                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0097n.06

                                             No. 08-3120

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                        :
                                                                                           FILED
                                                                                       Feb 16, 2010
                                                 :
                                                                                 LEONARD GREEN, Clerk
       Plaintiff-Appellee,                       :
                                                 :
v.                                               :     ON APPEAL FROM THE UNITED
                                                 :     STATES DISTRICT COURT FOR THE
                                                 :     NORTHERN DISTRICT OF OHIO
ARDELL D. NOBLE,                                 :
                                                 :
       Defendant-Appellant.                      :


Before: MOORE and KETHLEDGE, Circuit Judges; BERTELSMAN, District Judge.*


BERTELSMAN, District Judge.

       Defendant/Appellant, Ardell D. Noble, appeals from his conviction and sentence following

his conditional guilty plea. Noble asserts that the district court erred in its rulings on his motion to

suppress and in imposing his sentence. We AFFIRM.

                                        I. BACKGROUND

       On November 23, 2006, Thanksgiving Day, Cleveland Officers Budny and Kitko observed

Noble sitting in the driver’s seat of a vehicle under a no-stopping sign with the engine running.

Officer Budny pulled the squad car behind Noble’s vehicle, activating the squad lights and siren.

Noble reacted by putting his hands in the air.




       *
        The Honorable William O. Bertelsman, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 08-3120, United States v. Noble

          Both officers approached the vehicle, but only Officer Budny approached on the driver’s side.

Officer Budny obtained Noble’s driver’s license and returned to the squad car to run the routine

checks.

          While in the squad car, Officer Budny told Officer Kitko that he thought he smelled

marijuana emanating from Noble’s vehicle, but he was not certain because he was congested. The

Officers returned to Noble’s vehicle and, this time, Officer Kitko approached on the driver’s side.

Officer Kitko testified that he immediately smelled marijuana and asked Noble to step out of the

vehicle. Once Noble was out of the vehicle, Officer Kitko asked him if he had any weapons. Noble

did not respond, but asked why he was asked to get out of his vehicle. Officer Kitko explained that

he smelled marijuana and again asked Noble if he had a weapon. Noble did not respond.

          Officer Kitko proceeded to pat down Noble. During the pat down, Officer Kitko felt a bag

in Noble’s right pants pocket, which Noble confirmed was marijuana. Officer Kitko also felt objects

in Noble’s left pants pocket, which he believed to be cocaine and money. Officer Kitko lifted

plaintiff’s coat and saw a gun in Noble’s waistband. Officer Kitko removed the weapon and placed

Noble under arrest.

          On December 20, 2006, the State of Ohio indicted Noble for carrying a concealed weapon,

having a weapon while under a disability, trafficking offenses, drug possession and possessing

criminal tools. Noble was also cited for illegal parking.

          On January 9, 2007, the federal government filed a two-count indictment against Noble for

felony possession of a firearm and possession of crack cocaine. On January 17, 2007, the State of

Ohio dismissed the state charges.


                                                   2
No. 08-3120, United States v. Noble

        On January 23, 2007, Agents Mullen and McBride, from the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF), went to Noble’s apartment to interview him. Agent Mullen testified

that, at the time of the interview, he knew that Noble had been charged in state court, that he had

retained a lawyer for the state matter, and that a federal grand jury had returned an indictment against

Noble. Noble asked the agents if he should have his attorney present. The agents told Noble that

they could not give him legal advice, and they read him his Miranda rights and a waiver. Noble

signed the waiver.

        Agent Mullen testified that, during the interview, Noble admitted to the crimes charged, but

he did not want to make a written or recorded statement without his attorney being present.

        On February 2, 2007, Noble pled not guilty to the federal charges. On June 5, 2007, the

district court held a hearing on Noble’s motion to suppress the evidence obtained from the pat-down

and from his interview with the ATF agents. The district court denied Noble’s motion to suppress.

        On June 12, 2007, the district court approved Noble’s plea agreement in which he agreed to

plead guilty to both counts, but reserved the right to appeal the court’s denial of his motion to

suppress and any sentence imposed above the Guidelines range.

        On January 16, 2008, the district court entered its judgment in this matter, sentencing Noble

to 120 months on each count, to be served concurrently.

                                           II. ANALYSIS

        On appeal, Noble challenges the district court’s rulings on his motion to suppress and his

sentence. As explained below, we find that the district court properly denied the motion to suppress

and that the sentence is procedurally and substantively reasonable.


                                                   3
No. 08-3120, United States v. Noble

        A. The Motion to Suppress was Properly Denied.

                  1. Terry1 Stop and Pat-Down

        When reviewing a district court’s decision on a motion to suppress, we review its factual

findings for clear error and its legal conclusions de novo. United States v. Foster, 376 F.3d 577, 583

(6th Cir. 2004). When a district court has denied a motion to suppress, we review the evidence in

the light most likely to support the district court's decision. Id.

        Noble argues that the officers lacked probable cause to make the initial stop because it

occurred on Thanksgiving Day, when parking regulations were not in effect. The district court

correctly found, however, that the officers had probable cause to approach Noble’s car because he

was stopped under a no-stopping sign, during the relevant time period, and that the Cleveland

Codified Ordinance exempts only parking regulations on holidays, not stopping regulations.2

Cleveland Codified Ordinance § 403.03. Noble’s contention that the traffic stop was pretextual is

irrelevant. See Whren v. United States, 517 U.S. 806, 813 (1996).

        Noble also contends that the seizure was unreasonable because the officers detained him

longer than necessary to write the citation. We have previously held that to detain a motorist after

a traffic stop longer than is reasonably necessary to issue the citation, “the officer must have




        1
            Terry v. Ohio, 392 U.S. 1 (1968).
        2
         As we read the ordinance, “stopping” forbids even brief cessation of movement of a vehicle,
and is used where such cessation might impede traffic. Thus, the fact that “no parking” regulations
were not in effect on Thanksgiving Day does not mean that “stopping” regulations were also not in
effect.

                                                   4
No. 08-3120, United States v. Noble

reasonable suspicion that the individual has engaged in more extensive criminal conduct.” United

States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002).

       Here, the smell of marijuana emanating from Noble’s vehicle constituted a change of

circumstances that suggested Noble was engaged in illegal activity, which authorized further

detention so the officers could investigate. United States v. Ivey, 307 F. App’x 941, 942 (6th Cir.

2009) (smell of alcohol provided requisite suspicion to justify continued detention under Terry);

United States v. Crumb, 287 F. App’x 511, 524 (6th Cir. 2008) (citing cases holding that detection

of odor of illegal substance provides probable cause); United States v. Borne, 239 F. App’x 185,

186-87 (6th Cir. 2007) (odor known to officer as that associated with methamphetamine sufficient

basis to extend traffic stop and knowledge that drug dealers go armed justified search); United States

v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993) (agent’s detection of marijuana odor constituted

probable cause to believe marijuana was in vehicle). Thus, the district court correctly concluded that

the extended detention was not unreasonable.

       Noble also argues that the pat down exceeded the constitutional parameters of Terry v. Ohio,

392 U.S. 1 (1968), because the officers did not have reason to believe he was armed and dangerous.

The Supreme Court has recently explained Terry’s application to traffic stops:

       [W]e hold that, in a traffic-stop setting, the first Terry condition - a lawful
       investigatory stop - is met whenever it is lawful for police to detain an automobile
       and its occupants pending inquiry into a vehicular violation. The police need not
       have, in addition, cause to believe any occupant of the vehicle is involved in criminal
       activity. To justify a patdown of the driver or a passenger during a traffic stop,
       however, just as in the case of a pedestrian reasonably suspected of criminal activity,
       the police must harbor reasonable suspicion that the person subject to the frisk is
       armed and dangerous.



                                                  5
No. 08-3120, United States v. Noble

Arizona v. Johnson, ___U.S. ___, 129 S. Ct. 781, 784 (2009) (emphasis added). A court’s analysis

of a Terry stop and pat down “must focus on the objective reasonableness of the police officer’s

actions.” United States v. Ellis, 497 F.3d 606, 612 (6th Cir. 2007) (citation omitted).

       Although an officer does not have the authority to automatically perform a pat down of a

person stopped for a vehicular violation, we have found, in comparable situations, that a pat down

during a traffic stop is reasonable when additional facts are present which indicate that the person

may be armed. See United States v. Campbell, 549 F.3d 364, 373 (6th Cir. 2008); Borne, 239 F.

App’x at 186-87 (frisk supported by fact officer smelled methamphetamine and knew

methamphetamine traffickers in area were likely to be armed).

       Here, the officers testified that they patted down Noble for safety reasons because they

smelled marijuana. Noble argues that the officers admitted that they did not have any information

that he was armed and dangerous. Terry does not, however, require an officer to be certain that an

individual is armed before he performs a protective frisk. Instead, officers conducting a routine

traffic stop may perform a pat down of a driver upon reasonable suspicion that he may be armed and

dangerous. Johnson, 129 S. Ct. at 787.

       We find that the officers had a reasonable belief that Noble may be armed because of their

suspicion that he was involved in illegal drug activity, which was supported by the odor of marijuana

emanating from Noble’s vehicle and Noble’s lack of response when asked if he had a weapon, along

with the officers’ experience that persons engaged in drug activity are often armed. Terry, 392 U.S.

at 27 (in determining if officer acted reasonably, due weight must be given to reasonable inference

which he is entitled to draw from facts in light of his experience). See also United States v. Garza,


                                                 6
No. 08-3120, United States v. Noble

10 F.3d 1241, 1246 (6th Cir. 1993); United States v. Thomas, No. 97-4827, 1998 WL 852951, at *6

(4th Cir. 1998) (smell of marijuana, defendant’s actions prior to approaching checkpoint, and

officer’s experience that weapons frequently accompany drugs, all provided justification for officer

to conduct protective search).

               2. Statements Made to Agents

       Noble further argues that the district court erred in not suppressing the statements he made

to the ATF agents because he had invoked his right to counsel on the state charges and, therefore,

his exercise of that right also attached to the federal charges. Despite Noble’s contention, the fact

that he requested, and was appointed, counsel to defend him on the state charges did not invoke his

Fifth Amendment rights, but only invoked his Sixth Amendment rights with respect to those charges.

See McNeil v. Wisconsin, 501 U.S. 171, 177-78 (1991).

       We also find that Noble’s Sixth Amendment right to counsel on the state charges was

extinguished by the state’s dismissal of those charges. See Cato-Riggs v. Yukins, 46 F. App’x 821,

824 (6th Cir. 2002); United States v. Montgomery, 262 F.3d 233, 246-47 (4th Cir. 2001). See also

United States v. Toepfer, 317 F. App’x 857, 861 (11th Cir. 2008), cert. denied, __ U.S. __, 129 S.

Ct. 1000 (2009); United States v. Martinez, 972 F.2d 1100, 1105 (9th Cir. 1992). Neither party

contests that at the time of Noble’s interview with the ATF agents, the state charges had already been

dismissed and that Noble had not yet specifically invoked his Sixth Amendment right to counsel with

regard to the federal charges. Thus, because Noble had no “active” Sixth Amendment right at the

time of the interview, the Government could not have violated that right.

       B. The Sentence Is Procedurally and Substantively Reasonable.


                                                  7
No. 08-3120, United States v. Noble

        Noble pled guilty to possession of a controlled substance and being a felon in possession of

a firearm. The presentence report calculated Noble’s advisory Guidelines range at 110 to 137

months, based on a total offense level of 25 and a criminal history category of six. The district court

imposed a sentence of incarceration of 120 months on each count, to be served concurrently.

        Noble argues that the district court erred in not adequately explaining the sentence and by

arbitrarily picking a number of months of incarceration without adequate consideration of the

required statutory factors contained in 18 U.S.C. § 3553(a).

        We review a within-Guidelines sentence for reasonableness. United States v. Walls, 546

F.3d 728, 736 (6th Cir. 2008), cert. denied, ___ U.S. ___, 130 S. Ct. 516 (2009). In reviewing a

sentence for reasonableness, we must consider both the procedural and substantive aspects of the

district court’s decision. See Gall v. United States, 552 U.S. 38, 51 (2007).

        In reviewing a sentence for procedural reasonableness, we must “ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Id. We have held that a sentence is procedurally reasonable if (1) the district court

correctly calculated the Guidelines range and used it as a starting point for its analysis; (2) the parties

were given an opportunity to argue for the sentences they deemed appropriate; (3) the district court

made an individualized sentencing decision based upon the facts and the § 3553(a) factors, and (4)

the district court adequately explained the sentence imposed. United States v. Bolds, 511 F.3d 568,

579-80 (6th Cir. 2007).


                                                    8
No. 08-3120, United States v. Noble

       Although Noble does not argue that the Guidelines range was improperly calculated, we have

reviewed the presentence report, the objections thereto and the sentencing transcript, and confirm

that the district court properly calculated the Guidelines range.

       In addition, we have thoroughly reviewed the sentencing transcript and find that the district

court adequately applied the facts to the § 3553(a) factors. First, the court explained the details of

Noble’s case and the conduct that lead to the charges. Second, the court detailed Noble’s history and

personal characteristics, both positive and negative, including family relationships and prior criminal

history. Third, the court permitted both the government and Noble’s counsel to discuss what they

believed the appropriate sentence should be. Fourth, the court discussed that the Guidelines range

of 110-137 months reflects the seriousness of the offense, provides some level of deterrence for

others, and protects the public. Fifth, the court noted that it did not have any co-defendants to

consider, but that the Guidelines range was consistent with sentences imposed on other defendants

committing similar offenses with a comparable criminal history category. Lastly, the court explained

the victim impact that Noble’s crime has on society in general. Thus, the district court provided a

thorough analysis of its individualized sentencing decision, and we find it did not commit procedural

error in sentencing Noble.

       Finding the sentence procedurally reasonable, we now “consider the substantive

reasonableness of the sentence imposed under an abuse of discretion standard.” Gall, 522 U.S. at

51. “A sentence is substantively unreasonable if the district court select[s] the sentence arbitrarily,

bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or

giv[es] an unreasonable amount of weight to any pertinent factor.” Walls, 546 F.3d at 736


                                                  9
No. 08-3120, United States v. Noble

(alterations in original) (internal quotation marks omitted) (citation omitted). If the sentence

imposed is within the properly calculated Guidelines range, we apply a rebuttable presumption of

reasonableness. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.) (en banc), cert. denied, __

U.S.__, 129 S. Ct. 68 (2008).

       Here, Noble argues that his sentence was substantively unreasonable because the court simply

presumed a sentence within the Guidelines range would be reasonable and it did not articulate that

it knew the Guidelines were not mandatory. However, as discussed above, the court articulated a

detailed analysis of the facts of this case with respect to the § 3553(a) factors. The court also

discussed the mandatory minimum sentence required on the firearm charge and the statutory

penalties attributed to both counts. The district court concluded that the Guidelines range was

consistent with similarly situated defendants and that a sentence at the bottom of the range was not

appropriate for Noble. In addition, the defendant acknowledged in the plea agreement that he

understood that the court must consider the advisory Sentencing Guidelines in determining a

sentence.

       Noble argues that the district court’s sentencing comments are similar to those the Supreme

Court found wanting in Nelson v. United States, __ U.S.__, 129 S. Ct. 890, 892 (2009). In Nelson,

however, the district court specifically stated that a sentence imposed within the Guidelines range

is presumptively reasonable. Id. at 891.

       Here, the district court did not state that the sentence imposed was presumed reasonable

simply because it was within the Guidelines range. Instead, the record supports a finding that the

district court performed the pertinent analysis, did not give unreasonable weight to some factors over


                                                 10
No. 08-3120, United States v. Noble

others, and did not abuse its discretion in sentencing Noble. Noble has not met his burden to rebut

the presumption of reasonableness afforded his within-Guidelines sentence on appeal. Accordingly,

we find that the sentence imposed by the district court was not unreasonable.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM the decision of the district court.




                                                11
No. 08-3120, United States v. Noble

        KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.

Although I concur with the majority’s determination that Officers Budny and Kitko had the authority

to conduct a Terry stop and to question Noble further, I disagree with the conclusion that the officers

were justified in conducting a protective patdown. The record is devoid of any specific articulable

facts that would support the conclusion that the officers had a reasonable suspicion that Noble was

armed and dangerous, as required by Supreme Court precedent. As a result, I believe that Noble’s

patdown violated the Fourth Amendment, and I would REVERSE the district court’s denial of

Noble’s motion to suppress. It is for this reason that I must dissent.

        The Supreme Court recently reaffirmed that “[t]o justify a patdown of the driver . . . during

a traffic stop . . . the police must harbor reasonable suspicion that the person subjected to the frisk

is armed and dangerous.” Arizona v. Johnson, 129 S. Ct. 781, 784 (2009). “Reasonable suspicion

is based on the totality of the circumstances,” and it requires “articulable reasons and a particularized

and objective basis for suspecting the particular person of criminal activity.” United States v.

Wilson, 506 F.3d 488, 492 (6th Cir. 2007) (internal quotation marks omitted); see United States v.

Campbell, 549 F.3d 364, 372 (6th Cir. 2008). Officers are not required to “‘be absolutely certain

that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances

would be warranted in the belief that his [or her] safety or that of others was in danger.’” Wilson,

506 F.3d at 492 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).

        I believe that the record in the instant case cannot support the majority’s conclusion that the

officers had a reasonable suspicion that Noble was armed and dangerous. As an initial matter, the

officers never testified that they conducted the patdown because they felt unsafe or believed Noble

would be armed. Quite to the contrary, in fact, Officer Kitko explicitly testified that the patdown
No. 08-3120, United States v. Noble

was merely routine procedure, affirming several times that he possessed no information that Noble

was armed or dangerous prior to the frisk:

       Q:   You had no information [Noble] was armed or dangerous, did you?
       A:   I pat everybody down.
       Q:   Pardon?
       A:   I pat everybody down.
       Q:   Even to give a parking ticket, you pat them down?
       A:   Well, I smelled the odor of marijuana. The driver of the car . . . had a suspended
            driver’s license, and I had no idea who he was, if he was armed and dangerous
            ...

Doc. 55 (Suppression Hr’g Tr. at 36–37). Officer Budny similarly testified that the patdown was

“standard procedure” and not founded on particularized safety concerns:

       Q: And what did you see Officer Kitko do at that point, when he ordered him out
          of the vehicle?
       A: He asked him—standard procedure. We patted him down for weapons, you
          know, due to the fact that he had believed what he smelled was marijuana
          coming from the car, which would lead one to believe that there was marijuana
          in the car or on his person, so we patted him down for weapons, for our safety
          and his.

Id. at 20–21. Budny also confirmed that they “had no information that [Noble] was armed and

dangerous.” Id. at 23.

       Contrary to the majority’s claim, at no point did the officers state that they conducted the

patdown based on their “experience that persons engaged in drug activity are often armed.” Maj.

Op. at 8; cf. United States v. Foster, 376 F.3d 577, 587 (6th Cir. 2004) (holding that an officer was

justified in performing a patdown of a suspected PCP user where the officer “testified that in his

experience, people under the influence of PCP can become violent, and . . . he wanted to ensure that

[the defendant] was not armed”). And given the absence of such testimony, the majority’s reliance

on the unpublished opinion, United States v. Borne, 239 F. App’x 185 (6th Cir. 2007), even

                                                 13
No. 08-3120, United States v. Noble

assuming it were binding authority, is unconvincing. Maj. Op. at 7. In Borne, it was not simply the

suspicion of drug use that justified an officer’s patdown of a defendant; rather, the panel held that

the patdown was reasonable because the officer had (1) smelled methamphetamine, (2) recognized

the defendant as someone who the officer “knew . . . had been arrested and convicted in the past for

methamphetamine-related offenses,” and (3) testified that “methamphetamine traffickers in that area

were known to go armed.” Borne, 239 F. App’x at 186–87 (emphasis added). Again, the instant

case is distinguishable from Borne in that there is no testimony from the officers regarding the

likelihood that someone who possesses or smells of marijuana is armed and dangerous based on their

general experience, and both officers conceded that they had no prior information about Noble’s

tendency towards violence specifically.

       A more accurate reading of the officers’ testimony is that the officers believed that the mere

suspicion that Noble was involved in drug activity was sufficient to establish a reasonable belief that

he was armed and dangerous. Such a conclusion, however, runs completely contrary to Supreme

Court and Sixth Circuit precedent. The Supreme Court has never fashioned an exception to the

requirement that there be an individualized finding of dangerousness for cases involving drug

investigations, and the Court very recently reaffirmed the continued need for an individualized

determination of whether a person is armed and dangerous. Johnson, 129 S. Ct. at 784; see also

Wilson, 506 F.3d at 492 (holding that reasonable suspicion requires a “particularized and objective

basis”).

       Aside from the mere suspicion of drug-related activity, neither Officer Bundy nor Officer

Kitko ever articulated any other specific facts sufficient to sustain the majority’s conclusion that a


                                                  14
No. 08-3120, United States v. Noble

reasonably prudent person would have believed that his or her safety was in jeopardy. This is not

surprising, however, as a review of the record indicates that there are none: (1) the stop occurred

during daylight, the officers outnumbered Noble two to one, and there is no evidence that this was

a high-crime area, see Doc. 55 (Suppression Hr’g Tr. at 33, 40); (2) upon being stopped, Noble

raised his arms in the air, providing the officers with a complete view of his hands, id. at 34, and

Noble never engaged in any furtive movements potentially indicative of weapons possession; (3)

Officer Budny testified that Noble was neither evasive, overly nervous, nor otherwise acting strange

and “respond[ed] to whatever command” was given and simply requested the presence of a police

supervisor, id. at 23; (4) Noble also had no outstanding “wants or warrants,” id. at 19; (5) he was the

lawful and registered owner of the vehicle, id.; and (6) upon being asked to exit the vehicle, Noble

was cooperative and immediately placed his hands on the hood of the car, as directed, id. at 28.

        The majority highlights the fact that when Officer Kitko asked Noble if he had a weapon

Noble did not respond. Maj. Op. at 8. This is not persuasive. First, there is nothing in the record

indicating that the officers actually relied on Noble’s silence in arriving at their belief that a patdown

was required. See United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002) (“The court cannot

determine that an officer had reasonable suspicion on the basis of a factor on which the officer did

not actually rely.”). Second, I do not believe that Noble’s mere silence after being asked a potentially

incriminating question by police is sufficient to support the majority’s conclusion that the officers

possessed an objectively reasonable suspicion that Noble was armed and dangerous. Noble was

within his right to refuse to answer Officer Kitko’s question. See Terry, 392 U.S. at 34 (White, J.,

concurring) (“Of course, the person stopped is not obligated to answer, answers may not be


                                                   15
No. 08-3120, United States v. Noble

compelled . . . .”); Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (“[T]he detainee is not obliged

to respond.”). Additionally, Noble’s silence cannot be interpreted as being evasive. Noble made

clear his general reticence to speak with the officers after they asked him to exit his vehicle by

repeatedly requesting the presence of a police supervisor prior to any further interaction with the

officers. In interpreting Noble’s silence as a basis for reasonable suspicion, the majority fails to

acknowledge Noble’s requests for a supervisor and how Noble’s desire for a police monitor may

have impacted his responses. I simply cannot conclude that silence, even when coupled with the

smell of marijuana, is sufficient to justify the conclusion that Noble was armed and dangerous under

the facts of this case. Cf. United States v. Richardson, 310 F. App’x 1, 5 (6th Cir. 2008) (indicating

that failure to respond was but one of numerous particularized and articulable facts sufficient to

uphold a patdown); United States v. Chaney, 584 F.3d 20, 27–28 (1st Cir. 2009) (concluding that

the defendant’s “evasiveness and failure to identify” a visible bulge “in his pocket, coupled with the

size and rigid nature of the object, gave Officer Brown a specific articulable basis for suspecting that

[the defendant] might be armed, thereby justifying a pat-down search”).

       The specific facts upon which the officers actually based their conclusion that Noble might

have been armed and dangerous, then, consisted of the following: they smelled the odor of

marijuana coming from the car. This singular fact does not support a reasonable inference that a

person is armed and dangerous, and, in so holding, the majority greatly expands the Terry doctrine

by divorcing it from the “concern for officer safety,” Campbell, 549 F.3d at 372, and allowing

officers to use patdowns as a general investigatory tool. This is contrary to both Supreme Court and

Sixth Circuit precedent, which has emphasized repeatedly and emphatically that the patdown


                                                  16
No. 08-3120, United States v. Noble

procedure is intended to protect officers’ safety, and that officers must make the decision to engage

in a patdown in light of these safety concerns. See, e.g., Knowles v. Iowa, 525 U.S. 113, 117–18

(1998); United States v. Branch, 537 F.3d 582, 589 (6th Cir. 2008) (“[A] pat-down search is for the

limited purpose of ensuring the safety of the officer and others around him . . .” (internal quotation

marks omitted)); Campbell, 549 F.3d at 372 (“[S]afety concerns are an integral factor in the Terry-

stop equation.”).

       Given the majority’s expansion of the Terry doctrine, its failure to support its conclusion with

analogous binding precedent is not surprising. Although the majority claims that United States v.

Campbell involves a “comparable situation[],” Maj. Op. at 7, Campbell is entirely distinguishable

and is analogous to the instant case only because it involved a car and a Terry stop. In Campbell,

a panel of this court found that the totality of the circumstances justified a patdown when the

defendant was “slouched down in the passenger seat as if to avoid detection and [kept] his hands out

of sight, suggestive of concealing a weapon.” Campbell, 549 F.3d at 372. The vehicle in which the

Campbell defendant sat was “‘darked out”’ and “parked in a secluded, high-crime area.” Id.

Moreover, the car’s “license tags were not on file,” thereby “raising suspicions that the car might be

stolen,” and the defendant had refused to provide identification to the officers after two separate

requests. Id. In short, Campbell is a far cry from the instant case and does not support the

conclusion that the facts here can sustain an objective belief that Noble was armed and dangerous,

particularly given the officers’ own admissions that they routinely conducted patdowns as part of

their “standard procedure” and at no time believed Noble to be armed and dangerous.




                                                 17
No. 08-3120, United States v. Noble

       A brief review of this Circuit’s recent patdown-related cases further illustrates the majority’s

misapplication of Terry, as this Circuit has always required something more than the mere smell of

marijuana to justify a patdown. See, e.g., Bennett v. City of Eastpointe, 410 F.3d 810, 835 (6th Cir.

2005) (“A reasonable belief that the suspect has contraband is not sufficient.”); Branch, 537 F.3d

at 589 (upholding a patdown where it occurred after the defendant gave consent to search his car and

the officer found drugs and $10,000, because the officer “was entitled to rely on his training and

experience that drug dealers frequently carry weapons” (emphasis added)); United States v. Garcia,

496 F.3d 495, 505 (6th Cir. 2007) (upholding a patdown where officers had “overheard [a vehicle’s

occupants] discussing kilos, guns, and large quantities of money[, and] . . . knew that the recently

arrived occupants . . . claimed to work for a suspected drug dealer” (emphases added)); Wilson, 506

F.3d at 495–96 (holding a patdown was unreasonable when the only facts upon which the officers

relied were that the non-defendant driver had admitted that he had served time on a federal gun

charge, the defendant was not the owner of the vehicle in which he was stopped, and the defendant

was extremely nervous); see also United States v. Spinner, 475 F.3d 356, 359 (D.C. Cir. 2007)

(holding that nervousness and “fiddling with the center console” are not sufficient facts from which

the officers could conclude that the defendant was armed and dangerous). Although officers “may

shout ‘officer safety’ until blue-in-the-face, . . . the Fourth Amendment does not tolerate, nor has the

Supreme Court or this Court ever condoned, pat-down searches without some specific and

articulable facts to warrant a reasonable officer in the belief that the person detained [is] armed and

dangerous.” Bennett, 410 F.3d at 841.




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No. 08-3120, United States v. Noble

        In sum, the majority’s conclusion that the officers were authorized to conduct a patdown

based on (1) their “experience that persons engaged in drug activity are often armed,” (2) the

“suspicion that [Noble] was involved in illegal drug activity” based on the smell of marijuana, and

(3) Noble’s “lack of response when asked if he had a weapon,” Maj. Op. at 8, cannot justify the

inference that Noble was armed and dangerous. As highlighted above, the record clearly contradicts

the first fact upon which the majority relies, as the officers never so testified. Reliance on the second

fact would eliminate completely the Supreme Court’s requirement of individualized suspicion in

drug-investigation cases, which the Supreme Court has recently reaffirmed is not the law. And,

discounting the first two facts, the third fact, when coupled only with the smell of marijuana, is an

insufficient basis upon which to assert a reasonable belief that a person is armed and dangerous,

particularly when there is no evidence that the officers actually relied on Noble’s silence. Based on

the specific and articulable facts present here, a reasonably prudent officer would not have been

warranted in believing that his or her safety was compromised, and any inference that Noble was

armed and dangerous is unsupportable.

        In conclusion, although I do not dispute that Officers Budny and Kitko were justified in

stopping Noble for his Thanksgiving Day violation of the no-stopping ban and detaining him for

further investigation, their subsequent patdown violated the Fourth Amendment as the officers

presented no specific articulable facts indicating that Noble was armed and dangerous. I thus dissent

from the majority’s resolution of this claim and would REVERSE the district court’s denial of the

motion to suppress.




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