Filed: Aug. 07, 2007
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0297p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellant, - UNITED STATES OF AMERICA, - - - No. 05-4576 v. , > DEWAYNE D. ELLIS, - Defendant-Appellee. - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-00272—Solomon Oliver, Jr., District Judge. Argued: March 6, 2007 Decided and Filed: August 7, 2007 Before: ROGERS and GRIFFIN, Ci
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0297p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellant, - UNITED STATES OF AMERICA, - - - No. 05-4576 v. , > DEWAYNE D. ELLIS, - Defendant-Appellee. - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-00272—Solomon Oliver, Jr., District Judge. Argued: March 6, 2007 Decided and Filed: August 7, 2007 Before: ROGERS and GRIFFIN, Cir..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0297p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
-
-
-
No. 05-4576
v.
,
>
DEWAYNE D. ELLIS, -
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 04-00272—Solomon Oliver, Jr., District Judge.
Argued: March 6, 2007
Decided and Filed: August 7, 2007
Before: ROGERS and GRIFFIN, Circuit Judges; RUSSELL, District Judge.*
_________________
COUNSEL
ARGUED: Lori A. Hendrickson, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio,
for Appellant. Philip J. Korey, Cleveland, Ohio, for Appellee. ON BRIEF: Lori A. Hendrickson,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant. Philip J. Korey,
Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Plaintiff, the United States of America, appeals an order of the
district court granting defendant Dewayne Ellis’s motion to suppress. The government argues that
the district court erred by suppressing incriminating evidence seized during a traffic stop and
defendant’s post-arrest statements. For the reasons set forth below, we agree and reverse and
remand.
I.
In its order, the district court made the following findings of fact:
*
The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting
by designation.
1
No. 05-4576 United States v. Ellis Page 2
On Friday, April 16, 2004, Trooper [Andrew] Topp, an Ohio State Highway Patrol
Trooper, was working the 11:00 p.m. to 7:00 a.m. shift. (5/27/05 Hrg. Tr. 3-4.)
Some time after 3:00 a.m., Trooper Topp observed a white Ford Ranger truck (the
“truck”) traveling southbound on Interstate 71 in Ashland County, Ohio. (Id. at 8.)
The truck was weaving in its lane and had crossed over the white dividing line
between the shoulder and the right lane several times. (Id. at 4-5.) Trooper Topp
followed the vehicle in his police cruiser, and “ran” the truck’s registration plate.
(Id. at 5.) The registration matched the truck, showing that it was registered to an
Arthur Daugherty. At this point, Trooper Topp activated the lights on his police
cruiser and pulled the truck over to the side of the road.1 The time, as recorded by the
automatically activated camera on top of the cruiser, was 3:23 a.m.2 (Id. at 8; 34-
36.)
Two people were in the truck: the driver was a white male in his early 70s, and the
passenger was a black male closer to 30. (Id. at 12, 42.) Trooper Topp approached
the vehicle from the driver’s side and asked the driver if he was tired or sleepy. (Id.
at 8.) The driver responded that he was a “little bit” tired. (Id.) Trooper Topp also
asked the driver for his license and registration, and asked where he was coming
from. (Id. at 8.) The driver provided his license and registration, and told Trooper
Topp that he was coming from Cleveland. (Id.) The driver’s license identified the
driver as Arthur Daugherty, and this name matched the truck registration Trooper
Topp had received before pulling the truck over. (Id. at 9.) Trooper Topp did not
smell alcohol while standing at Daugherty’s side of the car. (Id. at 47.) Moreover,
Daugherty did not appear to be under the influence of alcohol. (Id. at 39.)
At 3:25 a.m., Trooper Topp walked over to the passenger side of the truck and asked
the passenger where he lived. (Police Video, Def. Ex. A at 3:25:00.) Trooper Topp
also asked if the passenger had any identification. (Hrg. Tr. 10.) The passenger
responded that he did not have identification on him. (Id.) Trooper Topp then asked
for the passenger’s social security number, and the passenger stated he did not know
it. (Id.) Trooper Topp asked for the passenger’s name and date of birth, and the
passenger identified himself as Wayne D. McCarthy, born May 9, 1973. (Id.)
Trooper Topp asked the passenger “if it was odd or if he thought it was odd that he
did not know his social security number being 30 years old”; Trooper Topp did not
recall the response. (Id.) The questioning at the passenger side door lasted for one
and one half minutes. (Police Video, Def. Ex. A at 3:25:00-3:26:30.) The passenger
was respectful, and at no point combative, in his responses to the questions. (Hrg.
Tr. 42.) Trooper Topp did not indicate that the passenger seemed nervous in any
way. Trooper Topp admitted there is no law in Ohio requiring a passenger in a
vehicle to have a driver’s license or identification. (Id. at 41.)
At 3:26:35 a.m., Trooper Topp returned to the driver’s side of the truck and
commanded Daugherty to step out of the truck and sit in the police cruiser. (Police
Video, Def. Ex. A. at 3:26:35; Hrg. Tr. 11, 44-45.) As Daugherty exited the truck,
Trooper Topp asked him if he always drove this late. Trooper Topp indicated that
he brought Daugherty back to his cruiser because it was often hard to smell alcohol
from outside a vehicle on the side of the road. (Hrg. Tr. 47.) He also stated that it
was his practice to bring people he suspects may be under the influence of alcohol
or drugs back to his cruiser to “talk to them, do a little more investigation, if they
have had anything to drink or any type of illegal drug.” (Id. at 47.) Daugherty
complied and sat in the front passenger seat of the cruiser. Trooper Topp found that
at times, Daugherty was difficult to understand, and that Daugherty appeared to be
No. 05-4576 United States v. Ellis Page 3
hard of hearing. (Id. at 32.) However, Trooper Topp did not think Daugherty was
under the influence of alcohol. (Id. at 39.)
Inside the cruiser, at approximately 3:27 a.m., Trooper Topp began questioning
Daugherty. The questioning continued for approximately six minutes. (Police
Video, Def. Ex. A, 3:27:37 to 3:33:54.) Trooper Topp asked Daugherty a series of
questions: What he was doing in Cleveland? Why did he go to Cleveland? What
part of Cleveland had he been in? How did he know his passenger? Did his
passenger have anything with him? (Id.; Hrg. Tr. 11-12, 14.) Daugherty informed
Trooper Topp that his passenger had been at a friend’s house in Cleveland, that the
passenger had paid him $40 to take him, and that Daugherty did not know exactly
which part of Cleveland he had been in or what the address was. (Id. at 12.)
Daugherty indicated he knew the passenger because he used to take the passenger’s
sister to the grocery store. (Id.) Daugherty told Trooper Topp that he had forgotten
his passenger’s name, that it just didn’t stick with him. (Id. at 48.) Trooper Topp
noted that he found that unusual. (Id. at 13.) There is no evidence in the record that
Trooper Topp asked Daugherty whether he had consumed any alcohol or drugs that
evening. At this point, the time was approximately 3:29 a.m. (Id. at 50.)
Trooper Topp then asked if there was anything illegal in the truck, or any drugs in
the truck, to which Daugherty responded “not that he knew of.” (Id. at 13-14.)
Trooper Topp continued to ask questions about the passenger, whether he had seen
the passenger with illegal drugs, or whether the passenger had anything with him
when they went to Cleveland, to which Daugherty responded in the negative. (Id.
at 14.) Trooper Topp indicated that while asking such questions was “common
practice” for him, it was not a standard procedure, and he had not been instructed to
do so. (Id. at 49.)
At 3:29:40, the audio portion of the videotape malfunctioned and stopped recording.
(Id. at 52.) When the audio resumed at 3:32:54, Trooper Topp was questioning
Daugherty about what he and his passenger were doing in Cleveland, and again
asking whether Daugherty knew his passenger’s name. (Police Video, Def. Ex. A,
3:32:54.)
During the three minutes without any audio, Trooper Topp admits he was not in the
process of writing or issuing a citation to Daugherty. (Hrg. Tr. 51.) Trooper Topp
indicated that during this time, he radioed for a drug-detecting canine to be sent to
his location. (Id. at 57.) He noted that “through talking to the driver, I thought it was
extremely odd why they were going to Cleveland, he was being paid, did not know
his passenger because of the things that I found out at that time, I thought some –
some sort of criminal activity was going on.” (Id. at 15.)
Trooper Topp left Daugherty in the police cruiser at about 3:34 a.m. and returned to
the truck to question the passenger. In response to questioning, the passenger
provided Trooper Topp with a home address in Michigan, and informed Trooper
Topp that he had a valid driver’s license in Michigan, but did not have it with him.
(Id. at 15-16.) In response to questions about Daugherty, the passenger indicated he
had paid Daugherty $50 to take him to Cleveland. (Id. at 84.)
At 3:36:39, Trooper Topp returned to the police cruiser and asked the dispatcher to
run a check in Michigan and Ohio for the passenger’s stated name and birth date.
(Id. at 17.) No positive identification came back from either state. (Id.)
No. 05-4576 United States v. Ellis Page 4
There was no audio on the tape between 3:37 a.m. and when the tape stopped at 3:42
a.m. (Id. at 63.)
At some point after the tape ended, at 3:42 a.m., a backup unit arrived, and indicated
that the canine unit was unavailable. (Id.) At 3:45 a.m.3, Trooper Topp asked
Daugherty for consent to search the truck. (Id. at 18, 64-66.) Daugherty consented,
but Trooper Topp did not get written consent, because he asserts that his cruiser was
out of consent forms. (Id. at 18, 66.) During the search, Trooper Topp found an oily
rag containing cocaine under the passenger seat. (Id. at 19-20.) At 3:52 a.m.,
Trooper Topp placed the passenger under arrest, and completed his search, finding
no additional contraband. (Id. at 22, 70.) Trooper Topp instructed Daugherty to
follow him back to the Ashland patrol post, where Daugherty was interviewed and
subsequently released without charges. (Id. at 23-24.)
At the station, the passenger, who Trooper Topp subsequently identified as
Defendant Ellis, placed a telephone call using a cordless telephone provided by the
police. (Id. at 11.) Ellis made incriminating statements in this phone conversation.
The conversation was recorded.
Trooper Topp stated that it typically took approximately fifteen minutes to write a
citation for weaving. (Id. at 37.) There is no record of any citation being written or
given to Daugherty, or that Trooper Topp began the process of writing a citation.
(Id.)
__________________________________________________________________
1
The activation of the police cruiser’s lights automatically activated a video camera
and audio recording system. However, the audio portion of the stop was not fully
recorded; it cuts in and out throughout the stop. Additionally, the video tape ran out
of space and cut off prior to the end of the stop. (Hrg. Tr. 6-7, 45-46.)
2
Trooper Topp testified that the time of the stop was 3:25 a.m. or 3:27 a.m. (Hrg.
Tr. 8, 64). The video indicated the time of the stop was 3:23 a.m. (Hrg. Tr. 8, 34-36,
40.) There is some dispute over whether the time on the video was accurate.
However, for purposes of establishing the length of time between events on the
videotape, the court uses and refers to the times on the video unless otherwise
specified.
3
All times after 3:42 a.m. are not from the videotape, but from Trooper Topp’s
report. Approximately nineteen minutes were recorded on the videotape.
__________________________________________________________________
II.
Defendant Ellis was indicted by a federal grand jury for possession with intent to distribute
68 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)/(b)(1)(A). However, following an
evidentiary hearing at which Trooper Topp testified, the district court granted Ellis’s motion to
suppress the evidence seized at the scene of the traffic stop and Ellis’s telephone statements. The
district court held that the traffic stop search and seizure exceeded the scope of the initial stop and,
thus, suppressed all evidence that flowed from it. The government timely appealed.
No. 05-4576 United States v. Ellis Page 5
III.
The grant or denial of a motion to suppress is a mixed question of fact and law. United
States v. Hurst, 228 F.3d 751, 756 n.1 (6th Cir. 2000). On appeal, we review the district court’s
findings of fact for clear error and its conclusions of law de novo. United States v. Dillard,
438 F.3d
675, 680 (6th Cir. 2006). A factual finding is clearly erroneous when, although there may be
evidence to support it, the reviewing court, utilizing the entire evidence, “is left with the definite and
firm conviction that a mistake has been committed.” United States v. Navarro-Camacho,
186 F.3d
701, 705 (6th Cir. 1999). The evidence must be viewed “in the light most likely to support the
district court’s decision.”
Dillard, 438 F.3d at 680 (internal quotation marks and citations omitted).
Finally, “‘[w]here there are two permissible views of the evidence’ the district court’s conclusions
‘cannot be clearly erroneous.’” United States v. Worley,
193 F.3d 380, 384 (6th Cir. 1999) (quoting
Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985)).
The threshold issue raised by the government is whether Ellis has standing to challenge the
search and seizure. To the extent that a defendant’s Fourth Amendment standing is a question of
law, we review it de novo. See United States v. Pollard, 215 F.3d 643, 646 (6th Cir. 2000). In
determining that Ellis, the passenger, had standing to challenge the search and seizure, the district
court stated:
[a] passenger in a vehicle ordinarily has no expectation of privacy in the vehicle, and
thus does not have standing to challenge the validity of consent given by a driver of
the vehicle. Rakas v. Illinois, 439 U.S. 128, 148-49 (1978). However, courts have
distinguished standing to challenge consent from standing to challenge evidence
discovered as fruit of an unlawful detention.
We agree. Although a passenger does not have a legitimate expectation of privacy in the searched
vehicle, “as a passenger [a defendant] may still challenge the stop and detention and argue that the
evidence should be suppressed as fruits of illegal activity.” United States v. Jones, 374 F. Supp. 2d
143, 154 (D.D.C. 2005) (quoting United States v. Ameling,
328 F.3d 443, 447 n.3 (8th Cir. 2003))
(internal quotation marks omitted). Consistent with the district court’s ruling on this issue, the
Supreme Court recently held in Brendlin v. California, – U.S. –,
127 S. Ct. 2400 (decided June 18,
2007), that a passenger of a motor vehicle possesses the same standing of the driver to challenge the
constitutionality of a traffic stop.
For these reasons, Ellis possesses standing to challenge his alleged unlawful seizure and the
evidence that flowed from the search and seizure.
IV.
The pivotal issue is whether, under these circumstances, the scope and duration of the
detention transformed this legal traffic stop into an unconstitutional seizure. It is undisputed that
the initial stop was constitutional because Topp possessed probable cause to believe that a traffic
violation occurred. However, the district court ruled that insufficient reasonable suspicion of
criminal activity existed to justify the overall detention of twenty-two minutes. We disagree.
Any analysis of a claimed Fourth Amendment violation must focus on the objective
reasonableness of the police officer’s actions, not a bright-line rule, “in recognition of the ‘endless
variations in the facts and circumstances’ implicating the Fourth Amendment.” Ohio v. Robinette,
519 U.S. 33, 39 (1996) (quoting Florida v. Royer,
460 U.S. 491, 506 (1983)). “[A] seizure that is
lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably
infringes interests protected by the Constitution.” Illinois v. Caballes,
543 U.S. 405, 407 (2005)
(citing United States v. Jacobsen,
466 U.S. 109, 124 (1984)). A lawful traffic stop “may become
an impermissible ‘seizure if it occurs over an unreasonable period of time or under unreasonable
No. 05-4576 United States v. Ellis Page 6
circumstances.’” United States v. Davis,
430 F.3d 345, 354 (6th Cir. 2005) (quoting United States
v. Orsolini,
300 F.3d 724, 729-30 (6th Cir. 2002)). Cf. United States v. Guimond,
116 F.3d 166 (6th
Cir. 1997).
“Reasonable suspicion requires specific and articulable facts, which, taken together with
rational inferences from those facts, reasonably warrant the continued detention of a motorist after
a traffic stop.” See United States v. Perez, 440 F.3d 363, 372 (6th Cir. 2006) (quoting United States
v. Smith,
263 F.3d 571, 588 (6th Cir. 2001)). Reviewing courts “must look at the ‘totality of the
circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective
basis’ for suspecting legal wrongdoing.” United States v. Arvizu,
534 U.S. 266 (2002) (citations
omitted) (holding that a combination of suspicious factors, including a van traveling on a known
smuggling route in a remote area, the driver slowing down upon noticing the officer, and the
passengers possibly concealing cargo by having their knees raised, all gave rise to reasonable
suspicion). The totality of the circumstances analysis permits police officers “to 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.” United States v. Martin,
289 F.3d 392, 398 (6th Cir. 2002).
Recently, in United States v. Garrido, 467 F.3d 971 (6th Cir. 2006), we upheld, as
constitutional, an hour-long safety inspection of a vehicle following a lawful traffic stop. First, we
surveyed our previous decisions in this area:
Compare United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004)
(concluding that the motorists’ nervousness, their allegedly conflicting explanations
of travel plans, and the movement of one from the back to the driver’s seat did not
suffice to create a reasonable suspicion); [United States v.] Townsend, 305 F.3d [537]
at 542-45 (finding that ten factors, including dubious travel plans, three cell phones
in the car, and the driver’s history of weapons offenses, did not rise to the level of
a reasonable suspicion); and [United States v.] Smith, 263 F.3d [571] at 588-94
(concluding that nine factors, including the stoned appearance of one vehicle
occupant, food wrappers in the car, and the nervousness of the occupants, did not
establish a reasonable suspicion); with United States v. Davis, 430 F.3d 345, 355-56
(6th Cir. 2005) (holding that a driver’s meeting with a known drug dealer justified
continued detention until a drug-sniffing dog could arrive, but that additional
detention after the dog failed to alert was unreasonable); [United States v.] Hill, 195
F.3d [258] at 270-73 (concluding that eight factors, including a dubious explanation
for a cross-country trip, nervousness, and the cash rental of a U-Haul, justified
continued detention); and United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998)
(en banc) (holding that eight factors, including the lack of registration and any proof
of insurance, and the nervousness and criminal record of drug violations of the
driver, sufficed to justify continued detention).
Garrido, 467 F.3d at 982. Then, we analyzed the eight factors relied upon by the government for
establishing reasonable suspicion for the hour-long seizure. Although each factor was innocuous,
separately, we held that their combination, in total, amounted to reasonable suspicion of criminal
activity.
Garrido, 467 F.3d at 983-84.
In the present case, the seizure prior to the consent to search was not prolonged, but lasted
only twenty-two minutes. A large portion of this detention was necessitated by the purpose of the
initial stop and the need for the trooper to identify the occupants of the vehicle and determine the
driver’s ability to safely operate the vehicle. In obtaining the driver’s driving license and vehicle
registration, Trooper Topp was justified in asking the occupants general questions of who, what,
where, and why regarding their 3:23 a.m. travel. United States v. Hill, 195 F.3d at 268; United
No. 05-4576 United States v. Ellis Page 7
States v.
Erwin, 155 F.3d at 822-23.1 Topp’s inquiries and his actions necessitated by the suspected
traffic violation lasted only thirteen minutes and thirty-nine seconds (3:23 to 3:36:39). During this
time, defendant Ellis gave Trooper Topp a false alias that Topp was unable to confirm.
Thereafter, reasonable suspicion existed for the further brief detention of an additional eight
minutes and twenty-one seconds (3:36:39 to 3:45) based on the combination of the following
factors: (1) Trooper Topp’s inability to confirm Ellis’s false alias; (2) Daugherty’s response of “not
that he knew of” to Topp’s question of whether the vehicle contained drugs or anything illegal;
(3) Daugherty’s lack of knowledge of defendant’s name; (4) Daugherty’s lack of knowledge where
he had been in Cleveland; (5) Ellis’s lack of knowledge of his social security number; and (6) the
discrepancy regarding how much money Ellis paid Daugherty for the trip. While a prolonged
detention may not have been justified, we conclude that, under these circumstances, the additional
detention of eight minutes and twenty-one seconds for further investigation of Trooper Topp’s
reasonable suspicions was lawful and not a violation of defendant’s Fourth Amendment right to be
protected “against unreasonable searches and seizures.” U.S. CONST. amend. IV (emphasis added).
Ultimately, we “must be mindful of the police officer’s duty to conduct the stop with the
least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period
of time,” Hill, 195 F.3d at 270 (citations omitted). But in this case, like Hill, we conclude that the
brief detention was a reasonable response to the totality of the circumstances. See also United States
v. Bradshaw,
102 F.3d 204, 212 & n.18 (6th Cir. 1996). In forming his reasonable suspicions,
Trooper Topp “was entitled to assess the circumstances and defendants in light of his experience as
a police officer and his knowledge of drug courier activity.”
Hill, 195 F.3d at 270 (citing United
States v. Cortez,
449 U.S. 411, 416 (1981)). A totality of the circumstances analysis prohibits us
from discounting certain factors merely because, separately, they could potentially have “an
innocent explanation.” United States v.
Arvizu, 534 U.S. at 267.
For these reasons, we hold that, given the totality of the circumstances, the scope and
duration of the detention did not transform this legal traffic stop into an unconstitutional seizure.
V.
Finally, the government argues that the district court erred by suppressing the rag containing
cocaine and defendant’s incriminating telephone statements as the fruits of an unlawful seizure. We
agree. Because this lawful traffic stop did not evolve into an unconstitutional seizure, the cocaine
evidence and defendant’s post-arrest statements did not flow from a Fourth Amendment violation.
VI.
For these reasons, we reverse the order of the district court and remand for further
proceedings consistent with this opinion.
1
See also United States v. Potts, 173 F.3d 430,
1999 WL 96756 at *4 (unpublished) (6th Cir. 1999) (“It is well
established that an officer is free to ask traffic-related questions, and questions about a driver’s identity, business and
his travel plans during the course of a traffic stop.”).
