                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0109n.06

                                           No. 09-3705

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                                 Feb 15, 2011
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )    On Appeal from the United
v.                                                       )    States District Court for the
                                                         )    Southern District of Ohio
JERMAINE M. RILEY,                                       )
                                                         )
       Defendant-Appellant.                              )



Before:        GUY, BOGGS, and GIBBONS, Circuit Judges.

               BOGGS, Circuit Judge.

       Arguing that police unlawfully stopped a vehicle under false pretenses and that he was

wrongfully searched once the car was stopped, Jermaine Riley appeals his judgement of conviction.

For the reasons set forth below, we hold that the vehicle was not unlawfully stopped and that Riley

was properly searched based on probable cause to arrest. We therefore affirm the district court.

                                                  I

       Officers of the Columbus Ohio Police Department (“COPD”) arrested defendant, Jermaine

Riley, after several encounters with him between October 2005 and April 2007. On October 10,

2005, the police conducted a consensual search of a friend's residence where Riley was

manufacturing and distributing narcotics in exchange for supplying his friend with crack for personal
No. 09-3705
United States v. Riley

use. The police recovered cocaine, cocaine base, items used to produce crack cocaine, and a loaded

revolver.

        On March 9, 2007, COPD officers stopped a vehicle in which Riley was a passenger in the

front seat. The officers first noticed the vehicle across an intersection, heading in the opposite

direction. Not recognizing the vehicle or driver, the police ran the license plate number (the facts are

conflicting if it was from a front or back plate) and learned it was from out of town. They turned to

follow the vehicle and saw that the rear license plate light was not working. When the police

approached the stopped vehicle, the driver was very nervous. Suspicions raised, the officers called

in a K-9 narcotics detection unit that they knew was nearby.

        The K-9 unit arrived within 2-3 minutes, before the citation process was complete. K-9

Andor searched the outside of the vehicle while the occupants still were in it. K-9 Andor gave

positive alerts indicating the presence of narcotics at the driver's door and at the front passenger's

door. The police then directed the driver to step out of the car. As he did, a bag of cocaine dropped

from the driver’s lap onto the vehicle's front floorboard. At that time the driver was notified that he

was under arrest. The police handcuffed him and patted him down uncovering a loaded 9-mm

Taurus pistol tucked in the front waistband of his trousers. The driver told the police that the gun was

Riley's (lab testing later confirmed that Riley's DNA was on the gun and the driver's was not). At

this point, Riley was directed out of the car, handcuffed, and patted down by a second officer who

found a cookie of crack in Riley's front right pants-pocket.

       On April 10, 2007, the police searched Riley's mother's house based on a warrant obtained as

a result of a controlled drug buy the day before. Inside the house, the police found crack cocaine,

                                                 -2-
 No. 09-3705
 United States v. Riley

scales, paraphernalia associated with crack production and usage, the drug buy money, and two loaded

AK-47 rifles placed in tactical positions within the house.

       On July 12, 2008, Riley was charged in an 11-count superseding indictment for multiple drug

and firearm crimes. Riley filed a motion to suppress evidence arising from the traffic stop. That

motion was denied. After a five-day trial, a jury convicted Riley of conspiracy to manufacture,

distribute, and possess with the intent to distribute more than 50 grams of cocaine base (crack) and

of the distribution, possession, and manufacturing of crack, and the possession of firearms in

furtherance of a drug-trafficking crime. The trial court sentenced Riley to serve 70 years in prison.

Riley timely filed this appeal, challenging the evidence obtained in the vehicle stop and the failure

of the trial court to give an augmented unanimity instruction to the jury.

                                                   II

       When reviewing a denial of a motion to suppress, this court reviews the findings of fact for

clear error and its conclusions of law de novo. United States v. Simpson, 520 F.3d 531, 534 (6th Cir.

2008). Factual findings of the district court may be rejected only where "on the entire evidence [the

court is] left with the definite and firm conviction that a mistake has been committed." Id. at 535

(citation omitted).

       Riley argues that the district court committed clear error when it found that the car's license

plate light was out, arguing that when Riley was stopped it was dark and the officers would only have

been able to run the rear license plate if the light was working. But the district court found that both

police officers testified that the light was not working and that defendant presented no evidence or



                                                  -3-
 No. 09-3705
 United States v. Riley

testimony to the contrary. Nothing in the record or on appeal warrants a finding of clear error by the

district court.

        At the core of Riley's argument is his belief that the licence plate light violation was a pretext

for the police to search for drugs. Even if it were, motive is not relevant in a Fourth Amendment

analysis, so long as the police had probable cause to believe that a traffic violation occurred before

they stopped the vehicle. United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999) (citing Whren v.

United States, 517 U.S. 806, 812-13 (1996) (other citations omitted), cert. denied, 528 U.S. 1176

(2000). A police officer may legally stop a vehicle when he has probable cause to believe a civil

traffic violation has occurred. United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). Probable

cause here was established by the broken license plate light, and the district court’s finding of that fact

was not clearly erroneous.

                                                    III

        Riley’s second contention is that once the vehicle was stopped, the officers lacked probable

cause for his arrest, and his Fourth Amendment right to be free from unreasonable searches and

seizures was violated when the officers searched his person and pockets, finding cocaine. The Fourth

Amendment’s guarantee against unreasonable search and seizure prohibits warrantless searches with

“only a few specifically established and well-delineated exceptions.” United States v. Smith, 549 F.3d

355, 359 (6th Cir. 2008)

        One of those exceptions is search incident to arrest. Ibid. If the officer had probable cause

to arrest Riley, then Riley could be lawfully searched incident to his arrest. When officers lack

probable cause to arrest, a Terry search or pat down is permissible for the limited purpose of ensuring

                                                   -4-
No. 09-3705
United States v. Riley

the safety of the officer and others around him and the search must be confined in scope to an

intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments of assault.

United States v. Garcia, 496 F.3d 495, 505 (6th Cir. 2007); see Terry v. Ohio, 392 U.S. 1, 29 (1968).

The United States Supreme Court has “explicitly recognized that there is a ‘distinction in purpose,

character, and extent between a search incident to an arrest and a limited search for weapons.’” United

States v. Robinson, 414 U.S. 218, 227 (1973) (quoting Terry v. Ohio, 392 U.S. at 25).

       To determine whether probable cause exists to arrest a suspect, this court “must determine

whether at that moment the facts and circumstances within the arresting officers’ knowledge and of

which they had reasonably trustworthy information were sufficient to warrant a prudent person in

believing that a suspect had committed or was committing an offense.” Smith, 549 F.3d at 359 (citing

United States v. Romero, 452 F.3d 610, 615 (6th Cir. 2006) (internal alterations omitted). “The

touchstone of the Fourth Amendment is ‘reasonableness’ based upon the totality of the

circumstances.” Hill, 195 F.3d at 264 (citing Ohio v. Robinette, 519 U.S. 33, 39 (1996) (internal

citations omitted).

       Based on the totality of the circumstances, a prudent person would believe that Riley had

committed or was committing a crime. The arresting officer knew the following facts when he

searched Riley: the driver was acting very nervous; the drug dog had alerted to the presence of

narcotics on both the driver and passenger side doors; a large quantity of cocaine fell out of the

driver’s clothes when he got out of the car; and the driver had been patted down, and a firearm was

found tucked into his waist that the driver claimed belonged to Riley. These facts were sufficient to



                                                 -5-
 No. 09-3705
 United States v. Riley

establish probable cause to arrest Riley for involvement in a drug crime, and thus the search did not

violate Riley’s constitutional rights.



                                                  IV

       Jury instructions are reviewed under an abuse of discretion standard. United States v.

Jamieson, 427 F.3d 394, 414 (6th Cir. 2005). Claims that jury instructions are erroneous are reviewed

"as a whole in order to determine whether they adequately informed the jury of the relevant

considerations and provided a basis in law for aiding the jury in reaching its decision." United States

v. Damra, 621 F.3d 474, 498 (6th Cir. 2010) (citing United States v. Russell, 595 F.3d 633, 642 (6th

Cir. 2010)). A judgment will be reversed "only if the instructions, viewed as a whole, were confusing,

misleading, or prejudicial." Ibid (citations omitted).

       Riley argues that the district court improperly refused to give an augmented unanimity jury

instruction for Counts 2-11 of the indictment so that each juror would have to agree on the means by

which the crime was committed ( i.e., by Riley directly or by a co-conspirator). Instead, the district

court only gave a general unanimity instruction, explaining that there were two different ways Riley

could be found guilty: either for personally committing the crime, or for being a member of a

conspiracy where the crime was committed by a co-conspirator in furtherance of the conspiracy.

       The general rule is that "only a general unanimity instruction is required where the indictment

count provides multiple factual bases under which a conviction could rest." Damra, 621 F.3d at 504-

05. "The touchstone [for an augmented unanimity instruction] has been the presence of a genuine risk



                                                 -6-
 No. 09-3705
 United States v. Riley

that the jury is confused or that a conviction may occur as the result of different jurors concluding that

a defendant committed different acts." Id. at 505.

        The question is whether the commission of the crime and participation in a conspiracy are

different equivalent means which can satisfy the possession and manufacturing offenses or are

"different offenses altogether." Schad v. Arizona, 501 U.S. 624, 643 (1991). This court has held that

where there are charges of drug possession with intent to distribute based on both liability as a

principal and as an aider and abettor, "a specific unanimity instruction is not needed simply because

the government presents multiple factual scenarios and theories of liability to prove the commission

of a single offense." United States v. Washington, 127 F.3d 510, 513-14 (6th Cir. 1997). The same

logic applies where the charge is both conspiracy and distribution, possession, and manufacturing of

crack, and the possession of a firearm in furtherance of a drug trafficking crime.

                                                    V

        An augmented unanimity instruction is therefore not needed here, as the commission of the

crime and participation in a conspiracy to do the same are different but equivalent means to comment

an offense, not two different offenses altogether.

        The district court’s judgment of conviction is AFFIRMED.




                                                   -7-
