RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0032p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
v. -
-
No. 08-4378
,
>
Defendant-Appellant. -
REGINALD SMITH,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 07-00039-001—Michael R. Barrett, District Judge.
Argued: January 21, 2010
Decided and Filed: February 10, 2010
Before: SILER, ROGERS, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Bryan Robert Faller, PORTER, WRIGHT, MORRIS & ARTHUR, LLP,
Columbus, Ohio, for Appellant. Karl P. Kadon, III, ASSISTANT UNITED STATES
ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Bryan Robert Faller, PORTER,
WRIGHT, MORRIS & ARTHUR, LLP, Columbus, Ohio, W. Kelly Johnson, PORTER,
WRIGHT, MORRIS & ARTHUR, LLP, Cincinnati, Ohio, for Appellant. Karl P. Kadon,
III, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. Defendant-Appellant Reginald Smith unsuccessfully
sought to suppress evidence of a handgun taken from him by Cincinnati police officers as
he was leaving an apartment building in Over-the-Rhine, Cincinnati at approximately 3:00
a.m. on November 21, 2006. The officers encountered Smith in the entrance hallway of the
apartment building while responding to a 911 emergency call. The record reflects that Smith
was not seized until Officer Putnick told him to stop and, at that point, the officers had a
1
No. 08-4378 United States v. Smith Page 2
reasonable, articulable suspicion that he had been engaged in criminal activity. Therefore,
the district court properly found that the officers’ encounter with Smith did not violate the
Fourth Amendment. We AFFIRM the district court’s decision denying suppression and
AFFIRM Smith’s conviction.
I. BACKGROUND
On November 21, 2006, at approximately 3:00 a.m., Cincinnati police officers were
on uniform patrol in Over-the-Rhine, a high-crime, high-drug area just north of downtown
Cincinnati, when they were directed to respond to a 911 emergency call at a four-to-five
story apartment complex in that neighborhood. Officers Luke Putnick and Brendan Rock
were on patrol together and arrived first. They waited for their backup (Officers Herman
Hill and Eric Weyda) to arrive before attempting to enter the apartment complex. However,
when they attempted to enter the apartment complex, the officers could not get into the
building because the front door was locked. The front double doors of the building were
made of glass, so the officers were able to see into the entrance hallway. The entrance
hallway was approximately “6 feet by 6 feet or 7 feet by 7 feet” and led to another set of
double doors which, apparently, were not locked and opened into a lobby. (R. 58 Weyda
17, 21.)
Over the next three to fifteen minutes, the officers sought some way into the building
by ringing the door buzzers, knocking on windows, making noise (in particular, through the
horn attached to their vehicle), using searchlights, and having dispatch try to contact the
residence from which they had received the 911 call. Officer Putnick climbed the fire escape
and knocked on the windows along the second floor. Finally, through the glass front doors,
the officers observed Smith, coming towards them and carrying both a “bike . . . and a bag
of food.” (R. 58 Hill 36-37.) It appears that Smith opened the front door and let the officers
in.
As Smith “unlocked and opened the door, there was kind of an altercation” because,
as the officers were rushing in, Smith “was trying to rush out of the door.” (R. 58 Weyda
22.) Primarily for safety reasons, the officers took up a “tactical position” around Smith as
they moved past him inside the hallway. (R. 58 Hill 45.) Officer Hill was on Smith’s left
and Officers Putnick and Rock were on his right; but Officer Hill testified that Smith was not
No. 08-4378 United States v. Smith Page 3
surrounded because, “[t]he doorway was actually -- was free egress actually to the door.
They were to his right, and I was to his left.” (R. 58 Hill 45; but see R. 30 Putnick 43
(noting that Officer Weyda was behind the officers).) In any event, there certainly was a
“kind of a congestion . . . just inside of the front door” because of the dimensions of the
hallway and because Smith “did not step back and allow the officers to come through” but,
instead, “was trying to push his way out as they were going in . . . .” (R. 58 Weyda 22; see
also R. 30 Putnick 17, 36 (noting that Smith “was basically forcing us out of the way in the
door to try to leave the residence,” “wasn’t looking at us and kind of was keeping his head
down trying to get out right away,” and “forcing his way through” the officers with his
mountain bike).)
As the officers entered the building, they began to ask Smith questions. Officer Hill
testified that Officer Rock “tried to engage in conversation with [Smith] to ask where he
came from. He was kind of evasive in his answers, really didn’t look at Officer Rock and
tried to keep on going outside. We asked him to slow down.” (R. 58 Hill 28.) Officer Hill
also testified as to the content of the questions that Officer Rock asked Smith: first, “what
apartment did he come from”; and, second, Smith’s “name.” (R. 58 Hill 43-44, 46 (Officer
Hill testified that he thought Smith’s responses were “vague.” He could not remember
Smith’s answer to the first question but believed that he provided his name in response to the
second).) Officer Hill also remembered that Officer Rock asked a third question but he
could not remember what it was. Officer Hill noted that, “[d]uring the time that he was
being questioned by Officer Rock,” Smith was “[l]ooking away and still trying to roll his
bike past. I mean, it was a tight spot. They were to his left. I was to his right. He was still
trying to roll the bike.” (R. 58 Hill 46.)
Officer Weyda, who was standing outside the hallway, also observed some of the
“exchange” and he “overheard small blurbs of Officer Rock asking Mr. Smith questions
about what apartment were you coming from, what are you doing here.” (R. 58 Weyda 8.)
Officer Weyda “observed [that] Mr. Smith was very, very agitated as if he was in a hurry.
He was very, very unsettled.” (R. 58 Weyda 8.) Officer Weyda also remarked that he could
only hear Officer Rock’s questions, but not Smith’s responses.
No. 08-4378 United States v. Smith Page 4
Officer Putnick testified that he also, “tried to make some conversation” in order “to
see if I could get any reaction out of [Smith].” (R. 30, Putnick 18.) In particular, Officer
Putnick asked, “‘How you [sic] doing, sir? Do you live here?’ And he really didn’t
acknowledge me. He just kind of kept his head down and tried to keep walking. At that point
when he didn’t acknowledge me, my suspicion raised a little bit and I asked him to stop.”
(R. 30 Putnick 18.) Officer Putnick further clarified that:
Basically I explained to him that we were here for a radio run and that I
wanted to know if he lived there, and as long as he wasn’t involved in any
of the activity upstairs, that he would be free to leave, that we first had to go
up and check that out. But due to my -- due to him trying to force his way
out and everything, I said, you know, “I’m just a little suspicious. I don’t
know if you’re involved. As soon as we can determine that you’re not, you’ll
be free to leave.”
(R. 30 Putnick 19.) Once Officer Putnick told Smith “to stop” he testified that he did not
believe that Smith was “free to leave” although the officers did not put Smith in handcuffs
or draw their firearms at this time. (R. 30 Putnick 19, 40; see also R. 58 Hill 39, 43.)
Finally, after the questions, Officer Weyda, “just observed [Smith] as being very,
very -- in a hurry. You could tell that he was flustered, and then he kind of -- he was making
very (indicating) movements, furtive movements.” (R. 58 Weyda 23.) Officer Putnick
testified that Smith “wasn’t really focused on what I was saying because he said, ‘Well, I’ll
just -- I got an ID.’ And at that point, he started to reach into his jacket.” (R. 30 Putnick 19.)
As Smith, “made a movement towards his coat,” there “was a big rush where Officer Hill
and Officer Rock grabbed him, both of his arms. During that time period, I did overhear
them say, you know, ‘Keep your hands out. What are you reaching for?’ And then they
grabbed him. It all happened very, very fast.” (R. 58 Weyda 8, 23 (testifying that although
he “didn’t exactly see what happened” he did observe a “distinct motion” and “saw the
defendant move very abruptly” which caused Officers Rock and Hill to “grab him from one
side and the other. And then I saw Officer Putnick, who was directly in front of me, just
going inside of the door, lunge at Mr. Smith, and immediately stepped back to me and hand
1
me a firearm.”).) In all, it took “less than two minutes” from the time the officers “got
1
Similarly, Officer Hill testified that:
As Officer Rock was talking with him and Officer Putnick, [Smith] made a quick
No. 08-4378 United States v. Smith Page 5
in the building until the time Officer Putnick retrieve[d] the gun from [Smith’s]
waistband.” (R. 58 Hill 44.)
Smith was charged in federal district court with being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 942(a)(2). Smith moved to suppress
evidence of the firearm. The district court conducted two evidentiary hearings related
to Smith’s motion to suppress and Smith’s motion for reconsideration of the motion to
suppress. At the first evidentiary hearing, the district court heard the testimony of
Officer Putnick; at the second, it heard the testimony of Officers Weyda and Hill. After
receiving Officer Putnick’s testimony in the first evidentiary hearing, the district court
denied Smith’s motion to suppress. After the second evidentiary hearing, the district
court denied Smith’s motion for reconsideration.
II. ANALYSIS
On appeal from the denial of a motion to suppress, this court reviews the district
court’s findings of fact for clear error and its conclusions of law de novo. United States
v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006). “A factual finding will only be clearly
erroneous when, although there may be evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. Nichols, 512 F.3d 789, 793 (6th Cir. 2008) (citation
omitted). This court accords “deference to the district court’s assessment of credibility
inasmuch as the court was in the best position to make such a determination.” United
States v. Garrido, 467 F.3d 971, 977 (6th Cir. 2006) (citation omitted). “The evidence
gesture all of a sudden . . . [t]owards the inner part of the jacket. At that point, I just
touched his left arm and told him to slow down. I believe Officer Rock or Putnick
touched his right arm. Just in that movement, Officer Putnick, I think he might have
seen a gun or something. He looks in there, reaches in, pulls out the handle of the gun
and then hands it to Officer Weyda.
(R. 58 Hill 28.) Officer Putnick testified that:
All he did, like I said, he just reached up right away with his hand. I mean, it wasn’t
like, “Hey, I have my ID” and then went in. It was, “I have my ID,” and he was going
into his jacket as he was saying it right away. And that’s -- it’s very alarming for an
officer in that area for someone to immediately reach into their jacket where typically
guns are kept.
(R.30 Putnick 45.)
No. 08-4378 United States v. Smith Page 6
must be considered in the light most favorable to the party that prevailed in the court
below–in this case, the government.” Id.
A. The Fourth Amendment
“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the
Government, and its protections extend to brief investigatory stops of persons or vehicles
that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). This court has stated that “there are three
types of permissible encounters between the police and citizens” under the Fourth
Amendment: “‘(1) the consensual encounter, which may be initiated without any
objective level of suspicion; (2) the investigative detention, which, if non-consensual,
must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the
arrest, valid only if supported by probable cause.’” United States v. Waldon, 206 F.3d
597, 602 (6th Cir. 2000) (quoting United States v. Avery, 137 F.3d 343, 352 (6th Cir.
1997)). Here, the interaction between Smith and the Cincinnati police officers began as
a consensual encounter but developed into an investigatory detention or Terry stop when
Officer Putnick ordered Smith to stop.
i. Encounters that do not amount to a seizure
In order for a seizure to occur, the encounter must not be consensual and the
officers must use physical force or the individual must submit to the officers’ show of
authority. Brendlin v. California, 551 U.S. 249, 254 (2007); California v. Hodari D.,
499 U.S. 621, 628 (1991).2 “[A] consensual encounter becomes a seizure when ‘in view
of all the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.’” United States v. Jones, 562 F.3d 768, 772 (6th
Cir. 2009) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). We have
noted that, “[c]ircumstances indicative of a seizure include ‘the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the
2
Physical force creating a seizure needs more than mere physical contact but, rather, involves the
intentional application of force. Hodari D., 499 U.S. at 624-25.
No. 08-4378 United States v. Smith Page 7
person of the citizen, or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.’” Id. (quoting Mendenhall, 446 U.S. at
554).
However, absent the intentional application of physical force, even if there is a
show of authority and a reasonable person would not feel free to leave, in order for a
seizure to occur there must also be submission to the show of authority: “there is no
seizure without actual submission; otherwise, there is at most an attempted seizure, so
far as the Fourth Amendment is concerned.” Brendlin, 551 U.S. at 254 (citations
omitted) (the Court noted that “[a] person is seized by the police and thus entitled to
challenge the government’s action under the Fourth Amendment when the officer, ‘by
means of physical force or show of authority,’ terminates or restrains his freedom of
movement . . . through means intentionally applied” (emphasis in original) (citations
omitted)); see also Hodari D., 499 U.S. at 626 n.2. Concerning submission, the Court
noted that: “what may amount to submission depends on what a person was doing before
the show of authority: a fleeing man is not seized until he is physically overpowered, but
one sitting in a chair may submit to authority by not getting up to run away.” Brendlin,
551 U.S. at 262.
ii. Investigatory Terry stops
In evaluating an investigatory Terry stop, this court engages “in a two-part
analysis of the reasonableness of the stop.” Caruthers, 458 F.3d at 464 (quoting United
States v. Davis, 430 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.” Id.
(quotations omitted).
An investigatory stop of an individual by a law enforcement officer is proper so
long as there is a reasonable basis for the stop. Terry, 392 U.S. at 22-24. An officer can
stop and briefly detain a person when the “officer has reasonable, articulable suspicion
that [a] person has been, is, or is about to be engaged in criminal activity.” United States
v. Atchley, 474 F.3d 840, 847 (6th Cir. 2007) (quoting United States v. Hensley, 469 U.S.
No. 08-4378 United States v. Smith Page 8
221, 227 (1985)) (emphasis in original); see also United States v. Sokolow, 490 U.S. 1,
7 (1989) (“[T]he police can stop and briefly detain a person for investigative purposes
if the officer has a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable cause.”). However, to justify
a Terry stop, an “inchoate and unparticularized suspicion or ‘hunch’” is not sufficient.
Terry, 392 U.S. at 27 (citation omitted). Instead, the officer must be “able to articulate
some minimal level of objective justification for making the stop,” Waldon, 206 F.3d at
604 (quotations omitted), based upon “specific reasonable inferences which he is entitled
to draw from the facts in light of his experience,” United States v. Foster, 376 F.3d 577,
585 (6th Cir. 2004) (quoting Terry, 392 U.S. at 27) (also noting that a “pattern of
suspicious behavior need only be recognizable by one ‘versed in the field of law
enforcement’” (citations omitted)).
This determination is made in light of the totality of the circumstances. Arvizu,
534 U.S. at 273; see also Sokolow, 490 U.S. at 8 (“The process does not deal with hard
certainties, but with probabilities. Long before the law of probabilities was articulated
as such, practical people formulated certain common-sense conclusions about human
behavior; jurors as fact-finders are permitted to do the same–and so are law enforcement
officers” (quoting United States v. Cortez, 449 U.S. 411, 418 (1981).). This process
serves to balance the individual’s interest in personal security with the government’s
interest in preventing ongoing or future criminal activity, solving past crimes, and
bringing offenders to justice. Hensley, 469 U.S. at 228-29.
In the second part of the Terry stop analysis, this court determines whether the
degree of intrusion, “was reasonably related in scope to the situation at hand, which is
judged by examining the reasonableness of the officials’ conduct given their suspicions
and the surrounding circumstances.” Caruthers, 458 F.3d at 464, 468 (quotations
omitted) (noting that this court asks (1) whether the stop “was [] sufficiently limited in
time, and (2) were the investigative means used the least intrusive means reasonably
available”). The scope of the investigative stop depends on “the circumstances that
originally justified the stop,” United States v Martin, 289 F.3d 392, 396 (6th Cir. 2002),
No. 08-4378 United States v. Smith Page 9
and it is appropriate to consider whether the law enforcement officers, “diligently
pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the defendant,” Foster, 376 F.3d
at 585 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).
B. Initial interactions not a violation of the Fourth Amendment
Initially, Smith was not seized before Officer Putnick told him to stop. Although
the entire encounter took under two minutes, United States v. Drayton, 536 U.S. 194
(2002), which is very analogous to this case, clearly supports a finding that the officers’
initial interactions with Smith were consensual and, consequently, did not violate the
Fourth Amendment. In Drayton, the Supreme Court considered when a reasonable
person would consider an encounter with the police to be consensual. The Court
considered a situation where three police officers dressed in plain clothes (but carrying
weapons and visible badges) boarded a bus while the driver checked paperwork in the
terminal. Id. at 197. One officer knelt in the driver’s seat facing the rear of the bus, and
the other two officers went to the rear. Id. One officer remained at the rear of the bus,
while the other worked his way toward the front, speaking with individual passengers
as he went. Id. at 198. When he got to respondents Drayton and Brown, who were
sitting side by side, the officer approached them from the rear, leaned over Drayton’s
shoulder, briefly held up his badge, and “[w]ith his face 12-to-18 inches away from
Drayton’s . . . spoke in a voice just loud enough for respondents to hear.” Id. He told
them: “I’m Investigator Lang with the Tallahassee Police Department. We’re conducting
bus interdiction [sic], attempting to deter drugs and illegal weapons being transported
on the bus. Do you have any bags on the bus.” Id. (citation omitted) (emphasis in
original). He asked for, and received, consent to search a green bag above the
respondents; but his search did not reveal any contraband. Drayton, 536 U.S. at 199.
Then he asked for, and received, consent from Brown to search his person. Id. He
reached across Drayton to search Brown, and found contraband on Brown. Id. After
handcuffing Brown, and having another officer escort him off the bus, the officer asked
for, and received, consent to search Drayton. Id. He found additional contraband on
No. 08-4378 United States v. Smith Page 10
Drayton. Id. The Court found that this encounter between the officers and both
respondents was consensual. Id. at 203-206, 208.
As Drayton shows, officers can ask questions without reasonable suspicion.
Drayton, 536 U.S. at 197-99. Furthermore, they can position themselves immediately
beside and in front of a suspect and even reach across a suspect, provided they leave a
way out. Id. at 197-99, 201-02. Thus, the fact that uniformed police officers here were
asking Smith questions while surrounding him on both sides, in close physical
proximity, with another officer at some distance in front of him, did not make the
encounter non-consensual. Indeed, the fact that three officers rushed into the building
as Smith opened the door may have given Smith some cause for alarm. However, it is
more significant that the officers did not initially seek to arrest or stop Smith as they
entered the building. They did not block Smith in; instead, they merely tried to move
around and past him. This would have indicated to a reasonable person that the officers
were not trying stop him and that, unless he engaged in activity that generated a
reasonable, articulable suspicion, he was free to leave. Certainly, the officers were not
required to allow Smith out of the building before attempting to respond to an
emergency 911 call; however, their need to enter the building quickly did not mean that
a reasonable person would feel that he could not leave or that their initial encounter was
non-consensual.
Furthermore, even if we assumed that a reasonable person would not feel free to
leave, Smith still was not seized. In United States v. Jones, we considered a situation in
which a suspect did not immediately submit to the officers’ show of authority. 562 F.3d
at 774. In Jones, police officers blocked a car in with their vehicles, after which Jones,
a passenger, jumped out of the vehicle and started walking away from the officers. Id.
We noted that, despite that fact that “generally, when a police officer pulls over a vehicle
during a traffic stop, the officer seizes everyone in the vehicle, not just the driver . . .
there is no seizure without actual submission . . . [w]ithout actual submission, ‘there is
at most an attempted seizure.’” Id. (quoting Brendlin, 551 U.S. at 254). Jones did not
“passively acquiesce,” “remain seated,” or “submit to the show of authority” but instead
No. 08-4378 United States v. Smith Page 11
“opened the car door and ‘jumped out’ as though he wanted to run.” Id. The court held
that, “[b]ecause Jones’s initial response to the officers’ arrival cannot be construed as
submission to authority, there is no need to invoke the Brendlin reasonable person test
to determine when the seizure occurred.”3 Id.; see also United States v. McCauley, 548
F.3d 440, 443-44 (6th Cir. 2008). Instead, Jones’s failure to submit to the officers’ show
of authority meant that there was no seizure.
In this case, the officers did not use physical force to restrain Smith until they
grabbed him when he reached into his jacket (after Officer Putnick told Smith to stop).
Prior to that point, there is no evidence of any physical contact, and any physical contact
would have been unintentional and a byproduct of the hallway’s small parameters and
the officers’ efforts to enter quickly in response to the 911 emergency call (the officers
did not physically block Smith in). Furthermore, even assuming that the officers made
a show of authority when they surrounded Smith in the hallway in close physical
proximity as they attempted to enter the building, Smith did not passively acquiesce or
submit to their show of authority but, instead, tried throughout the encounter to push past
the officers. Continuing efforts to push past the officers do not constitute submission to
a show of authority. Consequently, there was no seizure at this point.
C. Smith’s activity when Officer Putnick told him to stop justified a
Terry stop
Once Officer Putnick asked Smith to stop, a reasonable person would not have
felt free to leave and the interaction turned into a Terry stop.4 Officer Putnick told Smith
that he was not free to leave at some point after the initial encounter but immediately
before Smith reached for his ID.5 At this point, as discussed above, the officers were
3
As discussed above, the reasonable person test asks whether, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.
4
Once he was told to stop, Smith stopped and thus submitted to the officers’ show of authority.
(R. 30 Putnick 47.)
5
Officer Putnick told Smith, “as long as he wasn’t involved in any of the activity upstairs, that
he would be free to leave, that we first had to go up and check that out” and “I’m just a little suspicious.
I don’t know if you’re involved. As soon as we can determine that you’re not, you’ll be free to leave.”
(R. 30 Putnick 19.)
Moreover, Officer Hill’s comment that, “[w]e asked him to slow down” is either irrelevant or is
No. 08-4378 United States v. Smith Page 12
justified in making an investigatory Terry stop because the officers had a reasonable
suspicion of criminal activity under the totality of the circumstances, which included:
(1) the emergency 911 call; (2) Smith’s efforts, with his head down, to push past the
officers and exit the building as the officers entered; (3) that these events took place in
a high-crime area in (4) the very early hours of the morning; and (5) Smith’s vague
responses to the officers’ questions.
Smith contends that the 911 call is not a significant factor in considering the
totality of the circumstances. Smith argues and the district court appears to have
assumed that the emergency 911 call was a silent or hang-up 911 call.6 In examining the
911 call, this court has found that a 911 hang-up call “standing alone without follow-up
calls by a dispatcher or other information, is most analogous to an anonymous tip.”
United States v. Cohen, 481 F.3d 896, 899-900 (6th Cir. 2007) (noting that a silent 911
call may be made for numerous, non-criminal reasons and that “without any information
from the caller, the silent 911 hang-up call was the equivalent of an anonymous 911
report that there might be an emergency, which might or might not include criminal
activity, at or near the address from which the call was made”). Cohen noted that a
“silent 911 hang-up call could be said to have suggested the possibility of, among other
things, a limited ‘assertion of illegality’ but, absent any observed suspicious activity or
other corroboration that criminal activity was afoot,” even that limited assertion could
not be accepted. Id. at 900 (citation omitted). The police officer who testified in that
case stated that a person had called 911, but that the person had hung up “right after they
dialed 911” without providing any additional information. Id. at 897 n.1. Thus, Cohen
indicates that a silent 911 call can provide some support for a reasonable suspicion of
identical, for analytical purposes, to Officer Putnick’s command. (R. 58 Hill 28.) Officer Hill’s testimony
may refer to Officer Putnick’s statements instructing Smith to stop. However, even if it referred to a
different comment, it was phrased as a request, which left Smith at liberty to continue on his way.
Furthermore, even it this comment did trigger an investigatory stop it, like Officer Putnick’s request, came
after the police had received sufficient information to justify a Terry stop. Consequently, the same analysis
applied to Office Putnick’s order to stop would apply to Officer Hill’s comment.
6
Officers Putnick and Weyda did not remember what type of 911 call it was. However, Officer
Hill offered testimony that the dispatcher reported that it sounded as if a struggle was going on inside the
apartment.
No. 08-4378 United States v. Smith Page 13
criminal activity but, by itself, cannot support a finding that the law enforcement officers
had a reasonable suspicion of criminal activity.
Therefore, even if we found that this was a silent 911 call, it offered a limited
“assertion of illegality” which, in conjunction with other factors, could provide the
officers with reasonable suspicion. However, in this case, Officer Hill testified that
some additional information was communicated with the 911 call: “I recall the
dispatcher saying it sounded like it was a struggle inside of the apartment building
because the line was still open.” (R. 58 Hill 31.) This information narrowed the
inferences as to what caused the emergency 911 call, suggested criminal activity and,
given the small number of apartments in the residential complex (i.e., there were 12
buzzer buttons or 12 listings for names) and the time of night, significantly increased the
probability that Smith might have been involved in criminal activity.
Furthermore, Smith’s refusal to move out of the way of the officers and his
efforts to push through them as they tried to enter the building and as they moved around
him, also supported a finding of reasonable suspicion. The Supreme Court has found
that flight from law enforcement officers in a high crime area can justify a reasonable
suspicion of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
Furthermore, this court has found that “nervous, evasive behavior is a pertinent factor
in determining reasonable suspicion.” Caruthers, 458 F.3d at 466 (citing Wardlow, 528
U.S. at 124) (finding that Caruthers’s action of “‘hurr[ying]’ away in a ‘semi-running’
manner” while not the same as “headlong flight” was still a relevant consideration in
examining the reasonableness of an investigatory Terry stop). Moreover, “flight is not
the only type of ‘nervous, evasive behavior.’ Furtive movements made in response to a
police presence may also properly contribute to an officer’s suspicions.” Id. at 466-67
(noting that this factor must not be “invoked cavalierly” but finding that Caruthers’s
“unusual posture” of “‘hunch[ing] down’ near a wall, ‘kind of leaning toward the
ground’” supported a finding of reasonable suspicion).
Here, the officers described Smith throughout the encounter as very agitated and
unsettled. More importantly, Smith did not merely run from the officers; instead, he
No. 08-4378 United States v. Smith Page 14
stood in their way, with his head down, and attempted to push through them and past
them. When they sought to enter the building, the police were not trying to investigate
or intimidate Smith, they were not purposefully seeking to slow him down or to inhibit
his movements; rather, they were seeking to respond as quickly as possible to a 911
emergency. In response, Smith did not get out of their way, or simply stand still;
instead, and without any explanation, he attempted, with his head down, to push his way
through and past the officers. Smith’s aggressive behavior, which inhibited the officers’
efforts to respond to a 911 emergency call, distinguishes this case from other Terry stop
situations and contributes significantly to our finding that the officers had a reasonable
suspicion of criminal activity.
Several other contextual considerations were also present, including that it was
“late at night” and “a high-crime area.” Caruthers, 458 F.3d at 467-68. Even though
“these factors may not, without more, give rise to reasonable suspicion . . . they are
relevant to the reasonable suspicion calculus.” Id. at 467 (numerous citations omitted)
(the incident in Caruthers took place at 1:20 a.m.). It was reasonable to conclude, based
on Officer Putnick’s prior testimony regarding his extensive experience in this area (and
with this apartment complex, in particular) that this was a high-crime area. Furthermore,
3:00 a.m., like 1:20 a.m. is, as Caruthers described it, “late at night.” While activity at
such hours and in such an area, by itself, certainly could have an innocent explanation,
in conjunction with the other factors, it supported a finding of reasonable suspicion.
Finally, Smith’s evasive, non-responsive, and vague answers to the officers’
questions, which (in part) prompted Officer Putnick’s instruction to stop, also provided
some additional basis for the officers’ reasonable suspicion. This court has noted that
a suspect, “need not answer any question put to him; indeed, he may decline to listen to
the questions at all and may go on his way. He may not be detained even momentarily
without reasonable, objective grounds for doing so; and his refusal to listen or answer
does not, without more, furnish those grounds.” United States v. Campbell, 486 F.3d
949, 954 (6th Cir. 2007) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)) (emphasis
added). Thus, while a suspect’s refusal to answer or listen does not, by itself, justify a
No. 08-4378 United States v. Smith Page 15
reasonable suspicion of criminal activity, it can be a factor that, together with other
factors, supports a finding of reasonable suspicion.
Here, Officer Weyda could not remember any of Smith’s responses to the
questions he was asked. But Officer Hill testified that Smith, “was kind of evasive in
his answers” and that he thought that Smith’s responses were “vague.” (R. 58 Hill 28,
43-44.) Officer Putnick testified that he asked Smith, “How you [sic] doing, sir? Do
you live here?” and that Smith “didn’t acknowledge me. He just kind of kept his head
down and tried to keep walking. At that point when he didn’t acknowledge me, my
suspicion raised a little bit and I asked him to stop.” (R. 30 Putnick 17-18.) Smith’s
refusal to answer some of the questions posed to him, and his vague and evasive answers
to other questions, provided further support for the officers’ reasonable suspicion that
he was engaged in criminal activity.
The district court could properly conclude that (1) the emergency 911 call,
(2) Smith’s efforts to push past the officers with his head down, (3) the time of night, and
(4) the fact that it was a high crime area, when analyzed together as required by the
Supreme Court, gave the officers a reasonable, articulable suspicion that Smith had been
engaged in criminal activity. The officers’ reasonable suspicion was not merely based
on an inchoate and unparticularized suspicion or hunch but, rather, on a common sense
conclusion and specific reasonable inferences which the officers were entitled to draw
from the facts in light of their experience. In short, when the only person present in the
hallway of a residential complex keeps his head down and tries to push past officers
while they are entering the complex in response to a 911 emergency call late at night,
the district court may properly conclude that those officers have a reasonable suspicion
that he has been engaged in criminal activity. Indeed, “[t]o have simply sent [Smith] on
his way, without brief further questioning at the very least, would have been plainly
unreasonable, even inept, police work.” Foster, 376 F.3d at 587 (citation omitted).7
Furthermore, (5) the fact that the dispatcher communicated that it sounded like a struggle
7
We also note that all of these factors were present before the officers had initially positioned
themselves around Smith.
No. 08-4378 United States v. Smith Page 16
was going during the 911 emergency and (6) Smith’s evasive, non-responsive, and vague
answers to the officers’ questions further support our conclusion.
Moreover, the degree of intrusion was reasonably related in scope to the situation
at hand. Officer Putnick told Smith to stop until they could investigate what sort of
emergency had necessitated the 911 call. Presumably, had Smith not – immediately
thereafter – reached into his jacket, and triggered a greater search, this would have only
taken a few minutes, after which Smith, if there was no further cause for suspicion,
would have been free to leave. Consequently, in the brief time before Smith reached into
his jacket, the police diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly and their actions did not violate the Fourth
Amendment.
D. Once Smith reached for his ID, the officers were justified in
grabbing him and, upon seeing the gun, seizing it
Almost immediately after the officers told Smith to stop, Smith suddenly reached
into his jacket. At this point, the officers were justified in grabbing him and the weapon
they observed in his waistband. An officer is permitted to conduct “a reasonable search
for weapons for [his or her] protection . . . where he [or she] has reason to believe that
he [or she] is dealing with an armed and dangerous individual.” Terry, 392 U.S. at 27
(1968). In making this determination, “the officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in danger.” Id.
Here, Smith’s sudden reach into his jacket, in conjunction with the factors that justified
the initial Terry stop and the fact that he was so close to the officers, gave the officers
reason to believe that they were dealing with an armed and dangerous individual.
Indeed, a reasonably prudent person in the circumstances would be warranted in the
belief that his safety or that of others was in danger. Furthermore, as they moved to keep
Smith from reaching into his jacket, Officer Putnick immediately saw a gun, which he
seized. The officers’ response to Smith’s sudden hand movement into his jacket did not
violate the Fourth Amendment.
No. 08-4378 United States v. Smith Page 17
III. CONCLUSION
The officers’ initial contact with Smith, as they entered the building in an attempt
to respond to the emergency 911 call, did not result in a seizure in violation of the Fourth
Amendment. Furthermore, when Officer Putnick told Smith to stop, there was a proper
basis for an investigatory Terry stop and the degree of intrusion was reasonably related
in scope to the situation at hand. Consequently, since the officers’ actions did not violate
the Fourth Amendment, we AFFIRM the district court’s decision denying Smith’s
motion to suppress and denying his motion for reconsideration and AFFIRM his
conviction.