United States v. Michael Stinson ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4177
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DANYELLE STINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:08-cr-00129-FDW-DCK-1)
Argued: January 27, 2012 Decided: February 28, 2012
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Kevin Andre Tate, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Melissa Louise Rikard, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Angela G.
Parrott, Acting Executive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina; Matthew R.
Segal, Allison Wexler, Assistant Federal Defenders, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
I.
Michael Danyelle Stinson (“Stinson”) appeals his conviction
for possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g). On appeal, Stinson challenges the
district court’s denial of his motion to suppress. For the
reasons set forth below, we affirm the judgment of the district
court.
II.
On September 19, 2007, the Mecklenburg Police Department
received an anonymous call. The caller reported seeing an armed
black male selling drugs out of a red vehicle bearing North
Carolina license plates numbered WNE-6746 on Burnette Avenue in
Charlotte. The caller further described the man as having a
bald head and wearing a white t-shirt and blue shorts. Officers
Edwards, Hall, and Carter responded to the call and observed a
man (later identified as Stinson) and a vehicle matching the
description given by the tipster. 1
1
As found by the district court, the location identified by
the caller was in a high-crime area. Additionally, five months
earlier two police officers had been killed near that location.
Thus, three officers responded to the call to help ensure
officer safety.
3
Officer Edwards arrived first and observed Stinson leaning
against the red vehicle. A woman later identified as Tiffany
Gould, an ex-girlfriend of Stinson’s, was standing with him.
Officer Edwards approached, and asked for and received Stinson’s
consent to search his person. Officer Edwards also asked
Stinson whether he owned the red vehicle. As Officers Hall and
Carter arrived on the scene (a minute or so after Edwards),
Stinson responded that he did not know to whom the vehicle
belonged.
Officer Edwards then conducted a search of Stinson’s
person, removing two cell phones, a wad of cash, and some keys
from his pockets. “While removing the keys from [Stinson’s]
pocket, Officer Edwards inadvertently pressed a button on the
keyless entry pad attached to [Stinson’s] keyring while the keys
2
were still in his pocket.” (J.A. 195 (order of district court).)
The button unlocked the doors to the red vehicle. According to
the officers, Stinson immediately began shaking and acting
nervous. Officer Edwards further testified that Stinson kept
looking around and Edwards was concerned that “he was going to
attempt to run.” (J.A. 41.) Officer Edwards detained Stinson at
2
Stinson refers to the “supposedly accidental” triggering,
(Opening Br. at 3), and repeatedly disputes that Edwards’
triggering of the car’s remote key was accidental. But the
district court found the testimony of the officers credible on
this point, as even Stinson acknowledges. (Reply Br. at 4 n.1.)
We find no clear error in that factual finding.
4
that time, by handcuffing him and placing him in the back of
Officer Carter’s patrol car, with the door open.
Although it is unclear from the record, at some point
during the encounter, it appears that Officer Hall asked if he
could search the vehicle. According to Officer Hall’s
testimony, Stinson initially refused to consent to a vehicle
search, but once he was seated in the police car, Stinson
granted permission to search his vehicle. Officers Edwards and
Carter both testified that they did not hear an initial refusal
of consent, but they both heard Stinson later consent to the
search of his vehicle. After receiving Stinson’s consent, Hall
searched the vehicle and found a firearm under the driver’s
front seat. The gun was loaded and a records check showed it
had been reported as stolen.
Stinson filed a motion to suppress all physical evidence
(including the gun) and statements obtained following the search
of his vehicle. He challenged the search of his person on the
grounds that he did not consent and he challenged the search of
his vehicle on the grounds that his consent was not voluntary.
He also argued that the police lacked sufficient grounds to
detain him. After an evidentiary hearing at which Stinson
chose not to testify, the district court gave the parties an
additional opportunity to file supplemental briefing on the
motion. The district court subsequently denied the motion and
5
the case was tried before a jury. The jury returned a guilty
verdict and the district court sentenced Stinson to fifty-six
months’ incarceration, to be followed by a three-year supervised
release term.
Stinson noted a timely appeal. This Court has jurisdiction
under 28 U.S.C. § 1291.
III.
Stinson raises three issues on appeal. First, he contends
that the search of his person was invalid because it exceeded
the scope of his consent. Second, he argues that the police
seizure of him was not justified by reasonable suspicion.
Third, he contends that the search of his vehicle violated his
Fourth Amendment rights because his consent to search was not
voluntarily given. For the reasons discussed below, we find no
error.
A.
When reviewing a ruling on a motion to suppress, this Court
will not disturb the district court’s factual findings unless
they are clearly erroneous. United States v. Massenburg, 654
F.3d 480, 485 (4th Cir. 2011). This includes a district court’s
determination that a defendant voluntarily consented to a
search. United States v. Digiovanni, 650 F.3d 498, 514 (4th
6
Cir. 2011) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-
49 (1973)). The district court’s legal determinations are
reviewed de novo. Massenburg, 654 F.3d at 485; United States v.
McCoy, 513 F.3d 405, 410 (4th Cir. 2008) Because the district
court denied the motion to suppress, this court views the
evidence in the light most favorable to the government. United
States v. Hampton, 628 F.3d 654, 658 (4th Cir. 2010).
B.
Stinson first contends that the search of his person
violated his Fourth Amendment rights. He argues that he
consented only to a search for weapons and that the scope of the
search of his person exceeded his consent because Officer
Edwards searched for and seized other items in Stinson’s
pockets. According to Stinson, that “illegal search” yielded
Stinson’s money, phone, and keys, which, in turn, led to the
search of Stinson’s vehicle. (Opening Br. at 23.) He thus
contends that the search of his person violated the Fourth
Amendment and tainted the subsequent discovery of the handgun in
his car.
Stinson concedes that he did not raise this issue below
and we thus review only for plain error. Under this standard, a
defendant must show an error that is “plain” and “affects [his]
substantial rights.” United States v. Olano, 507 U.S. 725, 732-
7
35 (1993) (internal quotation marks and alteration omitted).
Even then, the Court may exercise discretion to correct the
error only where it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” United States v.
Marcus, 130 S. Ct. 2159, 2164 (2010) (quotation marks and
citations omitted); United States v. Hargrove, 625 F.3d 170, 184
(4th Cir. 2010).
As applied here, Stinson’s argument fails to meet the plain
error standard of Olano. As an initial matter, we reject
Stinson’s contention that he consented only to a search for
weapons. It is true that the district court’s opinion stated
that Officer Edwards conducted a “protective search,” J.A. at
195, and a “search . . . for weapons,” J.A. at 198, and that the
government acknowledges that Edwards was searching primarily for
weapons.
But the district court also found that Stinson voluntarily
consented to the search of “his person” when Edwards requested
that consent. (J.A. 195.) The scope of a consent search is
governed by what a “typical reasonable person [would] have
understood by the exchange between the officer and the suspect.”
Florida v. Jimeno, 500 U.S. 248, 251 (1991); United States v.
Neely, 564 F.3d 346, 350 (4th Cir. 2009).
In this case, Edwards testified that he said to Stinson,
“Sir, do you mind me searching your person just to make sure
8
that, you know, you don’t have any drugs -- weapons or drugs,
anything that could harm me.” (J.A. 34-35.) According to
Edwards, Stinson replied that he allowed him to conduct the
search by responding that he did not “mind at all.” (J.A. 35.)
Edwards’ testimony of course indicates that Stinson was
consenting to a search of his person not just for weapons, but
also for drugs.
While Edwards may not have had authority (absent consent)
to do anything other than perform a patdown for weapons, Stinson
could consent to a broader search than the law would allow
without his consent. See Schneckloth, 412 U.S. at 227 (“In
situations where the police have some evidence of illicit
activity, but lack probable cause to arrest or search, a search
authorized by a valid consent may be the only means of obtaining
important and reliable evidence.”). A “typical reasonable
person” would have understood the exchange between Edwards and
Stinson to mean that Edwards could search Stinson’s pockets.
Cf. Jimeno, 500 U.S. at 251. Moreover, several of the officers
testified that Stinson’s consent had authorized a search of his
pockets, and not just a patdown. We thus see no error in a
finding that the consent authorized the search here. 3
3
Additionally, there was no testimony here that Stinson
ever objected to the search of his pockets or the removal of his
cell phones, money, or keys. As the Neely court recognized, “a
(Continued)
9
Having determined that Stinson’s consent allowed the search
of his pockets for both drugs and weapons, we conclude that
Edwards’ search did not exceed the scope of the consent given.
Thus, Stinson has not established plain error on this issue.
C.
Stinson next contends that he was improperly seized and
that there was no reasonable suspicion to detain him. 4 We
disagree.
suspect’s failure to object (or withdraw his consent) when an
officer exceeds limits allegedly set by the suspect is a strong
indicator that the search was within the proper bounds of the
consent search.” 564 F.3d at 350-51 (quotation marks and
citation omitted).
4
In this case, Stinson was handcuffed and placed in the
patrol car, but the patrol car door was left open.
Additionally, the time between his detention and when he gave
consent to search the vehicle was minimal and consistent with
the purposes of the officers’ investigation into their
suspicions that he was either dealing drugs or was armed. Based
on these facts, the district court here was correct in
concluding Stinson was detained, but not arrested. United States
v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995) (“Instead of
being distinguished by the absence of any restriction of
liberty, Terry stops differ from custodial interrogation in that
they must last no longer than necessary to verify or dispel the
officer's suspicion.” . . . “[W]e have concluded that drawing
weapons, handcuffing a suspect, placing a suspect in a patrol
car for questioning, or using or threatening to use force does
not necessarily elevate a lawful stop into a custodial arrest .
. . .”) (citations omitted); United States v. Elston, 479 F.3d
314, 319-20 (4th Cir. 2007). Therefore, his detention needed to
be supported only by reasonable suspicion. Elston, 479 F.3d at
319-20.
10
As this Court has explained:
In determining whether an officer had reasonable
suspicion, we view the totality of the circumstances
to determine whether the officer had a particularized
and objective basis for suspecting the particular
person stopped of criminal activity. Although the
reasonable suspicion standard defies precise
definition, it is less demanding than probable cause
and falls considerably short of satisfying a
preponderance of the evidence standard.
United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)
(internal citations and quotation marks omitted). “Reasonable
suspicion” is “a commonsense, nontechnical conception that deals
with the factual and practical considerations of everyday life
on which reasonable and prudent men, not legal technicians,
act.” McCoy, 513 F.3d at 411 (quoting Ornelas v. United States,
517 U.S. 690, 695-96 (1996)) (alterations omitted).
We conclude that the officers had reasonable suspicion
sufficient to detain Stinson. Specifically, the following facts
support the district court’s determination that there was
reasonable suspicion to detain Stinson: (1) the anonymous
tipster, who had provided accurate and detailed information
describing Stinson and the vehicle, had informed police that
Stinson was armed; (2) the encounter took place in a high-crime
area where two officers had been killed months before and others
had been shot at previously; (3) Stinson had two cell phones and
a number of folded cash bills on his person; (4) Stinson lied
about the ownership or control of the car, thereby suggesting an
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intent to hide something; and (5) when confronted with his lie,
Stinson became nervous, and began shaking and looking around,
which led at least one of the officers to believe that Stinson
was about to flee.
Given these facts, the officers had reasonable suspicion to
believe criminal activity was afoot and to detain Stinson.
Thus, his detention did not violate his Fourth Amendment rights.
D.
As we have noted, shortly after he was detained, Stinson
gave consent for the police to search his car. Stinson’s final
assignment of error is that the district court erred in
concluding that his consent to search his vehicle was voluntary.
Essentially, he argues that, under the totality of the
circumstances, his consent could not have been voluntary.
As this Court recently noted, “[w]hether a defendant’s
consent to a search is voluntary is a factual question, and,
therefore, is reviewed under the clearly erroneous standard.”
Digiovanni, 650 F.3d at 514. This court “may reverse the
district court’s finding concerning voluntariness only if ‘it
can be said that the view of the evidence taken by the district
court is implausible in light of the entire record.’” Id.
(quoting United States v. Lattimore, 87 F.3d 647, 651 (4th Cir.
1996)).
12
Determining whether consent is voluntary requires an
examination of the totality of the circumstances, including
factors such as “the characteristics of the accused, his
education and intelligence, the number of officers present, . .
. the location and duration of the stop [and] [w]hether the
person giving consent knew that he possessed a right to refuse
consent . . . .” Id. (citing Lattimore, 87 F.3d at 651). The
government bears the burden of establishing, by a preponderance
of the evidence, that it obtained valid consent. Id. at 513-14.
Because we are reviewing the district court’s finding that
consent was voluntary, however, we view all facts in the light
most favorable to the government. Hampton, 628 F.3d at 658.
Unsurprisingly, this standard of review frequently leads to
affirmance of the district court finding on voluntariness. See,
e.g., Digiovanni, 650 F.3d at 514 (affirming finding that
consent was involuntary); United States v. Boone, 245 F.3d 352,
362 (4th Cir. 2001) (affirming finding that consent was
voluntary); Lattimore, 87 F.3d at 651 (affirming finding that
consent was voluntary); United States v. Rusher, 966 F.2d 868,
877 (4th Cir. 1992) (affirming district court’s holding that
consent was voluntary).
The district court in this case expressly found that
Stinson’s consent was voluntary under the totality of the
13
circumstances. There are a number of facts that support that
finding:
• Stinson was in a public place, in the early
evening, with other people around, including an
ex-girlfriend who observed the entire encounter;
• no police officer ever brandished or drew a
weapon;
• none of the police officers made any threatening
actions or gestures toward Stinson, nor did they
threaten force, nor was there evidence of “more
subtle forms of coercion” (J.A. 199);
• Stinson had prior law enforcement encounters,
including arrests, and thus was no newcomer to
the law;
• the duration and extent of the questioning was
relatively short, which suggests he was not
coerced into finally giving in; and
• no false or misleading statements were made by
the police to suggest that Stinson could not
refuse consent. 5
On the other hand, Stinson contends that the following
circumstances and facts show that his will was overborne and
that his consent was not voluntary:
• he was in handcuffs and detained in the back of
the patrol car;
• the police kept his keys, phones and money,
despite the fact that those items were legal;
5
Contrast, e.g., Digiovanni, 650 F.3d at 514 (declining to
overturn district court’s finding of involuntary consent where
trooper made “false implication” that a subject had already
given consent and could not rescind it).
14
• he had initially declined to consent to the
search of his car, according to Officer Hall; 6
• there were three police officers responding to
the call, thereby exhibiting a show of force;
• no written consent was requested or given,
despite officer testimony that consent forms were
available to them;
• the police did not expressly inform Stinson of
his right to refuse consent; and
• Stinson himself had only a ninth grade education
and trivial employment history, which would make
him more likely to be intimidated by the police
and perhaps less likely to understand he had a
right to refuse consent.
Stinson emphasizes, in particular, that the seizure of his
keys, wallet and phone meant that he was not “free to leave,”
and argues from this that he was not free to refuse consent.
But the test for determining the voluntariness of consent is not
whether an individual is free to leave, but whether a person
felt free to refuse permission to search. Indeed, this Court
6
The district court acknowledged a discrepancy in the
officers’ testimony about whether there was an initial refusal
to consent, but specifically found that Stinson explicitly
consented to the search of his vehicle and that he had failed to
produce any evidence that the consent was ever revoked. We
further note that, even if Stinson initially refused to consent,
this refusal also shows that Stinson knew he could refuse
consent. Viewed in this way, his initial refusal supports a
finding of voluntariness. See Schneckloth, 412 U.S. at 233(discussing Davis v. United States, 328 U.S. 582 (1946), wherein
the fact that an initial refusal was “soon followed by
acquiescence” was determined to support the conclusion that
consent was voluntary).
15
and others have found consent voluntary when an individual is
otherwise detained, including being in handcuffs. See, e.g.,
United States v. Watson, 423 U.S. 411, 424 (1976) (concluding
that the defendant’s consent to search automobile was voluntary
and valid, despite the fact that he had been arrested and was in
custody, and noting “the fact of custody alone has never been
enough in itself to demonstrate a coerced . . . consent to
search”); Boone, 245 F.3d at 362 (“consent given while in
custody may still be voluntary”). In any event, no one factor
controls the determination of voluntariness; it is made on the
totality of the circumstances. See Digiovanni, 650 F.3d at 514.
Comparing the competing lists of circumstances and viewing
them in their totality, we conclude the district court’s finding
that Stinson voluntarily consented to the search of his vehicle
was not clearly erroneous, i.e., not “implausible.” See id. at
514.
IV.
For the aforementioned reasons, Stinson has not established
that the district court erred in denying his motion to suppress.
We therefore affirm Stinson’s conviction and the judgment of the
district court.
AFFIRMED
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