United States v. Teiun Tyree Walker

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 12, 2024
• Docket: 23-1223
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0258n.06

Case No. 23-1223

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 12, 2024 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF TEIUN TYREE WALKER, ) MICHIGAN Defendant-Appellant ) ) OPINION )

BEFORE: SILER, MATHIS, and BLOOMEKATZ, Circuit Judges.

SILER, J., delivered the opinion of the court in which BLOOMEKATZ, J., concurred. MATHIS, J. (pp. 7–9), delivered a separate opinion concurring in the judgment.

SILER, Circuit Judge. Teuin Walker, a convicted felon with an outstanding arrest

warrant, walked to a convenience store to buy shredded cheese. He left the property under arrest

after police broke up a group of gamblers in the store’s parking lot, grabbed him during the

operation, and discovered the pistol he was illegally carrying. He moved unsuccessfully to

suppress the pistol, and now appeals from his conviction upon a conditional guilty plea. We affirm,

holding that police had probable cause to arrest Walker on suspicion of gambling. 1

1 Because we decide this case on probable cause, we do not address the district court’s reasonable suspicion or inevitable discovery analysis. No. 22-1223, United States v. Walker

I.

Walker’s girlfriend, who was preparing dinner at her apartment, asked him to go to

Daysha’s Convenience Store next door and purchase some shredded cheese. Walker did so,

bringing with him a cross-body satchel containing a small Ruger pistol.

Meanwhile, Kalamazoo Department of Public Safety (“KDPS”) Sergeant Millard drove

past Daysha’s and noticed a group of men gathered on the pavement just outside the store,

apparently gambling.2 He parked in front of the apartment complex next door where Walker and

his girlfriend lived and, still on the apartment property, proceeded to a spot where he could observe

the group through a wooden privacy fence that separated the apartment property from the Daysha’s

parking lot. He could see and hear the men throwing down money and rolling dice against the side

of the store, as they were only about ten feet away from him. When his body camera would not

record through the narrow gap in the fence, he occasionally held it against a hole in the fence.

Because of the size of the group and the high-crime nature of the area, Sgt. Millard called other

officers to arrive at Daysha’s to break up the gambling. He then identified three prominent

individuals by radio to the approaching officers.

Walker, having finished his errand, left Daysha’s and walked across the parking lot toward

the road and the end of the fence. When he rounded the end of the privacy fence, he saw Sgt.

Millard’s police cruiser. Because his parole officer had informed him earlier in the day that there

was an outstanding warrant for his arrest, Walker quickly turned around and walked back to

Daysha’s. He called his girlfriend and asked her to come pick him up at the store.

2 Gambling, attempted gambling, and aiding and abetting gambling are misdemeanor offenses in Kalamazoo. See Kal. Code of Ord. §§ 22-37, 22-1, 22-2.

2 No. 22-1223, United States v. Walker

At various times while in the Daysha’s parking lot, Walker walked past the group gambling

by the entrance. Sgt. Millard observed him “lean into” the group and converse with the members.

He also observed body language consistent with “trying to put down money or trying to see what

the roll was.” Walker walked away from the group and then later returned to it, which Sgt. Millard

interpreted as involvement in the gambling, but Walker insisted it was solely so he could observe

whether his girlfriend had left her apartment to pick him up. Later, Walker admitted that because

he knew what game they were playing, he called out a single suggestion to a player as he walked

by.3 Based on his observations, Sgt. Millard believed that Walker was involved in illegal gambling

activity.

When officers arrived, Sgt. Millard coordinated the bust from his observation position. He

testified he heard Walker yell “police, police!” when the cruisers approached, and everyone

scattered. Walker denies saying this, claiming that it is not his voice heard in the bodycam footage,

and that he would have used a “hood term” to describe police, rather than the word “police.” As

police moved in, Sgt. Millard observed one suspect, Tillman, remove a revolver from his

waistband and throw it over the fence behind which Sgt. Millard was hiding. Tillman and Walker

then both walked across the parking lot away from police. Their proximity led Sgt. Millard to

believe they had a “personal connection,” and he directed the responding officers to “grab” them

both. When officers approached Walker, he changed directions again, apparently to evade them,

and refused to heed their commands to stop. Several officers were required to detain and handcuff

him. Walker vigorously protested that he was not gambling and did not consent to a search. Kitts

assured him that he was simply being patted down for officer safety and that he was only detained.

3 Subsequently, in a recorded jail call to another girlfriend, Walker admitted to giving advice about the game to some of the players. While this is not material to the existence of probable cause at the time of arrest, it does corroborate officers’ contemporaneous interpretation of events.

3 No. 22-1223, United States v. Walker

Halfway through Officer Kitts’ pat-down, Sgt. Millard yelled over the fence that Walker was “in

custody for gambling.”

When Officer Kitts patted down Walker, he also patted down his bag. Almost immediately

he felt a pistol, removed the bag from Walker, and handed it to Officer Weston for evidence

collection. Officer Kitts then asked Sgt. Millard to confirm that Walker was under arrest for

gambling and placed him under arrest. After Walker was arrested, officers discovered that he had

an outstanding parole violation warrant and that his conditions of parole included a search

provision.

Walker was indicted on one count of possession of a firearm by a felon. The court denied

a motion to suppress the firearm. Walker was sentenced to 70 months imprisonment and 3 years

supervised release.

II.

We review the denial of a motion to suppress de novo, and factual findings for clear error.

United States v. Shank, 543 F.3d 309, 312 (6th Cir. 2008). The district court’s determination of

probable cause is a mixed question of law and fact which we review de novo. United States v.

Pacheco, 841 F.3d 384, 389 (6th Cir. 2016). But all evidence is considered “in the light most

likely to support the district court’s decision,” and that decision is affirmed if it “can be justified

for any reason.” United States v. Bateman, 945 F.3d 997, 1005 (6th Cir. 2019) (quotations

omitted).

Police may arrest an individual without a warrant if “probable cause exists for the arresting

officer’s belief that a suspect has violated or is violating the law.” Criss v. City of Kent, 867 F.2d

259, 262 (6th Cir. 1988). Probable cause exists if the police can articulate “facts and

circumstances” showing “that the suspect has committed, is committing, or is about to commit an

4 No. 22-1223, United States v. Walker

offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). This showing is evaluated under a

“reasonable person” standard. See United States v. Strickland, 144 F.3d 412, 415 (6th Cir. 1998).

In evaluating probable cause in this case, we look at the totality of the circumstances to see

if there existed a “probability or substantial chance of criminal activity.” District of Columbia v.

Wesby, 583 U.S. 48, 57 (2018) (internal quotations omitted). Probable cause is determined based

on the facts and circumstances apparent to the responding officers at the time. See United States

v. Romero, 452 F.3d 610, 615 (6th Cir. 2006).

We hold that the police had probable cause to arrest Walker for a violation of the city’s

gambling ordinance. That ordinance criminalizes not just gambling, but attempted gambling and

aiding and abetting gambling as well. See Kal. Code of Ord. §§ 22-37, 22-1, 22-2. The district

court discounted as not credible Walker’s testimony that he did not take part in the gambling and

merely called out a suggestion to the players as he walked by, and instead credited Sgt. Millard’s

account of events. In that account, Sgt. Millard observed a group of men gambling, and, standing

ten feet away behind a privacy fence, observed them shooting dice and throwing money. He

further observed Walker approach the group, “lean in” in a manner consistent with participation

in the game, and then walk away. In that time, he saw Walker make motions consistent with active

participation in the game, although he did not directly observe Walker throwing dice or

contributing money. Based on this, Sgt. Millard concluded that Walker was participating in illegal

gambling activity.

When the police entered the Daysha’s parking lot in force, Sgt. Millard’s further

observations of Walker and the gamblers reinforced his initial conclusions of Walker’s culpability.

First, he heard Walker warn the gamblers, calling out “police, police!” when the officers arrived.

The suspects then scattered, and Walker and another gambler, Tillman, were observed walking

5 No. 22-1223, United States v. Walker

away from police in apparent proximity to each other. Sgt. Millard concluded that this proximity

implied that Tillman and Walker knew each other. Although this later turned out to be erroneous,

a reasonable officer on the scene at the time could have arrived at the same conclusion.

Walker argues that the government relied too much on the high-crime nature of the area in

justifying his arrest. But that oversimplifies the record. As the district court pointed out in its oral

ruling, probable cause was grounded in far more than the general characteristics of the area. Sgt.

Millard observed Walker’s behavior and saw several actions consistent with participation in the

gambling activity that was clearly—and undisputedly—occurring.

The concept of probable cause “is a fluid concept that is not readily, or even usefully,

reduced to a neat set of legal rules.” Wesby, 583 U.S. at 57 (internal quotations omitted). It is

more than reasonable suspicion, but “requires only a probability or substantial chance of criminal

activity.” Id. Under these facts as recounted by Sgt. Millard and credited by the district court,

there was sufficient evidence to establish a “substantial chance of criminal activity” on the part of

Walker. Id. The police had probable cause to arrest Walker; therefore, the subsequent search and

discovery of the handgun was constitutional and the motion to suppress was properly denied.

AFFIRMED.

6 No. 22-1223, United States v. Walker

MATHIS, Circuit Judge, concurring in the judgment. I agree with the lead opinion that

the district court did not err in denying Teiun Walker’s motion to suppress. Although I do not

believe that police officers had probable cause to stop Walker, they did have reasonable suspicion

to detain him. And that detention would have inevitably led to the discovery of the firearm in

Walker’s possession because of his outstanding arrest warrant.

The police had the requisite reasonable suspicion of criminal activity to stop Walker. When

an officer has a reasonable, articulable suspicion that a person may be involved in criminal activity,

he may conduct a brief investigatory stop of the person. Terry v. Ohio, 392 U.S. 1, 30–31 (1968).

Several factors may be relevant to this determination. For example, a defendant’s presence in a

high-crime area can support a finding of reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119,

124 (2000). So can “obvious attempts to evade officers.” United States v. Brignoni-Ponce, 422

U.S. 873, 885 (1975). Here, after standing next to and conversing with multiple people engaged

in illegal gambling in a high-crime area, Walker changed direction not once, but twice to avoid

being stopped by the police. Moreover, he headed in the same direction as a gambling suspect

when that person tossed his handgun over a fence. Taken together, these facts “give rise to

reasonable suspicion” that Walker was involved in criminal activity, permitting the officers to

detain him. United States v. Jacob, 377 F.3d 573, 577 (6th Cir. 2004) (citing United States v.

Arvizu, 534 U.S. 266, 274–75, 277 (2002)).

Once the officers lawfully stopped Walker, they would have inevitably found his gun one

way or another. The U.S. Constitution “allows for the admission of evidence that would have been

discovered even without the [alleged] unconstitutional source.” United States v. Cooper, 24 F.4th

1086, 1091 (6th Cir. 2022) (quoting Utah v. Strieff, 579 U.S. 232, 238 (2016)). Courts will not

exclude such evidence if the government shows that a “routine procedure” would have uncovered

7 No. 22-1223, United States v. Walker

the evidence. Id. (quoting United States v. Kennedy, 61 F.3d 494, 500 (6th Cir. 1995)). The record

shows that Kalamazoo Department of Public Safety officers routinely run warrant checks on any

person they detain. The record also supports the inference that the only reason the officers did not

run a warrant check on Walker in this instance was because they already decided to arrest Walker

for gambling and had already found his handgun in his shoulder bag. Had the police not already

arrested Walker, they would have conducted a warrant check, located Walker’s outstanding

warrant, arrested him on that warrant, and found the gun when they searched him incident to that

arrest.

I do not believe that the police had probable cause to arrest Walker for gambling. “To

determine whether an officer had probable cause to arrest an individual, we examine the events

leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint

of an objectively reasonable police officer, amount to probable cause.” Maryland v. Pringle, 540

U.S. 366, 371 (2003) (quotation omitted). In other words, the “facts and circumstances within the

officer’s knowledge” must suffice to warrant a reasonable person to believe “that the suspect has

committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S.

31, 37 (1979). The government has the burden to show that “at the moment the arrest was made,

the officers had probable cause to make it.” Beck v. Ohio, 379 U.S. 89, 91 (1964).

At the time of Walker’s arrest, Sergeant Millard observed Walker “leaning into the group

[and] conversing with the individuals there.” R. 50, PageID 290. He admitted that he did not see

Walker put money down or roll any dice, nor did he indicate whether he heard anything Walker

said to the gamblers. He saw Walker “actively participating in the nature of conversing with the

individuals present and moving over, which was the general motion of people who were trying to

put down money or trying to see what the roll was.” Id. In other words, Sergeant Millard observed

8 No. 22-1223, United States v. Walker

Walker watching the gambling game, talking to people, and moving around. These observations,

even taking into account the high-crime area and Walker’s attempt to evade police, do not establish

probable cause. Kalamazoo outlaws gambling and aiding and abetting gambling. See Kal. Code

Ord. §§ 22-2; 22-37. But it does not criminalize merely watching people gamble or talking to

people who are doing so. Although Walker later admitted to participating in the game by calling

out a suggestion to one of the players as he walked by, Sergeant Millard did not hear Walker do

that at the scene. So he lacked sufficient information to reasonably conclude that Walker actively

participated in, or aided and abetted, illegal gambling.