                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0652n.06
                             Filed: August 3, 2005

                                           No. 04-5872

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

    UNITED STATES of AMERICA,

          Plaintiff-Appellee,
                                                      ON APPEAL FROM THE UNITED
    v.                                                STATES DISTRICT COURT FOR THE
                                                      WESTERN DISTRICT OF TENNESSEE
    RONNIE THOMAS,

          Defendant-Appellant.
    ________________________________/

Before: BATCHELDER and COLE, Circuit Judges; REEVES, District Judge.*

         DANNY C. REEVES, District Judge. Defendant-Appellant Ronnie Thomas appeals

the district court’s denial of his motion to suppress. Following the denial of this motion, Thomas

entered into a plea agreement with the United States. The United States dismissed one count of

the indictment and Thomas pled guilty to the remaining count, alleging that he was guilty of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). In entering his guilty

plea, Thomas reserved the right to appeal the district court’s decision on his motion to suppress.

For the reasons that follow, we AFFIRM the denial of the defendant’s motion.

                                        BACKGROUND



*
        The Honorable Danny C. Reeves, United States District Court Judge for the Eastern District of
Kentucky, sitting by designation.

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United States v. Ronnie Thomas
No. 04-5872

       On May 21, 2002, Officers Daryl Dyson and Lanece Stepney of the Memphis Police

Department responded to a call of “shots fired.” The suspect was described as a black male

wearing a blue hat and blue shirt. Upon their arrival at the scene, the officers observed a black

male, later identified as Thomas, fitting the description of the suspect. Initially, Thomas walked

towards them, but then turned and walked in the opposite direction. The officers observed

Thomas make a “throwing motion” and saw a “metallic, grayish, shiny type of object” being

thrown. Officer Dyson also heard a “loud thud” from a nearby wooden fence. He later testified

that he suspected that the thrown object was a weapon.

       The officers detained Thomas for further investigation. Officer Stepney patted-down

Thomas and discovered three bullets in his pocket. Thomas was placed in a squad car, although

he was not handcuffed. The officers testified that he was not free to leave the car. While Officer

Stepney searched for the gun, Thomas volunteered to Officer Dyson that he was “being set up”

and the “gun is not mine.” In addition to denying ownership, Thomas also stated that he was

trying to get the gun out of the house and away from his girlfriend. While still at the scene,

Officer Stepney recovered the weapon. Although no Miranda warnings had been given at this

point, Officer Dyson then asked Thomas whether he had a permit for the weapon. Thomas

responded in the negative.

       On February 18, 2003, a federal grand jury returned a two-count indictment against

Thomas, charging him with being a felon in possession of a weapon and ammunition. Thomas

filed a motion to suppress evidence. A hearing was held before the magistrate judge on June 19,


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United States v. Ronnie Thomas
No. 04-5872

2003. After hearing testimony from Officer Dyson, Officer Stepney, and Thomas, the magistrate

judge recommended that the motion be denied. And after conducting a de novo review, the

district court adopted the magistrate judge’s findings of fact and conclusions of law.

       On March 26, 2004, Thomas pled guilty to count one and the United States dismissed

count two. Thomas reserved his right to appeal the suppression issue. On July 14, 2004, he was

sentenced to 57 months imprisonment.

                                 STANDARD OF REVIEW

       This Court reviews factual findings relating to a suppression motion for clear error and

conclusions of law de novo. United States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002).

                                         DISCUSSION

       A.      Frisk

       Thomas argues that the arresting officers did not have a reasonable basis to frisk him.

“A stop for questioning is reasonable if the police officer is ‘able to point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

warrant that intrusion’ as measured by an objective standard.” United States v. Vite-Espinoza,

342 F.3d 462, 466 (6th Cir. 2003) (quoting Terry v. Ohio, 392 U.S. 1 (1968)). If the officer is

“justified in believing that the individual whose suspicious behavior he is investigating at close

range is armed and presently dangerous to the officer or others,” the officer may conduct a

limited search for weapons which might be used to harm the officer or members of the public.

Terry, 392 U.S. at 26-27.


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United States v. Ronnie Thomas
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       Thomas claims that the officers had no reason to believe he might be armed, because they

observed him throwing an object that appeared to be a gun. Of course, the fact that Thomas

threw one gun did not rule out the possibility that he had additional weapons on his person.

Likewise, during their initial observations, it is rational to conclude that the officers did not

determine with certainty that the thrown object actually was a gun, as opposed to some other

object or weapon. These facts are relevant because “[w]hen assessing whether an individual is

‘armed and dangerous’ the focus of the judicial inquiry is whether the officer reasonably

perceived the subject of a frisk as potentially dangerous, not whether he ‘had an indication’ that

the defendant was in fact armed.” United States v. Bell, 762 F.2d 495, 500 (6th Cir. 1985)

(citation omitted). In the present case, the officers were responding to a “shots fired” call. Upon

arriving at the scene, they discovered a person matching the description of the suspect. Further,

upon observing the officers, Thomas turned to walk away and threw an object toward a fence.

Before the “object” was recovered, it was objectively reasonable for the officers to conclude that

Thomas posed a risk to themselves or others, requiring limited frisking, questioning, and

detention.

       B.      Ammunition

       Thomas also claims that the officers “exceeded the scope of the Terry frisk by seizing

from the defendant’s pocket what . . . appeared to feel like a bullet.” As the government points

out, however, Thomas did not make this argument in his motion to suppress or in his objections

to the magistrate’s report. A review of the record supports this conclusion. Accordingly,


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United States v. Ronnie Thomas
No. 04-5872

Thomas has waived this argument. United States v. Critton, 43 F.3d 1089, 1093 (6th Cir. 1995);

United States v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994); United States v. Crimson, 905 F.2d

966, 969 (6th Cir. 1990).

       This Court will:

       consider a claim first raised on appeal only to correct errors that “are obvious, or
       if they otherwise seriously affect the fairness, integrity, or public reputation of
       judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160 (1936). As
       this court has stated the rule, “the plain error doctrine is to be used sparingly, only
       in exceptional circumstances, and solely to avoid a miscarriage of justice.”
       United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992) (quoting United States v.
       Hook, 781 F.2d 1166, 1172 (6th Cir.) (citations omitted), cert. denied, 479 U.S.
       882 (1986)).

Critton, 43 F.3d at 1094. Under the facts presented, Thomas’ claim is without merit.

       An officer may seize contraband discovered during a lawful frisk or pat down, even

without a warrant. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Here, the discovery of

this ammunition helped attenuate “the extraordinary risks to which law enforcement officials are

exposed during investigatory detentions,” which provides a large part of the justification for

permitting Terry stops. United States v. Swann, 149 F.3d 271, 274 (4th Cir. 1998). Further, the

officers clearly had probable cause to believe that the bullets were related to criminal activity.

Finally, the bullets would have been discovered incident to Thomas’ later arrest. In short,

Thomas’ claim regarding the bullets does not affect the fairness, integrity, or reputation of his

proceedings.

       C.      Statements While Detained



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          Finally, Thomas asserts that the district court erred by failing to suppress the statements

made while he was detained by the police. These statements include: (1) Thomas’ assertion that

“the gun is not mine” and that he was “being set up”, (2) his statement that he was trying to get

“the gun” out of the house and away from his girlfriend, and (3) his response that he did not have

a permit for the weapon. The first two responses were volunteered by Thomas. Thus, any

argument that these statements were obtained in violation of Miranda is clearly misplaced. The

magistrate judge properly concluded that statements volunteered by Thomas were not the result

of the “functional equivalent of [police] questioning.” And, because the Terry stop, frisking, and

brief questioning were permissible, that evidence cannot be considered the “fruit of an unlawful

seizure.”

          A different analysis is required regarding the third statement which was in direct response

to a question by Officer Dyson. During a Terry stop, officers are permitted to ask a detainee a

moderate number of questions to determine the person’s identity and to try to obtain information

confirming or dispelling their suspicions. Berkemer v. McCarty, 468 U.S. 420, 439 (1984).

Thomas maintains that the question presented regarding the gun permit occurred in

circumstances tantamount to a formal arrest and, therefore, required a recitation of Miranda

rights.

          This Court has instructed that:

          [t]he very nature of a Terry stop means that a detainee is not free to leave during
          the investigation, yet is not entitled to Miranda rights. Therefore, the pertinent
          question is whether [the suspect] was “in custody” during the investigatory


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United States v. Ronnie Thomas
No. 04-5872

          detention for the purposes of determining whether his Fifth Amendment rights
          were violated.

          In determining whether a defendant was subject to custodial interrogation we look
          to the totality of the circumstances “to determine ‘how a reasonable man in the
          suspect’s position would have understood the situation.’” The “ultimate inquiry
          is simply whether there is a formal arrest or restraint on freedom of movement of
          the degree associated with a formal arrest.”

United States v. Swanson, 341 F.3d 524, 528-29 (6th Cir. 2003) (citations omitted). Relevant

considerations include: (1) the purpose of the questioning; (2) whether the place of the

questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of

custody such as whether the suspect was informed at the time that the questioning was voluntary

or that the suspect was free to leave or to request the officers to do so; whether the suspect

possessed unrestrained freedom of movement during questioning; and whether the suspect

initiated contact with the police or acquiesced to their requests to answer some questions. Id.

at 529.

          Here, the purpose of the police questioning, i.e., to determine whether Thomas had a gun

permit, was benign and unintrusive. Regarding the second factor, Thomas was questioned in a

police car, on a public street, and without handcuffs. The Supreme Court has not required

Miranda warnings in similar settings. See California v. Beheler, 463 U.S. 1121, 1125-26 (1983)

(detainee not “in custody” although questioning took place in a police station); Oregon v.

Mathiason, 429 U.S. 492, 495-96 (1977) (questioning at state police offices behind closed doors

not a custodial interrogation where defendant was informed he was not under arrest and was



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United States v. Ronnie Thomas
No. 04-5872

allowed to leave at the conclusion of the interview). In addition, the police questioning was

extremely brief.

       Finally, the magistrate judge did not find any other factors impacting the voluntariness

of Thomas’ answers. Considering all of the above factors, we conclude that the district court

was correct in determining that the police officers’ brief questioning did not rise to the level of

“custodial interrogation” and did not require Miranda warnings. While Thomas may not have

been free to leave the squad car, “the very nature of a Terry stop means that a detainee is not free

to leave during the investigation, yet is not entitled to Miranda rights.” Swanson, 341 F.3d at

528.

                                        CONCLUSION

       We AFFIRM the decision of the district court.




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