                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1214n.06

                                           No. 11-6394

                             UNITED STATES COURT OF APPEALS
                                                                                         FILED
                                  FOR THE SIXTH CIRCUIT                              Nov 26, 2012
                                                                               DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR THE
                                                      )   WESTERN DISTRICT OF TENNESSEE
MARIO HAYWOOD,                                        )
                                                      )
       Defendant-Appellant.                           )



       Before: COOK and WHITE, Circuit Judges; SHARP, District Judge.*


       COOK, Circuit Judge. Mario Haywood, who pled guilty to possessing more than five

hundred grams of cocaine with intent to distribute, appeals the district court’s denial of his motion

to suppress evidence. Alternatively, he challenges the reasonableness of his 87-month sentence.

Though we disagree with some of the district court’s legal conclusions, we AFFIRM its judgments

for the following reasons.


                                                 I.


       In March 2009, the Memphis Police Department Organized Crime Unit received a tip from

a confidential informant that Mario Haywood sold cocaine and other drugs from his grandfather’s

house located on Dwight Road. This informant, whose cooperation with the police previously led

       *The Honorable Kevin H. Sharp, United States District Judge for the Middle District of
Tennessee, sitting by designation.
No. 11-6394
United States v. Haywood


to two felony-drug arrests and five drug seizures, described Haywood as a “male black [with] dark

complexion, five-six to five-eight in height, 30 to 35 years of age, [and] 160 to 170 [pounds].” The

informant also provided the license plate number of Haywood’s Bonneville.


       From this information, Detective Mario McNeal dispatched a team of detectives to watch the

Dwight Road residence while he sought a search warrant. Detective Willard Tate, the first to arrive,

parked his car a block away and positioned it so that he could observe the front porch and the inside

of the Bonneville through his front windshield using binoculars. Tate radioed his observations to

other detectives waiting around the corner.


       Over the next hour or so, Tate observed Haywood walk from the front porch to the

Bonneville at least three times. Each time, Haywood sat inside the car with several other men.

Although Tate could not actually see distinct dollar bills or drugs exchanged, he thought their

gestures suggested drug transactions.


       Following these transactions, a Malibu driven by Roshina Holloway pulled up to the

residence. Haywood approached the Malibu with a gun in hand, passed the gun to Holloway, and

then sat in the passenger side. Alarmed that Haywood was about to leave the residence, Tate radioed

his team to report what he saw.


       Holloway started driving toward Tate, who then exited his vehicle, identified himself as a

police officer, and asked Holloway to stop. Though Tate wore plain clothes, he put on a police vest


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No. 11-6394
United States v. Haywood


as he was exiting. The Malibu slowed down, and two other detectives pulled up behind it in a

marked police car. Haywood suddenly got out of the Malibu and fled on foot until the detectives

eventually arrested him following a chase.


       Following this arrest, the detectives searched Haywood’s pockets, discovering drugs and

$4,659. They handcuffed Haywood, placed him in the backseat of the police car, and waited for the

search warrant to arrive. McNeal procured the search warrant at 6:30 p.m. and immediately brought

it to the scene. The detectives then searched the Bonneville, discovering more drugs and cash. Once

at the police station, Haywood admitted ownership of the items seized during the search.


       During the suppression hearing, Haywood disputed the officers’ account of what happened.

According to Haywood, he arrived at his grandfather’s house around 5:00 p.m. but never left the

porch to sit in the Bonneville. He neither traded drugs, nor carried a gun. And when he and

Holloway left in the Malibu to purchase beer, a black car “swooped” in front of them, blocking the

Malibu. He then jumped out of the car and ran until the detectives subdued him. The detectives then

searched him upon arrest and, before any search warrant arrived, searched his Bonneville. Haywood

maintains that he did not know Tate was a police officer, though he admits seeing the police enter

his grandfather’s house during the chase.


       The district court credited the detectives, who corroborated each other’s testimony. The court

found the search of Haywood’s person a lawful patdown authorized by Terry v. Ohio, 392 U.S. 1



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No. 11-6394
United States v. Haywood


(1968). The court also found that the automobile exception authorized the detectives to search

Haywood’s Bonneville even in the absence of a search warrant.1 This timely appeal followed.


                                                 II.


       A. Motion to Suppress Evidence


       Haywood contends that the detectives had neither reasonable suspicion to pat him down nor

probable cause to arrest him, rendering the searches unreasonable. As support, he attacks the district

court’s factual determinations, stressing the inconsistencies among the detectives’ testimony. For

example, Tate stated that Haywood carried the gun at his side to the Malibu, but the arrest ticket

notes that Haywood pulled the gun from his waistband before handing it to Holloway. Tate also

testified that he decided to stop the Malibu, whereas McNeal recalled ordering the detectives to stop

the Malibu via radio. Finally, Tate stated that the Malibu slowed down when he asked Holloway to

stop; in contrast, McNeal testified that the Malibu sped away for a few blocks after Tate’s demand.


       These discrepancies do not leave us with “the definite and firm conviction that a mistake has

been committed.” United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999) (citations

omitted). They do not change the material facts: that Haywood carried a gun and ran from the

detectives. We thus find no clear error arising from the differences between the officers’ testimony.


       1
        The court declined to decide whether the automobile search occurred before or after McNeal
obtained a signed search warrant. In another part of the order, however, the court credited McNeal’s
testimony that the search did not occur until his arrival with a signed search warrant.

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No. 11-6394
United States v. Haywood


See United States v. Foster, 376 F.3d 577, 583–84 (6th Cir. 2004) (no clear error where unresolved

inconsistencies do not materially alter the facts); United States v. Brown, 20 F. App’x 387, 388–89

(6th Cir. 2001) (same); see also United States v. Sweeney, 402 F. App’x 37, 42 (6th Cir. 2010)

(individual inconsistencies need not be resolved where the district court offers adequate explanations

for factual findings).


        Haywood also questions Tate’s credibility, maintaining that Tate could not have observed

the inside of the Bonneville because he sat a block away observing through tinted windows. He also

highlights Tate’s inability to recall the exact number of drug transactions he observed. Absent

contradiction by extrinsic evidence or internal inconsistency, however, “[t]here can virtually never

be clear error” when the trial judge premises his findings on the credibility of a witness who offers

a coherent and plausible story. Brooks v. Tennessee, 626 F.3d 878, 897 (6th Cir. 2010) (internal

quotation marks omitted) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)).

Here, Tate explained that he looked through the windshield and used binoculars to observe Haywood

inside the Bonneville.


        In a similar vein, Haywood argues that Tate engaged in selective perception. Seizing on

Tate’s testimony that he wanted to see “some kind of action,” Haywood contends that Tate’s

cognitive bias caused him to interpret innocent behaviors as criminal activities. The magistrate

judge, however, heard and rejected this cognitive-bias argument before finding Tate credible, and

the district court adopted this recommendation. A trial judge is better fit to evaluate the reliability


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No. 11-6394
United States v. Haywood


of Tate’s testimony. See Anderson, 470 U.S. at 574 (“The trial judge’s major role is the

determination of fact, and with experience in fulfilling that role comes expertise.”).


        Though the district court committed no clear error, we disagree with its legal conclusion that

the Terry stop authorized the search of Haywood’s person. See United States v. Yoon, 398 F.3d 802,

805 (6th Cir. 2005) (appellate courts review de novo district courts’ legal conclusions). A Terry stop

allows officers only to frisk a person for the safety and protection of officers; it does not permit a full

search for evidence of criminal activity. See Minnesota v. Dickerson, 508 U.S. 366, 378 (1993)

(“[T]he officer’s continued exploration of [defendant’s] pocket after having concluded that it

contained no weapon was unrelated to . . . the protection of the police officer and others

nearby . . . therefore amount[ing] to the sort of evidentiary search that Terry expressly refused to

authorize . . . .” (internal citations and quotation marks omitted)). An officer can justifiably seize

drugs and cash only if their incriminating character is immediately apparent during the Terry

patdown. See id. at 379. Here, no testimony or evidence supports the view that detectives plainly

recognized the presence of the drugs and cash upon placing their hands over Haywood’s pockets.


        Unlike a Terry stop, however, a lawful arrest authorizes officers to search and seize

destructible evidence in defendant’s pockets. See Arizona v. Gant, 556 U.S. 332, 339 (2009) (search

incident to arrest justifies “safeguarding any evidence of the offense of arrest that an arrestee might

conceal or destroy” (citation omitted)); Chimel v. California, 395 U.S. 752, 763 (1969) (“[I]t is

entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s


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No. 11-6394
United States v. Haywood


person in order to prevent its concealment or destruction.”), abrogated on other ground by New York

v. Belton, 453 U.S. 454 (1981). The lawful arrest validates the search of Haywood’s pockets in this

case.


        Though Haywood’s flight alone was not a crime, see Tenn. Code Ann. §§ 39-16-602(a)

(obstruction of law enforcement requires use of force rather than mere flight); 39-16-603(a) (evading

arrest requires knowledge that an officer is attempting arrest), when other detectives from the marked

police car reached Haywood, he knew that his pursuers were police officers, and yet forcibly

attempted to break free, thereby committing a crime in their presence. See Tenn. Code Ann. § 39-16-

602(a) (“It is an offense for a person to intentionally prevent or obstruct anyone known to the person

to be a law enforcement officer . . . from effecting a stop, frisk, halt, arrest or search of any person,

including the defendant, by using force against the law enforcement officer or another.”).2 We note

that Tennessee law prohibits Haywood’s conduct even if the detectives unlawfully stopped him. See

Tenn. Code Ann. § 39-16-602(b) (“[I]t is no defense to prosecution . . . that the stop, frisk, halt,

arrest or search was unlawful.”). Thus, even under Haywood’s version of events, the outcome is the

same. See United States v. Castillo, 238 F.3d 424 (6th Cir. 2000) (table); United States v. Jefferson,

182 F.3d 919 (6th Cir. 1999) (table).




        2
        The detectives did not “stop” Haywood until they apprehended him after chase. See
California v. Hodari D., 499 U.S. 621, 625–26 (1991) (no seizure of fleeing defendant until
apprehension).

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No. 11-6394
United States v. Haywood


       Following Haywood’s lawful arrest, the detectives properly searched Haywood’s pockets.

It matters not that the search would not have provided further evidence of Haywood’s

crime—resisting officers. See United States v. Robinson, 414 U.S. 218, 236–37 (1973) (upholding

search incident to lawful arrest even though search would have produced no further evidence of

driving with revoked permit). Once the detectives discovered drugs and cash in Haywood’s pockets,

they had the requisite probable cause to search the Bonneville in light of Tate’s observations prior

to the arrest. Cf. United States v. Southard, 20 F. App’x 304, 307 (6th Cir. 2001) (“Once [the

arresting officer] lawfully discovered and seized the [contraband in defendant’s] pocket . . . the

automobile was subject to search incident to a lawful arrest.” (citations omitted)). Because we agree

with the district court that the automobile exception authorized the search of the Bonneville, we need

not address Haywood’s remaining arguments regarding when that search occurred. We affirm the

court’s denial of Haywood’s motion to suppress evidence.


       B. Reasonableness of Sentence


       Alternatively, Haywood challenges the reasonableness of his sentence, arguing that the court

failed to consider his individual characteristics.     The record belies this claim.       The court

painstakingly considered Haywood’s early criminal history, early education, adult criminal history,

gang membership, physical ailments, history of alcoholism, IQ, prospective employment, and

compliance under supervision. Haywood also received “a little bit of plus point” for his family

members’ service in the United States armed forces. We thus find Haywood’s sentence reasonable.


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No. 11-6394
United States v. Haywood


                           III.


      We AFFIRM.




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