                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0489n.06

                                                                                         FILED
                                            No. 07-5646                              Aug 09, 2010
                                                                                LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
ANDRE RASHAD SUTTON,                              )    EASTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )
                                                  )

Before: GIBBONS and KETHLEDGE, Circuit Judges; and SARGUS, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Andre Rashad Sutton

appeals the denial of his motion to suppress, claiming that the magistrate judge made an erroneous

credibility determination, which the district court adopted. He also asserts that he was subjected to

a pat-down search in violation of his Fourth Amendment rights and that all evidence subsequently

obtained should be suppressed. For the following reasons, we affirm the district court’s denial of

the motion to suppress.

                                                  I.

       On February 14, 2006, a federal grand jury charged Sutton in a three-count indictment with

various drug offenses, including conspiracy to distribute fifty grams or more of cocaine base or crack

in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A) and possession with intent to distribute fifty

       *
           The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 07-5646
United States v. Sutton

grams or more of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A). The

evidence against Sutton was obtained during a traffic stop conducted by Agent Tim Miller, after he

observed Sutton commit several traffic violations in Shelbyville, Tennessee. Sutton filed a pre-trial

motion to suppress, arguing that Miller fabricated the traffic violations to create a pretext for

stopping Sutton. At the suppression hearing, Miller was the only witness who testified. Sutton did

not take the stand.

       Miller, an officer with the 17th Judicial Drug Task Force of the Lincoln County Sheriff’s

Office, testified that, on February 8, 2006, he received a call from Detective Brian Crews of the

Shelbyville Police Department regarding a suspect named “Rashad” who was selling crack cocaine

near a trailer in Lot 27 of Farrar’s Trailer Park. The suspect was also said to be driving a gold

Mitsubishi. Prior to going off duty and heading home, Miller decided to investigate the park.

       After briefly investigating the area, Miller saw a gold Mitsubishi matching Crews’s

description, and he followed the vehicle until it parked near Lot 27. Shortly thereafter, the gold

Mitsubishi exited the park, and Miller pursued the car. After exiting the park, Miller testified that

the Mitsubishi drove through a stop sign without stopping. At the next intersection, the Mitsubishi

came to a complete stop, which allowed Miller to run the vehicle’s license plate number through

dispatch. The vehicle then sped up to approximately sixty miles-per-hour in a thirty mile-per-hour

zone. Approaching another intersection, Miller testified that the Mitsubishi barely slowed down

before making a right turn, driving through the stop sign. Miller ultimately caught up with the

vehicle and activated his lights in an attempt to stop the vehicle. The Mitsubishi traveled

approximately two-tenths of a mile before stopping at a residence.

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No. 07-5646
United States v. Sutton

       When the Mitsubishi stopped, the driver exited the Mitsubishi and started walking towards

the house. Miller ordered the driver back into the car. The driver responded that his identification

was in the house. Miller told the driver three more times to go back into the vehicle before the driver

complied. Miller then approached the vehicle.

       Miller testified that the defendant appeared very nervous and told Miller that his name was

“Andre Sutton.” Miller quickly realized he was speaking to Andre “Rashad” Sutton, the individual

Crews had told him about. Miller then escorted Sutton to the rear of the vehicle. At this point,

another police officer, Cody King, arrived. Miller then asked whether Sutton was on probation or

parole, and Sutton responded that he was on parole. Next, Miller asked whether Sutton was in

possession of any weapons. Miller testified that Sutton “didn’t say anything.” Miller then proceeded

to pat Sutton down. As Miller patted Sutton around the ankle, he heard and felt a crunch of a

cellophane wrapper. When Miller lifted up Sutton’s pant leg, he saw the cellophane sticking out

from the left sock and what he believed to be crack cocaine in the cellophane wrapper. Sutton was

arrested, handcuffed, and placed in the patrol car.

       Miller then asked the passenger and registered owner of the car, Jacalyn Bowman, whether

the officers could search the vehicle for hidden contraband, and Bowman consented to the search.

During the search, Miller and King found a Kroger bag under the passenger seat which contained

crack and powder cocaine. Bowman then informed Miller that she owned the trailer on Lot 27.

Miller asked for permission to search the trailer, and Bowman consented. The officers then searched

the trailer and found digital scales and marijuana in the bedroom. Sutton also had around $1,300

dollars in his pockets at the time of his arrest. Miller testified that he did not cite Sutton for the

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No. 07-5646
United States v. Sutton

traffic violations due to the more serious crimes that were discovered. Shortly thereafter, Sutton was

read his Miranda rights, waived these rights, and admitted that the crack cocaine belonged to him.

       During the suppression hearing, the defense argued that Miller’s testimony was not credible,

but offered no witnesses. The magistrate judge filed a Report and Recommendation on September

1, 2006, recommending that the district court deny Sutton’s motion to suppress. In the report, the

magistrate judge found Miller credible, his testimony consistent and logical, and that he had probable

cause to initiate the traffic stop on account of the various traffic violations. Specifically, the

magistrate judge “found no reason to discredit Miller’s testimony.” Sutton filed a timely objection

to the magistrate judge’s recommendation; however, the district court ultimately adopted the

magistrate judge’s recommendation and denied the motion to suppress.

       Sutton then entered a conditional guilty plea, reserving the right to appeal the district court’s

denial of his motion to suppress. Sutton was sentenced to the enhanced statutory minimum of twenty

years imprisonment. Sutton timely filed a notice of appeal.

                                                  II.

       In an appeal of a denial of a motion to suppress, we review the district court’s findings of fact

for clear error and its conclusions of law de novo. United States v. Gross, 550 F.3d 578, 582 (6th

Cir. 2008). A credibility determination will be overturned only when this Court has a “definite and

firm conviction” that the trial court committed a mistake. United States v. Sanford, 476 F.3d 391,

394 (6th Cir. 2007) (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)).

We view the evidence “in the light most likely to support the district court’s decision.” Id. (quoting

United States v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006)).

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No. 07-5646
United States v. Sutton

        Sutton contends that Miller lacked probable cause to initiate the traffic stop. It is well-settled

that a traffic stop is proper “so long as the officer has probable cause to believe that a traffic violation

has occurred or was occurring.” United States v. Palomino, 100 F.3d 446, 448 (6th Cir. 1996).

Moreover, an officer may conduct a stop after a traffic violation even if his “true motive is to detect

more extensive criminal conduct.” United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002).

The crux of Sutton’s argument is that Miller fabricated the traffic violations in order to stop Sutton

in the hopes of finding contraband. Thus, Sutton urges this Court to disregard the magistrate judge’s

credibility determination. However, a credibility determination will only be set aside if it is clearly

erroneous, and Sutton fails to meet this standard. Navarro-Camacho, 186 F.3d at 705. The

magistrate judge carefully observed Miller during his testimony and “found no reason to discredit

Miller’s testimony.” Sutton offers no evidence to overturn the magistrate’s determination.

        According to Sutton, Miller’s testimony at the suppression hearing provided a “long and

twisted description” of his pursuit of Sutton until “finally, the officer observe[d] a traffic violation.”

In actuality, Miller’s testimony revealed that he witnessed Sutton, the driver of the Mitsubishi,

commit a traffic violation early in his surveillance. Specifically, Miller testified that he witnessed

Sutton run a stop sign at one of the intersections near Farrar’s Trailer Park. Miller also had to

increase his speed to nearly double the posted limit to catch up with Sutton to perform the traffic

stop. Miller was the only witness called during the suppression hearing, and Sutton did not introduce

any contradictory testimony regarding the traffic violations. Because Sutton cannot point to any

evidence that suggests the magistrate’s credibility determination was clearly erroneous, we affirm

the district court’s denial of Sutton’s suppression motion.

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No. 07-5646
United States v. Sutton

                                                   III.

        For the first time on appeal, Sutton argues that Miller’s pat-down search was improper

because Miller did not have reasonable suspicion to believe that Sutton was dangerous. However,

because Sutton did not raise this issue either in his motion to suppress or objections to the Report

and Recommendation, he has waived it on appeal. United States v. Critton, 43 F.3d 1089, 1093–94

(6th Cir. 1995) (quoting United States v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994)).

        Regardless, Miller’s pat-down of Sutton was justified because it was reasonable for Miller

to suspect that Sutton was armed. We have held that officers who stop a person reasonably

suspected of carrying drugs “are ‘entitled to rely on their experience and training in concluding that

weapons are frequently used in drug transactions,’ and to take reasonable measures to protect

themselves.” United States v. Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (quoting United States v.

Heath, 259 F.3d 522, 530 (6th Cir. 2001)). Miller recognized Sutton as a suspected crack dealer

soon after he initiated the traffic stop. Further, Miller had just observed Sutton commit a series of

traffic violations. Indeed, Miller had to order Sutton to return to his car at least three times after the

pursuit finally ended. Miller testified that Sutton appeared very nervous and did not respond when

asked whether he was carrying any weapons. Thus, under these circumstances, Miller’s pat-down

search of Sutton was reasonable.

                                                   IV.

        For the foregoing reasons, we affirm the district court’s denial of Sutton’s motion to

suppress.



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