Filed: Jul. 06, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0233p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 08-3359 v. , > - Defendant-Appellant. - ROBERT FLORES, - N Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 06-00239-003—David D. Dowd, Jr., District Judge. Submitted: June 18, 2009 Decided and Filed: July 6, 2009 * Before: MOORE and GILMAN, Cir
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0233p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 08-3359 v. , > - Defendant-Appellant. - ROBERT FLORES, - N Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 06-00239-003—David D. Dowd, Jr., District Judge. Submitted: June 18, 2009 Decided and Filed: July 6, 2009 * Before: MOORE and GILMAN, Circ..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0233p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 08-3359
v.
,
>
-
Defendant-Appellant. -
ROBERT FLORES,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 06-00239-003—David D. Dowd, Jr., District Judge.
Submitted: June 18, 2009
Decided and Filed: July 6, 2009
*
Before: MOORE and GILMAN, Circuit Judges; PHILLIPS, District Judge.
_________________
COUNSEL
ON BRIEF: David L. Grant, LAW OFFICES, Cleveland, Ohio, for Appellant. Samuel
A. Yannucci, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Robert Flores appeals the district
court’s denial of his motion to suppress the evidence used against him. Flores was
arrested and indicted along with seven other individuals for participating in a drug-
distribution ring. He pled guilty to one count of conspiracy to possess with the intent to
distribute cocaine and heroin. The sole argument he raises on appeal is that the initial
*
The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
1
No. 08-3359 United States v. Flores Page 2
Terry stop of his vehicle was made without reasonable suspicion. For the reasons set
forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
This case arose out of an extensive investigation by the Organized Crime Drug
Enforcement Task Force in Akron, Ohio. The investigation focused on the drug-dealing
activities of Michael Lashawn Spragling. Drug-enforcement agents obtained several
court-authorized wiretaps in December 2005 and monitored Spragling’s communications
with his associates. In intercepted conversations, the agents noted that Spragling often
referred to “The Spot.” The agents had good reason to believe that Spragling used that
phrase to refer to a “stash house” located at 1228 Delos Street in Akron, Ohio.
On December 10, 2005, the agents intercepted a call from a Hispanic male whom
Spragling called “Pops.” The agents traced Pops’s telephone to a subscriber named “Joe
Diaz.” Pops and Spragling discussed a shipment of heroin and cocaine to Spragling in
the near future, and agreed that the payment for the drugs would be “COD” (cash on
delivery). On the evening of December 15, 2005, investigators intercepted another call
from Pops, who told Spragling: “Hey, my man Bobo is going to be there in five
minutes.” Spragling replied: “I’m here. Tell him to come in.”
The agents immediately went to 1228 Delos Street. Once there, they observed
an unfamiliar maroon Jeep Grand Cherokee parked in the driveway. Agent Kevin
Borchert, one of the Task Force members who went to the residence that evening,
testified that because 1228 Delos Street had been under surveillance for some time, the
agents were very familiar with the vehicles that Spragling and his associates usually
used. The agents ran the license plate of the Jeep and found that the vehicle belonged
to Robert Flores of Westerville, Ohio, who was also unfamiliar to the agents.
Agent Borchert testified that he and other Task Force members continued to
monitor the residence that evening. The Jeep eventually departed, and the agents
followed it. When the Jeep entered the interstate highway system, the agents decided
No. 08-3359 United States v. Flores Page 3
to stop the vehicle. Sergeant Jason Malick, who initiated the traffic stop, admitted that
neither the driver nor the Jeep was in violation of any traffic laws.
Flores was the driver of the Jeep. Once the police stopped the vehicle, they
obtained his consent to conduct a search. The police then discovered more than $20,000
of cash packaged in plastic shrink wrap in a duffel bag on the backseat. After a canine
team was called in, the dog alerted to the odor of narcotics on the duffel bag, but no
drugs beyond trace amounts were found. Flores was allowed to leave after the police
confiscated the cash. Three days later, Agent Borchert located Flores’s Jeep at the
Cleveland airport and placed a tracking device on it. By tracking the Jeep, the agents
uncovered more evidence that incriminated Flores and others.
Flores was subsequently arrested and indicted on multiple drug counts, along
with seven codefendants. He filed a motion to suppress the evidence. After a hearing,
the district court denied the motion. Flores then entered into a conditional plea of guilty
to one count of conspiracy to possess with the intent to distribute cocaine and heroin,
reserving the right to contest the adverse ruling on his motion to suppress. The district
court sentenced Flores to 120 months of imprisonment and five years of supervised
release. Flores now appeals the district court’s denial of his motion to suppress.
II. ANALYSIS
A. Standard of review
Where the issue on appeal is the denial of a motion to suppress, we review the
district court’s findings of fact under the clear-error standard and its conclusions of law
de novo. United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000).
B. Analysis
On appeal, Flores challenges the initial stop of his Jeep. He argues that the
agents lacked reasonable suspicion to stop his vehicle because the only fact upon which
they relied to conduct their search was that he “exited from a house which they believed
to be used for stashing drugs.” Flores contends that all of the evidence subsequently
No. 08-3359 United States v. Flores Page 4
obtained should be suppressed as “fruit of the poisonous tree.” See Wong Sun v. United
States, 371 U.S. 471 (1963).
An investigative stop of a vehicle is permissible under the Fourth Amendment
where the stop is supported by reasonable suspicion of wrongdoing. Terry v. Ohio, 392
U.S. 1, 22 (1968); United States v. Williams,
962 F.2d 1218, 1223-24 (6th Cir. 1992).
Because an investigative stop is less intrusive than an arrest, the level of suspicion
necessary for such a stop is “considerably less than proof of wrongdoing by a
preponderance of the evidence.” United States v. Sokolow,
490 U.S. 1, 7 (1989).
Reasonable suspicion must be “supported by articulable facts that criminal activity ‘may
be afoot,’ even if the officer lacks probable cause.”
Id. (quoting Terry, 392 U.S. at 30).
The court should consider the “totality of the circumstances” and evaluate whether the
detaining officer had a “particularized and objective basis” for suspecting wrongdoing.
United States v. Arvizu,
534 U.S. 266, 273 (2002). It should not look at the facts in
isolation.
Id. at 274; see also United States v. Martin,
289 F.3d 392, 397 (6th Cir. 2002)
(“[C]ourts do not separately scrutinize each factor relied on by the officer conducting the
search.”) This is so because, “[a]lthough each of [a] series of acts [is] perhaps innocent
in itself, . . . taken together, they [might] warrant[] further investigation.”
Arvizu, 534
U.S. at 274 (citation and internal quotation marks omitted).
“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.’” United States v. Perez, 440 F.3d 363, 371 (6th Cir. 2006)
(quoting
Arvizu, 534 U.S. at 273). The Supreme Court and this court have also held that
although “[a]n individual’s presence in an area of expected criminal activity, standing
alone, is not enough to support a reasonable, particularized suspicion that the person is
committing a crime,” a location’s characteristics are relevant “in determining whether
the circumstances are sufficiently suspicious to warrant further investigation.” Illinois
v. Wardlow,
528 U.S. 119, 124 (2000); see also United States v. Caruthers,
458 F.3d
459, 467-68 (6th Cir. 2006).
No. 08-3359 United States v. Flores Page 5
In the present case, testimony by various agents at the suppression hearing
established that there had been a lengthy investigation into the illegal activities of
Spragling, who was believed to be the leader of a major drug-trafficking ring. The
investigation included information from confidential sources, controlled purchases of
narcotics, extensive surveillance, telephone-toll analyses, and court-authorized wiretaps.
From this investigation, the agents had learned the address of “The Spot,” believed to
be a place where Spragling and his associates stashed drugs and money.
Based on this background knowledge and the two intercepted telephone calls
described in Part I. above, the agents had enough information to justify a Terry stop of
Flores’s Jeep. Contrary to what Flores claims, the agents did not rely solely on the fact
that he had emerged from the residence. Their suspicion was based on the intercepted
conversations indicating that a drug delivery was about to take place, their reasonable
belief that “The Spot” was a location where Spragling and his associates stashed drugs
and money, and the unfamiliar Jeep in the driveway of the house at the time of the
scheduled delivery.
Flores argues that because the agents did not have a description of the person
referred to as “Bobo” or a description of Bobo’s vehicle, there was no basis for them to
know that he was Bobo. Nor did the agents know how long Flores had been at the
residence, given that the Jeep was already parked in the driveway when the agents
arrived. Finally, Flores points out that the intercepted telephone calls never mentioned
the Delos Street address or any address where the transaction was supposed to take
place.
But law enforcement officers need not have certainty in order for a suspicion to
be reasonable. The standard is whether they are “able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant
[the] intrusion.” Terry, 392 U.S. at 21. Based on the information that the agents had
gained from their investigation, they reasonably believed that a drug delivery was about
to take place at “The Spot,” which the agents had previously identified as the Delos
Street address. They could also reasonably infer that Flores was there to make the
No. 08-3359 United States v. Flores Page 6
scheduled delivery, even though it was theoretically possible that he was there for some
innocent purpose. The agents had more than “an ill-defined hunch” that the Jeep parked
at “The Spot” on the evening of December 15, 2005 was there for an illicit purpose; they
could point to specific and articulable facts supporting their belief that the driver of the
unfamiliar vehicle was there to complete a drug delivery. We thus conclude that the
district court did not err in denying Flores’s motion to suppress the evidence against him.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
