NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0063n.06
No. 11-5502
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jan 17, 2012
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
MICHAEL GREGORY, ) KENTUCKY
)
Defendant-Appellant. )
Before: SILER, McKEAGUE, and STRANCH, Circuit Judges.
SILER, Circuit Judge. Defendant Michael Gregory pled guilty to possessing a firearm while
subject to a domestic violence protection order in violation of 18 U.S.C. § 922(g)(8), reserving the
right to appeal the district court’s denial of his motion to suppress. Gregory claims that a ruse
employed by police officers violated his rights under the Fourth Amendment. He also argues that
his Sixth Amendment rights were violated when the officers failed to notify Gregory’s counsel
before questioning him. For the reasons stated below, we AFFIRM the district court’s denial of
Gregory’s motion to suppress.
I.
In 2009, Detective Joshua Bunch, an arson investigator with the Kentucky State Police, called
Gregory at his place of business, Gregory’s Auto Sales. Gregory’s residence had incurred fire
damage, and Bunch was investigating possible arson. Bunch asked Gregory to accompany him to
Gregory’s residence, explaining that the surveillance system needed to be examined. In fact, this
request was a ruse to coordinate a meeting between Gregory, Special Agent Vince Kersey of the
Drug Enforcement Agency (“DEA”), and Detective Sam Johnson of Operation UNITE. Kersey and
Johnson hoped to interview Gregory regarding an ongoing drug investigation and possibly obtain
his cooperation as an informant.
Gregory stated that he would drive separately and meet Bunch at the burned residence, but
Bunch pulled into the parking lot at Gregory’s Auto Sales and asked Gregory to ride with him.
Gregory agreed to ride with Bunch on the four-mile drive to Gregory’s residence.
Kersey and Johnson arrived at the residence soon after Gregory and Bunch. Kersey identified
himself as a DEA agent and informed Gregory that he was not under arrest. Gregory already knew
Johnson. Although the exact account is disputed, at some point Gregory indicated that he was
carrying a firearm. Kersey was aware that Gregory was subject to an active domestic violence order
and confiscated the weapon.
Bunch subsequently left, leaving Kersey, Johnson, and Gregory in Kersey’s vehicle. Gregory
informed Kersey and Johnson that he had been arrested on drug charges in Texas and that he was
represented by counsel in that matter, but Kersey explained that they were only interested in another
specific drug operation. The officers did not question Gregory about his Texas arrest or about the
firearm they had seized. When the discussion ended after thirty minutes, the officers left and
Gregory used his cell phone to get a ride back from his burned residence.
Gregory was later indicted for possession of a firearm while subject to a domestic violence
protection order in violation of 18 U.S.C. § 922(g)(8). He filed a motion to suppress, arguing that
the officers’ ruse and the weapon seizure constituted an unreasonable search and seizure under the
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Fourth Amendment. After an evidentiary hearing, the district court denied Gregory’s motion to
suppress. Gregory then pled guilty, reserving his right to appeal the district court’s denial of his
motion.
II.
“This court reviews the district court’s factual findings in a suppression hearing under the
clearly erroneous standard and the district court’s conclusions of law de novo.” United States v.
Avery, 137 F.3d 343, 348 (6th Cir. 1997).
III.
Gregory claims that all the evidence should be suppressed in this case under the Fourth
Amendment. First, he argues that he was illegally seized when he rode in Bunch’s vehicle to his
burned residence. Second, he argues that even if this encounter is found to be consensual, the
consent is negated by the use of the ruse to trick him into joining Bunch. Finally, Gregory argues
that he was illegally searched when Kersey allegedly asked if he had any weapons and subsequently
confiscated the firearm.
A. Ride with Detective Bunch
Because consensual encounters are not covered by the Fourth Amendment’s protections, the
first question in this case is whether Gregory’s accompanying Bunch in Bunch’s vehicle should be
characterized as a seizure under the Fourth Amendment or a consensual encounter. See Avery, 137
at 352 (“The consensual encounter, however, is not a seizure and hence not governed by the Fourth
Amendment.”). The voluntariness of consent in any case “is determined by examining the totality
of the circumstances.” United States v. McCauley, 548 F.3d 440, 446 (6th Cir. 2008) (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).
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The “totality of the circumstances” here demonstrate that Gregory’s freedom of movement
was not restrained and he was not seized. See id. As explained above, Bunch arrived at Gregory’s
business while the two were speaking on the phone and requested that Gregory ride with him to
Gregory’s residence. Bunch was not wearing his uniform, did not wield his weapon, and did not
engage in any threatening behavior at all. The district court specifically found that Bunch did not
“order” Gregory into the car, a finding that is consistent with the record and certainly not “clearly
erroneous.” See Avery, 137 F.3d at 348. In fact, the reason Bunch was asked to set up the ultimate
meeting in this case was because of the relationship and rapport he had built with Gregory over the
course of the arson investigation.
These facts differ significantly from those present in United States v. Ceballos, 812 F.2d 42
(2d Cir. 1987), where the court found that a “request” to accompany officers to the police station
constituted a seizure. The court there found that “a request to appear at a police station may easily
carry an implication of obligation” and that “a reasonable person would have felt obligated to
accompany the agents immediately . . . when they refused [defendant’s] request to follow them in
a vehicle [the defendant] was authorized to drive.” Id. at 48 (internal quotation marks omitted).
Although Gregory did offer to drive his own vehicle, this case is readily distinguishable from
Ceballos. Bunch arrived by himself in street clothes and an unmarked car, and he did not use any
“language or tone of voice indicating that compliance with [his] request might be compelled.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980). Most importantly, Bunch requested that
Gregory accompany him to Gregory’s own property, a request that is far less threatening than an
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urgent request to accompany four officers to the police station. The facts in this case demonstrate
a non-confrontational, consensual encounter between Bunch and Gregory.
B. The Officers’ Ruse
Because the initial encounter between Bunch and Gregory was consensual, the question then
becomes whether the consent was negated by the officers’ use of a ruse. In some instances, a ruse
or trick by the police can undermine an otherwise consensual encounter. See, e.g., United States v.
Hardin, 539 F.3d 404, 424-27 (6th Cir. 2008) (finding a Fourth Amendment violation where
apartment manager, at direction of police, carried out a ruse involving a water leak prior to officers’
serving arrest warrant).
Importantly, the question is not whether Gregory may have declined Bunch’s request had he
known the officer’s true motivation. Rather, the question under the Fourth Amendment is whether
the “‘police misrepresentation of purpose [was] so extreme that it deprive[d] the individual of the
ability to make a fair assessment of the need to surrender his privacy.’” Hardin, 539 F.3d at 425
(quoting 2 Wayne R. LaFave et al., Criminal Procedure § 3.10(c) (3d ed. 2007)). Essentially, the
question this court must ask is whether the ruse created a scenario where Gregory “ha[d] no choice”
but to concede his privacy interests. Id. (quoting United States v. Copeland, No. 95-5596, 1996 WL
306556, *3 n.3 (6th Cir. June 6, 1996)). The Hardin court concluded that “the ruse regarding the
water leak presented a situation in which an individual would feel ‘no choice but to invite the
undercover officer in’ and any consent was invalid.” Id. (quoting Copeland, 1996 WL 306556 at
*3 n.3).
This case does not present the type of situation addressed in Hardin. Although Gregory
believed that he would be traveling to his residence to examine evidence in the arson investigation,
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rather than meet with other officers concerning an ongoing drug case, he was fully aware that he
would be accompanying a law enforcement officer. By contrast, in Hardin, the defendant believed
he was interacting simply with an apartment manager, not a government agent. Moreover, the water
leak ruse in Hardin undoubtedly created a sense of urgency and compulsion for the defendant who
was residing in the apartment. Despite the ruse in this case, Gregory maintained “the ability to make
a fair assessment of the need to surrender his privacy.” Id. at 425.
C. Firearm Seizure
Finally, Gregory claims that, even if the entire encounter was consensual, he was illegally
searched when Kersey allegedly asked if he had any weapons and subsequently confiscated the
firearm Gregory was carrying in his jacket.1 At the outset, it is important to note that this encounter
remained consensual when Bunch and Gregory arrived at the residence and were joined by Kersey
and Johnson. At this point, Gregory learned of the ruse and was told the true reason for the meeting.
Although Gregory’s freedom of movement was in some sense limited, as he was at his isolated
residence without his own vehicle, he was not physically restrained, and the officers did not use any
physical force or engage in any threatening or intimidating behavior. Because of the cold weather,
the three men sat in Kersey’s vehicle to discuss the investigation, with Gregory sitting in the front
passenger seat. By all accounts, the encounter and discussion between Gregory and the two officers
was non-confrontational and non-hostile.
1
The government argues in its brief that Gregory has waived this claim by failing to
develop an argument. See United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006). While
Gregory’s argument on this specific point is rather perfunctory, the claim can still be quickly
addressed on the merits.
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There are differing accounts of the events leading to the confiscation of Gregory’s firearm.
Gregory claims that Kersey initiated the search by “ask[ing] [him] if [he] had anything on his persons
[sic] that would . . . be harmful or violent,” while Kersey suggested that Gregory volunteered the
information that he was carrying a firearm without any prompting from the officers. Significantly,
Gregory does not claim that Kersey simply frisked him and found the gun. Even assuming that
Gregory’s account is true, his Fourth Amendment rights were not violated.
During a consensual encounter like this one, “law enforcement officers may . . . ask general
questions without having any reasonable suspicion of criminal activity, so long as the officers refrain
from the type of intimidating behavior that would lead a reasonable person to believe that the person
was not free to leave.” United States v. Waldon, 206 F.3d 597, 603 (6th Cir. 2000). When Kersey
asked Gregory if he was carrying a weapon, that question did “not transform the [consensual
encounter] into a seizure.” Mitchell v. United States, 233 F. App’x 547, 550 (6th Cir. 2007).
Gregory voluntarily answered this question in the affirmative, at which point Kersey, who was aware
of the active domestic violence order against Gregory, had a “reasonable, articulable suspicion” that
Gregory unlawfully possessed a firearm in his jacket. Avery, 137 F.3d at 352. Kersey was then
entitled to search Gregory and confiscate the illegally held weapon. Therefore, Gregory’s Fourth
Amendment rights were not violated.
IV.
Prior to this incident, Gregory had retained counsel regarding drug charges in Texas. Here,
Gregory summarily claims that the officers violated his Sixth Amendment rights by failing to notify
his counsel before questioning him. Gregory has waived any argument under the Sixth Amendment
for two reasons. First, the argument has been waived because Gregory failed to raise the issue with
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the district court. United States v. Bonds, 12 F.3d 540, 569 (6th Cir. 1993) (holding that defendant
waived argument by failing to raise it in suppression hearing).
Second, it has been waived because he failed to develop it in his brief. See Johnson, 440
F.3d at 846 (“‘[I]t is a settled appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.’” (quoting United
States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)). Gregory does not devote any argument
headings to this issue, does not cite any caselaw, and in fact does not develop the argument at all.
Finally, even if it was not waived, Gregory’s Sixth Amendment claim lacks merit. All
evidence suggests that the officers were not interested in the Texas matter and did not question
Gregory about it. Even if Gregory’s Sixth Amendment claim has not been waived, his rights were
not violated by the officers’ questioning.
AFFIRMED.
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