                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0226n.06

                                            No. 08-6365                                 FILED
                                                                                    Apr 12, 2011
                             UNITED STATES COURT OF APPEALS
                                                                             LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
                        v.                         ) ON APPEAL FROM THE UNITED STATES
                                                   ) DISTRICT COURT FOR THE WESTERN
GRADY STITTIAMS,                                   ) DISTRICT OF TENNESSEE
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )
                                                   )
                                                   )

       BEFORE:         KEITH, MERRITT, and MARTIN, Circuit Judges.

       PER CURIAM. This case arises out of defendant Grady Stittiams’ stop and subsequent

arrest by Officer Raoul Gonzalez for being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g). At issue before the court is Stittiams’ appeal of the trial court’s denial of his

motion to suppress all evidence arising from the allegedly unlawful stop, notably the gun he was

carrying and his statements admitting such. For the reasons discussed below, we AFFIRM the

district court’s denial of Stittiams’ motion to suppress.

                                  FACTUAL BACKGROUND

       On October 9, 2007, Stittiams left his home and proceeded to the residence of a friend who

lived at 6235 Arctic Cove in Millington, Tennessee. Stittiams arrived there with the intention of

having his hair braided and cut. Approximately ten other individuals had also gathered in a common


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No. 08-6365, United States of America v. Grady Stittiams

area outside the residence. Some of these individuals were having their hair braided and cut while

others had gathered to play cards. At some point, a dispute broke out amongst five of the

individuals. Four of the individuals allegedly began to physically assault the fifth individual.

Stittiams played no role in the altercation. Shortly thereafter, an unnamed individual called the

police reporting an armed altercation at 6235 Arctic Cove.

        Approximately twenty-five minutes after the call had been placed, three police cars arrived

at the residence on Arctic Cove. Officer Raoul Gonzalez, one of the officers present, had responded

to disturbance calls from the area on at least three prior occasions. Gonzalez, along with a number

of other officers stepped out of his vehicle and began to approach the group of gathered individuals.

In response, some of the individuals began to approach the officers while others remained standing

or sitting. Stittiams at or about this time began to walk away from the group. He specifically alleges

that he did so at the request of a friend who needed a guard for the clippers that were being used to

cut hair. According to both Stittiams and the government, Stittiams was the sole individual to walk

away from the group.

        Gonzalez, seeing Stittiams walk away from the group, began to follow and call after him.

The parties dispute exactly what Gonzalez said, but it is undisputed that Gonzalez asked him to stop.

Stittiams ignored Gonzalez’s initial call and continued walking towards the trailer. Upon arriving

at the trailer, he began to walk up the trailer’s stairs. At this point, Gonzalez called out to Stittiams

a second time. The parties again dispute exactly what Gonzalez said. Stittiams alleges that

Gonzalez stated: “You better not open that door or I am going to shoot you.” [Tr. 44]. Conversely,




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No. 08-6365, United States of America v. Grady Stittiams

Gonzalez alleges that he yelled: “Hey man, come here.” [Tr. 9]. In response, Stittiams turned

around, put his hands up in the air and began walking towards Gonzalez.

       Once Stittiams reached Gonzalez, Gonzalez asked him if there was anything he (the officer)

should know about. At this point, Stittiams admitted that he had a pistol in his waistband. While

Stittiams kept his hands in place, Gonzalez walked Stittiams over to his squad car. Once they

reached Gonzalez’s squad car, Gonzalez handcuffed Stittiams – thereby arresting him – and removed

the gun from his waistband.

       On January 21, 2008, a federal grand jury in the Western District of Tennessee returned an

indictment charging Stittiams with being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g). On May 15, 2008, Stittiams filed a motion to suppress the pistol and his statements

disclosing the presence of the pistol. During an evidentiary hearing, on July 10, 2008, the district

court heard arguments on the motion. The court concluded that Gonzalez’s initial stop of Stittiams

was supported by reasonable suspicion and, thus, was lawful. The court specifically cited the facts

that the officers were responding to a call reporting an armed altercation, Stittiams was the only one

of the persons gathered who began to walk away when the police approached, and he ignored the

police officer’s request to stop.

       On July 25, 2008, Stittiams pled guilty to the underlying offense. However, as a condition

of his plea agreement, he reserved the right to appeal the court’s ruling as to his motion to suppress.

Thereafter, Stittiams timely appealed the district court’s ruling.




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No. 08-6365, United States of America v. Grady Stittiams

                                     STANDARD OF REVIEW

        When reviewing a district court's denial of a motion to suppress evidence, the district court's

factual findings are examined for clear error, and its conclusions of law are subject to de novo

review. United States v. Jenkins, 124 F.3d 768, 771-72 (6th Cir. 1997). The evidence is reviewed

in the light most favorable to the district court's conclusions. Id. at 772. "A factual finding is 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. Blair, 524 F.3d 740, 747 (6th Cir. 2008) (internal quotation marks and citation omitted).

                                              ANALYSIS

        The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend.

IV. Evidence recovered from an illegal search is inadmissible. Weeks v. United States, 232 U.S.

383, 398 (1914). For the same reason, evidence recovered indirectly from an illegal search or seizure

is also inadmissible as "fruit of the poisonous tree." Segura v. United States, 468 U.S. 796, 804

(1984) (internal quotation marks and citation omitted); Wong Sun v. United States, 371 U.S. 471,

484-85 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

        As noted, the sole issue before the court is whether Gonzalez lawfully stopped Stittiams. The

parties devote the entirety of their briefs towards arguing whether reasonable suspicion supported

the stop. However, implicit in each party’s argument is an assumption as to when, in fact, the stop

occurred. This is important as the facts Gonzalez was aware of differ depending upon when the stop

happened. Accordingly, before we can address whether the stop was lawful, we must determine at

what point Stittiams was seized for Fourth Amendment purposes.


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No. 08-6365, United States of America v. Grady Stittiams

       I.      The Stop Occurred When Stittiams Acceded to Gonzalez’s Demand.

       In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court explained that an investigatory stop

occurs when police use some form of coercion: "Obviously, not all personal intercourse between

policemen and citizens involve seizures of persons. Only when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a citizen may we conclude that

a seizure has occurred." Id. at 20 n.16 (internal quotation marks omitted). The test is whether,

considering all of the circumstances, "a reasonable person would feel free to decline the officers'

requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 436 (1991).

Additionally, in those circumstances in which a suspect is stopped absent the intentional application

of physical force, there must also be submission to the show of authority: "[T]here is no seizure

without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth

Amendment is concerned." Brendlin v. California, 551 U.S. 249, 254 (2007); see also California

v. Hodari D., 499 U.S. 621, 626 n.2 (1991)

       It is clear that Gonzalez’s stop of Stittiams occurred when Gonzalez, chasing after Stittiams,

demanded that Stittiams stop and not when Gonzalez handcuffed Stittiams, as the government

assumes.1 Courts have repeatedly found that when an officer gives chase to a suspect while

demanding that the suspect stop and the suspect does stop, the suspect has been subjected to a stop



1
  The district court found more credible the officer’s testimony that he simply asked Stittiams to
approach him as opposed to Stittiams’ testimony that Gonzalez threatened to shoot. Although we
need not decide who was correct as a stop occurred under either circumstance, it seems at least
questionable that Stittiams would have turned around and put his hands in the air if Gonzalez did
not threaten to shoot. This suspicion is heightened by the fact that Stittiams ignored Gonzalez’s first
request to simply stop.

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No. 08-6365, United States of America v. Grady Stittiams

for the purposes of the Fourth Amendment. United States v. Smith, 594 F.3d 530, 539 (6th Cir. 2010)

(“Once Officer Putnick asked Smith to stop, a reasonable person would not have felt free to leave

and the interaction turned into a Terry stop.”); Northrop v. Trippett, 265 F.3d 372, 380 (6th Cir.

2001) (finding that the defendant had been subjected to a Fourth Amendment seizure where he

sought to leave the area, one officer directed another officer to stop him, and the officers asked him

to produce identification); Manley v. Paramount's Kings Island, 299 F. App’x 524, 527 (6th Cir.

2008) ("Even if the shining of the flashlight did not constitute a ‘show of authority,’ chasing [the

defendant] through the parking lot arguably did. And Manley acquiesced in stopping in the course

of the guard's pursuit to answer questions.").

        Accordingly, the only relevant circumstances we may consider in assessing the

reasonableness of the stop were those of which Gonzalez was aware when he called to Stittiams for

the second time.

        II.     The Stop Was Supported by Reasonable Suspicion.

        In order for an investigatory stop and search to be valid, the officer's stop must be based on

specific, articulable facts creating reasonable suspicion that a crime has been committed. Terry, 392

U.S. at 21; see also United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993) (stating that an

officer can conduct an investigatory detention or “Terry stop” if they can “point to ‘specific and

articulable facts’ which justify reasonable suspicion that a suspect has been or is about to be involved

in criminal activity" (quoting United States v. Sokolow, 490 U.S. 1, 12 (1989)). “Under Terry . . .

where a law enforcement officer lacks probable cause, but possesses a reasonable and articulable

suspicion that a person has been involved in criminal activity, he may detain the suspect briefly to


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No. 08-6365, United States of America v. Grady Stittiams

investigate the suspicious circumstances." United States v. Bentley, 29 F.3d 1073, 1075 (6th Cir.

1994) (internal citation omitted).

       It is undisputed that Gonzalez was aware of the following facts when he called after Stittiams

for the second time asking him to stop: 1) the area was a high-crime area to which Gonzalez had

been called on at least three prior occasions; 2) the police had received a call regarding an armed

disturbance occurring at the area in question; 3) upon arriving at the scene, every individual

remained where they were or approached the arrived officers, but Stittiams began to walk away

towards the trailer; and 4) Stittiams, rather than stopping when Gonzalez asked him to stop, looked

back towards Gonzalez and kept walking away from him.

       This case presents circumstances similar to those the Supreme Court considered in Illinois

v. Wardlow, 528 U.S. 119 (2000). In Wardlow, the Supreme Court held that a defendant's evasive

and unprovoked flight, along with his presence in a high-crime area, aroused sufficient, reasonable

suspicion to lawfully stop the individual and conduct a pat-down. Id. at 124.

       Stittiams attempts to distinguish Wardlow on two grounds. First, Stittiams argues that the

sole circumstances supporting his stop were the armed disturbance call and Stittiams’ choice to walk

away from the officers towards the trailer home. As noted above, this argument overlooks a number

of other significant facts, notably Stittiams’ refusal to respond to the officer's call and the area's

dangerous history. Second, and more importantly, Stittiams posits that we should pay little attention

to the fact Stittiams walked away from Gonzalez and then subsequently ignored his request to stop

as Stittiams was simply going to the home to retrieve a guard for the clippers; i.e. Stittiams was

simply carrying on with non-crime related affairs as opposed to fleeing from the scene. Stittiams


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No. 08-6365, United States of America v. Grady Stittiams

misinterprets the appropriate question when determining whether Gonzalez had a reasonable,

articulable suspicion. While a defendant can create any number of innocent explanations to justify

his actions, the appropriate question is not what he actually intended to do, but rather whether his

actions, viewed from a reasonable officer's viewpoint, indicated flight from a crime scene, criminal

activity or some other suspicious circumstance. United States v. Luqman, 522 F.3d 613, 617 (6th

Cir. 2008). Given the fact that Stittiams was the sole individual to leave the area, he did so only after

the police arrived and that he ignored Gonzalez's initial request to stop, instead looking back and

continuing to walk away, Gonzalez could have reasonably concluded that Stittiams was fleeing from

the police. See United States v. Davis, 331 F. App’x 356, 361 (6th Cir. 2009) (concluding that the

defendant attempted to flee from the police because even though he did not run, he picked up his

pace in a manner consistent with flight and did not respond to the officer's commands to stop).

        Although this case is closer than many, the Sixth Circuit has found that similar circumstances

support a finding of reasonable suspicion. See Smith, 594 F.3d at 539 (“[T]he officers were justified

in making an investigatory Terry stop . . . under the totality of the circumstances, which included:

(1) the emergency 911 call; (2) Smith's efforts, with his head down, to push past the officers and exit

the building as the officers entered; (3) that these events took place in a high-crime area, whose

history the officer was personally aware of; (4) the very early hours of the morning; and (5) Smith's

vague responses to the officers' questions); Lee v. Hefner, 136 F. App’x 807, 811 (6th Cir. 2005)

(“Officer Hefner was . . . patrolling in a high crime area . . . . Although [the defendant] did not

immediately break into a run when he first saw Hefner's vehicle . . . [he] ‘turned about twice’ when

Hefner approached in his vehicle. At this point Officer Hefner likely had reasonable suspicion . .


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No. 08-6365, United States of America v. Grady Stittiams

. .”); United States v. Helm, 85 F. App’x 475, 477 (6th Cir. 2004) (finding reasonable suspicion

where the defendant “was parked next to [a closed building], it was 9:00 p.m. at night, [the officer]

could tell that the car was occupied, there had been many burglar-alarm runs to the . . . building in

the previous six months, [the suspect] departed the parking lot as soon as [the officer] drove by, the

suspect drove in a manner that struck the officer as attempting to avoid her.”); United States v.

Connally, Nos. 91-6401, 6440, 6441, 1993 U.S. App. LEXIS 1090 *1, *5-7 (6th Cir. Jan. 15, 1993)

(finding the following facts sufficient to establish reasonable suspicion: "the officers knew this was

a high drug trafficking area; that they had seen drug dealing taking place here before; that the

pedestrian had thrown something in the van upon seeing the police; and that the pedestrian quickly

walked away and the van quickly pulled away.").

        Stittiams, in response, cites this Court’s recent ruling in United States v. Johnson, 620 F.3d

685 (6th Cir. 2010). In Johnson, we rejected an officer’s claim that he had reasonable suspicion to

stop the defendant where: 1) the defendant was in a high crime area; 2) it was 4:00 a.m.; 3) the

officers were responding to a 911 call; 4) upon arriving the officers saw the defendant already

walking away from the scene; 5) when called out to, the defendant did not stop; and 6) he was

carrying a bag, which he threw into a white car. In rejecting the government’s claim we emphasized

two points. First, we noted that the initial 911 call, while alleging suspicious activity, did not report

any criminal behavior. Id. at 693. Second, we emphasized that the defendant had already begun to

walk in a particular direction before the police’s arrival and merely continued to walk in that

direction, away from the police, after their arrival, notwithstanding their approach and call to him.

Id. at 694. This case is clearly distinguishable on both grounds. Here, the 911 call specifically


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No. 08-6365, United States of America v. Grady Stittiams

reported illegal activity – a fight in which one of the individuals had a weapon. Additionally,

Stittiams began to walk away only after the officers arrived, thereby, in part, creating the reasonable

belief that he was evading the officers.2

        Our holding in Johnson, as well as Stittiams’ basic assertion that a person does not create

reasonable suspicion by simply walking away from an officer or refusing to respond to an officer’s

request to converse in the absence of specific allegations of criminal activity are both undeniably

correct. Johnson, 620 F.3d at 694 (“[T]here was nothing independently suspicious about [the

defendant] continuing to walk toward the white car when [the officers] approached.” (emphasis

added)); United States v. See, 574 F.3d 309 (6th Cir. 2009) (holding that two individuals sitting in

a car in a parking lot at night was not by itself sufficient to create reasonable suspicion); Jacobs v.

Village of Ottawa Hills, 5 F. App’x 390 (6th Cir. 2001). However, where the officer is in an area

where crime is prevalent, he is personally aware of this history, the officer is responding to a specific

call reporting a crime involving a weapon, and an individual is seen taking evasive behavior in

response to the police’s arrival, the circumstances together establish reasonable suspicion. Thus,

Stittiams arguments fall short when applied to the facts of his case.

                                            CONCLUSION

        Accordingly, we, hereby, AFFIRM the district court’s denial of defendant Grady Stittiams’

motion to suppress.




2
 The lack of either: 1) a call reporting criminal activity or 2) the suspect’s movement away from the
scene in response to the police’s arrival would likely undercut a finding of reasonable suspicion.
That said, as both are present in the instant case, we need not address the matter fully here.

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