RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0078p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-6316
v.
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Defendant-Appellant. -
JOEY CARR, JR.,
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Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 07-10022-001—James D. Todd, District Judge.
Argued: November 29, 2011
Decided and Filed: March 20, 2012
Before: MOORE and ROGERS, Circuit Judges; THAPAR, District Judge.*
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COUNSEL
ARGUED: David W. Camp, LAW OFFICE OF DAVID CAMP, Jackson, Tennessee,
for Appellant. Kevin G. Ritz, ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee. ON BRIEF: David W. Camp, LAW OFFICE OF DAVID
CAMP, Jackson, Tennessee, for Appellant. Jerry R. Kitchen, ASSISTANT UNITED
STATES ATTORNEY, Jackson, Tennessee, for Appellee.
ROGERS, J., delivered the opinion of the court, in which THAPAR, D. J., joined.
MOORE, J. (pp. 10–13), delivered a separate dissenting opinion.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 10-6316 United States v. Carr Page 2
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OPINION
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ROGERS, Circuit Judge. This is our second opportunity to consider the
purported seizure of Defendant Joey Carr’s car. On the night of August 29, 2006, two
police officers approached Carr’s white Chevy Tahoe, which was parked in an otherwise
empty coin-operated carwash. After seeing furtive movements, and observing marijuana
on Carr’s dashboard, the police arrested Carr and searched the Tahoe. They discovered
a gun, crack cocaine, and marijuana. Carr was charged with intent to distribute,
21 U.S.C. § 841(a), possession of a firearm, 18 U.S.C. § 924(c), and being a felon in
possession of a firearm, 18 U.S.C. § 922(g). Following a suppression hearing, the
district court denied Carr’s motion to suppress the fruits of the search. Carr appealed
and we remanded for further fact-finding. On remand, the district court conducted a
second evidentiary hearing and again denied Carr’s motion to suppress. This was proper
because Carr and the officers had a consensual encounter and no seizure occurred when
the officers parked their cruiser and approached Carr’s vehicle. Even if a seizure had
occurred, the officers had reasonable suspicion sufficient to justify stopping Carr.
I.
On the night of August 29, 2006, three officers from the Madison County Metro
Narcotics Unit—Lieutenant William Carneal and Investigators Marc Byrum and David
Coffman1—were patrolling a high-crime area in which the Narcotics Unit had made
several previous drug arrests. While stopped at a traffic light in their unmarked black
Ford Explorer, the officers noticed a white Chevy Tahoe parked in the wash bay of a
coin-operated carwash. The officers had information that the carwash was a meeting
place where illegal narcotics were sold. The Tahoe was the only car at the carwash and
1
The district court spelled the officer’s name “Coffman” while the government spelled his name
“Kaufmann.” For the purposes of this opinion, the court adopts the district court’s spelling.
No. 10-6316 United States v. Carr Page 3
the officers could not determine whether the Tahoe was occupied. No one was washing
the vehicle.
When the light changed, the officers proceeded up the road, turned around, and
returned to the carwash a few minutes later. The Tahoe had not moved from the carwash
bay, and no one was washing it. The officers testified that they did not see any illegal
activity, but were concerned that the car was abandoned or that an occupant was sick or
injured. The officers drove into the carwash parking lot to approach the vehicle.
The officers parked their unmarked Explorer at an angle, approximately 12 feet
from the front of the Tahoe’s passenger’s side. Carr, the driver of the Tahoe, could have
driven forward past the Explorer or, alternatively, could have backed out of the open
carwash bay. Officer Byrum testified that “there was enough room that [Carr] could
have just merely steered around [the Explorer],” and that there was “ample room to steer
and maneuver around our vehicle.”
As the unmarked Ford Explorer came to a stop, the officers “momentarily
activated the blue lights,” which were “immediately turned off” in order “to inform the
passenger of the vehicle that [they] were police and not someone trying to do him harm.”
Officers Carneal and Byrum exited the Explorer and approached the Tahoe on foot.
Officer Carneal went to the Tahoe’s passenger’s side and Officer Byrum walked to the
driver’s side. Neither officer drew his weapon. As they approached, the officers saw
Carr bending toward the middle console, fidgeting with his hands. When they arrived
at the vehicle, Officer Carneal looked through the passenger-side window and saw a bag
of marijuana sitting on the console of the Tahoe. Officer Byrum asked Carr to exit the
Tahoe and undergo a safety patdown for weapons. Carr complied, but as he exited the
vehicle, Officer Byrum noticed loose tobacco fall off Carr’s clothing. The officers
arrested Carr. Carr consented to a search of the vehicle, which uncovered marijuana,
crack cocaine, plastic bags, scales, a large amount of money and a loaded handgun.
Carr was charged with intent to distribute, 21 U.S.C. § 841(a), possession of a
firearm, 18 U.S.C. § 924(c), and being a felon in possession of a firearm, 18 U.S.C.
§ 922(g). Following a full evidentiary hearing, the district court denied Carr’s motion
No. 10-6316 United States v. Carr Page 4
to suppress, finding that the encounter between Carr and police was consensual or, in the
alternative, that the stop was supported by reasonable suspicion. Carr entered a
conditional guilty plea and appealed the order denying his motion to suppress. We
remanded for further fact-finding regarding the positioning of the police car and to
determine the extent to which the blue police lights were used. United States v. Carr,
355 F. App’x 943, 946–47 (6th Cir. 2009). On remand, the district court again
conducted a full evidentiary hearing, after which it issued an order denying Carr’s
motion to suppress for a second time. The district court found that Carr’s encounter with
the officers was consensual because the police car did not block Carr’s exit from the
carwash. Alternatively, the court found that the officers had reasonable suspicion to
detain Carr because the encounter occurred in a high-crime area at night, the carwash
was a known meeting place for drug dealers, and the car was in the bay of the carwash
with no one washing it. Finally, the district court held that even if there was no
reasonable suspicion to support the stop, suppressing the evidence would have no
deterrent effect on improper police conduct. Carr filed this timely appeal.
II.
A. Consensual Encounter
Carr’s encounter with the officers occurred in three stages: the parking of the
police vehicle, the officers’ approach on foot, and Carr’s exit from his vehicle. As a
threshold matter, the stop was consensual at the point where the officers parked their
unmarked police car near Carr’s Tahoe. A “consensual encounter” occurs when “a
reasonable person would feel free to terminate the encounter.” United States v. Drayton,
536 U.S. 194, 201 (2002). This court has analyzed similar civilian-police encounters by
determining whether the police vehicle blocked the defendant’s egress. See, e.g., United
States v. See, 574 F.3d 309, 313 (6th Cir. 2009); United States v. Gross, 662 F.3d 393,
399–400 (6th Cir. 2011). As the concurrence in See suggested, unless there is other
coercive behavior, a police officer can initiate a consensual encounter by parking his
police vehicle in a manner that allows the defendant to leave. See, 574 F.3d at 315
(Gilman, J., concurring). Here, the police officers parked their unmarked, black Ford
No. 10-6316 United States v. Carr Page 5
Explorer at an angle in front of Carr’s Tahoe. The angle of the police vehicle gave Carr
sufficient room to drive either forward or backward out of the carwash bay. Although
pulling forward would have required “some maneuvering” for Carr to get around the
Explorer, “there was enough room that [Carr] could have just merely steered around [the
Explorer].” As one of the officers testified, Carr had “ample room to steer and maneuver
around our vehicle.” Because the police vehicle allowed Carr to exit the carwash, albeit
with “some maneuvering,” Carr’s car was not blocked for Fourth Amendment purposes.
To conclude otherwise would be an endorsement of a “simplistic, bright-line rule” that
a detention occurs “any time the police approach a vehicle and park in a way that allows
the driver to merely drive straight ahead in order to leave.”
The officers’ use of blue lights was not sufficiently coercive to transform this
encounter into a compulsory stop. An encounter does not become compulsory merely
because a person identifies himself as a police officer. See O’Malley v. City of Flint, 652
F.3d 662, 669 (6th Cir. 2011). As the officers drove towards the bay, they activated the
blue police lights once and immediately switched them off. The officers testified that
they did this to identify themselves as police officers. The objective facts support this
testimony: the encounter occurred at night in the parking lot of an otherwise vacant
business, and the Explorer was an unmarked police vehicle. Given these facts, it would
be reasonable for the officers to identify themselves as police officers by flashing the
vehicle’s blue lights once.
Carr’s case is distinguishable from See, 574 F.3d at 313, and Gross, 662 F.3d at
399–400, because in both of those cases, the officer blocked any egress by parking
directly in front of or behind the defendant’s car. In See, the court appears to have made
this the sole basis for finding that a Terry stop occurred: “[g]iven the fact that [the
officer] blocked See’s car with his marked patrol car, a reasonable person in See’s
position would not have felt free to leave.” See, 574 F.3d at 313 (emphasis added).
Carr’s case stands in contrast to both See and Gross because Carr was not blocked into
the carwash bay, but rather could have left through either the front or the rear of the bay.
No. 10-6316 United States v. Carr Page 6
The encounter continued to be consensual as the officers approached Carr’s
Tahoe on foot. One officer approached the driver’s door while another approached the
passenger’s door. We have held that approaching the vehicle in this manner, by itself,
does not make the encounter non-consensual. In United States v. Dingess, 411 F. App’x
853, 855-56 (6th Cir. 2011), this court held that the following conduct constituted a
consensual encounter:
[Two officers] parked their cruiser on the street, leaving the driveway
entrance clear. [Officer #1] approached the driver’s door while [Officer
#2] approached the passenger’s door. According to the officers, both the
driver’s and the passenger’s windows were down. As the officers
approached the rear bumper, they smelled burning marijuana; as they
moved closer, [Officer #1] observed Dingess holding a marijuana blunt
in his right hand.
Id. at 854. The officers here similarly approached Carr’s vehicle on both sides, which
by itself does not compel a finding the encounter was not voluntary. Further, the officers
did not engage in any coercive behavior that would make the encounter non-consensual.
Examples of circumstances that might indicate seizure are “the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.” United States v. Peters, 194 F.3d 692,
697 (6th Cir.1999) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
None of this is present in Carr’s case. To the contrary, the officers did not draw their
weapons, and the officers testified that their entire conversation with Carr was polite and
friendly in tone. The encounter remained consensual because no indicator of coercion
was present.
Our sister circuits have found similar police encounters to be consensual. For
example, the Tenth Circuit found a consensual encounter where the police car was
parked at an angle near the defendant’s car, but did not block defendant’s car from
leaving a parking lot. United States v. Ringold, 335 F.3d 1168, 1172 (10th Cir. 2003).
In that case, the officers approached the car without touching their weapons, and the
conversation was polite and friendly in tone. Id. The court concluded the encounter was
No. 10-6316 United States v. Carr Page 7
consensual because the defendant’s egress was not impeded and there was no coercive
conduct by the officers.
When the officers asked Carr to exit the vehicle, the encounter transformed from
voluntary to compulsory. “Once a consensual encounter escalates to the point where the
individual is ‘seized,’ the police officer must have a reasonable suspicion of criminal
activity to justify a Terry stop, or probable cause to justify an arrest, in order for the
seizure to comply with the Fourth Amendment.” United States v. Campbell, 486 F.3d
949, 954 (6th Cir. 2007). This seizure was constitutional because Carr’s actions,
coupled with the officer’s observation of marijuana in the car, provided reasonable
suspicion that Carr was engaging in illegal activity. See United States v. Davis, 430 F.3d
345, 355 (6th Cir. 2005). As the officers approached the car, they observed Carr’s
furtive movements as well as a bag of marijuana sitting inside the car. As Carr exited
the vehicle, Officer Byrum noticed loose tobacco fall off Carr’s clothing. The
combination of Carr’s furtive movements with the officers’ identification of what
appeared to be illegal contraband in the vehicle, provided reasonable suspicion sufficient
to support the stop.
B. Reasonable Suspicion
Even if Carr had been detained at the initial encounter, reasonable suspicion
would have justified the detention. To determine the constitutionality of a brief
investigatory stop, we examine the “totality of the circumstances” to determine whether
a reasonable officer would have had a “particularized and objective basis” to suspect
legal wrongdoing. United States v. Brown, 447 F. App’x 706, 711 (6th Cir. Jan 6, 2012).
Here, there was a particularized and objective basis to believe that legal wrongdoing was
occurring at the carwash. The area in question, Lane Avenue, was a high-crime area.
Officers Carneal and Byrum each testified that a confidential informant had told them
that the carwash was a meeting place for drug dealers. When driving through this high-
crime area at night, past a known meeting place of drug dealers, the officers spotted a
lone car in a carwash bay, that was not being washed. When they returned a few minutes
later, they again observed the same car in the carwash bay and again noted that it was
No. 10-6316 United States v. Carr Page 8
not being washed. Although the officers testified that they did not witness any illegality,
objectively, the officers had reasonable suspicion to approach Carr’s car.
It would be error for us to disregard the time of day and the fact that the area was
a high-crime area when making the totality of the circumstances determination.
Although the time of day and the fact that it was a high-crime area, standing alone, are
insufficient to support reasonable suspicion, see See, 574 F.3d at 314, these factors
inform this court’s “totality of the circumstances” inquiry when considered in light of
the facts of this case. Id. at 313 (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)).
When viewed in this manner, as discussed above, the facts provided the officers with
reasonable suspicion to approach Carr’s Tahoe.
Further, this case is distinguishable from See and Gross, both of which happened
in a residential parking lot in Ohio. Parking a car in an otherwise vacant carwash that
is a known meeting area for drug dealers, at night, and not washing that car, raises a
different magnitude of suspicion than parking in a lot behind a residential building.
Although it is possible that Carr was waiting for someone to return with change, as he
claims, this was not reasonably likely—the carwash was set back from the road and the
nearest business, a gas station, was closed. If Carr had needed change, given the
location of the carwash, he would have more likely gone to get change in the very car
in which he sat. This varies substantially from the events in See, where the defendant
claimed he was parked in the parking lot of a residence to wait for a woman whom he
wished to see. See, 574 F.3d at 311 n.2. It is at least plausible that the defendant in See
was in the parking lot waiting for a woman, whereas it is not plausible that Carr was
waiting for change.
Because this was a consensual encounter, or alternatively, a valid Terry stop,
there is no need to address whether suppression is appropriate in light of the
exclusionary rule’s purpose.
No. 10-6316 United States v. Carr Page 9
III.
The district court’s order denying Carr’s motion to suppress is affirmed.
No. 10-6316 United States v. Carr Page 10
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DISSENT
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KAREN NELSON MOORE, Circuit Judge, dissenting. The factual record
developed by the district court on remand essentially affirmed that previously presented
to this court for review. Accordingly, the conclusion I previously expressed in
concurrence remains unchanged: The encounter between Carr and the police officers
was neither consensual nor supported by reasonable suspicion and, consequently, was
in violation of the Fourth Amendment. See United States v. Carr, 355 F. App’x 943, 949
(6th Cir. 2009) (unpublished opinion) (Moore, J., concurring).
I. CONSENSUAL ENCOUNTER
The law of this Circuit is clear that a Terry stop occurs when a police officer
positions his or her vehicle to prevent an individual from physically leaving a citizen-
police encounter. United States v. See, 574 F.3d 309, 313 (6th Cir. 2009); United States
v. Gross, 662 F.3d 393, 399-400 (6th Cir. 2011). The law is also clear that, absent other
coercive actions, a Terry stop does not occur when a police officer positions his or her
vehicle so as to preserve the individual’s ability to leave the scene easily and without
obstruction. See, e.g., United States v. Dingess, 411 F. App’x 853, 856 (6th Cir. 2011)
(unpublished opinion) (concluding encounter was consensual where officers parked on
gravel on the side of the road “without blocking Dingess’s egress”). However, the law
has never endorsed a bright-line rule that so long as an individual can physically leave
the site of a citizen-police encounter, the encounter remains consensual for Fourth
Amendment purposes. See United States v. Baldwin, 114 F. App’x 675, 678 (6th Cir.
2004) (unpublished opinion) (concluding that where officers parked both in front of and
behind defendants’ vehicle, the defendants were seized even if it remained unclear
whether they “could have exited the area even if they felt free to do so”). Instead, the
standard is whether a reasonable person would feel free to leave under the totality of the
circumstances. See, 574 F.3d at 313.
No. 10-6316 United States v. Carr Page 11
On remand, a second law-enforcement officer testified, and corroborated his
partner’s prior testimony, that the police vehicle was stopped approximately ten-to-
twelve feet from Carr’s vehicle, R. 102 (Evid. Hr’g Tr. at 20:20), that the police officers
flashed their lights once to identify themselves, id. at 16:17-19, and that, while it was
possible for Carr to leave the scene, he would have had “to steer and maneuver around
[the police] vehicle” to exit forward or back up and reverse his vehicle to exit through
the car wash’s rear, id. at 21:1-3, 26:23-24. The officer also testified that maneuvering
the car forward would have required steering toward a “rail” and a “ditch” located near
the vehicles, both of which were large sport-utility vehicles. Id. at 26:4-15, 27:8-22.
While perhaps it was physically possible for Carr to leave the scene of the
encounter, doing so would have been no simple feat given the various obstacles and
maneuvering required. The police officers positioned their vehicle so as to obstruct
Carr’s forward-exit pathway, leaving him with only a clear rear exit, which would have
required him to reverse the direction of his vehicle. Moreover, it was not as if the police
officers were without other options for the positioning of their vehicle: They could have
entered through the rear of the car wash and parked behind Carr’s vehicle so that his
forward-exit pathway was completely unobstructed, or they could have parked inside or
in front of one of the adjacent bays. See id. at 29:1-30:7. The police officers, however,
chose not to do so. Their choice is relevant because it gave nonverbal cues to Carr about
his freedom to terminate the encounter. Specifically, the flashing of the lights combined
with the aggressive positioning of the police vehicle signaled to Carr that a stop was
occurring and that he was not free to terminate the encounter.1 Consequently, at the
moment the police officers parked their vehicle in front of Carr’s vehicle a Terry stop
occurred.
1
Ironically, it is the majority’s opinion that appears to endorse a bright-line rule—the
establishment of which it criticizes—that, so long as a driver can physically leave the site of a citizen-
police encounter, he has not been subject to a Terry stop.
No. 10-6316 United States v. Carr Page 12
II. REASONABLE SUSPICION
The question that follows is whether there was reasonable suspicion to justify the
Terry stop. No new facts regarding reasonable suspicion came to light during the
evidentiary hearing on remand. Thus, the issue is whether reasonable suspicion existed
in light of the three facts previously identified by this court: (1) that Carr’s vehicle was
parked at night at a car wash, but was not being washed (or at least not during the two-
to-three minutes that the police officers observed the vehicle); (2) that the car wash was
in a high-crime area; and (3) that the police officers previously received information that
narcotics transactions had taken place at the car wash. Carr, 355 F. App’x at 944. Our
precedent compels the conclusion that these facts do not support a finding of reasonable
suspicion. Gross, 662 F.3d at 400 (concluding that the “fact that Williams observed a
vehicle parked in a public parking lot with the engine running and no driver behind the
wheel in the early hours of the morning with a passenger ‘slumped down’ in the front
passenger seat” did not alone support a finding of reasonable suspicion); See, 574 F.3d
at 314 (finding a lack of reasonable suspicion where the police officer “was not
responding to a complaint, he did not suspect the men of a specific crime, he had not
seen the men sitting in the car for an extended period of time, he was not acting on a tip,
he had not seen the men do anything suspicious, and the men did not try to flee upon
seeing [the police officer] approach”).
As the majority admits, we have held that the time of day and high-crime nature
of the area are insufficient to support reasonable suspicion. See, e.g., See, 574 F.3d at
314; United States v. Blair, 524 F.3d 740, 750-51 (6th Cir. 2008); United States v.
Caruthers, 458 F.3d 459, 467-68 (6th Cir. 2006). Although here a police officer testified
that there was “information” that the car wash in question “was a meeting place” for
narcotics transactions, the officer stated that they had never executed “any undercover
drug buys” at this particular car wash. R. 81 (Supp. Hr’g Tr. at 8:25-9:12). Moreover,
there was no testimony of any tips that a narcotics transaction would be occurring at the
car wash at the time that they observed Carr’s vehicle in the bay. The fact that the police
officers had a broad, general, and uncorroborated tip that narcotics transactions had
No. 10-6316 United States v. Carr Page 13
occurred at this car wash in the past did not provide reasonable suspicion that Carr was
involved in such a transaction by virtue of his presence at the car wash. Florida v. J.L.,
529 U.S. 266, 271 (2000) (anonymous uncorroborated tips “lack[ing] the moderate
indicia of reliability” and “provid[ing] no predictive information and therefore [no]
means to test the informant’s knowledge or credibility” are insufficient to establish
reasonable suspicion); cf. Caruthers, 458 F.3d at 468 (“[A]n individual, whose general
appearance and location matched the description given in the anonymous shot-fired call,
fled and made furtive movements when approached by the police late at night in a high-
crime area—provided reasonable suspicion to conduct a Terry stop.”). In essence, this
tip was no different than the instruction to the officer in See to pay attention to loiterers
because of knowledge of increased robberies in the area. See See, 574 F.3d at 314.
Moreover, the lack of visible activity for two-to-three minutes, even in a
nonresidential parking lot, was not sufficient to supply reasonable suspicion under See
and Gross. Even the officers testified that when they approached the vehicle to
investigate they did not have any particularized suspicions of criminal wrongdoing, but
were more concerned about citizen welfare. R. 81 (Supp. Hr’g Tr. at 9:17-24, 16:21-
17:21).2 That the officers found Carr’s presence at the car wash “odd” was simply not
equivalent to reasonable suspicion to investigate. Id. at 9:20. Perhaps after a more
lengthy observation of the car parked without any washing activity the police officers’
hunches would have ripened into reasonable suspicion. However, the police officers
chose not to allow for this possibility. In doing so, they acted in violation of the Fourth
Amendment.
Accordingly, I respectfully dissent.
2
This Circuit recently reaffirmed that a “community-caretaking function” is distinct from criminal
investigation and cannot, standing alone, justify an investigative stop. Gross, 662 F.3d at 400-01
(distinguishing instance where officer conducted an investigative stop in the interest of community well-
being where there was already an illegality justifying the stop).