6th Cir.2003).

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Bluebook (online)
543 F.3d 309, 2008 U.S. App. LEXIS 20239, 2008 WL 4273129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shank-ca6-2008.