                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 12a0790n.06

                                            No. 11-5448                                  FILED
                                                                                     Jul 20, 2012
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk



UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )    ON APPEAL FROM THE UNITED
v.                                             )    STATES DISTRICT COURT FOR THE
                                               )    EASTERN DISTRICT OF TENNESSEE
HAROLD JACKSON,                                )
                                               )                 OPINION
       Defendant-Appellant.                    )


       Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*

       JANE B. STRANCH, Circuit Judge. Defendant-Appellant Harold Jackson, a convicted

felon, was found in possession of a Lorcin .380 caliber pistol. The district court denied Jackson’s

Motion to Suppress that weapon and Jackson pled guilty to being a convicted felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Jackson argues that the district court

should have granted his suppression motion challenging the police encounter that led to the

weapon’s discovery. For the following reasons, we affirm.

                                       I. BACKGROUND

       The magistrate judge’s account of the evidence and testimony, adopted by the district court,

aptly summarizes the facts at issue in this case:




       *
        The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 11-5448
United States v. Jackson

               At the evidentiary hearing on the [suppression] motion, the Government
       offered the testimony of Chattanooga Police Department (“CPD”) Officer Marvin
       Crider (“Crider”), who testified as follows:

               Crider has been an officer at the CPD for almost 15 years and has been
       assigned to the Special Investigations Unit, which conducts fugitive investigations,
       for several years. On December 30, 2009, around 11 o’clock on a cold morning,
       Crider and his partner were in plain clothes in an unmarked, tan Ford Explorer on a
       routine fugitive patrol. They were traveling northbound on Willow Street looking for
       persons wanted on outstanding warrants when he saw Defendant walking
       southbound, diagonally across the intersection of Willow Street and East Third
       Street. Defendant paused when he saw the unmarked car, deliberately turned his
       back to the car and pulled the hood of his “hoodie” up and down low over his face.
       Based on his law enforcement experience, Crider believed the Explorer, while
       unmarked, was well known as a police vehicle in the area. Crider also believed
       Defendant was trying to obscure his identity by pulling up his hood low over his face
       and down to his nose.

               Crider then saw Defendant cross Third Street against the light and nearly walk
       in front of a westbound car. Crider believed Defendant’s hood was pulled so low
       over Defendant’s face that he was unable to see the approaching vehicle.

               Crider circled the block and approached Willow Street from Fourth Street in
       order to observe Defendant at closer range since he believed Defendant was trying
       to hide his identity upon recognizing his vehicle as an unmarked patrol car. As
       Defendant walked, Crider noticed Defendant’s left front pocket of his baggy pants
       swing with each step as if he had a heavy object in his pocket and Crider saw what
       appeared to be possibly the outline of the slide top of a gun in the bottom of the
       pocket. Based on his law enforcement experience, Crider thought Defendant might
       be carrying a gun in his pocket.

              Crider decided to engage Defendant in a consensual encounter, and he pulled
       alongside Defendant, identified himself as “police,” and asked Defendant his name.
       Defendant replied, “Jason.” Crider is certain Defendant could see both his partner’s
       badge, which his partner wore on the top of his thigh holster, and Crider’s own
       badge, which he wore on his belt, as Defendant looked from under his hood into the
       Explorer. As Crider began to ask “Jason who?” Defendant ran.

              Crider yelled for him to stop, but Defendant continued to run. Crider
       attempted to stop Defendant by blocking him with the Explorer, and when that was
       unsuccessful he gave chase on foot. While Defendant was running, he kept grabbing

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United States v. Jackson

       his pants pocket on the outside, which made Crider believe Defendant had a gun in
       his pocket. Eventually Crider overtook Defendant and they engaged in a lengthy
       struggle. When Crider’s partner reached them, he helped subdue Defendant. During
       the struggle, his partner’s handcuffs were dropped and a citizen retrieved and handed
       the handcuffs to the officers. Crider could not remember the citizen’s name, but he
       thought it might have been Defendant’s sister.

                He conducted a patdown of Defendant and, upon feeling the gun in his left
       front pants pocket, Crider recovered a Lorcin .380 caliber pistol from the pocket.
       Crider did not see Defendant’s face well enough under the hood to recognize him
       until after he was subdued. Upon seeing Defendant’s face, Crider knew he had been
       involved in several previous encounters with Defendant. Defendant was taken into
       custody, advised of his rights, and he then made incriminating statements.

               On cross, Crider agreed there was nothing unusual about wearing a hood on
       a cold December morning. He also acknowledged he was not certain that the object
       in Defendant’s pocket was a gun, but he was suspicious it was. He was certain
       Defendant saw the officers’ badges when he looked into the vehicle and he believed
       Defendant recognized him from their past encounters.

              Defendant offered the testimony of Shawana Walker, who testified as
       follows:

                She was in her vehicle exiting the Family Dollar Store located on Willow
       Street between Fourth Street and Third Street when she saw Defendant with his hood
       covering only his head and not part of his face as he walked down Willow Street
       toward Fourth Street. She saw nothing suspicious about Defendant, she could see his
       face, and she saw no bulge in his pants pocket. Defendant was across the street
       directly in front of her when she saw and immediately recognized him. Defendant
       frequently wore the hoodie and she had seen him in it within the two weeks prior to
       the incident at issue. She is a family friend and has known Defendant and his family
       for at least 25 years. Upon seeing Defendant she intended to speak to him as she had
       been asked by his sister to be on the lookout for him and she wanted to tell Defendant
       to call his sister.

                Before she could speak to Defendant, she saw a sage and beige sports utility
       vehicle (“SUV”) turn left from Third Street onto Willow Street and pull alongside
       Defendant. There were two “white guys” in the SUV. She did not know and could
       not tell they were police officers, she could not describe the men in the SUV, and she
       did not know and could not tell the SUV was affiliated with the police. She


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No. 11-5448
United States v. Jackson

       described the color of the SUV as sage or light mint with beige at the bottom. She did
       not recognize Crider in the courtroom.

               Walker was between 15 and 20 feet away from Defendant when the SUV first
       approached him. She could not hear any conversation but she believes both the
       passenger and driver’s windows were down. She saw the SUV drive on the sidewalk
       and strike Defendant, who then ran away. After she saw Defendant being chased by
       the two white men after being struck by the SUV, she followed in her vehicle because
       she was concerned for Defendant’s safety. She saw the men struggle with Defendant
       and handed one of the men the dropped handcuffs. She knew the men struggling
       with Defendant were police officers when she noticed one had a bulletproof vest on
       and she noticed the dropped handcuffs. She never saw a gun pulled from
       Defendant’s pocket, but she did see a handheld game pulled from Defendant’s pocket
       by the officers.

United States v. Jackson, No. 1:10-cr-51, 2010 WL 4392862, at *1-2 (E.D. Tenn. June 21, 2010).

       Jackson was charged with being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). He challenged the legality of the officers’ detention, arguing it constituted an unlawful

search and seizure and moved the district court to suppress the evidence that was a product of that

encounter. The motion was referred to a magistrate judge, who held an evidentiary hearing. The

resulting Report and Recommendation found that the gun was obtained by the police officers during

a valid stop under Terry v. Ohio, 392 U.S. 1 (1968), and recommended that the district court deny

the motion to suppress. Jackson’s subsequent objections were overruled by the district court which

adopted the Report and Recommendation in its entirety.

       After the court’s decision denying Jackson’s suppression motion, Jackson entered a guilty

plea conditioned on his ability to appeal the suppression issue. The court sentenced Jackson to 94

months’ incarceration followed by 3 years of supervised release. Jackson now appeals, contending

that the district court should have granted his motion to suppress.


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United States v. Jackson




                                         II. DISCUSSION

A.      Standard of Review

        In an appeal of the denial of a motion to suppress, this court reviews the district court’s

factual findings for clear error and its legal conclusions de novo. United States v. Hudson, 405 F.3d

425, 431 (6th Cir. 2005). If the district court denied the motion to suppress, then we must “view the

evidence in the light most favorable to the government.” United States v. Smith, 549 F.3d 355, 359

(6th Cir. 2008). A factual finding is clearly erroneous when, although there is evidence to support

the finding, we are left with the definite and firm conviction that a mistake has been committed. See

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). If there are two permissible views of

the evidence, the district court’s determination between them cannot be clearly erroneous. Id.

B.      The Terry Stop

        The Fourth Amendment prohibits unreasonable searches and seizures. In Terry v. Ohio, 392

U.S. 1, 27 (1968), the Supreme Court held that in the interest of safety, a police officer may stop a

person in the absence of probable cause under certain circumstances. Specifically, a police officer

may conduct a brief investigatory stop, a Terry stop, of a person if the officer has a reasonable

suspicion, supported by specific articulable facts, that criminal activity has occurred or is about to

occur. United States v. Atchley, 474 F.3d 840, 847 (6th Cir. 2007). When evaluating an

investigatory Terry stop, this court engages “in a two-part analysis of the reasonableness of the stop.”

United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006) (quoting United States v. Davis, 430

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United States v. Jackson

F.3d 345, 354 (6th Cir. 2005)). “‘We first ask whether there was a proper basis for the stop’ and,

if the stop was proper, ‘then we must determine whether the degree of intrusion . . . was reasonably

related in scope to the situation at hand.’” United States v. Smith, 594 F.3d 530, 536 (6th Cir. 2010)

(quoting Caruthers, 458 F.3d at 464).

        In the first part of the Terry-stop analysis, we determine whether there was reasonable

suspicion to justify the investigatory stop. This determination is made in light of the totality of the

circumstances, United States v. Arvizu, 534 U.S. 266, 273 (2002), and requires “the detaining

officers [to] have a particularized and objective basis for suspecting the particular person stopped

of criminal activity,” United States v. Cortez, 449 U.S. 411, 417–18 (1981). “An inchoate and

unparticularized suspicion or hunch will not do.” Caruthers, 458 F.3d at 464-65 (internal quotation

marks omitted) (quoting Terry, 392 U.S. at 27).

        Jackson does not contest the scope of the officers’ intrusion, which included the pat-down

that revealed the gun in Jackson’s pocket. Rather, Jackson challenges only the first part of the

analysis: the basis for initiating the investigatory stop. At the hearing, Officer Crider testified that

his basis for detaining Jackson included the following considerations: Crider was driving a vehicle

that he testified was well known as a police vehicle; when Jackson saw Crider’s vehicle, Jackson

stopped walking suddenly, turned his back to the street, and threw his hood up over his head until

his face was covered all the way down to his nose; Crider observed a heavy-weighted object in

Jackson’s left front pants pocket that Crider believed resembled a firearm; and Jackson took off

running after Crider identified himself and his partner as police officers and asked for Jackson’s



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United States v. Jackson

name. Crider testified that these factors led him to suspect that criminal activity was afoot—that

Jackson was likely wanted on an outstanding warrant and was armed.

       On appeal, Jackson appears to argue both that Crider’s testimony is not credible and that the

facts he testified to do not give rise to reasonable suspicion, even if true. However, a review of the

suppression hearing record reveals that Jackson expressly limited his argument to whether Crider’s

testimony was credible, admitting that, if credible, those facts amount to reasonable suspicion

sufficient to support a Terry stop. The exchange between Jackson’s counsel, Anthony Martinez, and

Magistrate Judge Lee was as follows:

               THE COURT: And I would like to know whether you’re arguing that those
       three things, if found to be credible, don’t support the basis for a Terry stop, or if
       your argument is those three things didn’t happen the way Officer Crider testified
       they did, so that I can understand what your argument is a little bit better, given that
       the facts presented in your motion are not the facts before me as a result of the
       evidentiary hearing, exactly. . . .

               MR. MARTINEZ: That’s true.

              THE COURT: So the facts as presented, are you arguing that those facts, if
       found to be credible, don’t support a Terry stop?

              MR. MARTINEZ: No. If they’re found credible, Your Honor, then it supports
       a Terry stop.

              THE COURT: So you don’t argue, then, that the three things, the attempt to
       hide identity, the flight, and the observation of something in the pocket, wouldn’t
       support a Terry stop?

               MR. MARTINEZ: That’s correct.

               THE COURT: You’ve already told me you’re not contesting the frisk. So it
       really comes down to whether Officer Crider’s testimony is credible, given all the
       testimony presented here today.


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No. 11-5448
United States v. Jackson

                MR. MARTINEZ: Right. . . .

(R. 32, Supression Hearing Tr., at 59-60). Because Jackson waived below any challenge other than

one based on credibility, our review of the denial of his suppression motion is limited to that issue.

United States v. Collins, — F.3d —, No. 10-6454, 2012 WL 2094415, at *2 (6th Cir. June 12, 2012)

(“When a defendant raises an argument by motion but then abandons the argument before the district

court, the defendant has waived the argument and this Court cannot review that issue even for plain

error.” (citations omitted)).

        We afford great deference to the district court’s credibility determinations regarding witness

testimony. United States v. Hinojosa, 606 F.3d 875, 882 (6th Cir. 2010). “With regard to Terry-stop

analysis in particular, although the standard of review on the ultimate reasonable suspicion inquiry

is de novo, the district court is at an institutional advantage, having observed the testimony of the

witnesses and understanding local conditions, in making this determination. Accordingly, due

weight should be given to the inferences drawn from the facts by resident judges.” Caruthers, 458

F.3d at 464 (internal quotation marks, citations, and alteration omitted). “Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” Anderson, 470 U.S. at 574; see also United States v. Dillard, 438 F.3d 675, 681 (6th

Cir. 2006) (holding district court’s reconciliation of seemingly contradictory testimony was not

clearly erroneous).

        Examination of the hearing testimony reveals that few factual conflicts existed; however, the

magistrate judge credited Officer Crider’s testimony to the extent it conflicted with Shawana

Walker’s. Regarding recognition of Jackson, Walker’s ability to recognize Jackson’s face despite

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United States v. Jackson

his raised hood is readily explained by the facts that Walker had known Jackson for twenty or

twenty-five years and had seen him in that hoodie within two weeks of the incident. Walker’s

testimony on this issue does not defeat Crider’s belief that Jackson attempted to hide his identity.

Walker was not present when Jackson first raised his hood and, to the extent that there is a conflict

over how much of Jackson’s face was obscured, Crider’s testimony was deemed more credible.

Further, although Walker testified she did not hear the officers identify themselves, Walker was in

her vehicle fifteen to twenty feet away from the conversation between Jackson and the officers and

she admitted that she would not have been able to hear the officers if they had identified themselves.

       Walker also testified that she did not observe the outline of a possible gun in Jackson’s

pocket, as described by Crider. The magistrate judge found Crider’s testimony on this issue more

credible, however, because Walker also failed to see a gun pulled from Jackson’s pants at the scene

of his arrest, even though it was undisputed that Jackson had a gun in his pocket when he was

apprehended. Finally, the other conflicts between Walker’s and Crider’s testimony—relating to the

color of Crider’s vehicle and the exact location of the initial encounter—are irrelevant to the

reasonable suspicion analysis in this case.

       Jackson has not carried his substantial burden to persuade us that the lower court’s credibility

and factual findings were clearly erroneous in light of the evidence presented at the suppression

hearing. See Anderson, 470 U.S. at 575. After having heard the witnesses testify and having judged

their demeanor, the magistrate judge sufficiently explained why she believed Officer Crider, and not

Walker, and the district court agreed. The court’s factual findings and legal conclusions logically



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United States v. Jackson

followed from its credibility determinations. For these reasons, Jackson has not shown that reversal

is warranted.

                                      III. CONCLUSION

       For the foregoing reasons, the district court’s denial of Jackson’s Motion to Suppress is

AFFIRMED.




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