                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 19a0485n.06

                                           No. 18-2309


                           UNITED STATES COURT OF APPEALS                               FILED
                                FOR THE SIXTH CIRCUIT                             Sep 17, 2019
                                                                              DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                               )
                                                         )
          Plaintiff-Appellant,                           )
                                                                ON APPEAL FROM THE
                                                         )
                                                                UNITED STATES DISTRICT
 v.                                                      )
                                                                COURT FOR THE WESTERN
                                                         )
                                                                DISTRICT OF MICHIGAN
 AMARION AQUAI-LATROY MCELRATH,                          )
                                                         )
                                                                            OPINION
          Defendant-Appellee.                            )
                                                         )



         BEFORE:        BOGGS, BATCHELDER, and STRANCH, Circuit Judges.

         PER CURIAM. During a night-time raid on a house suspected of drug and gun activity,

the Kalamazoo police department stopped and searched Amarion McElrath. After his indictment

on drug and gun charges, McElrath moved to suppress the evidence taken from him on the night

of the raid. He claimed that the officers lacked a lawful basis to stop and handcuff him, so any

evidence later seized was the fruit of an unlawful search. The district court agreed and suppressed

the evidence. But taking all of the relevant circumstances into account, we find that the officers

had reasonable suspicion to stop McElrath, and his detention and handcuffing were reasonably

necessary to ensure the officers’ safety. We therefore REVERSE the district court’s suppression

order.
No. 18-2309, United States v. McElrath


                                     I.   BACKGROUND

   A. Factual Background

       In February 2018, the Kalamazoo police department obtained a warrant to search

637 Florence Street, a single-family home in Kalamazoo, Michigan. Officers had received many

complaints about this property in the weeks prior to the raid, including several calls of shots fired

at the residence or near it. The most recent 911 call had reported shots fired at the house only two

days before the raid. An informant had also identified McElrath as a crack cocaine dealer operating

out of the home. An hour before the raid, officers had observed McElrath sell drugs to an informant

on the sidewalk in front of the property. During the pre-raid briefing, officers were told that

McElrath was possibly armed and dangerous, that informants had seen guns inside the home, and

that some occupants of the house were carrying weapons.

       On the night of the raid, officers approached 637 Florence from multiple directions. Most

relevant here, Officers Boutell and Schemenauer came from the west and drove to the front of the

house, while Officer Cake came from the southeast to secure the area behind the property. As

Officers Boutell and Schemenauer approached in their vehicle, they saw two men standing by a

car in a driveway next to the home. The driveway was located between 637 Florence and

635 Florence, the house next door. As it turns out, this driveway is inside the property lines of

635 Florence; but the officers testified, and McElrath does not dispute, that both the car and the

two men were closer to 637 Florence, the site of the raid, when the police vehicle approached.

       When the officers’ vehicle came to a stop in front of 637 Florence, two things happened:

the men by the car walked east, away from 637 Florence toward 635 Florence, and the parked car

pulled forward, rammed the police vehicle, and sped away west along the sidewalk. At almost

exactly the same time, Officers Boutell and Schemenauer exited the vehicle, raised their guns, and

shouted at the men walking away to stop and get on the ground on their stomachs. By this time,

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No. 18-2309, United States v. McElrath


the two men had continued walking east and were near the front entrance to 635 Florence. The

first of the two men, later identified as Smith,1 immediately obeyed the officers’ commands to lie

down. The second man, later identified as McElrath, was slower to respond and continued for

several more steps—“almost right on the border of not obeying police commands”—before

stopping and lying down.

          Officer Boutell attended to Smith as he lay in the snow. Meanwhile, Officer Cake

approached from behind the house and found McElrath prone on the ground near Officer Boutell

and Smith. Officer Cake handcuffed McElrath and asked him his name. McElrath gave his full

name, but it did not yet click with Officer Cake that McElrath was the individual mentioned in the

pre-raid briefing. Officer Cake asked McElrath if he had something illegal on him, and McElrath

responded, “yeah.” Officer Cake then asked McElrath if he had a gun, and McElrath said he did

not. McElrath smelled of marijuana, and upon questioning he admitted to Officer Cake that he

had just smoked marijuana before the stop.                Officer Cake repeatedly asked McElrath for

permission to search him, but McElrath said he would not grant permission unless he was under

arrest.

          Both men walked back to the police vehicles in front of 637 Florence. Officer Cake told

McElrath that the police had a warrant to search people associated with 637 Florence, and at that

point McElrath gave Officer Cake permission to search him. After patting him down, Officer Cake

found an empty gun magazine in McElrath’s pocket and some tin foil that officers associated with

drug packaging material. Shortly thereafter, another officer reminded Officer Cake that McElrath

was the person discussed in the pre-raid briefing. McElrath was arrested and brought back to the




1
    Smith’s first name does not appear in the record.
                                                        -3-
No. 18-2309, United States v. McElrath


police station, where an additional search revealed that he was carrying several grams of crack

cocaine.

    B. Proceedings Below

        The Government indicted McElrath on multiple drug and firearm charges.2 In the district

court, McElrath argued that the evidence seized from him on the night of the raid was the fruit of

an unlawful search under the Fourth Amendment. He claimed that the search warrant for 637

Florence did not give police the authority to search him and that officers otherwise lacked

reasonable suspicion to stop, detain, and handcuff him.

        The district court agreed. The court first concluded that the search warrant did not apply

to McElrath because he was inside the property lines of 635 Florence when the officers

approached, and therefore he was not in the immediate vicinity of 637 Florence at the time of the

stop. Next, the court decided that the officers did not have reasonable suspicion to stop McElrath

because (1) the fact that the neighborhood was a high-crime area was not alone sufficient to justify

the stop, (2) police were not sure if he and Smith had stopped to speak to the car in the driveway

or were simply walking towards and around it, and (3) McElrath did not run away, complied with

Boutell’s orders, and was entirely cordial to and cooperative with Cake. Finally, the court found

that the officers’ decision to handcuff McElrath was unreasonable because there was no indication

that he posed a risk or safety hazard to the officers. The court thus held that the search following

McElrath’s stop was “tainted” and suppressed the evidence seized from him during the raid.




2
  The firearm charge stemmed from a gun discovered after another officer saw McElrath throw something
into the snow immediately before he was detained. The officer later found a gun in the snow nearby that
did not have snow on it and was not cold to the touch. The officers who stopped McElrath did not know or
suspect that he had thrown the gun into the snow at the time of the stop. Because this gun was not seized
from McElrath during the search, the district court did not suppress it.
                                                  -4-
No. 18-2309, United States v. McElrath


       The Government now appeals the district court’s suppression order. Although in the

district court it raised a number of alternative theories to support McElrath’s search, on appeal it

makes only one claim: that officers had reasonable suspicion to stop, detain, and handcuff

McElrath, and that his later admission to having illegal contraband—coupled with the officers’

recognition that he was the subject of a previous controlled drug buy—justified the arrest and

search that followed. For his part, McElrath does not dispute that officers had probable cause to

search him after he admitted that he had something illegal on him. He argues only that officers

lacked reasonable suspicion to stop and detain him in the first place.

                                        II.   ANALYSIS

   A. Standard of Review

       On appeal of a suppression order, “this court reviews the district court’s factual findings

for clear error and its legal conclusions de novo.” United States v. McCraney, 674 F.3d 614, 616

(6th Cir. 2012). While “the ultimate reasonable suspicion inquiry is de novo,” we give “due

weight” to the inferences drawn by the district court because it is “at an institutional advantage,

having observed the testimony of the witnesses and understanding local conditions, in making this

determination.” United States v. Foster, 376 F.3d 577, 583 (6th Cir. 2004) (citation and internal

quotation marks omitted).

   B. The Reasonableness of the Stop

       An officer may briefly stop a person for investigatory purposes if, “under the totality of the

circumstances,” he has a “reasonable suspicion” to do so. Brown v. Lewis, 779 F.3d 401, 412 (6th

Cir. 2015) (citation and internal quotation marks omitted). A reasonable suspicion is one “based

on specific and articulable facts” that support “a particularized and objective basis for suspecting

the particular person . . . of criminal activity.” Id. (citation and internal quotation marks omitted).



                                                 -5-
No. 18-2309, United States v. McElrath


Because this is an objective test, “the officers’ actual subjective motivations in effectuating the

stop are irrelevant to the validity of the stop.” United States v. Shank, 543 F.3d 309, 313 (6th Cir.

2008). At bottom, our “determination of reasonable suspicion must be based on commonsense

judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000).

        The reasonableness of the stop here turns on a threshold question: did the officers have a

“particularized and objective basis” for suspecting that McElrath 3 was involved in drug activity

and/or gun violence when they stopped him? To answer this question, several facts are most

relevant. First, the officers who stopped McElrath were aware of many recent complaints about

drug activity and shots fired at 637 Florence, including a report of shots fired on the property only

two days before the raid. Second, these officers also knew that, just an hour before the raid, police

had observed McElrath sell drugs to an informant on the sidewalk in front of the home. Third, as

they approached the property, the officers saw two men standing by a car in the driveway directly

next to 637 Florence—only a few steps from where McElrath had sold drugs to an informant the

hour before. Fourth, as the officers’ vehicle came to a stop outside the home, these two men

walked away from the property, and the car next to them pulled forward, hit the officers’ vehicle,

and sped away along the sidewalk in the opposite direction.

        While none of these events may have been sufficient in isolation, they must be considered

in combination. The totality of the circumstances here—the numerous complaints about drug

activity at the house, the reports of shots fired on the property two days before, McElrath’s location

steps away from the site of an hour-old controlled drug buy, his decision to walk away as officers

approached, and the nearby car’s reckless flight as McElrath left the scene—were enough to give



3
 We refer to McElrath by name to avoid confusion, but the officers did not know that the man they stopped
at the time was McElrath until after his stop and detention.


                                                  -6-
No. 18-2309, United States v. McElrath


officers a reasonable basis to suspect that he was involved in criminal activity. See, e.g., United

States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012) (“In considering the totality of the

circumstances, we must determine whether the individual factors, taken as a whole, give rise to

reasonable suspicion, even if each individual factor is entirely consistent with innocent behavior

when examined separately.” (citation and internal quotation marks omitted)); United States v.

Perez, 440 F.3d 363, 371 (6th Cir. 2006) (“While reasonable suspicion must be based on more

than ‘ill-defined hunches,’ officers may ‘draw on their own experience and specialized training to

make inferences from and deductions about the cumulative information available to them that

might well elude an untrained person.’” (quoting United States v. Arvizu, 534 U.S. 266, 273

(2002))).

       McElrath tries to counter the evidence in a few ways, none of which is persuasive. He first

claims that the most important fact in this case is that the officers decided to detain him on the

strength of the search warrant, not because of any reasonable suspicion. The district court reached

a different conclusion, finding as a matter of fact that Boutell did not stop McElrath in order to

preserve the premises of the search or evidence found during the lawful search, or to protect

anyone, but did so only because he thought McElrath was possibly involved in a crime. McElrath

has not argued that the district court’s factual finding was clearly erroneous, and we find no basis

for doing so. Regardless, because the subjective motivations of officers are irrelevant in this

context, see Shank, 543 F.3d at 313, this disagreement is also irrelevant.

       Next, McElrath emphasizes that an individual’s presence in a so-called “high crime” area

is not enough to provide reasonable suspicion.          It is true that presence in a high-crime

neighborhood—or even general proximity to the site of suspected criminal activity—is not alone

sufficient to justify a stop. See, e.g., id. at 316 n.3 (cautioning “that high-crime area designations



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No. 18-2309, United States v. McElrath


not be permitted to serve as a proxy for race or ethnicity” (citation and internal quotation marks

omitted)); King v. United States, 917 F.3d 409, 424 (6th Cir. 2019) (deciding officers lacked

reasonable suspicion to stop suspect who “was several blocks away from the relevant

intersection”). But that is not what happened here. McElrath was not simply walking in a high-

crime neighborhood when officers saw him, nor was he merely in the general proximity of 637

Florence. Instead, he was steps away from both the target house and the location of the recent

controlled drug buy. McElrath’s close proximity to this circumscribed area—where specific

criminal activity had occurred only an hour before—reasonably contributed to the officers’

suspicion. See, e.g., United States v. Caruthers, 458 F.3d 459, 468 (6th Cir. 2006), abrogated on

other grounds by Cradler v. United States, 891 F.3d 659 (6th Cir. 2018) (finding facts supported

reasonable suspicion where “the ‘high-crime’ area [wa]s circumscribed to a specific intersection

rather than an entire neighborhood” and “the crimes that frequently occur[ed] in the area [we]re

specific and related to the reason for which [the defendant] was stopped”).

       McElrath likewise maintains that walking away from the police does not by itself create

reasonable suspicion. That is also true. In United States v. Beauchamp, we held that “hurriedly

walking away from an officer without making eye contact . . . does not rise to the level of

independent suspicion” necessary to support a Terry stop. 659 F.3d 560, 570 (6th Cir. 2011). But

while the court found that such behavior does not “rise to the level of independent suspicion,” it

also recognized that walking away from police may “contribute to reasonable suspicion” if

combined with “specific facts [showing] that the defendant’s behavior was otherwise suspicious.”

Id. (emphasis added). The other “specific facts” in this case—McElrath’s direct proximity to the

target house, his location very near a recent drug buy, and his suspected association with the car




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No. 18-2309, United States v. McElrath


that dangerously fled as soon as police arrived—were enough to make McElrath’s behavior

“otherwise suspicious.” Id.

       McElrath also makes much of the fact that the driveway between 637 Florence and

635 Florence is inside the property lines of 635 Florence. But the reasonable-suspicion inquiry

recognizes only “the information available to law enforcement officials at the time.” United States

v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012). The property line between 637 Florence and

635 Florence was not known to the officers when they stopped McElrath. If the observable

characteristics of the driveway had made clear that it belonged to 635 Florence, that would be

relevant to our analysis. But the photos in the record confirm that the driveway is roughly

equidistant from both houses, and nothing about the driveway’s appearance otherwise indicates

that it belongs to one house or the other. In fact, Officers Boutell and Schemenauer both testified

that the parked car and McElrath were closer to 637 Florence than to 635 Florence when they

approached the scene—so close that Officer Schemenauer thought McElrath appeared to be in the

front yard of 637 Florence. These facts, in combination with the others discussed above, were

enough to support a reasonable suspicion of criminal activity.

       Finally, McElrath claims that the car in the driveway fled down the sidewalk only after the

officers ordered him to stop. The bodycam footage in the record does not clearly show whether

the car began moving before, after, or concurrent with the officers’ commands. The district court’s

findings of fact suggest that the car began moving before those commands, and given the

uncertainty in the record, we cannot say this finding was clearly erroneous. At any rate, the

reasonable-suspicion inquiry does not begin until a person is “seized” within the meaning of the

Fourth Amendment. A suspect is not seized until he “submit[s] to [the officers’] show of

authority,” even if the officers have their guns drawn before the suspect submits. Robinson v.



                                                -9-
No. 18-2309, United States v. McElrath


Howes, 663 F.3d 819, 828 (6th Cir. 2011). Here, the parties have not disputed—and the bodycam

footage appears to confirm—that McElrath stopped walking and lay on the ground only after the

car had already begun speeding away. The car’s flight therefore reasonably contributed to the

officers’ suspicion at the time of the stop.

    C. The Manner of the Intrusion

       The final question is whether “the degree of intrusion into [McElrath’s] personal security

was reasonably related in scope to the situation at hand.” Smoak v. Hall, 460 F.3d 768, 779 (6th

Cir. 2006). If “the length and manner” of the stop, including the officers’ show of force, were not

“reasonably related to the basis for the initial intrusion,” then the stop ripened into an arrest for

which the officers needed probable cause. Houston v. Clark County Sheriff Deputy John Does 1–

5, 174 F.3d 809, 814 (6th Cir. 1999). McElrath does not claim here that the length of his detention

was unreasonable; he argues only that the manner of his detention was unreasonably intrusive.

       Where, as here, officers use a militarized police presence4 in the course of a stop, we pay

close attention to the question of whether the suspect’s detention was reasonably related to the

original basis for the stop. At the same time, “the use of guns, handcuffs, and detention . . . do[es]

not automatically transform a Terry stop into an arrest”; rather, the officers’ “displays of force

must be warranted by the circumstances.” Brown, 779 F.3d at 415. Such “intrusive measures are

warranted” if, for example, “specific facts lead to an inference” that the suspect poses a risk “of

violence to the officers.” Id. These “specific facts” can include information supporting “a

reasonable belief that the suspect is armed and dangerous.” Bennett v. City of Eastpointe, 410 F.3d

810, 835 (6th Cir. 2005).




4
 The raid included 19 heavily armed and armored officers, a tactical minivan, and a militarized SWAT
vehicle.
                                                -10-
No. 18-2309, United States v. McElrath


       At the time of the raid, the officers knew that McElrath was likely on the property, that he

was possibly armed and dangerous, that police had received many recent complaints about drug

activity and shots fired on the premises (including shots fired only two days before), that

informants had seen guns inside the home, and that some occupants of the house were carrying

weapons. And when officers approached the house, they immediately encountered a car that hit

their vehicle and dangerously fled the scene. Knowing all of these facts, the officers made a

reasonable decision to protect themselves by raising their guns and handcuffing suspects who

appeared to be associated with the property. See, e.g., Brown, 779 F.3d at 415 (“The details of the

suspected crime may also provide the specific facts justifying an inference of dangerousness.”).

                                      III.   CONCLUSION

       The officers had reasonable suspicion to stop McElrath, and his detention and handcuffing

were reasonably necessary to ensure the officers’ safety. Because the stop and detention were

reasonable, the evidence later taken from McElrath was admissible. We therefore REVERSE the

district court’s suppression order.




                                               -11-
