United States v. Michael Dunn, Jr.

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0483n.06

No. 23-5058

UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Nov 22, 2023
KELLY L. STEPHENS, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
MICHAEL DUNN, JR., )
Defendant-Appellant. ) OPINION
)
)

Before: WHITE, NALBANDIAN, and MURPHY, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Defendant Michael Dunn, Jr. pleaded guilty to one

count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 921(g)(1) and

924(a)(2). He appeals the district court’s denial of his motion to suppress evidence obtained and

statements made during a traffic stop, arguing that police unconstitutionally prolonged the stop

and questioned him without administering Miranda warnings. For the reasons set forth below, we

AFFIRM.

I.

A.

On May 4, 2020, Louisville Metro Police Officer Jay Dolak observed Dunn driving with

an excessively tinted windshield, a traffic violation under Kentucky law. 1 Dolak called for backup

and was joined by another officer, Jeffrey Emerich. Dolak then directed Dunn to pull over to the

1
See Ky. Rev. Stat. Ann. §§ 189.110(2), 189.990(1).
No. 23-5058, United States v. Dunn

shoulder of Interstate 65. As Emerich approached the passenger side, Dolak approached the

driver’s side window and asked Dunn for his driver’s license. He saw a knotted piece of plastic in

Dunn’s lap that appeared to Dolak to be the torn-off end of a baggie. He also saw a Styrofoam

cup and a bottle of soda in the center console. In an investigative report written shortly after the

stop, Dolak described the cup as containing “a pink liquid substance.” R.19-2, PID 62. When the

cup briefly appears on Dolak’s body-camera footage, however, it appears dark in color.

Dolak asked Dunn, “what’s in that baggie in your lap? Did you eat it?” R.19-3, Dolak

Body Camera Footage, 01:42-01:50. Dunn did not respond verbally, but instead opened his mouth

to show it was empty. Dolak returned to his patrol car to run Dunn’s driver’s license through the

National Crime Information Center (NCIC) database and discovered it was suspended. He walked

back to Dunn’s car and asked, “there ain’t nothing of whatever was in that baggie in the car, is

there?” Id., 03:24-03:26. Dunn responded, “no, but I got a gun,” and explained that he had been

shot. Id., 03:27-03:30.

Dolak asked Dunn to get out of his car. After he did, Dolak asked, “you good with me

looking?” Id., 03:54. Dunn said yes, and Dolak asked again, “you are? You good with me taking

a look?” Id., 03:55-03:56. Dunn again said, “yeah.” Id. Dolak then retrieved the gun from a

child’s car seat and returned to his car to run the serial number while Emerich remained with Dunn.

Unprompted, Dunn said, “I’m going down.” R.19-3, Emerich Body Camera Footage, 05:26.

Emerich asked if Dunn was a felon, and Dunn responded that he had just finished probation.

Emerich asked, “for a felony? Are you a felon? You’re a convicted felon?” Id., 05:36-05:40.

Dunn responded, “yeah.” Id., 5:40-5:41. Emerich informed Dolak that Dunn said he was a felon,

and Dolak’s search of the gun’s serial number revealed that it had been stolen. Dunn was arrested

and charged under state law with possession of a handgun by a convicted felon, receiving stolen

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No. 23-5058, United States v. Dunn

property, excessive windshield/window tint, and operating on a suspended or revoked license.

He was separately indicted by a federal grand jury on one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

B.

Dunn filed a motion to suppress the gun and his statements to Dolak and Emerich, arguing

that Dolak lacked reasonable suspicion of drug crimes and therefore unconstitutionally extended

the traffic stop. The district court referred the motion to a magistrate judge, who held an

evidentiary hearing. At the hearing, Dolak testified that when he returned to Dunn’s car after

running his license through the NCIC database, his purpose was “to follow up on the narcotics

standpoint of it and ask him if there was any more narcotics in the vehicle.” R.28, PID 82.

He explained that the plastic in Dunn’s lap appeared to him to be “a torn-off end of a bagg[ie]”

typically “found to contain narcotics,” and described the Styrofoam cup in the center console as

containing “a dark pinkish color liquid, which is often found to be codeine.” Id., PID 81. On cross-

examination, he again described the liquid as “darker, but it had like a pinkish tint to it.” Id., PID

90.

The magistrate judge further questioned Dolak about the difference between his description

of the liquid in the investigative report and his testimony at the hearing:

THE COURT: All right. Detective, just one or two questions. You just said a
moment ago you have not looked at Officer or Sergeant Emerich’s body cam video,
but I can’t remember what you said about your own. Have you reviewed it in
preparation for the hearing?
A. Yes, Your Honor. I reviewed mine.
Q. So do you -- I’ve read what you said in the investigative report and the citation,
et cetera, but do you still believe that substance in the white Styrofoam cup to -- to
be pink or pinkish after having reviewed your body cam video?
A. After reviewing the video, it’s darker than what I had initially thought, but it’s
common to mix it, which would give it a darker appearance.

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No. 23-5058, United States v. Dunn

THE COURT: All right. When you say common, I assume this is based on your
experience as a police officer?
A. Yes, sir.
THE COURT: All right. What -- what, typically, or commonly have you seen it
mixed with?
A. Different types of soda.

Id., PID 95.

Following the hearing, the magistrate judge submitted a Report and Recommendation that

Dunn’s motion be granted. The magistrate judge concluded that Dolak had completed his

investigation into traffic violations when he continued to question Dunn about the baggie and

lacked reasonable suspicion to expand the stop into an investigation of potential drug crimes. The

only facts supporting reasonable suspicion, the magistrate judge found, “were [Dolak’s]

observation of a torn baggie that he testified in his training and experience was of the type of

baggie that commonly contains narcotics and his observation of a substance he believed to be

codeine.” R.32, PID 132. The magistrate judge found Dolak’s testimony regarding the suspected

codeine “less than credible,” given his different descriptions, and otherwise discounted it:

Though he initially identified the substance as a pink liquid, when faced with the
body camera footage that showed the substance was closer to black in color, he
indicated that it was darker than he recalled and rationalized the change in color by
saying that codeine is often mixed with other liquids that make it appear darker in
color. Given the appearance of the liquid on the body camera footage, which almost
looked more like the cup containing it had been used as an ashtray; the fact that
Officer Dolak asked no questions regarding the suspected codeine; and the fact that
the liquid spilled during the subsequent traffic stop without intervention by Officers
Dolak or Emerich, the undersigned does not find that the suspected codeine was a
particularly strong indicator of criminal activity if it was any indicator at all.

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No. 23-5058, United States v. Dunn

Id. The magistrate judge further recommended Dunn’s statements “be excluded as the fruit of the

poisonous tree.” R.32, PID 134-35.2

The government filed an objection to the Report and Recommendation, arguing that Dolak

did not extend the stop by asking about the contents of the baggie, the question was based on

“reasonable and articulable” suspicion, Dolak had Dunn’s consent to search the car, no Miranda

violation occurred, and a finding that Dolak was not credible was unwarranted. The district court

held its own evidentiary hearing to address these objections, and Dolak again testified. Regarding

the baggie, he testified: “So, typically, on the street, drugs are packaged in plastic baggies, and

the way it’s packaged is the drugs are put in the bag, and then it’s twisted, and it’s tied in a knot.

And what was in his lap appeared to be a knotted baggie.” R.38, PID 172. He then described the

liquid in the Styrofoam cup:

I initially thought it was a pink -- like a pinker-type substance -- substance. After
watching the body camera video, it’s a darker substance, but it’s still -- it appeared
to be like a -- like a syrupy-type substance . . . . It’s a darker -- darker color, which
can -- is also common, when people use codeine, they mix it with different colors
and different types of sodas.

Id., PID 173. He testified that his opinion that the liquid appeared to be codeine had not changed:

“At the time, and I still believe it was a syrupy substance, and the soda bottle was there.” Id., PID

174.

The district court sustained the government’s objection and largely denied Dunn’s motion

to suppress. It concluded that the torn baggie and suspected codeine provided reasonable suspicion

to extend the stop, Dunn’s statement that he had a gun was validly elicited, and Dolak’s search of

the car was permissible. But it excluded Dunn’s statement to Emerich that he was a felon, holding

2
In his motion to suppress, Dunn noted that his statements came before he received Miranda warnings but did not
fully argue that a Miranda violation occurred. He did so in his post-hearing brief, but the magistrate judge did not
reach this argument.

5
No. 23-5058, United States v. Dunn

that Emerich’s questioning constituted a Miranda violation. The government does not contest the

suppression of that statement.

Dunn entered a conditional guilty plea and reserved the right to appeal the district court’s

suppression ruling. The district court sentenced him to three years’ probation, including eighteen

months of home detention with certain exceptions. He now appeals.

II.

“When reviewing the district court’s ruling on a motion to suppress, we review findings of

fact for clear error and legal conclusions de novo.” United States v. Jackson, 682 F.3d 448, 452

(6th Cir. 2012). “A factual finding is clearly erroneous when, although there may be evidence to

support it, the reviewing court, utilizing the entire evidence, is left with the definite and firm

conviction that a mistake has been committed.” United States v. Shank, 543 F.3d 309, 312 (6th

Cir. 2008) (quoting United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2008)). “When the

district court has denied the motion to suppress, we review all evidence in a light most favorable

to the Government.” United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003).

III.

Dunn raises three arguments on appeal: (1) Dolak unconstitutionally extended the stop

because he lacked reasonable suspicion of drug crimes; (2) the question that prompted him to

reveal he had a gun constituted a custodial interrogation requiring Miranda warnings; and

(3) Dolak lacked valid consent to search the car for the gun.

A.

Dunn argues that Dolak unconstitutionally extended the stop by continuing to question him

about the purported baggie after completing the license check and any investigation into potential

traffic crimes. Police officers may constitutionally stop a vehicle at least when they “have probable

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No. 23-5058, United States v. Dunn

cause to make a stop for a civil infraction” or “reasonable suspicion of an ongoing crime to make

a stop for a criminal violation.” United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). “[T]he

tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s

‘mission’—to address the traffic violation that warranted the stop, and attend to related safety

concerns . . . . Authority for the seizure thus ends when tasks tied to the traffic infraction are—or

reasonably should have been—completed.” Rodriguez v. United States, 575 U.S. 348, 354 (2015)

(internal citations omitted). These tasks typically include deciding whether to issue a ticket,

“checking the driver’s license, determining whether there are outstanding warrants against the

driver, and inspecting the automobile’s registration and proof of insurance.” Id. at 355.

However, “the police may extend a stop beyond the scope of what was originally

permissible if ‘something happened during the stop to cause the officer to have a reasonable and

articulable suspicion that criminal activity is afoot.’” United States v. Stepp, 680 F.3d 651, 661

(6th Cir. 2012) (quoting United States v. Davis, 430 F.3d 345, 353 (6th Cir. 2005)). Although

reasonable suspicion is less demanding than probable cause, it requires “more than an ill-defined

hunch; it must be based upon a particularized and objective basis for suspecting the particular

person of criminal activity.” United States v. Collazo, 818 F.3d 247, 257 (6th Cir. 2016) (quoting

Shank, 543 F.3d at 313). The government argues that the torn plastic and suspected codeine

provided a “particularized and objective basis” to establish reasonable suspicion of drug crimes

and permit extending the stop.

As an initial matter, Dunn argued in his response to the government’s objections to the

Report and Recommendation, and argues here as well, that the government “did not articulate a

specific objection” to the magistrate judge’s conclusion that Dolak did not have reasonable

suspicion to conduct a drug investigation, and should therefore “be precluded from arguing on

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No. 23-5058, United States v. Dunn

appeal that reasonable suspicion existed.” Appellant’s Br. at 6, 10. The government framed its

objection to the Report and Recommendation as challenging “the Magistrate Judge’s finding that

the traffic stop in this case was of an unreasonable duration, and . . . the Magistrate Judge’s

characterization of Det. Dolak’s testimony regarding the color of the suspected codeine.” R.33,

PID 136. As part of the first point, the government argued that Dolak’s question “there ain’t

nothing of whatever was in the baggie in this car, is there?” was “based on reasonable and

articulable suspicion,” i.e., his observation of the torn plastic and suspected codeine. Id., PID 137-

38. At the evidentiary hearing, the district court asked the government questions to clarify whether

it objected to the magistrate judge’s determination that Dolak had no reasonable suspicion to

initiate a drug investigation and observed that “a more orthodox way to frame [the] objection

would have been to object to [the magistrate judge’s] reasonable suspicion finding on the ground

that, among other things, he was wrong about the officer’s credibility[.]” R.38, PID 165. The

district judge then treated the objection as adequately raising the issue and addressed it on the

merits. We agree that although its objection could have been framed more clearly, the government

did object to the magistrate judge’s conclusion on reasonable suspicion.

Dunn next argues that the district court erred in concluding that the torn plastic in Dunn’s

lap and suspected codeine in the center console provided the reasonable suspicion necessary to

permissibly extend the stop.3 The district court held that the baggie justified extending the stop

because “[d]rug paraphernalia can support an officer’s reasonable suspicion and justify

questioning about drugs.” R.41, PID 212. Dunn argues that Dolak merely saw a short length of

knotted plastic and had no basis to conclude it came from a baggie.

3
We note that approximately two-and-a-half minutes elapsed between Dolak pulling Dunn over and asking the second
question about the baggie after running his driver’s license.

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No. 23-5058, United States v. Dunn

Given his training and experience and Dunn’s conduct during the stop, Dolak’s belief that

the knotted plastic came from a baggie was reasonable. See United States v. Martin, 289 F.3d 392,

398 (6th Cir. 2002) (Officers may “draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available to them.”). Dolak

testified in both hearings that, based on his training in the identification of narcotics and his

experience as a police officer, the plastic appeared to be the knotted end of a plastic baggie

commonly used to contain illegal drugs, with the “bindle” end torn off. Additionally, shortly after

stopping Dunn, Dolak asked: “What’s in that baggie in your lap? Did you eat it?” R.19-3, Dolak

Body Camera Footage, 01:42-01:50. In response, rather than asking for clarification or denying

he had a baggie, Dunn opened his mouth to show it was empty. And when Dolak returned to the

car after checking Dunn’s license, he asked, “there ain’t nothing of whatever was in that baggie in

the car, is there?” Id., 03:24-03:26. Dunn responded, “no,” again neither denying that there was

a baggie nor exhibiting confusion about Dolak’s question. Id., 03:26.

According to Dunn, even if Dolak could conclude that the plastic came from a baggie,

another speculative leap is required to conclude the baggie constituted drug paraphernalia. “Since

there was no other evidence of drug activity,” he argues, “Officer Dolak could only guess that the

baggie, if there was a baggie, held drugs.” Appellant’s Br. at 32. The district court determined

that “the torn baggie in itself is surely significant, regardless of whether it’s sufficient standing

alone,” R.41, PID 212, and “assuming more is necessary, the presence of a liquid that Dolak

perceived to be a mixture of codeine and soda amounts to additional drug evidence that Dunn says

is necessary to supply reasonable suspicion,” id., PID 213. Items that might be drug paraphernalia

can establish reasonable suspicion—when combined with other indicia of criminal activity. See

United States v. Whitley, 34 F.4th 522, 534 (6th Cir. 2022) (“[P]ossessing a scale is an additional

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No. 23-5058, United States v. Dunn

datapoint weighing in favor of reasonable suspicion if other conduct suggestive of drug activity is

observed.”).

Dolak testified that there were no additional indications of drug activity other than the

suspected codeine—he did not observe Dunn engaging in any behavior before the stop suggesting

a drug deal, Dunn did not appear impaired or intoxicated during the stop, and the torn baggie was

empty and clean. Dolak’s justification for extending the stop therefore depends on whether his

belief that the cup contained codeine was reasonable. This question turns on Dolak’s credibility.

On this point, Dunn first argues that the district court erred by failing to give “due

deference” to the magistrate judge’s finding that Dolak’s testimony was not credible and “simply

substituted its judgment.” Appellant’s Br. at 25. But the district court was entitled to do so.

District courts are required to “make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1). Although they are afforded “broad discretion to accept, reject, or modify the

magistrate’s proposed findings,” the Supreme Court has indicated that district courts should not

substitute their own appraisal of dispositive credibility findings “without seeing and hearing the

witness or witnesses whose credibility is in question.” United States v. Raddatz¸ 447 U.S. 667,

680, 681 n.7 (1980). Here, however, the district court conducted its own hearing and saw and

heard Dolak testify itself. The magistrate judge was therefore not in a comparatively “better

position to assess the credibility” of Dolak’s testimony. Appellant’s Br. at 26 (quoting United

States v. Monroe, 2018 WL 2074201, at *4 (W.D. Tenn. May 1, 2018)).

Nor does the district court’s finding that Dolak was credible constitute clear error. Dolak

provided three descriptions of the substance in the cup. In his investigative report, he described it

simply as “pink.” In the first evidentiary hearing, he described it as “darkish pink.” In the second

10
No. 23-5058, United States v. Dunn

evidentiary hearing, he described it as darkish pink and “syrupy.” Viewing these discrepancies in

the light most favorable to the government, Dolak’s descriptions are not fatally contradictory, but

rather made with increasing detail. Whether this additional detail accurately reflects his

observations or was instead a retroactive invention to account for the body-camera footage and

overcome the magistrate judge’s skepticism is a question of credibility. So too is the question

whether the officers’ treatment of the baggie and cup undermined Dolak’s testimony that he

genuinely believed they were drug contraband. Dunn notes that neither item was secured during

the stop or taken into evidence for testing; nor was Dunn charged with possession of codeine, a

felony under Kentucky law, or possession of drug paraphernalia. The district court found credible

Dolak’s testimony that he believed the liquid to be codeine based on its color and consistency, “got

tunnel vision” after learning Dunn had a gun, and focused on the gun charge because in his

experience lower-level narcotics charges are typically dismissed in state court. This finding is

entitled to deference. See United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010) (“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.”) (internal quotations omitted); United States v.

Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996) (“Because the [d]istrict [c]ourt was in the best

position to judge credibility, and because that [c]ourt plausibly resolved the discrepancies in the

testimony, its findings of fact should not be disturbed.”); see also United States v. Worley, 193 F.3d

380, 384 (6th Cir. 1999) (“‘[W]here there are two permissible views of the evidence’ the district

court’s conclusions ‘cannot be clearly erroneous.’”) (quoting Anderson v. City of Bessemer City,

470 U.S. 564, 574 (1985)).

Taken together, the torn baggie and suspected codeine were sufficient to establish

reasonable suspicion of drug activity. See United States v. Belakhdhar, 924 F.3d 925, 928 (6th Cir.

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No. 23-5058, United States v. Dunn

2019) (“Though individual datapoints may portray entirely innocent conduct . . . our cases teach

that the overall scatterplot may give rise to reasonable suspicion.”). Dolak therefore did not

unconstitutionally extend the stop by asking Dunn about the contents of the baggie after he had

completed his investigation into possible traffic violations.

B.

Second, Dunn argues his statement to Dolak that he had a gun should be suppressed

because it was the result of an unlawfully extended stop, see Wong Sun v. United States, 371 U.S.

471, 488 (1963), and because it was made before the officers gave him Miranda warnings.

Because we have determined that the stop was not unlawfully extended, we address only the

second argument.

Miranda warnings are required when a suspect has “been taken into custody or otherwise

been deprived of . . . freedom of action in any significant way.” Miranda v. Arizona, 384 U.S.

436, 444 (1966). “The . . . noncoercive aspect of ordinary traffic stops prompts us to hold that

persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of

Miranda.” Berkemer v. McCarty, 468 U.S. 420, 440 (1980). However, “[i]f a motorist who has

been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in

custody’ for practical purposes, he will be entitled to the full panoply of protections prescribed by

Miranda.” Id. Dunn argues that the traffic stop was “more coercive than usual” because it was

“impermissibly prolonged” and “transformed . . . into a drug investigation.” Appellant’s Br. at 40.

Dolak did not transform the stop into a custodial detention by asking a single follow-up

question, supported by reasonable suspicion, about the baggie. “In determining whether a

defendant was subject to custodial interrogation we look to the totality of the circumstances to

determine how a reasonable [person] in the suspect’s position would have understood the

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No. 23-5058, United States v. Dunn

situation.” United States v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003) (internal quotations

omitted) (citing United States v. Salvo, 133 F.3d 943, 948 (6th Cir. 1998)). “The test is an objective

one: would a reasonable person in the defendant’s position have felt that he was under arrest or

was ‘otherwise deprived of his freedom of action in any significant way.’” United States v. Knox,

839 F.2d 285, 291 (6th Cir. 1988) (quoting Miranda, 384 U.S. at 477). A single follow-up question

about drug activity, where Dunn has identified no other factor increasing the coercive nature of

the traffic stop, did not render the stop custodial. See Berkemer, 468 U.S. at 439 (analogizing

traffic stops to Terry stops, in which “the officer may ask the detainee a moderate number of

questions to determine his identity and to try to obtain information confirming or dispelling the

officer’s suspicions”); id. at 438 (“The fact that the detained motorist typically is confronted by

only one or at most two policeman further mutes his sense of vulnerability.”); United States v.

Howard, 815 F. App’x 69, 79 (6th Cir. 2020) (holding that a traffic stop “in ‘public view’ on the

side of a busy highway” was not custodial) (quoting Berkemer, 468 U.S. at 438); United States v.

Wright, 220 F. App’x 417, 421 (6th Cir. 2007) (holding that fewer than fifteen minutes of

questioning did not render a traffic stop custodial).

C.

Finally, Dunn argues that the district court erred in denying his motion because Dolak

lacked valid consent to search his car and retrieve the gun. The district court did not reach the

issue of Dunn’s consent, concluding instead that Dolak could conduct a limited protective search

after Dunn told him that he had a gun. We agree. “[P]rotection of police and others can justify

protective searches when police have a reasonable belief that the suspect poses a danger, . . . and

that danger may arise from the possible presence of weapons in the area surrounding a suspect.”

Michigan v. Long, 463 U.S. 1032, 1049 (1983); see Boone v. Spurgess, 385 F.3d 923, 929 (6th Cir.

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No. 23-5058, United States v. Dunn

2004) (holding that officers could lawfully search the interior of defendant’s vehicle if they “had

lawfully detained [him], and they had grounds for reasonable suspicion that [he] had weapons in

his car”). The protective search must be “limited to those areas in which a weapon may be placed

or hidden” and “based on ‘specific and articulable facts which, taken together with the rational

inferences from those facts, reasonably warrant’ the officers in believing that the suspect is

dangerous and the suspect may gain immediate control of weapons.” Long, 463 U.S. at 1049

(citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). “Although Long does not apply where the suspect

is handcuffed and under arrest, it applies where the suspect is not secured and might imminently

reenter the car.” United States v. Lurry, 483 F. App’x 252, 254 (6th Cir. 2012) (internal citations

omitted). Dunn’s only argument that a protective search was not warranted is that Dolak

discovered he had a gun during an unlawful detention, a premise we have rejected. The search

was therefore permissible, and the district court did not err by denying Dunn’s motion as to the

gun.

IV.

For these reasons, we AFFIRM.

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