                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0085n.06

                                            No. 19-5165

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                                )
                                                                                   FILED
                                                                             Feb 05, 2020
                                                          )
                                                                         DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,                              )
                                                          )
                v.                                        )       ON APPEAL FROM THE
                                                          )       UNITED STATES DISTRICT
 RODNEY JACKSON,                                          )       COURT FOR THE EASTERN
                                                          )       DISTRICT OF KENTUCKY
         Defendant-Appellant.                             )
                                                          )
                                                          )



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

       GRIFFIN, Circuit Judge.

       Defendant Rodney Jackson appeals his conviction and sentence for possession with intent

to distribute methamphetamine. He argues that the district court erred in denying his motion to

suppress the methamphetamine, which was discovered on his person after a drug dog alerted on

his vehicle during a traffic stop. He also appeals the district court’s ruling denying him an offense-

level reduction for acceptance of responsibility. We affirm.

                                                  I.

       Officer Douglas Ullrich was working third-shift patrol for the Covington, Kentucky police

department on October 4, 2017. At about 1:20 a.m., Officer Ullrich was patrolling a portion of

eastern Covington which he knew had “constant trouble with drug[s].” He observed defendant

Rodney Jackson sitting in the driver seat of a parked SUV. Jackson landed on Officer Ullrich’s
No. 19-5165, United States v. Jackson


radar because Jackson expressed a “a strong look of alarm” as Ullrich drove past. Immediately

thereafter, Officer Ullrich observed Jackson pulling away from the curb without signaling. Then

he saw Jackson make two right turns, again without signaling.

       Based on the observed traffic infractions, Officer Ullrich made a U-turn and caught up to

Jackson’s vehicle and conducted a traffic stop. As he approached, he used his flashlight to

illuminate the inside of the vehicle, to which Jackson remarked that he “didn’t need to do all that

stuff.” Unprompted, Jackson then told Ullrich that there were “no illicit drugs” in his vehicle.

Once Ullrich explained the reason for his presence—the traffic infractions—he asked for Jackson’s

license, registration, and insurance, but Jackson was only able to produce his driver’s license. And

while Jackson rummaged around in his vehicle, he made several other statements that led Officer

Ullrich to suspect that criminal activity was afoot. First, he repeated that Officer Ullrich should

not worry because there were no drugs in the car. Then, Jackson told Ullrich that he “worked for

the feds,” specifically for, “Peter Lakes of the federal government department,” which he later said

meant the DEA. However, Jackson informed Ullrich that his work with Lakes “was classified and

he couldn’t talk about it,” nor could he put Ullrich in touch with Lakes or anyone else who could

confirm their association.

       After hearing Jackson’s story, Ullrich requested that an officer with a drug dog respond to

the scene. He then returned to his squad car to begin writing Jackson a citation—a process that

was complicated by Jackson’s failure to provide a valid registration or proof of insurance. When

Ullrich ran Jackson’s name through his computer, he also learned that Jackson was on federal

supervised release and that he had multiple prior convictions for drug trafficking.

       Nine minutes after the stop began, Specialist Mike Lusardi and his canine partner Ernie

arrived. Lusardi’s first move was to ask Jackson to step out of his vehicle for precautionary




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No. 19-5165, United States v. Jackson


reasons. He then patted Jackson down for weapons before passing him back to the other officers.

After that, Specialist Lusardi walked Ernie around defendant’s vehicle twice. The first pass, which

Lusardi termed an “ambient air scan,” did not result in an alert from Ernie. But on the second trip,

Ernie alerted for narcotics on the driver side door.

       Once Ernie alerted, Specialist Lusardi searched the vehicle while Officer Ullrich searched

Jackson’s person. Officer Ullrich recalled that, during the search, Jackson was “kind of . . . leaning

his body up against” a nearby vehicle “which was preventing . . . access to the front of his body.”

Ullrich also asked Jackson to spread his feet, but Jackson replied that he could not spread his feet

more broadly than shoulder-width apart. Officer Ullrich found this suspicious, so he handcuffed

Jackson for safety purposes. Officer Ullrich then patted down the front of Jackson’s body,

including his groin area. There, he located a “large bulge” that was “clearly not part of his person,”

and which Ullrich immediately suspected to be drugs.

       Officer Ullrich set about retrieving the drugs from Jackson’s groin area. He unbuckled

Jackson’s belt and zipper and pulled Jackson’s pants straight away from his body with his right

hand. With his other hand, Officer Ullrich stuck his hand down into Jackson’s groin and retrieved

the parcel he had felt during the search—the contents of which were later revealed to be

methamphetamine. Officer Ullrich’s search resulted in Jackson’s pubic hair and buttocks being

partially exposed, but the whole process took between five and ten seconds. With the contraband

secured, Officer Ullrich returned Jackson’s pants to their normal position and placed defendant

under arrest.

       A grand jury charged Jackson with possession with intent to distribute methamphetamine,

and Jackson filed a motion to suppress the methamphetamine, arguing that the initial traffic stop,

use of a drug dog, and search of his person all violated his Fourth Amendment rights. The district




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court held an evidentiary hearing and took testimony from numerous witnesses, including Jackson

and two bystanders who had witnessed the encounter. The court then denied Jackson’s motion in

a written opinion. Jackson proceeded to a jury trial, where he conceded that he possessed the

methamphetamine, but argued to the jury that the DEA authorized him to possess it, so the

evidence did not establish that he had intended to distribute the drugs. The jury was not convinced,

and it convicted defendant.

       At sentencing, Jackson objected to the presentence report, which recommended that the

district court deny him an offense-level reduction for acceptance of responsibility. Defendant

argued that he had attempted to enter a conditional guilty plea, so he had accepted responsibility

and should receive the two-level deduction attendant to acceptance. The district court overruled

Jackson’s objection, reasoning that he had never admitted to possession with intent to distribute

the methamphetamine and had instead contested the evidence produced by the government at trial.

Jackson’s offense level was thus calculated at 37, which when combined with Jackson’s criminal

history category, resulted in a Guidelines range of 360 months’ imprisonment to life. The court

imposed a sentence of 336 months’ imprisonment, to be served consecutively to the other terms

of imprisonment that were imposed upon Jackson for violation of his supervised release and in a

state court case. Jackson timely appeals.

                                                 II.

       First, Jackson appeals the district court’s denial of his motion to suppress. “When

reviewing a district court’s ruling on a motion to suppress, we will reverse findings of fact only if

they are clearly erroneous. Legal conclusions as to the existence of probable cause are reviewed

de novo. When the district court has denied the motion to suppress, we review all evidence in a




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No. 19-5165, United States v. Jackson


light most favorable to the Government.” United States v. Coffee, 434 F.3d 887, 892 (6th Cir.

2006) (brackets, internal citations, and quotation marks omitted).

          The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. Jackson

claims that the initial stop of his vehicle was an unreasonable seizure and that the search of his car

and person were also unreasonable. We find no merit in these issues.

          The initial stop. First, Jackson claims that Officer Ullrich violated his Fourth Amendment

rights by making the initial traffic stop because Ullrich allegedly decided to stop him based solely

on the look of alarm he had observed. Jackson says that because Ullrich had “already decided” to

stop him at that point, prior to any observed traffic violation, it violated his Fourth Amendment

rights.

          We disagree. Officer Ullrich’s subjective intentions are not relevant to our analysis.

Whren v. United States, 517 U.S. 806, 812–13 (1996). It is undisputed that prior to effectuating

the stop, Ullrich observed Jackson pull away from the curb and turn right without signaling. He

therefore had probable cause to believe defendant committed multiple traffic violations and

lawfully stopped defendant’s vehicle. See, e.g., United States v. Herbin, 343 F.3d 807, 809–10

(6th Cir. 2003).

          Use of a drug dog. Second, Jackson argues that the officers’ use of a drug dog violated his

Fourth Amendment rights because the dog sniff was not supported by reasonable suspicion, or

alternatively, even if the initial pass was constitutional, the officers still violated his Fourth

Amendment rights by conducting a “second sniff.” We reject both arguments.




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No. 19-5165, United States v. Jackson


       As an initial matter, whether the officers had reasonable suspicion for the dog sniff only

comes into play if the use of the drug dog extended the seizure. Illinois v. Caballes, 543 U.S. 405,

409–10 (2005) (holding that use of narcotics-detection dog during a lawful traffic stop “generally

does not implicate legitimate privacy interests”); Rodriguez v. United States, 575 U.S. 348, 350

(2015) (“We hold that a police stop exceeding the time needed to handle the matter for which the

stop was made violates the Constitution’s shield against unreasonable seizures.”). Specialist

Lusardi responded with Ernie in 9 minutes—before Officer Ullrich had finished ticketing Jackson.

We therefore conclude that, like Caballes, the officers’ use of the drug dog did not implicate

Jackson’s legitimate privacy interests. 543 U.S. at 409–10; see e.g., United States v. Marsh, 443

F. App’x 941, 942–43 (6th Cir. 2011) (concluding that a fifteen-minute traffic stop was permissible

as it was not longer than reasonably necessary to issue the traffic citation).

       But even assuming the officers had exceeded the time needed to handle the traffic stop,

Officer Ullrich had reasonable suspicion to use the drug dog. As Officer Ullrich approached

Jackson’s car after making the traffic stop, Jackson made numerous unprompted statements which

created reasonable suspicion regarding his possession of illegal drugs. Jackson told Ullrich that

there were “no illicit drugs” in the car and told Ullrich that he was working with a DEA agent but

because his status was classified, he could not talk about it. Under these circumstances, we

conclude that Officer Ullrich had a particularized basis for suspecting criminal activity based on

specific and articulable facts. Accordingly, the initial sniff by the drug dog was lawful, even if it

had extended the seizure beyond the time necessary to complete the traffic stop. See United States

v. Winters, 782 F.3d 289, 298–304 (6th Cir. 2015) (concluding that officers had reasonable

suspicion to extend traffic stop for a dog sniff based on nervousness of car occupants, their




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No. 19-5165, United States v. Jackson


inconsistent explanations for their travels, and the fact that they were using a rental car but were

not listed as authorized drivers).

        Jackson’s “second-sniff” theory fares no better. He posits that because Ernie did not alert

on his first pass around the vehicle, the officers’ reasonable suspicion dissipated completely, so

there was no basis to further prolong the stop by having Specialist Lusardi take Ernie for another

lap around the vehicle. We review this argument for plain error, because Jackson did not raise it

before the district court. United States v. Hunter, 558 F.3d 495, 501 (6th Cir. 2009). Thus, Jackson

bears the burden of establishing (1) error, (2) that is plain, and (3) which affects his substantial

rights. Id.

        We discern no error. Jackson’s argument rests on a false factual premise, namely that Ernie

had completed his drug sniff at the time he completed his first pass around the vehicle. Rather,

Specialist Lusardi’s testimony establishes that the two laps around the vehicle were part of the

same search because they were done in immediate succession. That distinction sets this case apart

from United States v. Davis, because there, the first dog never alerted to the vehicle, and the

officers detained the defendant for an additional hour so that a second drug dog could be brought

to the scene, unreasonably extending the seizure. 430 F.3d 345, 356 (6th Cir. 2005). Jackson has

given us no case suggesting that Specialist Lusardi violated his Fourth Amendment rights by

walking Ernie around his vehicle twice in the course of a single search. Accordingly, we conclude

that defendant cannot meet his burden on plain error review.

        Search of Jackson’s person. Jackson also contends that Officer Ullrich’s search of his

person violated the Fourth Amendment, relying primarily on Bell v. Wolfish, 441 U.S. 520 (1979).1



        1
         Jackson conceded at oral argument that he was seized at the time of Officer Ullrich’s
search, and that there was probable cause for the seizure. His only argument concerning the search
of his person is that it was conducted in a constitutionally unreasonable manner.


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No. 19-5165, United States v. Jackson


Bell mandates that we “consider the scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in which it is conducted” when assessing

whether an intrusive search is unreasonable and thus violative of the Fourth Amendment. Id. at

559. We conclude that the balance of the Wolfish factors support a finding that the search was

lawful.

          First, we reject Jackson’s contention that Officer Ullrich’s search was not justified because

Specialist Lusardi had already frisked him for weapons. The respective officers’ searches served

different purposes: Specialist Lusardi was concerned only with officer safety, because he was

freshly on the scene and had just ordered Jackson out of his vehicle. Officer Ullrich, on the other

hand, was searching Jackson’s person incident to arrest because Jackson was seized once Ernie

alerted for narcotics on the car where Jackson had been sitting. The need for a more intrusive

search arose only after Ullrich gained probable cause to believe Jackson was carrying drugs on his

person based on his detection of the “unnatural bulge.” See United States v. Rasberry, 882 F.3d

241, 251 (1st Cir. 2018) (concluding that officers were justified in reaching into defendant’s

undershorts to remove concealed contraband); United States v. Williams, 477 F.3d 974, 976 (8th

Cir. 2007) (similar).

          Similarly, the scope of the seizure weighs in favor of reasonableness. Officer Ullrich’s

search took between five and ten seconds—only the time necessary to pull Jackson’s pants away

from his body and retrieve the suspicious object. Once the suspected drugs were seized, Ullrich

terminated the search. Thus, we conclude that the scope of the search was reasonable. See, e.g.,

Williams, 477 F.3d at 976 (“[I]t was not unreasonable for the officers to assume the initiative by

seizing the contraband that Williams secreted in his underwear.”).




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No. 19-5165, United States v. Jackson


       Jackson argues that Officer Ullrich’s method for the search—i.e., unbuckling Jackson’s

pants and pulling them away from the front of his body—rendered it unreasonable because Ullrich

caused his pubic hair and buttocks to be exposed for several seconds during the search. He also

claims that the public location of the search rendered it unreasonable because there were four

onlookers at street-level, and two additional persons looking on from their window.

       We do not view these facts to shift the balance. The search was brief, and while it occurred

on a public street, the record establishes that it was a dark night, and the only other persons present

were 50 or 60 feet away. The officers did not strip Jackson of his clothes, visually inspect his body

cavities, penetrate his body, or forcibly expose private areas of Jackson’s body for a prolonged

time. These factors distinguish Jackson’s case from those he cites, including Campbell v. Miller,

where the plaintiff was arrested in his friend’s yard at 8:00 p.m. on a summer evening and subjected

to a visual inspection of his anal cavity in view of his friends, 499 F.3d 711, 714–715 (7th Cir.

2007), and United States v. Ford, where an officer fully exposed the defendant’s buttocks on a

heavily traveled roadway during broad daylight and penetrated his rectum during a body cavity

search. 232 F. Supp. 2d 625, 630–31 (E.D. Va. 2002).

       In sum, based on the totality of the circumstances, we conclude that Officer Ullrich’s search

of Jackson, while moderately intrusive, was reasonable under the Fourth Amendment. See United

States v. Doxey, 833 F.3d 692, 706 (6th Cir. 2016) (“Although removing the baggie protruding

from [defendant’s] buttocks was an invasion of privacy beyond that caused by a visual search,

what occurred here was a constitutionally permissible search that was reasonable under the totality

of the circumstances.”).




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                                                III.

       That leaves us with Jackson’s sentencing argument. Guidelines § 3E1.1(a) states that “[i]f

the defendant clearly demonstrates acceptance of responsibility for his offense,” the district court

must “decrease the [total] offense level by 2 levels.” Defendant contends that the district court

erred in applying § 3E1.1 by denying him acceptance of responsibility. “The district court’s

decision to deny an acceptance-of-responsibility reduction is entitled to great deference on

review,” United States v. McCloud, 730 F.3d 600, 605 (6th Cir. 2013) (citation omitted), and

therefore we “typically review for clear error,” United States v. Denson, 728 F.3d 603, 614 (6th

Cir. 2013).

       The thrust of defendant’s argument is that he raised a “legal challenge” to the charge

against him, which he says cannot be used to deny him the offense-level reduction. However,

Jackson plainly contested the factual basis for guilt at trial by arguing that he was authorized to

possess the methamphetamine and did not intend to distribute it. And it is equally plain that §

3E1.1 is “not intended to apply to a defendant who puts the government to its burden of proof at

trial by denying the essential factual elements of guilt.” U.S.S.G. § 3E1.1 cmt. n.2; see also United

States v. Johnson, 627 F.3d 578, 585 (6th Cir. 2010) (relying on application note 2 to affirm the

district court’s denial of acceptance of responsibility). Accordingly, we reject Jackson’s argument

that the district court committed procedural error in calculating his Guidelines range.

                                                IV.

       For these reasons, we affirm the judgment of the district court.




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