                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0116n.06

                                           No. 09-4366

                          UNITED STATES COURT OF APPEALS
                                                                                        FILED
                                                                                     Feb 17, 2011
                               FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    SOUTHERN DISTRICT OF OHIO
GEORGE LORENZO DINGESS,                          )
                                                 )
       Defendant-Appellant.                      )



       Before: MARTIN, BOGGS, and COOK, Circuit Judges.


       COOK, Circuit Judge. After arresting George Dingess, officers discovered a pistol on his

person and marijuana in his car. Dingess moved to suppress this evidence, which he claims

authorities procured during an illegal search. The district court denied Dingess’s motion, and

Dingess entered a conditional guilty plea to possession of a firearm by a convicted felon. Dingess

now appeals the denial of his motion to suppress. We affirm.


                                                 I.


       While patrolling a high-crime area of Columbus, Police Officers Jeremy Phalen and John

Narewski observed two men parked in a blue Buick in the common driveway of a duplex. Having

heard a report that a “stocky black male” was selling drugs from a blue Buick at that very address,

the officers ran a check on the license tag. Records revealed that Dingess owned the vehicle. Phalen
No. 09-4366
United States v. Dingess


and Narewski then pulled up Dingess’s mug shot and arrest record—which included multiple

narcotics, weapons, and resisting-arrest charges—and identified Dingess as the driver. Unbeknownst

to the officers, Dingess was staying with his girlfriend, who lived in the duplex.


       The officers did not immediately initiate contact; instead, they spent approximately twenty

minutes conducting an unrelated traffic stop. When the officers returned and observed the occupied

Buick still parked in the driveway, they decided to investigate. Phalen and Narewski parked their

cruiser on the street, leaving the driveway entrance clear. Phalen approached the driver’s door while

Narewski approached the passenger’s door. According to the officers, both the driver’s and the

passenger’s windows were down. As the officers approached the rear bumper, they smelled burning

marijuana; as they moved closer, Phalen observed Dingess holding a marijuana blunt in his right

hand. Both officers reported that, before they said anything, Dingess said that he was not doing

anything wrong and demanded that the officers move away. Phalen responded that he smelled

marijuana and saw Dingess holding a blunt. Dingess threw the blunt toward the lap of his passenger,

later identified as Dingess’s brother, Drew. According to the officers, Drew raised his hands in the

air and said that he would not be a problem.1 After opening Dingess’s door, Phalen advised Dingess

he was under arrest. Following a struggle, Phalen tasered Dingess twice. When Dingess fell and his



       1
         Drew disputes parts of this account. He claims that the windows of the car were up, the
police officers initiated contact by knocking on the window, neither brother was smoking marijuana,
and Phalen tried to pull Dingess out of the car. He also denies raising his hands and telling the
officers that he would not be a problem. Dingess’s argument, however, does not rely on these factual
discrepancies.

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United States v. Dingess


shirt opened, Narewski observed a firearm and yelled “gun!” Other officers that Narewski had

radioed arrived and handcuffed Dingess. Upon searching Dingess, police found a loaded nine-

millimeter pistol in his waistband. They also discovered a marijuana blunt in the front passenger

area of his car.


        A grand jury indicted Dingess for possession of a firearm by a convicted felon. Dingess

moved to suppress evidence. Following an evidentiary hearing, the district court denied Dingess’s

motion. Dingess entered a conditional guilty plea to the one-count indictment. He also moved the

court to reconsider its denial of his motion to suppress; the district court adhered to its previous

ruling. The court sentenced Dingess to fifty-two months’ imprisonment and three years of

supervised release. Dingess appeals the denial of his motion to suppress.


                                                  II.


        Dingess claims that the district court improperly denied his motion to suppress because it

misconstrued the nature of his encounter with the officers. Police may engage in a warrantless

encounter with a citizen under three circumstances: “(1) consensual encounters in which contact is

initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked

questions; (2) a temporary involuntary detention or Terry stop which must be predicated upon

reasonable suspicion; and (3) arrests which must be based upon probable cause.” United States v.

Pearce, 531 F.3d 374, 380 (6th Cir. 2008) (internal quotation marks and citation omitted).

Considering the evidence in the light most favorable to the government, we review the district

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court’s findings of fact for clear error and its conclusions of law de novo. United States v. Gross,

624 F.3d 309, 314 (6th Cir. 2010).


       Dingess claims that the district court erred in denying his motion to suppress because the

officers engaged in a Terry stop without a reasonable, articulable suspicion. Because the evidence

suggests that the officers initiated a consensual encounter rather than a Terry stop, and the officers

had probable cause before the encounter ripened into a Terry stop or an arrest, we disagree. In a

consensual encounter, “law enforcement officers may ask citizens general questions without having

any reasonable suspicion of criminal activity, so long as the officers refrain from the type of

intimidating behavior that would lead a reasonable person to believe that the person was not free to

leave.” United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008) (internal quotation marks and

citation omitted). “Whether an encounter between a police officer and a citizen is consensual

depends on the officer’s objective behavior, not on any subjective suspicion of criminal activity.”

Id. (internal quotation marks and citation omitted). Factors indicating a seizure include “‘the

threatening presence of several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.’” Gross, 624 F.3d at 315 (quoting United

States v. Mendenhall, 446 U.S. 544, 554 (1980)).


       Prior to detecting the marijuana—at which point the parties do not dispute that probable

cause existed—the officers parked their car without blocking Dingess’s egress and then approached


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Dingess and Drew to initiate conversation. Dingess does not suggest that the officers displayed a

weapon, touched him, or communicated with him in any way. See id. Instead, he recites a number

of other factors that he claims the district court failed to recognize support his position that the

officers engaged in a Terry stop:


       (1) Mr. Dingess’ [sic] vehicle was positioned with only one point of egress. (2) The
       front of the vehicle was facing a fence and the rear of the vehicle was towards the
       street. (3) The officers’ initial approach was from the rear of Mr. Dingess’ [sic]
       vehicle which was to [sic] only point of egress. (4) The officers were in a marked
       cruiser and police issued uniforms demonstrating an obvious police authority. (5)
       The officers simultaneously approached the driver’s and passenger side of the vehicle
       essentially surrounding the occupants. (6) And, the officers were armed.


(citations omitted). But Dingess cites no case law explaining how these factors aid his cause. In

fact, while the first three factors bear on Dingess’s ability to depart from the driveway, none suggests

that the officers actually blocked his egress. See United States v. Labelle, 390 F. App’x 539, 542 n.6

(6th Cir. 2010) (characterizing encounter as consensual in part because officer “in no way

constrained defendant’s movements”); United States v. See, 574 F.3d 309, 314 n.4 (6th Cir. 2009)

(noting that officer who initiated a Terry stop “could have properly sought a consensual encounter

without blocking [the defendant’s] ability to exit”); cf. Gross, 624 F.3d at 315–16 (finding that

officer began a Terry stop when he blocked the defendant’s car); United States v. Jones, 562 F.3d

768, 772–73 (6th Cir. 2009) (finding a seizure because a reasonable person would not feel free to




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leave once officers had blocked his car).2 The next three factors suggest only typical police conduct,

not activities indicative of a seizure. See United States v. Williams, 615 F.3d 657, 664 (6th Cir.

2010) (observing that, without more, the approach of two uniformed officers in a marked police car

would not suffice to make a reasonable defendant feel as though he could not leave). Because a

reasonable person would believe himself free to leave under these circumstances, the district court

correctly classified the officers’ initial approach as a consensual encounter. See Davis, 514 F.3d at

607. And, because the officers smelled burnt marijuana emanating from Dingess’s car and saw the

defendant holding marijuana—establishing probable cause—before this encounter ripened into a

seizure, the district court properly denied the motion to suppress. See United States v. Ivey, 307 F.

App’x 941, 942–43 (6th Cir. 2009) (per curiam) (finding no Fourth Amendment violation where

officer’s plain-view discovery of marijuana on defendant provided probable cause for defendant’s

arrest and vehicle search); United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002) (“[A]n officer’s

detection of the smell of marijuana in an automobile can by itself establish probable cause for a

search.”).




       2
        Dingess suggests in the statement of issues presented that the officers did not initiate a
consensual encounter because they entered uninvited onto private property. Because Dingess fails
to pursue this line of reasoning in his brief, we deem it forfeited. See Barakat v. Holder, 621 F.3d
398, 406 n.1 (6th Cir. 2010). Even if considered, this argument lacks merit in light of the open
access to the common driveway and the officers’ unobstructed view of Dingess’s activities. See
United States v. Smith, 783 F.2d 648, 651–52 (6th Cir. 1986) (finding officers did not violate
defendant’s reasonable expectation of privacy by entering his driveway and proceeding to his
residence).

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                                              III.


       For the above reasons, we affirm the denial of Dingess’s motion to suppress.




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