United States v. Thomas

142 F. App'x 896
Court of Appeals for the Sixth Circuit·Decided August 3, 2005·No. 04-5872·Unpublished·Cited by 1 cases

Opinion

REEVES, District Judge.

Defendant-Appellant Ronnie Thomas appeals the district court’s denial of his motion to suppress. Following the denial of this motion, Thomas entered into a plea agreement with the United States. The United States dismissed one count of the indictment and Thomas pled guilty to the remaining count, alleging that he was guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). In entering his guilty plea, Thomas reserved the right to appeal the district court’s decision on his motion to suppress. For the reasons that follow, we AFFIRM the denial of the defendant’s motion.

BACKGROUND

On May 21, 2002, Officers Daryl Dyson and Lanece Stepney of the Memphis Police Department responded to a call of “shots fired.” The suspect was described as a black male wearing a blue hat and blue shirt. Upon their arrival at the scene, the officers observed a black male, later identified as Thomas, fitting the description of the suspect. Initially, Thomas walked towards them, but then turned and walked in the opposite direction. The officers observed Thomas make a “throwing motion” and saw a “metallic, grayish, shiny type of object” being thrown. Officer Dyson also heard a “loud thud” from a nearby wooden fence. He later testified that he suspected that the thrown object was a weapon.

The officers detained Thomas for further investigation. Officer Stepney patted-down Thomas and discovered three bullets in his pocket. Thomas was placed in a squad car, although he was not handcuffed. The officers testified that he was not free to leave the car. While Officer Stepney searched for the gun, Thomas volunteered to Officer Dyson that he was “being set up” and the “gun is not mine.” In addition to denying ownership, Thomas also stated that he was trying to get the gun out of the house and away from his girlfriend. While still at the scene, Officer Stepney recovered the weapon. Although no Miranda warnings had been given at this point, Officer Dyson then asked Thomas whether he had a permit for the weapon. Thomas responded in the negative.

*898 On February 18, 2003, a federal grand jury returned a two-count indictment against Thomas, charging him with being a felon in possession of a weapon and ammunition. Thomas filed a motion to suppress evidence. A hearing was held before the magistrate judge on June 19, 2003. After hearing testimony from Officer Dyson, Officer Stepney, and Thomas, the magistrate judge recommended that the motion be denied. And after conducting a de novo review, the district court adopted the magistrate judge’s findings of fact and conclusions of law.

On March 26, 2004, Thomas pled guilty to count one and the United States dismissed count two. Thomas reserved his right to appeal the suppression issue. On July 14, 2004, he was sentenced to 57 months imprisonment.

STANDARD OF REVIEW

This Court reviews factual findings relating to a suppression motion for clear error and conclusions of law de novo. United States v. Bailey, 302 F.3d 652, 656 (6th Cir.2002).

DISCUSSION

A. Frisk

Thomas argues that the arresting officers did not have a reasonable basis to frisk him. “A stop for questioning is reasonable if the police officer is ‘able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion’ as measured by an objective standard.” United States v. Vite-Espinoza, 342 F.3d 462, 466 (6th Cir.2003) (quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). If the officer is “justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others,” the officer may conduct a limited search for weapons which might be used to harm the officer or members of the public. Terry, 392 U.S. at 26-2, 88 S.Ct. 18687.

Thomas claims that the officers had no reason to believe he might be armed, because they observed him throwing an object that appeared to be a gun. Of course, the fact that Thomas threw one gun did not rule out the possibility that he had additional weapons on his person. Likewise, during their initial observations, it is rational to conclude that the officers did not determine with certainty that the thrown object actually was a gun, as opposed to some other object or weapon. These facts are relevant because “[wjhen assessing whether an individual is ‘armed and dangerous’ the focus of the judicial inquiry is whether the officer reasonably perceived the subject of a frisk as potentially dangerous, not whether he ‘had an indication’ that the defendant was in fact armed.” United States v. Bell, 762 F.2d 495, 500 (6th Cir.1985) (citation omitted). In the present case, the officers were responding to a “shots fired” call. Upon arriving at the scene, they discovered a person matching the description of the suspect. Further, upon observing the officers, Thomas turned to walk away and threw an object toward a fence. Before the “object” was recovered, it was objectively reasonable for the officers to conclude that Thomas posed a risk to themselves or others, requiring limited frisking, questioning, and detention.

B. Ammunition

Thomas also claims that the officers “exceeded the scope of the Terry frisk by seizing from the defendant’s pocket what ... appeared to feel like a bullet.” As the government points out, however, Thomas did not make this argument in his motion to suppress or in his objections to the magistrate’s report. A review of the *899 record supports this conclusion. Accordingly, Thomas has waived this argument. United States v. Critton, 43 F.3d 1089, 1093 (6th Cir.1995); United States v. Yannott, 42 F.3d 999, 1005 (6th Cir.1994); United States v. Crismon, 905 F.2d 966, 969 (6th Cir.1990).

This Court will:

consider a claim first raised on appeal only to correct errors that “are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936).

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