            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                        File Name: 04a0096n.06
                       Filed: November 17, 2004

                                       No. 03-4029

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                              ON APPEAL FROM THE
                                                        UNITED STATES DISTRICT
v.                                                      COURT FOR THE
                                                        NORTHERN DISTRICT OF
JAMEL LINDSEY,                                          OHIO

       Defendant-Appellant.

_______________________________________/



BEFORE:       COLE and ROGERS, Circuit Judges; COHN, District Judge*

AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Jamel

Lindsey (Lindsey) appeals from the district court’s denial of his motion to suppress

evidence related to his charge of being a felon in possession of a firearm under 18 U.S.C.

§ 922(g)(1). Lindsey says that police officers violated the Fourth Amendment of the

United States Constitution because they lacked reasonable and articulable suspicion to

justify his seizure under Terry v. Ohio, 392 U.S. 1 (1968). Lindsey says that the officers’


       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District
of Michigan, sitting by designation.
actions constituted an arrest and thus required probable cause. The government says that

the seizure was a valid Terry stop because Lindsey matched the description of a suspect

wanted for a violent crime and the officers used reasonable precautions by approaching

Lindsey with weapons drawn. We affirm.

                                    I. BACKGROUND

       On November 2, 2002, East Cleveland, Ohio, police dispatcher LaShonda Lee

received a 911 call from 1649 Bryn Mawr Road. The anonymous caller reported that

someone had fired shots in front of an East Cleveland residence and that one man was

down. Lee noted that the shooter was described as an African-American male wearing a

black leather jacket and a black skull cap. Other witnesses subsequently called the police

to report the incident, providing Lee with further information about the description of the

jacket worn by one of the suspects and information about where the suspects had fled.

Lee dispatched all available officers to the scene and told them that two male suspects

were running down Hayden Avenue toward Eddy Road. She also gave the officers a

description of one of the men. Officer Antonio Evans testified that he received a dispatch

description that the suspect “was a dark-skinned black male wearing a black jacket with

like white stripes, white lettering on the jacket.” Lee’s dispatch notes of the incident do

not include any reference to white stripes, lettering, or fringe. She testified, however, that

she might have said something when dispatching the officers that she did not write in her

dispatch report.

       On his way to the scene, Officer Evans saw a man matching the description of the

                                              2
shooter running in the vicinity. Evans testified that the man stopped running when he saw

Evans. Evans testified that he did not stop the man immediately because police dispatch

had reported that one female officer had arrived at the scene and he did not want her to be

alone and in a potentially dangerous situation. At the same time, other officers in the area

were stopping people matching the description in an attempt to locate the shooter.

       Once Evans arrived at the scene, witnesses told him that the shooter ran through a

backyard and in the direction in which Evans had previously seen a man who stopped

running when he saw Evans. Evans told Officer Terry Wheeler that he had seen a person

who matched the suspect’s description and suggested that they go investigate.

       Evans and Wheeler drove separate cars to the area where Evans previously had

seen a man matching the suspect’s description. When they reached the area, Evans and

Wheeler saw a man wearing a dark-colored New York Yankees bomber jacket with white

letters walking down the street with a woman. Evans told Wheeler that this was the man

he saw running earlier. The officers exited their cars, approached the man and woman

with guns drawn, and ordered Lindsey and the woman to the ground. Both officers

testified that Lindsey had blood on his hand from a cut that Lindsey said he received

when he jumped over a fence.1 Wheeler testified that he told Lindsey and the woman




       1
         According to witnesses, the suspect had traveled through backyards and likely
would have climbed over fences. Lindsey denies having a cut hand and denies any
conversation took place about his hand. There is no reference to Lindsey’s hand in the
police report.

                                             3
why they were being stopped and that he intended to frisk them.2 When Wheeler asked

Lindsey whether he had any weapons, Lindsey said that he had a gun in his pocket near

his belt. Wheeler testified that he retrieved the loaded gun, handcuffed Lindsey, and

placed him under arrest. During this incident, Wheeler found marijuana in Lindsey’s

pocket and confiscated it.

       Lindsey was indicted on one count of felony possession of a firearm under 18

U.S.C. § 922(g)(1). He was arrested and arraigned and he subsequently filed a motion to

suppress evidence of the firearm, alleging that the search and seizure was unlawful under

the Fourth Amendment. The district court conducted a suppression hearing that included

testimony from Lee, Lindsey, Evans, and Wheeler. The district court denied the motion

from the bench. The judge based his decision on the description and the location of the

suspect, which were close to what dispatcher Lee had reported. The judge determined

that the stop was reasonable under the circumstances.

       Thereafter, Lindsey pleaded guilty to possession of a firearm on the condition that

he would be free to appeal the denial of his motion to suppress. This appeal followed.




       2
        Lindsey testified that other officers arrived at the scene while he was lying face
down and that the other officers told Evans and Wheeler that Lindsey was the wrong
suspect and that they were on the wrong street.

                                             4
                                      II. ANALYSIS

                                  A. Standard of Review

       On review of the denial of a motion to suppress, this Court reviews a district

court’s factual findings for clear error and its legal conclusions de novo. United States v.

Hurst, 228 F.3d 751, 756 (6th Cir. 2000). “A factual finding will only be clearly

erroneous when, although there may be evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. Nararro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999). All

evidence must be viewed “in the light most likely to support the district court’s decision.”

Id.

             B. Whether Lindsey’s Seizure Was a Terry Stop or an Arrest

       The district court properly denied Lindsey’s motion to suppress because the police

officers conducted a valid Terry stop. The actions of the officers in approaching Lindsey

with guns drawn, ordering him to the ground, and frisking him did not transform the

Terry stop into an arrest; what they did was reasonable to protect the safety of the officers

and the public given the violent nature of the crime.

       The Fourth Amendment to the United States Constitution prohibits “unreasonable

searches and seizures.” U.S. Const. amend. IV. Under Terry, searches are permitted

based upon less than probable cause when the purpose of the detention is investigative,

the length of time is reasonable, and the scope is limited to alleviating suspicion. Hiibel

v. Sixth Judicial Dist. Court of Nevada, 124 S.Ct 2451, 2458 (2004). A search becomes a

                                              5
seizure when the actions of police officers lead a reasonable person to believe that they

are not free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980). Such

actions include the presence of several police officers, officers displaying a weapon,

physical touching of the person, or “the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” Id. In this case, a reasonable

person would not have felt free to leave because two officers drew their guns and ordered

Lindsey to the ground while one of the officers frisked Lindsey. Accordingly, the stop of

Lindsey constituted a seizure.

       “This Circuit permits the use of force, such as handcuffs and guns, to effect a stop

when such a show of force is reasonable under the circumstances of the stop.” United

States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001). The Supreme Court has stated that

police officers should not be “required to take unnecessary risks in the performance of

their duties.” Terry, 392 U.S. at 23. Indeed, police officers may use reasonable means to

protect themselves when conducting a Terry stop, including drawing weapons if the

officers believe the suspect may be armed. United States v. Hardnett, 804 F.2d 353, 357

(6th Cir. 1986). A seizure can, however, ripen into an arrest and thus require probable

cause. United States v. Sharpe, 470 U.S. 675, 685 (1985). Because there is no litmus test

to determine whether an encounter with police officers is a Terry stop or an arrest, the

court must examine the circumstances surrounding the stop to judge its reasonableness.

Florida v. Royer, 460 U.S. 491, 506 (1983).

       Lindsey claims that he was arrested when the officers approached him with guns

                                              6
drawn and ordered him to the ground because he was not free to move or resist out of fear

of being shot. Lindsey suggests that the Fourth Amendment precludes officers from

drawing their guns before approaching people who have not taken any visibly threatening

or suspicious actions toward the officers. Rather, he maintains, officers must have

probable cause before approaching a person in that manner.

       If police officers perform actions beyond those that are reasonably necessary to

protect themselves during a stop, the encounter may ripen into an arrest. To determine

whether a stop had ripened into an arrest, this Court examines whether the stop bears any

indicia of an arrest, such as (1) transportation of the detainee to another location, (2)

significant restraints on freedom of movement involving physical confinement or other

coercion, (3) use of weapons or bodily force, and (4) whether officers have given

Miranda warnings. United States v. Lopez-Arias, 344 F.3d 623, 627-28 (6th Cir. 2003).

These factors, however, are not dispositive. In Houston v. Clark County Sheriff Deputy

John Does 1-5, 174 F.3d 809, 814 (6th Cir. 1999), this Court upheld a stop by officers

who responded to a radio dispatch report of a suspect who shot a police officer, even

though the officers approached the suspects at gunpoint, handcuffed the suspects, placed

them in separate squad cars, and held them for approximately twenty minutes after the

time that they concluded that the shooting they were investigating had not actually

occurred.

       In this case, Evans and Wheeler were conducting an investigation of a shooting.

The officers reasonably believed that approaching Lindsey with guns drawn was

                                               7
necessary because Lindsey matched the description of a suspect who had just shot another

person. Additionally, and significantly, the stop of Lindsey was brief and did not have

other indicia of an arrest. Evans and Wheeler neither transported Lindsey to another

location nor read Miranda rights. Although disputed by Lindsey, the officers also

testified that they did not handcuff Lindsey until after Wheeler removed Lindsey’s gun.

Viewing this evidence in the light most likely to support the district court’s decision, we

must accept this version of the facts as correct. Lindsey’s encounter with Evans and

Wheeler was a Terry stop and not an arrest.

            C. Level of Suspicion Required to Justify Lindsey’s Detention

       Because the stop is governed by Terry, Evans and Wheeler needed reasonable

suspicion to justify Lindsey’s detention. Reasonable suspicion is a lower standard than

probable cause and is defined as “specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant the intrusion.” Terry, 392 U.S. at

21. The Court defers to the officer’s inferences based on experience. Id. at 27. Lindsey

says that police officers were conducting a “dragnet” of African-American men in the

vicinity of the crime scene and did not have particularlized suspicion when they stopped

Lindsey. As discussed below, however, Evans and Wheeler had specific and articulable

facts to determine that Lindsey might have been involved in the shooting.

       The district court held that (1) Lindsey’s location, (2) officer testimony that

Lindsey matched the description of the suspect given in Lee’s dispatch, and (3) officer

testimony that Lindsey was running in the vicinity of the alleged shooting were sufficient

                                              8
reasons to justify Lindsey’s detention. The district court was correct in concluding that

Evans and Wheeler had reasonable suspicion to detain Lindsey.

       With respect to Lindsey’s location, Lee’s dispatch indicated that two male suspects

were running down Hayden Avenue toward Eddy Road. Witnesses at the scene told

Evans that the shooter had traveled through a backyard and in the direction where Evans

previously had seen Lindsey. Lindsey’s location and the direction in which he was

traveling were consistent with Lee’s dispatch and the information witnesses at the scene

gave Evans. Additionally, although disputed by Lindsey, Evans and Wheeler testified

that Lindsey said he cut his hand while jumping over a fence – something consistent with

flight through a backyard.

       Although there are inconsistencies with respect to Lindsey’s description and how it

related to the description in Lee’s dispatch, this further supports the officers’ reasonable

suspicion. Lee’s dispatch record indicated the suspect was described as an African-

American male wearing a dark-colored jacket. Lee also testified that she does not always

include all information in her written dispatch report. Evans and Wheeler testified that

they heard the suspect described as an African-American male wearing a black jacket

with white lettering, fringe, or stripes. Lindsey was stopped less than a mile from the

scene wearing a dark-colored New York Yankees bomber jacket with white lettering.

Evans properly believed that Lindsey matched the description of the suspect. The fact

that Lindsey testified that other officers at the scene told Evans and Wheeler that Lindsey

was not the suspect because he was not wearing all black clothing is of no moment. The

                                              9
district court could weigh Lindsey’s testimony against that of Evans, Wheeler, and Lee

and conclude that other testimony and evidence was more credible than Lindsey’s

testimony.

       Finally, while the fact that Lindsey was running when Evans first saw him is not

by itself indicative of wrongdoing, running can be suggestive of wrongdoing. Illinois v.

Wardlow, 528 U.S. 119, 124 (2000). Lindsey was running away from the crime scene in

a direction consistent with reports from Lee’s dispatch and witnesses at the scene.

Significantly, Lindsey stopped running when he saw Evans. It was reasonable to infer

that such action is consistent with the flight of a suspect.

                                    III. CONCLUSION

       The officers were investigating a shooting and had a reasonable fear that Lindsey

may have been armed. Thus, it was reasonable for the officers to draw their weapons to

protect themselves when they approached Lindsey. Additionally, the stop did not have

any indicia of an arrest, such as transporting Lindsey from the scene, detaining him for a

lengthy period, or reading Miranda rights. Accordingly, the officers’ encounter with

Lindsey constituted a Terry stop, not an arrest. The officers had reasonable suspicion to

detain Lindsey based on Lindsey’s location near the crime scene, the direction in which

he was traveling, and his physical description, all of which were consistent with the police

dispatch report and information from witnesses at the scene.

       Accordingly, the district court’s decision is AFFIRMED.



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