                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0243n.06

                                    Case Nos. 18-5569/5763

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              May 07, 2019
UNITED STATES OF AMERICA,                            )                    DEBORAH S. HUNT, Clerk
                                                     )
        Plaintiff-Appellee,                          )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE WESTERN DISTRICT OF
TIMOTHY LAMBERT,                                     )      TENNESSEE
                                                     )
        Defendant-Appellant.                         )
                                                     )
____________________________________/                )


Before: MERRITT, MOORE, and WHITE, Circuit Judges.

        MERRITT, Circuit Judge. This is an appeal from the denial of a motion to suppress a

firearm found during a Michigan v. Long, 463 U.S. 1032, 1049 (1983), protective search of

defendant’s vehicle incident to a Terry stop. For the following reasons, we affirm the judgment

of the district court.

                                                I.

        On November 19, 2012, officer Edward McMullen with the Jackson, Tennessee, Police

Department received a dispatch call regarding a man with a gun in his waistband at a medical clinic

in the Hamilton Hills shopping mall. As McMullen was driving to the scene, he was told the

suspect was leaving the premises and McMullen was given a description of the suspect’s vehicle

and license plate number. As the officer approached the shopping mall, he observed a car leaving
Case Nos. 18-5569/5763, United States v. Lambert


the parking lot matching the description he had been given. He followed the vehicle and after

confirming that the license plate matched the one he had been given, he pulled the car over by

activating his lights.

        After pulling the vehicle over, McMullen had the driver, defendant Timothy Lambert, exit

the car. The driver’s side door remained open while McMullen and defendant stood beside the

car. McMullen explained to defendant that he pulled him over because a disturbance had been

reported and the car was stopped because it matched the description McMullen had been given.

When asked, defendant stated he did not have a gun. McMullen then patted down defendant

looking for weapons.

        Officer Ellen Williams also responded to the dispatch call and she was at the scene with

McMullen when he pulled over defendant’s car. While McMullen was talking to defendant outside

the driver’s side of the vehicle, she looked in the passenger side window. She observed a toddler

restrained in a car seat in the back seat. She opened the passenger side door to make sure the child

was safe and then began to search the passenger compartment of the vehicle for weapons from the

passenger side. She then went around to the driver’s side of the car to continue her search. She

first searched between the driver’s seat and the console and found a 9mm pistol. Hr’g Tr. at 21-

23.

        Defendant was later arrested and charged with being a felon in possession of a handgun in

violation of 18 U.S.C. § 922(g). Defendant filed a motion to suppress the firearm, and the district

court held a hearing. At the conclusion of the hearing, the district court denied the motion in an

oral ruling. It found that Officer Williams had performed a legal protective search of the area

within reach of the driver, and, under the circumstances, no warrant was required for the limited

search. Hr’g Tr. at 37-38.



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Case Nos. 18-5569/5763, United States v. Lambert


       Defendant pled guilty and was sentenced to 151 months in prison. Defendant filed an

untimely notice of appeal that we dismissed on motion of the government. United States v.

Lambert, No. 14-6462 (6th Cir. Mar. 10, 2015). Defendant then filed an action under 28 U.S.C.

§ 2255 claiming ineffective assistance of counsel, for, among other errors, failing to file a timely

notice of appeal. The district court granted relief on the untimely-notice-of-appeal issue. On July

11, 2018, the district court entered an amended judgment in the original case and reimposed the

same 151-month sentence. This timely appeal concerning only the denial of the motion to suppress

followed.

                                                 II.

       Defendant raises two issues on appeal claiming Fourth Amendment violations concerning

the stop and subsequent search of the car. He first claims, for the first time on appeal, that the

police lacked reasonable suspicion to stop his car. He also claims that the search of the interior of

his car was improper. We reject both arguments.

   A. Terry Stop

       We begin “with the basic rule that ‘searches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-delineated exceptions.’” Arizona v. Gant,

556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). An exception

to this requirement was set forth in Terry v. Ohio, 392 U.S. 1, 21–22 (1968), for limited

investigatory seizures. “[A] policeman who lacks probable cause but whose ‘observations lead

him reasonably to suspect’ that a particular person has committed, is committing, or is about to

commit a crime, may detain that person briefly in order to ‘investigate the circumstances that

provoke suspicion.”’ Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (footnote omitted) (quoting



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Case Nos. 18-5569/5763, United States v. Lambert


United States v. Brignoni–Ponce, 422 U.S. 873, 881 (1975)). To establish that a seizure not

supported by probable cause was “reasonable,” the law enforcement officer must have a

reasonable, articulable suspicion that crime is afoot. Terry, 392 U.S. at 21–22. The primary issue

as to the initial stop is whether it was justified at its inception under the less stringent “reasonable

suspicion” standard. See United States v. Bradshaw, 102 F.3d 204, 211 n.13 (6th Cir. 1996). “The

touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the

circumstances of the particular governmental invasion of a citizen’s personal security.’”

Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (quoting Terry, 392 U.S. at 19).

Determining reasonableness “depends ‘on a balance between the public interest and the

individual’s right to personal security free from arbitrary interference by law officers.’” Id. at 109

(quoting Brignoni-Ponce, 422 U.S. at 878).

        For the first time on appeal, defendant claims that the Terry stop of his vehicle was illegal.

The government argues that this issue is waived or that, alternatively, any review must be for plain

error. Gov’t Br. at 13. Defendant disagrees and argues that by necessity his articulated challenge

to the vehicle search “sufficiently preserved” any challenge to the initial stop. Reply Br. at 1-2.

Without deciding the waiver issue, we hold that the stop of the car was legal regardless of our

standard of review.

        Defendant contends that McMullen indicated that he stopped defendant’s vehicle for “a

traffic stop” but there was no factual basis for a traffic stop because he had not committed a traffic

violation.   Defendant misconstrues the officer’s meaning of “traffic stop” in this instance.

“In order to effect a traffic stop, an officer must possess either probable cause of a civil infraction

[for example, a traffic violation] or reasonable suspicion of criminal activity.” United States v.

Lyons, 687 F.3d 754, 763 (6th Cir. 2012). Officer McMullen stopped defendant’s car because he



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Case Nos. 18-5569/5763, United States v. Lambert


had “reasonable suspicion of criminal activity.” McMullen testified at the hearing that he had

received reliable information that an armed person had recently been involved in a public

disturbance. He proceeded immediately to the identified location and saw a car matching the

description exiting the parking lot. Before stopping the car, McMullen confirmed that the vehicle

description and the license plate number matched the description he had been given by police

dispatch. Hr’g Tr. at 7-11.

       Defendant also argues that carrying a gun is not a crime in Tennessee and cannot be the

basis for a stop based on reasonable suspicion of a crime. But defendant ignores the fact that the

report police received indicated that there was some sort of “disturbance” at the shopping mall,

and that the suspect, while not brandishing the gun, displayed the gun in his waistband. Even if

the firearm was lawfully possessed by defendant, which was not the case here, the permit holder

may be arrested for engaging in criminal activity while carrying the firearm. See Tenn. Code Ann.

§ 39-17-1307; Office of the Attorney General, Opinion No. 05-154, 2005 WL 2755418, at *1. The

circumstances here gave the officer reasonable suspicion that criminal activity might be afoot, and

that the defendant would still have the gun in or near him in the vehicle. The traffic stop of the

defendant’s vehicle did not violate the Fourth Amendment.

   B. Search of the Vehicle Interior

        The remaining issue is whether the police violated the Fourth Amendment when they

searched between the front seat and the center console of defendant’s vehicle during the stop and

found the firearm that is the subject of the suppression motion. The Supreme Court has held that

a vehicle search incident to an occupant’s arrest after the arrestee has been secured and cannot

access the interior of the vehicle is improper. Gant, 556 U.S. at 335 (citing New York v. Belton,

453 U.S. 454 (1981)). Defendant in this case argues that he falls within the Gant rule because he



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was equivalent to the arrestee in Gant based on the fact that he was standing several feet outside

the car and did not have access to the car’s interior where he might access a weapon to use against

the police.

       The government argues that the search was constitutionally reasonable under Michigan v.

Long, 463 U.S. 1032, 1049 (1983). In Long, the Supreme Court extended the scope of a Terry

search to include a protective search of the vehicle where circumstances warranted:

       [T]he search of the passenger compartment of an automobile, limited to those areas
       in which a weapon may be placed or hidden, is permissible if the police officer
       possesses a reasonable belief based on “specific and articulable facts which, taken
       together with the rational inferences from those facts, reasonably warrant” the
       officer in believing that the suspect is dangerous and the suspect may gain
       immediate control of weapons.

463 U.S. at 1049 (quoting Terry, 392 U.S. at 21) (footnote omitted). Furthermore, the search of

the automobile is valid even if the suspect is effectively under the officer’s control, as the suspect

may “break away from police control and retrieve a weapon from his automobile.” Id. at 1051. In

addition, if “not placed under arrest, [the suspect] . . . will be permitted to reenter his automobile,

and he will then have access to any weapons inside.” Id. at 1052. The Court stressed that such an

extension is necessary, even if the defendant appears to be under control of the police, because in

Terry stops “the officer remains particularly vulnerable in part because a full custodial arrest has

not been effected.” Id. Therefore, “the concern for officer safety extends not only to a suspect

himself but to ‘the area surrounding a suspect’ where he might ‘gain immediate control of

weapons.’” United States v. Walker, 615 F.3d 728, 732 (6th Cir. 2010) (quoting Long, 463 U.S. at

1049); see also United States v. Ware, 465 F. App’x 487, 494-95 (6th Cir. 2012). Whether

reasonable suspicion of danger existed—the dispositive question in this case—is determined from

examination of the individual factors under the totality of the circumstances. See, e.g., United




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Case Nos. 18-5569/5763, United States v. Lambert


States v. Shank, 543 F.3d 309, 314 (6th Cir. 2008); United States v. Graham, 483 F.3d 431, 438

(6th Cir. 2007).

       The district court expressly found that defendant was standing by the open driver’s door

and “would have had the opportunity, if he attempted to[,] or tried to[, he] could have gone . . .

back into the vehicle.” Hr’g Tr. at 36. The district court therefore correctly found that the car

search falls squarely within Michigan v. Long. As recognized by the district court, defendant’s

access to the location of the weapon during and after the search justified a protective search.

       Defendant argues that, under Gant, the police could not perform a search of the vehicle

because defendant was secured outside the vehicle. “Gant, however, dealt with a search incident

to arrest and prohibited a search where there was no ‘possibility of access’ by the suspect.” Walker,

615 F.3d at 734 (citations omitted). Gant does not apply to cases like this one where the suspect

has not yet been arrested:

       It must be borne in mind that we are speaking here only of a rule automatically
       permitting a search when the driver or an occupant is arrested . . . . In the no-arrest
       case, the possibility of access to weapons in the vehicle always exists, since the
       driver or passenger will be allowed to return to the vehicle when the interrogation
       is completed.

Gant, 556 U.S. at 352 (Scalia, J., concurring); accord United States v. Lurry, 483 F. App’x 252,

255 (6th Cir. 2012). In short, because this was a Terry stop, defendant would have been allowed

to return to the vehicle when the brief investigation concluded. At that point, unlike the arrestee in

Gant, defendant would regain control of the vehicle and any weapons reasonably believed to be

therein. In addition to the factual distinctions between the arrestee in Gant and defendant,

defendant’s reliance on Gant is also misplaced because Gant specifically recognized the

continuing validity of Michigan v. Long as an established exception to the Fourth Amendment

warrant requirement. Gant, 556 U.S. at 346-47.



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Case Nos. 18-5569/5763, United States v. Lambert


        The validity of the search is not, as defendant argues, dependent on whether defendant

possessed the gun lawfully (he did not) or the exact nature of the disturbance at the shopping mall

prior to the stop. In Long, the defendant argued that the search was unconstitutional because it

was based on the discovery of a hunting knife that defendant possessed lawfully. Long, 463 U.S.

at 1052 n.16. The Supreme Court rejected this argument because protective searches are not

premised on whether a weapon is legally or illegally possessed. Id. This inquiry instead focuses

on officer and public safety. Id. If the officers deem a weapon to pose a threat to themselves or

the public, it does not matter whether the weapon is possessed legally. Id. The legality of

defendant’s possession of the gun or the exact nature of the earlier “disturbance” is therefore

irrelevant.

        Given that the officers had reasonable suspicion to believe based on the dispatch report that

defendant was armed and had been recently involved in a disturbance at a nearby shopping mall,

the stop of the vehicle and the protective search of the car incident to that stop were reasonable

and legal. We affirm the judgment of the district court.




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