                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0462n.06
                              Filed: August 1, 2008

                                                07-5106

                            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
NEGASSI DEJUAN RICHARDSON,                           )   WESTERN DISTRICT OF TENNESSEE
                                                     )   AT MEMPHIS
        Defendant-Appellant.                         )
                                                     )
                                                     )



        Before: ROGERS and McKEAGUE, Circuit Judges, and ADAMS,* District Judge.


        JOHN R. ADAMS, District Judge.                    Defendant-appellant, Negassi Dejuan

Richardson, appeals his conviction entered after he pleaded guilty to possession with intent

to distribute at least 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). We

are asked to determine whether the district court erred in denying defendant-appellant's

motion to suppress. For the reasons that follow, the conviction is affirmed.


                                                    I.




        *
        The Hon. John R. Adam s, United States District Judge for the Northern District of Ohio, sitting by
designation.
United States v. Richardson
No. 07-5106

       At approximately noon on March 30, 2004, a cooperating informant (“CI”) informed

John Forrester, a detective with the Collierville Police Department, that a man possessing

approximately nine ounces of crack cocaine would arrive at the Fairfield Inn at 6010 Macon

Cove in Memphis, Tennessee, sometime during the evening of March 30th. The CI

arranged to purchase the crack cocaine from the man at some point in the evening.


       The CI had previously provided credible information to law enforcement officers that

had resulted in two seizures of illegal drugs and one arrest. The CI also gave several

descriptive characteristics of the man to Detective Forrester. He described the man “as

a male black, longer hair, not necessarily short, approximately six feet tall, approximately

180 pounds.” (JA 173) The CI also told Detective Forrester that the man would be driving

a “newer model black Monte Carlo . . . and he would pull around the back of the Fairfield

Inn.” Id. He stated to this detective that “he knew the guy . . . to go armed occasionally in

transporting that much narcotics, he felt like he would be armed.” (JA 174)


       After the CI provided the above information to Detective Forrester, at approximately

5:00 p.m., officers assigned to the Germantown-Collierville Combined Services Unit,

including Detective Forrester, began surveillance in the area of the Fairfield Inn. Kenneth

Cardelli, a patrol officer with the Germantown Police Department and, at the relevant time,

a detective with the Combined Services Unit, was also present. The officers were in

several different unmarked vehicles. Detective Cardelli and three other officers were in an

unmarked police car located in the back parking lot of the hotel.


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United States v. Richardson
No. 07-5106

       The CI met Detective Forrester at approximately 5:00 p.m. that day and between

then and 7:30 p.m. made several phone calls to the man in the presence of Detective

Forrester. The man told the CI over the phone that he was running late and the CI relayed

this to the detective. During this time, Detective Forrester and the CI were parked across

the street from the Fairfield Inn. At approximately 7:30 p.m., Detective Forrester saw a

black newer model Monte Carlo--consistent with the CI’s description--drive down Macon

towards the hotel. Detective Forrester notified the other officers on the scene that the

Monte Carlo was approaching and he pulled out onto Macon traveling in the lane next to

the Monte Carlo when it turned right into the Fairfield Inn. Detective Forrester testified that

he could see the driver of the Monte Carlo through its tinted window and could judge his

approximate build and size. (JA 233-36)


       The officers observed the Monte Carlo pull into the hotel parking lot, drive around

to the back, and back into a parking space. The Monte Carlo parked about three spaces

away from Detective Cardelli’s car. The Monte Carlo’s engine was still running and the

headlights were on.


       Next, the officers pulled their cars up towards the front of the Monte Carlo, got out

of their cars, and approached the Monte Carlo. Some of the officers on the driver’s side

had their weapons drawn. As the officers pulled up, the driver of the car--later identified

to be the defendant--opened the door of his car. The officers detected a very strong odor

of marijuana coming from within the defendant’s car. Detective Forrester testified that he


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United States v. Richardson
No. 07-5106

began to smell the marijuana when he was “in front of the car about at the bumper” as he

approached from the passenger side of the vehicle. (JA 177; see also id. 248) Detective

Cardelli testified that he could smell marijuana after the defendant opened the car door and

exited the vehicle. (JA 115-17)


       Detective Cardelli’s car was parked in front of the Monte Carlo, but he testified that

neither his nor the other vehicles completely blocked the Monte Carlo’s exit from the hotel

parking lot.   (JA 131, 138)     He stated that the officers intended to “approach [the

defendant] and talk to him” and to “detain him for investigation.” Id. Detective Cardelli

testified that had the defendant driven away he likely would have hit another vehicle. (JA

131) Detective Forrester stated that the defendant could possibly have driven away but

it would have been a “tight fit.” (JA 219) Detective Forrester also testified that the officers

attempted to ensure that the defendant could not use the Monte Carlo as a weapon. (JA

220)


       As Detective Cardelli approached the driver’s side of the Monte Carlo, he asked the

defendant to place his hands where they could be seen and to get out of the car.

Defendant initially refused to exit his vehicle, but eventually did exit the Monte Carlo.

Detective Cardelli grabbed the defendant’s arm as he was getting out of the car. He asked

the defendant his name and the defendant said he was Negassi Richardson. Detective

Cardelli testified that Richardson fit the description previously provided by the CI to

Detective Forrester. (JA 145)


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United States v. Richardson
No. 07-5106

        Detective Cardelli noticed that the defendant’s left and right front pockets had large

bulges in them. He performed a protective pat-down of the defendant and noted that “both

pockets had what felt like hard objects in the pockets.” (JA 117) Detective Cardelli

testified:


        I asked Mr. Richardson what was in the pocket. He didn’t answer. I asked
        him a second time; he didn’t answer. So I reach in his right front pocket and
        pulled out approximately nine ounces of crack cocaine and a small bag of
        marijuana. In his left pocket was . . . just a little less than $600 in cash.


(JA 121) He testified further that the object in the defendant’s right front pocket “felt hard,

and I do [sic] not know what it was;” and, based on his experience in law enforcement, the

object “could have been” a weapon. (JA 150, 154) The drugs were field-tested and tested

positive for cocaine and THC,1 respectively.


        After the officers discovered the drugs, they put the defendant on the ground and

handcuffed him. (JA 153 )2 The officers searched the car and found a set of digital scales

and a box of plastic sandwich bags, which are commonly used in the packaging and sale

of drugs. Defendant declined to make any statements to the officers, whereupon he was

transported to the county jail.




        1
         Tetrahydrocannabinols (“THC”), which is the m ain psychoactive substance produced naturally by the
m arijuana plant.

        2
        At the suppression hearing, Richardson testified that the officers put him on the ground and
handcuffed him before they searched him . (JA 160-61).

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United States v. Richardson
No. 07-5106

       On August 31, 2004, a federal grand jury returned a one-count indictment against

Richardson in connection with this incident, charging him with a violation of 21 U.S.C. §

841(a)(1).


       On August 4, 2005, Richardson filed a motion seeking to suppress the evidence

seized in the warrantless search and arrest of him. On February 3, 2006 and March 2,

2006, the district court held a hearing regarding the motion. Detective Forrester, Detective

Cardelli, and the defendant testified at the two-part hearing.


       On June 29, 2006, after post-hearing briefing, the district court denied the motion

to suppress. The district court found “the officers had at least reasonable suspicion” to

detain the defendant for purposes of an investigative detention. (JA 82) Thereafter,

Richardson entered into a plea agreement that allowed him to appeal from the district court

decision denying his motion to suppress.           On January 18, 2007, Richardson was

sentenced to a 140-month prison term. Richardson’s timely appeal followed.


                                             II.


       Richardson appeals the denial of his motion to suppress. When reviewing the

denial of a motion to suppress evidence, the appellate court must consider the evidence

in the light most favorable to the government. United States v. Erwin, 155 F.3d 818, 822

(6th Cir.1998) (en banc decision upholding the district court's denial of a motion to

suppress evidence that was found during a search of the defendant’s vehicle). This Court


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United States v. Richardson
No. 07-5106

applies the clearly erroneous standard to findings of fact when reviewing the ruling of a

district court on a motion to suppress, but reviews conclusions of law de novo. United

States v. Smith, 182 F.3d 473, 476 (6th Cir. 1999). With regard to Terry-stop analysis in

particular, “[a]lthough the standard of review on the ultimate reasonable suspicion inquiry

is de novo, the district court is at an institutional advantage, having observed the testimony

of the witnesses and understanding local conditions, in making this determination.” United

States v. Townsend, 305 F.3d 537, 542 (6th Cir. 2002).


                                             A.


       Richardson contends that he was seized under the Fourth Amendment without

probable cause. Although his argument is not entirely clear, Richardson appears to argue

in his brief on appeal that the officers exceeded the scope of a Terry stop and pat-down

without proper justification. He cites United States v. Richardson, 949 F.2d 851 (6th Cir.

1991), and then states:


       Officer Forrester Cardelli [sic] testified that the defendant had not violated
       any law when he entered the parking lot nor when he was handcuffed.
       When the officers placed handcuffs on Richardson, the officers had went
       [sic] beyond an investigation to arresting defendant without probable cause.


(Appellant’s Br. 12) (citations to the record omitted). Defendant, however, does not

develop this argument in his brief and makes no effort to apply Richardson to the facts of

his own case.



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United States v. Richardson
No. 07-5106

       Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S. Ct. 1868 (1968), permits a “stop

and frisk” by police where the stop is based on specific, articulable facts indicating

reasonable suspicion that a crime has been committed. Id. at 21. Furthermore, “[t]he

scope of activities permitted during an investigative stop is determined by the

circumstances that initially justified the stop.” United States v. Obasa, 15 F.3d 603, 607

(6th Cir. 1994) (citing United States v. Sharpe, 470 U.S. 675, 682, 84 L.Ed.2d 605, 105

S.Ct. 1568 (1985)).


       Richardson cites United States v. Roch, 5 F.3d 894 (5th Cir. 1993), a case which

involved a purported suspicion that the subject was a felon in possession of a firearm, in

support of his argument that the CI’s tip was insufficient to give the officers probable cause

to seize him. This case, however, is distinguishable from the record before us where the

Terry stop and pat-down were clearly justified by the CI’s tip and smell of marijuana from

the Monte Carlo.


       Officers have the authority to stop and temporarily detain citizens “if the officer has

a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’

even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 104

L.Ed.2d 1, 109 S.Ct. 1581 (1989) (quoting Terry, 392 U.S. at 30). The reasonableness of

a Terry stop and search is determined by examining “(1) whether there was a proper basis

for the stop, which is judged by examining whether the law enforcement officials were

aware of specific and articulable facts which gave rise to a reasonable suspicion; and (2)


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United States v. Richardson
No. 07-5106

whether the degree of intrusion into the suspect’s personal security was reasonably related

in scope to the situation at hand.” United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.

1986).


         The district court’s factual findings were not clearly erroneous. Richardson testified

that the officers put him on the ground and handcuffed him before they searched him. The

district court, however, credited the testimony of the officers over that of the defendant's

in stating that “there is nothing in the record which seriously challenges the credibility” of

Detective Forrester and Detective Cardelli. (JA 82) We must afford due weight to the

factual inferences and credibility determinations made by the district court. United States

v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006).


         Viewing the district court’s findings of fact in their totality, the officers “were aware

of specific and articulable facts which gave rise to a reasonable suspicion” that Richardson

was engaged in criminal activity. Hardnett, 804 F.2d at 356. The CI in the instant appeal

told Detective Forrester that a man would deliver illegal narcotics to him at a particular time

and location later that same day and would be driving a particular type of car. The officers

subsequently observed Richardson arrive at that location in that model car and he pulled

around the back of the hotel, just as the CI had predicted. See Alabama v. White, 496 U.S.

325, 332, 110 L.Ed.2d 301, 110 S.Ct. 2412 (1990) (“What was important was the caller’s

ability to predict respondent’s future behavior, because it demonstrated inside information--

a special familiarity with respondent’s affairs”). Upon approaching the Monte Carlo, the


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United States v. Richardson
No. 07-5106

officers detected a very strong odor of marijuana coming from the defendant's car, at which

point they had probable cause to search the car and arrest the defendant.




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United States v. Richardson
No. 07-5106

                                             B.


       Finally, we find that the arrest was clearly justified by the discovery of the drugs

during the pat-down. Detective Cardelli testified that the defendant was handcuffed only

after the drugs were found in his front pants pocket. (JA 153) Once the officers placed

handcuffs on the defendant, they had proceeded past the bounds of a Terry stop and

effectuated an arrest of Richardson that was supported by probable cause.


       During a Terry stop, an officer may conduct a limited protective search for concealed

weapons when he “is justified in believing that the individual whose suspicious behavior he

is investigating at close range is armed and presently dangerous to the officer or to others.”

Adams v. Williams, 407 U.S. 143, 146, 32 L.Ed.2d 612, 92 S.Ct. 1921 (1972) (internal

quotation marks and citation omitted). When Detective Cardelli approached the defendant,

he noticed that Richardson’s front pockets had large bulges in them. Detective Cardelli

testified that the object in the defendant’s right front pocket “felt hard, and I do [sic] not

know what it was;” and, based on his experience in law enforcement, the object “could

have been” a weapon. He asked the defendant twice what was in the pocket and

Richardson didn’t answer. The officers had also been told by the CI that he felt like the

defendant would be armed. Every other detail provided by the CI occurred just as the CI

had predicted.    Detective Cardelli, therefore, had justification for patting down the

defendant to ensure the safety of the officers. See United States v. Foster, 376 F.3d 577,

586 n. 7 (6th Cir. 2004) (“[A]n officer is permitted to conduct ‘a reasonable search for


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United States v. Richardson
No. 07-5106

weapons for [his or her] protection . . ., where he [or she] has reason to believe that he [or

she] is dealing with an armed and dangerous individual.’”).


       Since Detective Cardelli discovered the drugs before he concluded that the

defendant was not armed, it did not violate the Fourth Amendment for him to seize the

drugs discovered during the pat-down. See Minnesota v. Dickerson, 508 U.S. 366, 375,

124 L.Ed.2d 334, 113 S.Ct. 2130 (1993) (holding that the “plain view” doctrine “has an

obvious application by analogy to cases in which an officer discovers contraband through

the sense of touch during an otherwise lawful search”).


                                             III.


       For the foregoing reasons, the district court’s ruling to deny the motion to suppress

is AFFIRMED.




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