                           NOT FOR FULL-TEXT PUBLICATION
                                 File Name: 09a0175n.06
                                  Filed: March 4, 2009

                                            No. 08-5034

                           UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                      ON APPEAL FROM THE
v.                                                    UNITED STATES DISTRICT
                                                      COURT FOR THE MIDDLE
TRAVIS DESHAN STEWART,                                DISTRICT OF TENNESSEE

            Defendant-Appellant.
__________________________________/

BEFORE:        SUHRHEINRICH, BATCHELDER and SUTTON; Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Defendant Travis Deshawn Stewart appeals the district

court’s denial of his motion to suppress following his conditional entry of a plea of guilty to

possession of a firearm by a convicted felon. We AFFIRM.

                                          I. Background

       On March 21, 2007, Defendant was indicted on one count of being a convicted felon in

possession of a firearm, a Smith and Wesson, Model SW40V, .40 caliber semi-automatic pistol, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a), on or about August 15, 2006. He filed a motion to

suppress all evidence and statements arising from what he claimed was an illegal arrest and search

of his automobile on that date. The district court held an evidentiary hearing, which gave rise to the

following facts.
       On August 15, 2006, Officer Broderick Jones of the Metropolitan Nashville Police

Department was working in the MNPD’s East Precinct’s “Flex Unit.” The Flex Unit targets crime

relating to narcotics, guns, and prostitution.

       At around 11:30 a.m., Jones was traveling in a marked car down Leland Avenue in Nashville.

As he drove, Jones observed four black males walking towards him on the opposite side of the street.

As Jones approached the group, he saw one of the men, Defendant, dart into an intersecting alley,

while the others continued walking down Leland Street. Jones watched Defendant walk a few feet

down the alley, which was lined with some bushes. After only a few moments, Defendant came out

of the alley and rejoined the others walking down the street.

       Through his rearview mirror, parked where Defendant could not see him, Jones saw

Defendant turn around and go back into the alley. Jones turned his patrol car around and drove back

toward the alley and parked the vehicle. From this vantage point, Jones observed Defendant talking

on his cellphone and walking down the alley. Jones moved his patrol car to the front of the alley so

he could talk to Defendant. Jones lowered his window and asked Defendant his name. Defendant

gave Jones his driver’s license. Jones checked and found no outstanding warrant against Defendant.

Jones then asked Defendant what he was doing. Defendant said he was waiting for his brother to

pick him up at the Dollar General Store. However, when Jones first observed Defendant and the

group, they were walking away from the direction of the General Dollar Store. Jones noted the

discrepancy but allowed Defendant to move away.

       After this, Jones contacted other Flex Unit officers and asked for assistance. Officers

Michael Wilson and Shane Fairbanks responded. The three officers went back to the alley and

searched the area. Wilson observed a plastic baggie lying on top of weeds just inside a square wire


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woven fence on the left side of the alley. Wilson retrieved the baggie, which was dry, despite the

fact that everything else in the area was damp or wet from a rain the previous night. The baggie

appeared to contain crack cocaine, and testing confirmed that it contained 2 grams of crack cocaine.

       Meanwhile, Jones had proceeded to the Dollar General Store on Gallatin Road and found

Defendant outside. Jones arrested Defendant for possession of crack cocaine and handcufffed him.

Jones then searched Defendant’s pockets and found a set of car keys with a General Motors logo.

Defendant said the keys were not his and that he did not know to whom they belonged. Jones gave

Fairbanks the keys, and Fairbanks went back to the area around the alley to try to find the Chevrolet

or General Motors vehicle which matched the keys. Fairbanks began pressing the keyless entry but

it appeared not to be working. He then tried with the key to unlock the trunk of a nearby white

Chevrolet Impala and he heard it unlock the trunk. Fairbanks did not look inside the trunk and he

pushed the trunk lid back down. He unlocked the passenger door with the same key and then

immediately shut the door. Fairbanks then walked to the house where the Impala was parked and

asked about the Impala. The residents claimed it was not theirs.

       Fairbanks radioed Jones that he found the car that matched the key. Jones put Defendant in

the patrol car and drove to the Impala. Several other officers arrived at the scene and brought a drug-

sniffing dog. The dog alerted on the passenger door. The car door was opened and the dog alerted

on the ashtray area of the front seat. The officers then searched the vehicle and found 2.7 grams of

powder cocaine in the ashtray, 1.7 grams of marijuana in the glove box, a loaded .40 caliber Smith

and Wesson handgun under the driver’s seat, and an envelope with Defendant’s name on it.




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        Jones returned to the patrol car and read Defendant his Miranda rights. Jones then told

Defendant what they found in the vehicle, and Defendant admitted that everything in the Impala

belonged to him.

        The Impala was impounded, and later repossessed and sold at an auto auction.

        On March 21, 2007, Defendant was indicted with being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a). Defendant moved to suppress the gun, the drugs

from the Impala, and his confession on the grounds that they were fruits of a warrantless search and

seizure. The district court conducted an evidentiary hearing and ultimately denied the motion.

Defendant then pleaded guilty, reserving the right to appeal the court’s ruling. Defendant was

sentenced to serve 77 months imprisonment.

                                             II. Analysis

        In reviewing a district court’s denial of a motion to suppress, this Court examines factual

findings for clear error and legal conclusions de novo. United States v. Moncivais, 401 F.3d 751,

754 (6th Cir. 2005). We consider the evidence in the light most favorable to the government. Id.

                                   A. Probable Cause to Arrest

        "Police may arrest a person without a warrant if they have probable cause at the time of the

arrest to believe that the person has committed or is committing a crime." United States v. Caicedo,

85 F.3d 1184, 1192 (6th Cir. 1996). "Probable cause . . . does not require any showing that the

officer's suspicions prove to be correct or that they are more likely true than false." Id. To be lawful,

a warrantless arrest must be based on the totality of the circumstances, and "requires only a

probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois

v. Gates, 462 U.S. 213, 238, 245 n. 13 (1983). Thus, the question is "whether, at the time of the


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arrest, the facts and circumstances within the arresting officer's knowledge and of which [he] had

reasonably trustworthy information were sufficient to warrant a prudent person to conclude that an

individual either had committed or was committing an offense." United States v. Torres-Ramos, 536

F.3d 542, 555 (6th Cir.2008) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

       We agree with the district court’s finding of probable cause under the totality of the

circumstances. As the district court found:

               The totality of the circumstances suggest that a reasonable officer in Officer
       Jones’ position would believe that probable cause existed to arrest Defendant for
       possession of crack cocaine. At the time of the arrest, Officer Jones was patrolling
       an area where there had been numerous burglaries. He saw a group of individuals
       walking down the street towards him. When Defendant saw Officer Jones’ marked
       patrol car, he split off from his friends and abruptly turned into an alleyway, but
       walked down the alley only a few feet. Defendant then exited the alleyway and
       rejoined his friends. However, when Officer Jones’ patrol car had passed, Defendant
       again left his friends to re-enter the alley only to exit again a short time later. Upon
       exiting the alley for the second time, Defendant was asked what he was doing and
       Defendant replied that he was waiting for his brother to pick him up at the Dollar
       General Store on Gallatin road, even though Defendant and his companions had been
       walking in a direction away from the store. After Defendant was permitted to go on
       his way, the officers were suspicious of Defendant’s behavior and they searched the
       area of the alley where Defendant had first entered and found a baggie containing
       crack cocaine. That baggie was not wet even though litter and other items in the
       alley were wet because it had rained the night before. Officer Jones had probable
       cause to believe that Defendant left the baggie there to avoid detection since he had
       just entered and exited the alley where the baggie was found and he was the only one
       seen entering the alley.

In short, viewed in the light most favorable to the government, and based on “a realistic assessment

of the situation from a law enforcement officer’s perspective,” see United States v. Ferguson, 8 F.3d

385, 392 (6th Cir. 1993) (en banc), we likewise conclude that the totality of the circumstances

support the finding of probable cause to arrest Defendant. At the time of Defendant’s arrest, the




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officers had reasonably trustworthy information to conclude that Defendant had dropped the crack

cocaine in the alley.

       Defendant’s reliance on United States v. Hughes, 898 F.2d 63 (6th Cir. 1990), is misplaced.

In Hughes, this Court listed four factors “which should be assayed in determining whether the

‘totality of the circumstances’ provides probable cause in a drug case.” Hughes, 898 F.2d at 64.

They include: “1) the presence of a suspect in a neighborhood notorious for drug trafficking; 2)

suspects engaging in a sequence of events typical of a drug transaction; 3) a suspect’s flight after

being confronted by the police; and 4) a suspect’s attempt to conceal the subject of his activities.”

Id. Defendant claims that application of these factors prove that Jones lacked probable cause to

arrest him.

       Defendant claims that the first factor cuts against probable cause because drugs were

common in the area and were sometimes deliberately left in places like alleyways. Also, he did not

engage in conduct typical of a drug dealer. Rather, he was walking down the street, mid-day,

unarmed, with a valid identification card and lacking any outstanding warrants for his arrest. Third,

when confronted by Jones, Defendant walked up to the squad car, submitted to the consensual

encounter with Jones, produced identification, and gave a reasonable explanation for his behavior.

And, when Jones approached him again at the Dollar General Store, where he told Jones he would

be, Defendant again did not avoid Jones. Finally, Defendant’s behavior suggested that he was not

trying to conceal anything because at most, Jones saw Defendant step briefly into an alley and did

not see him drop anything. Defendant therefore claims that probable cause was lacking because the

presence of the drugs was a mere coincidence.




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        We disagree. First of all, the Hughes factors are merely a helpful framework for assessing

probable cause in drug cases; the test is still the totality of the circumstances. And for the reasons

discussed above, under that test, a reasonable officer could have concluded that there was probable

cause. That is, Defendant’s behavior also supported the officer’s perception that a crime had been

committed, because upon seeing the marked patrol car, Defendant briefly separated from the group,

darted briefly into an alley, and then reentered it moments later after he thought the officer had left.

Most importantly, shortly thereafter another officer found a dry plastic baggie of crack cocaine lying

in the wet weeds. Viewed in the light most favorable to the government and from the factual and

practical considerations of everyday life for police officers patrolling drug-infested neighborhoods,

it was reasonable for Jones to believe a crime had been committed.

                               B. Probable Cause to Seize the Keys

        Defendant also argues that the police lacked reasonable suspicion to seize his keys and use

them to unlock the Impala. We disagree. First, police may search an individual whom they lawfully

have arrested. See United States v. Robinson, 414 U.S. 218, 235 (1973) (holding that after “a lawful

custodial arrest a full search of the person is not only an exception to the warrant requirement of the

Fourth Amendment, but is also a ‘reasonable’ search under that Amendment”); United States v.

Campbell, 486 F.3d 949, 955 (6th Cir.) (stating that “[o]nce a lawful arrest has been made, the police

officer is permitted to search the individual”), cert. denied, 128 S. Ct. 819 (2007); cf. United States

v. Robinson, 390 F.2d 853, 871 (6th Cir. 2004) (stating that this Court has allowed searches of

automobiles incident to arrest even if the “arrestee was out of the car, handcuffed, and placed in the

back seat of a police cruiser”). Second, they may seize both contraband and any instrumentalities,

fruits, or evidence of a crime that they discover in the course of the search. See United States v.


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Edwards, 415 U.S. 800, 802-05 (1974); United States v. Hayden, 387 U.S. 294, 300-02, 307 (1973);

see e.g., United States v. Charles, 138 F.3d 257, 264 (6th Cir. 1998) (upholding a seizure of a pager

found in an automobile in a search incident to the arrest of its occupant).1

        No one disputes, consequently, that the officers had probable cause to arrest Defendant (and,

as we have concluded, they did), then they lawfully searched him and lawfully discovered the keys

in his pocket. His statement disclaiming any knowledge of the keys,2 in turn, justified the further

step of seizing the keys. That statement suggested two possibilities: One was that Defendant was

speaking truthfully and that the keys did not belong to him, in which case the officers reasonably

sought to identify the vehicle and owner to which they belonged. The other possibility was that

Defendant was lying and that he owned (or at least knew something about) the vehicle associated



        1
          Defendant’s reliance on United States v. Hayden, 387 U.S. 294 (1967), United States v.
Place, 462 U.S. 696 (1983), and Soldal v. Cook County, 506 U.S. 56 (1992), is misplaced. Hayden
held that both items of evidentiary value as well as instrumentalities, fruits, or contraband, may be
seized in a lawful search. Hayden, 387 U.S. at 300-02. The Hayden court also stated that it has
“recognized that the principal object of the Fourth Amendment is the protection of privacy rather
than property, and have increasingly discarded fictional and procedural barriers rested on property
concepts.” Id. at 304. Whether viewed as having evidentiary value or as fruits, instrumentalities,
or contraband, here the keys were seized as the result of a search incident to arrest. The seizure is
not problematic under Hayden.
         Place too is dissimilar because it involved an investigative detention, not probable cause.
See Place, 462 U.S. at 709. There the Supreme Court held that the police violated the Fourth
Amendment by holding the defendant’s suitcase at the airport for ninety minutes, which exceed the
limits of an investigative detention and which was not justified by probable cause. Id. at 708.
         Soldal held that the Fourth Amendment protected against unreasonable seizures of property
in which the individual challenging the seizure has a possessory interest even when a privacy or
liberty interest is not at issue. Soldal, 506 U.S. at 56-57 (holding that state actors violated the Fourth
Amendment by physically removing the plaintiff’s mobile home even though a privacy or liberty
interest was not implicated based on the owner’s property interest). Here, Defendant failed to assert
that he had a property or privacy interest in the keys.
        2
         Defendant does not contest this. In his motion to suppress in the district court, he ezpressly
stated that he “never claimed ownership of any automobile.”

                                                   -8-
with the keys found in his pocket, suggesting that the vehicle might contain fruits, evidence or

instrumentalities of his drug-related offense. In either case, the officers were justified in seizing the

keys to look for the vehicle. Defendant’s statement denying any connection to the keys, to be sure,

came before the officers advised Defendant of his Miranda rights, but since Defendant does not

argue his statement was involuntary, that fact does not affect the admissibility of the evidence the

officers discovered as a result. See Oregon v. Elstad, 470 U.S. 298, 307-09 (1985); see United States

v. Sangineto-Miranda, 859 F.2d 1501, 1517-19 (6th Cir. 1988).

        Furthermore, this Court has held that “[t]he mere insertion of a key into a lock, by an officer

who lawfully possesses the key and is in a location where he has a right to be, to determine whether

the key operates the lock, is not a search.” United States v. Salgado, 250 F.3d 438, 456 (6th Cir.

2001); United States v. DeBardeleben, 740 F.2d 440, 444-45 (6th Cir. 1975). The officers here did

not conduct an actual search of the inside of the Impala until after they had probable cause based on

the canine dog’s positive hit on the vehicle. See Illinois v. Caballes, 543 U.S. 405, 409 (2005)

(stating that the use of a well-trained drug detection dog does not by itself implicate any privacy

interests); Place, 462 U.S. at 707 (holding that a canine sniff by a well-trained narcotics detection

dog does not constitute a search within the meaning of the Fourth Amendment); United States v.

Perez, 440 F.3d 363, 375 (6th Cir. 2006) (holding that “[t]here is probable cause to justify a

warrantless search of a vehicle once a properly trained and reliable drug detection dog alerts

positively to the presence of drugs”). Thus, because they had probable cause to search the Impala,

the subsequent seizure of the narcotics and gun was lawful. And finally, Defendant’s incriminating

statements were made after he was advised of his Miranda rights.

                                           III. Conclusion


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      For the foregoing reasons, the decision of the district court denying Defendant’s motion to

suppress is AFFIRMED.




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