NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0214n.06
Filed: March 22, 2007
No. 06-5369
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
)
v. )
)
JAMES IVY, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
Defendant-Appellant. ) WESTERN DISTRICT OF TENNESSEE
)
)
Before: DAUGHTREY and ROGERS, Circuit Judges, and OBERDORFER, District Judge*
James Ivy appeals his conviction for being a felon in possession of a firearm. Ivy was
arrested after a police officer with the Memphis Police Department discovered that a pill bottle that
Ivy had dropped contained crack cocaine. Upon discovery of the crack, Ivy was detained and a pat-
down search revealed that Ivy was carrying a gun. Ivy argues on appeal that (1) the district court
abused its discretion when it excluded the testimony of a defense witness regarding hearsay
statements of a third party who claimed ownership of the gun, and (2) the district court erred when
it refused to suppress the gun as the fruit of an illegal seizure. Because the hearsay statements do
*
The Honorable Louis F. Oberdorfer, United States District Court for the District of
Columbia, sitting by designation.
No. 06-5369
United States v. Ivy
not fall within the exception for excited utterances and because the pat-down search was not in
violation of the Fourth Amendment, we affirm Ivy’s conviction.
I. Facts
On February 10, 2005, James Ivy was in the parking lot of a BP gas station in Memphis,
Tennessee. Located in the gas station parking lot was a detached building housing restrooms that
were no longer in use; a utility trailer was parked in front of the detached building. According to
Memphis police officer Christopher White, the manager of the gas station had previously asked the
Memphis police to patrol the BP parking lot because of problems with loiterers, panhandlers, drug
users, and prostitutes, especially around the detached building. After spotting Ivy standing in
between the trailer and the detached building, White turned into an adjacent parking lot. White saw
that Ivy was carrying a golf club and another object that turned out to be a pill bottle. When White
approached Ivy and asked Ivy to “come here,” Ivy walked away from White and around the trailer.
According to White, he could see underneath the trailer to the other side and saw Ivy drop the pill
bottle, pick it up, and drop it again. White testified that he retrieved the pill bottle the second time
Ivy dropped it, told Ivy to stop, picked the pill bottle up, and physically detained Ivy after seeing that
the bottle contained what appeared to be crack cocaine. After detaining Ivy, White conducted a pat-
down search, during which White felt what he believed to be a gun in Ivy’s pants pocket. White
waited approximately two minutes until backup arrived and then retrieved the gun from Ivy’s pocket.
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Ivy was arrested and indicted for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). Ivy filed a motion to suppress the gun, arguing that it was the fruit of an illegal
seizure. The district court held a hearing on the motion on August 18, 2005, during which White
testified, recounting the facts described above. The district court denied the motion to suppress on
October 28, 2005. Ivy’s trial began on December 5, 2005. On December 6, 2005, Ivy attempted to
introduce evidence that the gun discovered in the pat-down search belonged to an acquaintance of
Ivy’s named Earl Vane. Outside the presence of the jury, Roy Howard, a bystander near the BP
station, testified that Vane called out to Ivy after Ivy exited the gas station and that Ivy and Vane
walked together to the detached building. Howard testified that he saw Vane five to ten minutes
after Officer White took Ivy into custody and that Vane seemed nervous, commenting that he would
be glad when the police left so that he could retrieve his gun. The district court refused to allow
Howard to testify regarding Vane’s statements, rejecting Ivy’s argument that the statements qualified
as excited utterances. The jury returned a guilty verdict on December 6, 2005, and Ivy was
subsequently sentenced to eighteen years and five months in prison. Ivy filed a timely appeal.
II. Analysis
A. Exclusion of Hearsay Testimony of Roy Howard
The district court did not abuse its discretion in refusing to allow Roy Howard to testify
regarding statements that Earl Vane allegedly made, because the circumstances surrounding Ivy’s
detention and arrest were not sufficiently startling to cause nervous excitement on the part of Vane.
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There are three elements of an excited utterance: “First, there must be an event startling
enough to cause nervous excitement. . . . Second, the statement must be made before there is time
to contrive or misrepresent. . . . Finally, the statement must be made while the person is under the
stress of the excitement caused by the event.” United States v. Hadley, 431 F.3d 484, 496 (6th Cir.
2005) (internal quotation marks and citations omitted). We review the district court’s evidentiary
ruling for abuse of discretion. Id.
The district court did not abuse its discretion in concluding that the arrest was not an event
startling enough to cause nervous excitement. The exciting event consisted of White approaching
Ivy in the parking lot of the gas station and telling Ivy to “come here.” Although Ivy attempted to
walk away, there was no chase or other dramatic occurrence. White’s description of his initial
approach and his arrest of Ivy does not reveal anything that would make the event one startling
enough to cause nervous excitement. In fact, Ivy himself testified that Vane “took off” upon seeing
White, so it is not clear that Vane witnessed anything other than White’s approach, making the event
even less likely to have resulted in nervous excitement. See United States v. Wolak, 923 F.2d 1193,
1196 (6th Cir. 1991) (concluding that the district court did not abuse its discretion in refusing to
admit hearsay statements as excited utterances because, among other reasons, the declarant did not
witness the arrest).
Ivy refers the panel to this court’s decision in United States v. McCullough, 150 Fed. App’x
507 (6th Cir. 2005) (unpublished), to support his argument that an arrest qualifies as a startling event.
However, in McCullough, a security guard approached the defendant, restrained him, and reached
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No. 06-5369
United States v. Ivy
inside the defendant’s jacket to pull out the gun that the defendant was carrying. 150 Fed. App’x at
510. The arrest that the declarant witnessed in McCullough is a far cry from the events that Vane
witnessed. White did not approach and immediately detain Ivy. There was no struggle. It is not
even clear that he raised his voice to Ivy any more than was necessary to be heard. Thus, this case
is unlike McCullough. Because White’s approach and Ivy’s arrest were not sufficiently startling to
cause nervous excitement, the district court did not abuse its discretion when it refused to allow
Howard to testify regarding Vane’s statements.
B. Motion to Suppress
Neither the police stop of Ivy nor the ensuing pat-down search was conducted in violation
of the Fourth Amendment. The district court’s factual findings in a suppression hearing are reviewed
for clear error and conclusions of law are reviewed de novo. United States v. Jackson, 470 F.3d 299,
306 (6th Cir. 2006).
According to White’s testimony at the suppression hearing, Ivy walked away when White
told Ivy to “come here” and proceeded to walk around the trailer parked in the gas station’s parking
lot. White could see under the trailer that Ivy dropped the pill bottle, picked it up, and dropped it
again. White testified that he retrieved the pill bottle “the second time [Ivy] dropped it[;] I told him
to stop, that’s when he actually stopped, I picked the pill bottle up, noticed what was in it and
physically detained [Ivy].” Ivy did not testify at the suppression hearing.
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No. 06-5369
United States v. Ivy
White’s initial command for Ivy to “come here” did not constitute a seizure because Ivy
walked away from White rather than comply with White’s assertion of authority. California v.
Hodari D., 499 U.S. 621, 625-26 (1991) (holding that a defendant who ran away from police was
not seized until he was tackled by a police officer). Because Ivy abandoned the pill bottle while
walking away from White (prior to being seized), White was free to look inside the bottle and the
discovery of the crack was not the result of an unconstitutional seizure. Id. at 629.
When Ivy did comply with White’s command to stop, he was seized for Fourth Amendment
purposes; however, this seizure did not violate the Fourth Amendment under Terry v. Ohio, 392 U.S.
1 (1968). An officer may briefly detain an individual without violating the Fourth Amendment if
the officer possesses a “reasonable suspicion that [the defendant] was engaged in wrongdoing when
[the officer] encountered him.” United States v. Sokolow, 490 U.S. 1, 7 (1989). The totality of the
circumstances supports White’s investigative stop of Ivy: White was familiar with the area and the
fact that the manager of the gas station had previously complained of criminal activity in the very
location where Ivy was loitering; White had previously observed criminal activity near the detached
building; Ivy was loitering near the detached building with a golf club and a pill bottle in his hands;
Ivy attempted to walk away from White when White asked Ivy to “come here”; and Ivy dropped the
pill bottle before complying with White’s command to stop. Subsequently, the discovery of the
crack provided White with probable cause to arrest Ivy, and the protective pat-down search leading
to the discovery of the gun was not in violation of the Fourth Amendment. United States v.
Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (“Under the ‘search-incident-to-a-lawful-arrest’
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United States v. Ivy
exception to the warrant requirement, a law enforcement officer may conduct a full search of an
arrestee’s person incident to a lawful custodial arrest.”). Thus, the district court properly denied
Ivy’s motion to suppress.
III. Conclusion
For the foregoing reasons, we affirm Ivy’s conviction.
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