RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0081p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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No. 11-3573
v.
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Defendant-Appellee. -
DEJUAN MCCRANEY,
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Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:10-CR-304-1—Lesley Brooks Wells, District Judge.
Decided and Filed: March 21, 2012
Before: GUY, COLE, and ROGERS, Circuit Judges.
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COUNSEL
ON BRIEF: Duane J. Deskins, ASSISTANT UNITED STATES ATTORNEY,
Cleveland, Ohio, for Appellant. Thomas E. Conway, LAW OFFICE OF THOMAS E.
CONWAY, Cleveland, Ohio, for Appellee.
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OPINION
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RALPH B. GUY, JR., Circuit Judge. The United States of America appeals from
the order granting the defendant’s motion to suppress evidence which the district court
found was the product of an illegal automobile search. Narrowing its arguments on
appeal, the government contends that the search was permissible either as a search
incident to arrest consistent with Arizona v. Gant, 556 U.S. 332 (2009), or as a search
based on reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), and Michigan v.
Long, 463 U.S. 1032 (1983). For the reasons that follow, we find no error and affirm.
1
No. 11-3573 United States v. McCraney Page 2
I.
Defendant DeJuan McCraney was charged with one count of being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).
Defendant moved to suppress evidence seized in the automobile search—namely, the
loaded .44 caliber revolver found under the driver’s seat—as well as statements he later
made admitting that the firearm belonged to him. After an evidentiary hearing, the
district court granted the defendant’s motion to suppress in an order entered April 22,
2011. The government filed an appeal, which this court has expedited for decision.
Except as noted, the facts are not in dispute.
On appeal from the grant or denial of a motion to suppress, this court reviews the
district court’s factual findings for clear error and its legal conclusions de novo. United
States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004). In doing so, we must view the
evidence in the light most favorable to the district court’s factual findings. United States
v. Gooch, 499 F.3d 596, 600 (6th Cir. 2007).
II.
A. Facts
At about 12:50 a.m., on July 4, 2010, Massillon Police Officer Curtiss Ricker
was on routine patrol traveling eastbound on Lincoln Way in Massillon, Ohio.
Defendant McCraney was traveling in the opposite direction as the passenger in a Buick
Riviera that was registered to him and being driven by Rudolph Ammons. The Buick
approached and passed Ricker without dimming its high-beam headlights, which is a
traffic violation. Ricker made an immediate U-turn, followed the Buick for a few
blocks, and observed an oncoming car flash its lights at the Buick. Ricker also testified
that, following one car length behind the Buick, he observed both the driver and
passenger lean over toward the floor of the car. Ricker explained that, in his experience,
this kind of movement led to the discovery of contraband or firearms “95 to 100 percent”
of the time. McCraney, however, testified that neither he nor Ammons had reached
down as Ricker described.
No. 11-3573 United States v. McCraney Page 3
Although Ricker did not activate his lights or siren, Ammons came to a stop and
gestured to Ricker as if to flag him down. Not wanting to stop in the roadway, Ricker
drove a short distance farther and pulled into a large parking lot belonging to the
Massillon Moose Lodge. Ammons followed and once he stopped, Ricker swung his
patrol car around to face the front of the Buick and directed his spotlight into the
passenger compartment.
Ricker approached and instructed the occupants to show their hands. They
complied, and Ricker asked Ammons for identification and insurance information.
Ammons explained that they were lost, provided an Ohio ID (not a driver’s license), and
asked for directions to Interstate 77. Taking the ID, Ricker returned to his patrol car,
called in to check the driver’s identification, and requested backup. While Ricker was
doing this, the defendant attempted to get out of the Buick twice, seemed to be trying to
get Ricker’s attention, and complied when Ricker instructed him to get back into the
Buick. McCraney testified that he was trying to give Ricker his vehicle registration and
insurance information.
Once Massillon Police Officer Michael Maier arrived on the scene, Ricker
radioed to him and asked that he run a check on the temporary vehicle registration tag.
According to Ricker, Maier stopped behind and to the side of the Buick and then advised
Ricker that he saw the occupants move as if bending down to reach under the seat. At
the suppression hearing, McCraney again denied that either he or Ammons had made
such movements. Maier’s check revealed that the Buick was registered to McCraney,
who also had a suspended driver’s license.
Ricker approached the Buick, explained that Ammons did not have a valid
license, and declined to lead them to I-77 because it was outside of his jurisdiction.
McCraney then moved over to the driver’s seat and started the Buick, but Maier
interjected that McCraney had a suspended license as well. Ricker admitted during the
suppression hearing that he would have let McCraney drive away if his driver’s license
had been valid. Ricker testified that since it was not, he decided that he would arrest
them both—Ammons for driving with a suspended license and McCraney for unlawful
No. 11-3573 United States v. McCraney Page 4
entrustment. However, without placing them under arrest, Ricker permitted McCraney
to call his aunt, May Weems, and arrange for her to come get them and the Buick.
Weems testified that she spoke to an officer who told her to come pick them up, but no
one was there when she arrived 25 minutes later.
Only a minute after McCraney ended the conversation with his aunt, and with
five officers and four patrol cars now on the scene, Ricker asked McCraney and
Ammons to get out of the Buick. When they did so, they were patted down for weapons
and instructed to stand near the rear of the Buick. Not yet in handcuffs or formally under
arrest, McCraney and Ammons stood two or three feet from the rear bumper with three
officers standing around them while the other two officers searched the passenger
compartment. After the firearm was found under the driver’s seat, McCraney and
Ammons were handcuffed, placed under arrest, and transported from the scene. The
Buick was impounded and towed away. McCraney, a convicted felon, later admitted to
his probation officer that the revolver belonged to him.
B. Fourth Amendment
The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. Since McCraney did not challenge the search as the product of an
illegal stop or unreasonable detention, we need not determine whether the encounter was
initially consensual or determine precisely the point at which the seizure occurred for
Fourth Amendment purposes. It is sufficient to conclude that there was a seizure.1
There is no dispute that Ricker had probable cause to stop and arrest Ammons for failing
to dim the high-beam headlights in the face of oncoming traffic. See Atwater v. City of
Lago Vista, 532 U.S. 318, 354 (2001). Nor has McCraney challenged the existence of
probable cause to arrest him for unlawful entrustment once it was discovered that the
Buick was registered to him and that Ammons did not have a valid driver’s license.
1
There is no question that Ricker restrained the defendant’s liberty through a show of
authority—to which the defendant submitted initially and by getting back into the Buick—and that a
reasonable person under the circumstances would not have believed he was free to leave and ignore the
officer’s requests. See Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir. 2005).
No. 11-3573 United States v. McCraney Page 5
Despite the existence of probable cause to arrest, however, the search at issue
also must be justified under an exception to the warrant requirement. We begin “with
the basic rule that ‘searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated
exceptions.’” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)). Of the recognized exceptions, the government relies only on
search incident to arrest and reasonable suspicion to justify the warrantless search in this
case.2
1. Search Incident to Lawful Arrest
This exception authorizes the warrantless search of “the arrestee’s person and the
area ‘within his immediate control.’” Chimel v. California, 395 U.S. 752, 763 (1969).
As the government observes, a formal custodial arrest need not precede the search as
long as the formal arrest follows “‘quickly on the heels of the challenged search’” and
“the fruits of that search are not necessary to sustain probable cause to arrest.” United
States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (quoting Rawlings v. Kentucky,
448 U.S. 98, 110-11 n.6 (1980)); see also United States v. Dotson, 246 F. App’x 897,
903 (6th Cir. 2007). The exception was later extended to allow searches of the
passenger compartment of an automobile incident to the lawful custodial arrest of its
occupants or recent occupants. New York v. Belton, 453 U.S. 454 (1981); Thornton v.
United States, 541 U.S. 615, 622 (2004).
In Gant, which was decided more than a year before the search at issue, the
Supreme Court clarified that this and other circuits had incorrectly understood Belton to
“allow a vehicle search incident to the arrest of a recent occupant even if there [was] no
possibility the arrestee could gain access to the vehicle at the time of the search.” Gant,
556 U.S. at 341. Ct. at 1718. Emphasizing that this reading would “untether the rule
2
The government has abandoned the claim that the search was a valid inventory search under
Colorado v. Bertine, 479 U.S. 367, 371 (1987). See United States v. Landon, 449 F. App’x 500, 502 (6th
Cir. 2011) (“inventory search must be conducted ‘according to standard police procedures’ and may not
be undertaken for ‘purposes of investigation’”) (citation omitted).
No. 11-3573 United States v. McCraney Page 6
from the justifications underlying the Chimel exception,” the Court held that police are
authorized to search a vehicle incident to a recent occupant’s arrest only if: (1) “the
arrestee is unsecured and within reaching distance of the passenger compartment at the
time of the search,” Gant, 556 U.S. at 343; or (2) “it is reasonable to believe the vehicle
contains evidence of the offense of arrest, ” id. at 351. Only the first justification is at
issue in this appeal.3
The government argues that it was error for the district court to ignore the real
possibility that McCraney or Ammons could have gained access to the passenger
compartment at the time of the search. The government seems to suggest that a search
would be improper only when the possibility of access was as remote as in Gant, in
which “the five officers [] outnumbered the three arrestees, all of whom had been
handcuffed and secured in separate patrol cars.” Id. at 344. The holding was not stated
in terms of these facts, but rather, with the conclusion that “Gant clearly was not within
reaching distance of his car at the time of the search.” Id. Indeed, the Court
acknowledged that it would be rare for that not to be the case. Id. at 343 n.4 (“Because
officers have many means of ensuring the safe arrest of vehicle occupants, it will be the
rare case in which an officer is unable to fully effectuate an arrest so that a real
possibility of access to the arrestee’s vehicle remains.”).
Here, McCraney and Ammons were not handcuffed or secured in the back of a
patrol car. They were standing, however, behind the Buick as instructed, two or three
feet from the rear bumper, with three officers standing around them, while the other two
officers on the scene conducted the search of the passenger compartment. Ricker
testified that he stood approximately eight feet from McCraney, and watched him closely
while the search was conducted. The officers outnumbered the detainees and, although
not formally arrested, handcuffed or secured in a patrol car, the district court did not err
3
The government makes no claim that it was reasonable to believe the Buick contained evidence
of either driving with a suspended license or unlawful entrustment. See id. at 344 (“Gant was arrested for
driving with a suspended license—an offense for which police could not expect to find evidence in the
passenger compartment of Gant’s car.”). Nor was there a reasonable basis to conclude that the Buick
contained evidence relevant to the traffic violation that provided probable cause for the stop. See id. at
343. (“In many cases, as when a recent occupant is arrested for a traffic violation, there will be no
reasonable basis to believe the vehicle contains relevant evidence.”)
No. 11-3573 United States v. McCraney Page 7
in finding that the officers could not reasonably believe McCraney and Ammons were
“within reaching distance” of the passenger compartment at the time of the search.
Given the narrowed scope of the exception in light of Gant, the search may not be
justified as a search incident to arrest.4
2. Reasonable Suspicion
Alternatively, the government argues that the search was constitutionally
reasonable under Michigan v. Long, 463 U.S. 1032, 1049 (1983), which authorizes a
protective search of the passenger compartment where the officer “possesses a
reasonable belief based on ‘specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant’ the officer in believing that the
suspect is dangerous and the suspect may gain immediate control of weapons.” Id.
(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). A search based on such reasonable
suspicion is permissible even if the suspect is detained outside the vehicle because “if
the suspect is not placed under arrest, he will be permitted to reenter his automobile, and
he will then have access to any weapons inside.” Id. at 1052. Whether such reasonable
suspicion of danger existed—the dispositive question in this case—is determined from
examination of the individual factors under the totality of the circumstances. United
States v. Shank, 543 F.3d 309, 314 (6th Cir. 2008); United States v. Graham, 483 F.3d
431, 438 (6th Cir. 2007); United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006).
Without expressly resolving the factual dispute, the district court accepted
Ricker’s testimony that there were two instances of suspicious movement inside the
Buick. With no challenge to the factual findings, we also accept this testimony. The
district court seized on Ricker’s admission that, despite these observations, he would
have let McCraney drive away in the Buick if his license had not been suspended and
4
The government’s reliance on dicta from this court’s decisions in Walker and Davis is of little
assistance because neither case involved a vehicle search incident to lawful arrest. See United States v.
Walker, 615 F.3d 728, 733-34 (6th Cir. 2010) (explaining in dicta that even if Gant applied to a Terry stop
and search of a duffel bag, the officers did not have the scene under control and the defendant stood only
three feet from the duffel bag at the time of the search); United States v. Davis, 341 F. App’x 139, 141 n.2
(6th Cir. 2009) (explaining in dicta that even if Gant applied to a protective vehicle search based on
reasonable suspicion, the defendant was restrained only a few feet from the vehicle).
No. 11-3573 United States v. McCraney Page 8
allowed McCraney to arrange for his aunt to come get them and the Buick. From this
perceived inconsistency, the district court concluded that Ricker’s actions were not those
of an officer in possession of reasonable suspicion to support a protective search of the
vehicle. Keeping in mind that this is an objective inquiry, it was not clear error for the
district court to find that the factors relied on by the government, including the
suspicious movement, did not support a reasonable belief that the detainees were armed
or could have gained immediate control of weapons.5
This court has recognized that suspicious movements made in response to police
presence may properly contribute to an officer’s suspicions. Caruthers, 458 F.3d at 466;
Graham, 483 F.3d at 439. Here, as Ricker followed the Buick without activating the
lights or siren, he observed movement by both the driver and the passenger as they
leaned down toward the floor as if concealing something under the seat. Officer Maier
reported the same kind of movement after he arrived on the scene and stopped behind
and to the side of the Buick. This kind of movement, in Ricker’s experience, indicated
an attempt to conceal a firearm or contraband from view.
In addition, the stop occurred late at night, at nearly 1:00 a.m., although there
was no suggestion that it was a “high-crime” area. See Caruthers, 458 F.3d at 467
(explaining that contextual factors such as presence in a high-crime area are relevant but
should not be relied upon too easily or too heavily). Nor was there an anonymous tip or
other information indicating the possible involvement of the Buick or its occupants in
other criminal activity. See id. at 465 (finding anonymous tip of gun-wielder’s
appearance and location was relevant but would not alone justify a Terry stop); Graham,
483 F.3d at 439 (declining to hold that the tip in that case alone would justify a
protective search).
Rather, the Buick came to the attention of the officer because the driver failed
to dim the headlights. This provided probable cause to make a traffic stop, but not a
5
Although the district court was skeptical of Ricker’s testimony that he allowed the call as a ruse
to avoid escalating the situation, it does appear that Ricker allowed the call while concealing the decision
to arrest and delaying the formal arrests until the detainees were out of the car and a vehicle search had
been conducted.
No. 11-3573 United States v. McCraney Page 9
basis for reasonable suspicion that the occupants might be armed and dangerous. See
Graham, 483 F.3d at 436 (“It is hard to imagine how suspicion of a parking violation,
by itself, could ever justify a protective search of a suspect’s person.”). Nor would the
existence of probable cause to arrest Ammons for driving with a suspended license and
McCraney for unlawful entrustment arouse reasonable suspicion to believe they were
dangerous. Finally, the fact that McCraney tried to get out of the Buick twice while
Ricker was checking the driver’s identification does not add to the suspicion that the
occupants were armed. According to Ricker’s description, it was not an attempt to flee,
but an attempt to get Ricker’s attention, and was not accompanied by otherwise
suspicious behavior.
Examining all of the factors, taken together, the district court did not err in
concluding that the officer did not have reasonable suspicion to justify a protective
search of the vehicle.
AFFIRMED.