United States v. Thomas

77 F. App'x 862
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 8, 2003
DocketNo. 02-5516
StatusPublished
Cited by4 cases

This text of 77 F. App'x 862 (United States v. Thomas) 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. Thomas, 77 F. App'x 862 (6th Cir. 2003).

Opinion

SUHRHEINRICH, Circuit Judge.

Defendant-Appellant Robert Lawrence Thomas appeals from the denial of his motion to suppress evidence supporting his conviction on two weapons counts under 18 U.S.C. §§ 922(n) and (k). Thomas claimed below that Knoxville, Tennessee police officers had obtained evidence in violation of Thomas’s rights under the Fourth Amendment and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We find no constitutional violation and affirm the decision of the district court.

I.

At approximately 3:15 a.m. on November 30,1999, three officers of the Knoxville Police Department were on routine patrol near the Walter P. Taylor housing project. Knoxville police officers routinely patrolled this project, knowing it to be a haven for drug activity. The officers spotted five men standing on a porch of an apartment building and became generally suspicious because of the lateness of the hour. The officers did not recognize any of the men, and therefore were not specifically aware [863]*863that any had committed a crime or had outstanding warrants. Nonetheless, the officers decided to initiate contact.

Officer Ray Offenbacher exited his vehicle and moved into position on the side of the apartment building in front of which the men were standing. He observed no criminal activity. Eventually, the five men began to disperse and each started to walk in the general direction of where Offenbacher was standing. As the men approached, Offenbacher stepped from the side of the building and into the men’s path. Offenbacher ordered them to stop. Offenbacher testified that none of the men tried to run; however, none of the men stopped. Offenbacher testified that “[t]hey turned away from [him] and started to walk away from where [he] was coming from [sic].” Thomas walked onto a nearby porch and tried to open the screen door. Offenbacher testified that Thomas, unable to open the door, dropped a black object off the porch and out of sight. Offenbacher stated he “heard a clang” from the object dropped by Thomas-“like metal hitting concrete”- and ordered all of the men to the ground, and they complied. The other two officers, Walter Henry and an Officer Gallahar, arrived on the scene and the three officers found a loaded semiautomatic pistol with an obliterated serial number on the ground where Thomas had dropped it.

Thomas, a prior felon, was charged in the district court below with two counts of illegal possession of a firearm. The first charge was for possession of a firearm by a felon under 18 U.S.C. § 922(n), and the second was for possession of a weapon with an obliterated serial number under 18 U.S.C. § 922(k). Thomas filed a motion to suppress the pistol found at the scene. Thomas based his motion to suppress on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and claimed, first, that Offenbacher’s order to Thomas and his friends to stop constituted a seizure under Terry and the Fourth Amendment; and, second, that Offenbacher did not have reasonable suspicion to commence such a Terry stop against the men. On October 17, 2001, the magistrate judge held a suppression hearing. On October 31, 2001, the magistrate judge issued a report and recommendation denying the motion to suppress. On December 18, 2001, the district court adopted the magistrate judge’s report.

On December 19, 2001, Thomas entered a guilty plea, reserving his right to appeal the denial of the motion to suppress. On April 1, 2002, Thomas was sentenced to two terms of thirty-six months (three years) to be served concurrently. On April 4, 2002, Thomas filed a notice of appeal; and his cause is timely before this Court.

II.

We review the denial of a motion to suppress under a mixed standard. We review all factual determinations for clear error, and all legal conclusions de novo. United States v. Galloway, 316 F.3d 624, 628 (6th Cir.2003).

Under the Fourth Amendment, police officers may briefly stop an individual if they have “reasonable suspicion” that he has committed a crime. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court first stated that “the police should be allowed to ‘stop’ a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity.” Id. at 10, 88 S.Ct. 1868. “[I]n justifying the intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868. We have found that the reasonable suspicion stan[864]*864dard requires that “an officer making a Terry stop must have more than a hunch” that criminal activity is occurring, but “considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Hurst, 228 F.3d 751, 757 (6th Cir.2000) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)); Houston v. Clark County Sheriff, 174 F.3d 809, 813 (6th Cir.1999).

Thomas claims that Offenbacher lacked “specific and articulable facts” to stop him because Offenbacher had no reason to believe criminal activity was occurring or about to occur. Thomas asserts that “[t]here was nothing so unusual about several young men standing around a parking lot in Knoxville, Tennessee, that justified their seizure by police officers.” Brief for Appellant, at 11; cf. Northrop v. Trippett, 265 F.3d 372, 382 (6th Cir.2001) (finding officers did not have reasonable suspicion where stop was based solely on tip stating victim’s race and officers did not personally observe any suspicious behavior before making stop). Thomas further asserts that Offenbacher did not “smell drugs or alcohol or see any contraband.” Moreover, the young men did not run when the police drove by.

The first inquiry in a case in which a defendant claims violation of his Fourth Amendment rights is whether the defendant was actually seized. In California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court held that the term seizure “does not remotely apply ... to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee.” Id. at 626, 111 S.Ct. 1547. In other words, the defendant must stop or be stopped to be “seized.” The district court made a factual determination that Thomas did not comply with Offenbacher’s order because he ignored the officer and “continued to walk away after receiving ...

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Bluebook (online)
77 F. App'x 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-ca6-2003.