                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0207n.06

                                           No. 08-3906


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                      FILED
                                                                                      Apr 02, 2010
UNITED STATES OF AMERICA,                                                        LEONARD GREEN, Clerk

       Plaintiff-Appellant,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
SHAWN McDANIEL,                                       SOUTHERN DISTRICT OF OHIO

       Defendant-Appellee.

                                               /                        OPINION




BEFORE:        MERRITT, CLAY, and McKEAGUE, Circuit Judges.

       CLAY, Circuit Judge.         The government appeals the district court’s order granting

Defendant Shawn McDaniel’s motion for reconsideration and suppression of evidence, and the

district court’s order denying the government’s motion to reconsider its grant of Defendant’s motion

for suppression of the evidence. For the reasons set forth below, we REVERSE the district court’s

decision and REMAND the case for further proceedings in accordance with this opinion.

                                      I. BACKGROUND

       A.      Substantive Facts

       Defendant Shawn McDaniel was arrested on January 29, 2006 after police officers discovered

crack cocaine, drug paraphernalia, and a .22 caliber pistol on his person. At approximately 8:00 p.m.
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on January 29, 2006, Cincinnati Police Officers Putnick and Grisby were on patrol in an area of

downtown Cincinnati, known as Over-the-Rhine, when they came upon a 2001 Hyundai vehicle.

The vehicle was stopped more than twelve inches from the left curb on Pleasant Street, in violation

of municipal parking laws. Officer Putnick testified that several shootings had occurred in this area,

which is a high crime area known for drug trafficking. Four individuals, including Defendant,

occupied the vehicle. Officer Putnick pulled up next to the vehicle in order to tell the driver to move

the car closer to the curb.

        Putnick pulled forward until he was parallel with the rear seat of the Hyundai and at which

time he observed Defendant, who was seated in the rear driver’s side seat, make a startled

expression. Officer Putnick testified that initially, no one in the car seemed to notice when he pulled

alongside the Hyundai because they were talking and that when they finally did notice him, all four

occupants stared with blank expressions as if surprised by the officers’ presence. Officer Putnick

also attested that he observed Defendant turn away very quickly and make a furtive movement as if

he was putting something into his waistband. Officer Putnick testified that because of this

observation and his experience that people often carry firearms in their waistbands, he believed

Defendant was attempting to conceal a weapon.

        Officer Grisby also saw McDaniel look up, apparently startled, and then turn his body away

from the officers. To Officer Grisby, however, McDaniel’s actions were indicative that he might get

out of the car and run. Based on his testimony, it does not appear that Officer Grisby saw McDaniel

make any movement toward his waist and he did not express any concern that McDaniel might be




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armed. Rather, it seems that Officer Grisby was primarily concerned that McDaniel would attempt

to flee the scene.

        After observing Defendant’s behavior, Officer Putnick moved the police cruiser to a tactical

position at the rear right side of the Hyundai and turned on the cruiser’s rear flashing lights. Officer

Putnick then got out of the police cruiser and ordered the vehicle’s occupants to keep their hands in

plain view. Officer Grisby radioed dispatch to give their location, advise that they had stopped a car

for an investigation, and request backup. Both officers approached the vehicle and Putnick obtained

identification from the driver and from Defendant, explaining to the driver why the officers were

talking to them. Officer Putnick continued to talk to the occupants of the vehicle while he waited

for backup to arrive.

        As soon as the backup officer, Officer Elsaesser, arrived, Officer Putnick asked Defendant

to exit the vehicle. Defendant complied and Officer Putnick ordered Defendant to face the vehicle

and place his hands on the roof of the car. After handcuffing Defendant, Officer Putnick patted him

down, beginning at his waist to check for the presence of a firearm. Initially, Officer Putnick felt

nothing at Defendant’s waist so he began to pat down Defendant’s arms. In doing so, Officer

Putnick felt a gravel-like substance in McDaniel’s right sleeve which, based on experience, he

believed to be crack cocaine. Officer Putnick then searched McDaniel’s person and when he went

over the waist area again, he felt a gun, which slid down McDaniel’s pant leg onto the ground. In

addition to the gun and the crack cocaine, Putnick also discovered a digital scale and $667 in cash

on Defendant’s person.

        B.      Procedural History


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       Defendant was indicted on four counts: Count One, being a Felon in Possession of a Firearm

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Count Two, being a Felon in Possession of a

Firearm in a School Zone in violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4); Count Three,

Possession with Intent to Distribute Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(iii), and 18 U.S.C. § 2; and Count Four, Carrying a Firearm in and Relating to a Drug

Trafficking Offense in violation of 18 U.S.C. §§ 924(c)(1)(A)(i). Defendant moved to suppress all

evidence flowing from the search and seizure, including the gun, drugs, money, and any statements

he made, on the basis that the officers lacked reasonable suspicion to pat him down. The

government argued that the stop and frisk of Defendant was within the bounds of Terry v. Ohio, 392

U.S. 1 (1968). The district court held a hearing on Defendant’s motion and in an order entered on

May 29, 2007, denied McDaniel’s motion to suppress. On July 16, 2007, McDaniel pled guilty to

Counts Three and Four, reserving his right to appeal the denial of his motion to suppress.

       In 2008, Defendant moved the district court to reconsider its previous order denying his

suppression motion. In an order entered on June 2, 2008, the district court granted Defendant’s

motion to reconsider and vacated the order denying McDaniel’s motion to suppress based on this

Court’s decision in United States v. Blair, 524 F.3d 740 (6th Cir. 2008). The government submitted

a motion to reconsider, which was denied. Defendant moved to vacate his plea and set a bond

hearing, which resulted in him being released on an appearance bond with conditions. The

government appeals the district court’s order granting Defendant’s motion for reconsideration and

its suppression of the evidence as well as the district court’s order denying the government’s motion

for reconsideration.


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                                         II. DISCUSSION

        A.      Standard of Review

        When reviewing a suppression motion, this Court must consider evidence “in the light most

likely to support the district court’s decision,” which in this case would be in the light most favorable

to McDaniel. United States v. Marxen, 410 F.3d 326, 328 (6th Cir. 2005) (quoting United States v.

Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)) (internal quotation marks omitted). The

reasonableness of a search and seizure is a question of law. Blair, 524 F.3d at 747. “The specific

determination of whether reasonable suspicion . . . exists . . . is a mixed question of law and fact

which we review de novo.” United States v. Campbell, 549 F.3d 364, 370 (6th Cir. 2008) (citing

United States v. Torres-Ramos, 536 F.3d 542, 550 (6th Cir. 2008)).

        B.      Analysis

        The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court evaluated whether police officers may

conduct an investigatory stop and frisk search of an individual without violating the Fourth

Amendment’s ban on unreasonable searches and seizures. “[T]he 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.’” Maryland v. Wilson, 519 U.S. 408, 411

(1997) (citing 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




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

quotation marks omitted).

          Pursuant to Terry, an investigatory stop and frisk is constitutionally permissible if two

requirements are met. First, there must be a proper basis for the stop. This requirement is satisfied

in the context of an on-the-street encounter when the officer has a reasonable suspicion that criminal

activity “may be afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks

omitted). Second, to proceed from a stop to a frisk, the police officer must have reasonable

suspicion that the person stopped is armed and dangerous. Arizona v. Johnson, 129 S. Ct. 781, 784

(2009).

          In determining whether reasonable suspicion exists, we must look at the “totality of the

circumstances” to determine whether the officer had a “particularized and objective basis” to suspect

legal wrongdoing. Arvizu, 534 U.S. at 273. “The officer must be able to articulate more than an

‘inchoate and unparticularized suspicion or hunch,’ of criminal activity,” Illinois v. Wardlow, 528

U.S. 119, 123-24 (2000) (internal quotation marks omitted), and may draw on his experience and

specialized training “to make inferences from and deductions about the cumulative information

available to [him] that ‘might well elude an untrained person.’” Arvizu, 534 U.S. at 273; accord

Terry, 392 U.S. at 21-22 (“[T]he police officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

. . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing

more substantial than inarticulate hunches . . . .”).




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       The Supreme Court has observed that “most traffic stops resemble, in duration and

atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarthy, 468 U.S. 420,

439 n.29 (1984), and an ordinary traffic stop by a police officer is a “seizure” for purposes of the

Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). The Supreme Court has also

noted that “investigative detentions involving suspects in vehicles are especially fraught with danger

to police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983).

       In the traffic stop setting, the first Terry condition—a lawful investigatory stop—is met when

the police may lawfully detain a vehicle and its occupants pending inquiry into a vehicular violation.

Johnson, 129 S. Ct. at 784. “The police need not have, in addition, cause to believe any occupant

of the vehicle is involved in criminal activity.” Id. To justify a patdown of the vehicle’s occupants,

the police “must harbor reasonable suspicion that the person subjected to the frisk is armed and

dangerous.” Id.; accord Long, 463 U.S. at 1047-48 (“[P]olice may order persons out of an

automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is

a reasonable belief that they are armed and dangerous.”); Terry, 392 U.S. at 27 (“The officer need

not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man

in the circumstances would be warranted in the belief that his safety or that of others was in

danger.”).

       We conclude that the totality of the circumstances warranted Officer Putnick’s reasonable

suspicion that McDaniel was armed and dangerous. The police officers initially approached the

vehicle because of a parking violation and there is no dispute that the car was illegally parked. While

stopping to ask the driver of the vehicle to move closer to the curb, the officers became suspicious


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                                            No. 08-3906

after observing Defendant’s behavior. Specifically, the officers noticed that McDaniel appeared

startled and turned his body away from them. Officer Putnick also saw McDaniel make a furtive

movement as if he was putting something into his waistband. Putnick believed, based on his

experience, that Defendant’s behavior was consistent with an attempt to conceal a weapon. Based

on these facts, we conclude that Officer Putnick had a reasonable suspicion that McDaniel was

armed and dangerous. Consequently, his subsequent patdown of McDaniel did not constitute an

unreasonable search and seizure under the Fourth Amendment.

        We note that United States v. Blair, the case upon which the district court relied in

suppressing the evidence obtained from the search, poses no obstacle to our conclusion.

Blair addressed whether certain circumstances surrounding a traffic stop—the time of night, the

defendant’s presence in a high-crime area, and nervous behavior—were enough to constitute

reasonable suspicion of ongoing criminal activity sufficient to justify prolonging a traffic stop until

a canine unit arrived. The issue in the instant case is whether an officer had reasonable suspicion

that an individual was armed and dangerous sufficient to justify a patdown search. These two

inquiries are distinct as the “interest of the police officer in taking steps to assure himself that the

person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be

used against him” is a “more immediate” interest than the governmental interest in investigating

crime. Terry, 392 U.S. at 23. Accordingly, Blair is distinguishable and the district court erred in

relying upon Blair as the basis for its suppression of the evidence in this case.

        Because the stop for purposes of enforcing the local parking ordinance was lawful and

because Officer Putnick had reasonable suspicion that Defendant was armed and dangerous, we


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conclude that the district court erred in granting Defendant’s motion for reconsideration, suppressing

the evidence seized during the traffic stop, and denying the government’s motion for reconsideration.

                                       III. CONCLUSION

       For these reasons, we REVERSE the district court’s decision granting Defendant’s motion

for reconsideration, its suppression of the evidence obtained during the search, and its denial of the

government’s motion for reconsideration, and REMAND the case for further proceedings consistent

with this opinion.




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