United States v. Gary Moore , 390 F. App'x 503 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0474n.06
No. 09-5054 FILED
Aug 05, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
GARY MOORE, EASTERN DISTRICT OF TENNESSEE
Defendant-Appellee.
/
OPINION
BEFORE: KEITH, CLAY, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. The government appeals the district court’s grant of
Defendant Gary Moore’s motion to suppress crack cocaine that was found on his person
following a traffic stop. Defendant has been charged with four drug-related charges, including
conspiracy to distribute both cocaine base and cocaine in violation of 21 U.S.C. § 846 and two
counts of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court
granted the motion to suppress because the officers at the scene had no reasonable fear for
their safety and did not have probable cause to effectuate a search incident to arrest. For the
following reasons, the district court’s grant of the motion to suppress is AFFIRMED.
BACKGROUND
Defendant was indicted in the Eastern District of Tennessee along with three co-
conspirators for conspiracy to distribute and for distributing cocaine and cocaine base.
Defendant moved to suppress the drugs seized from his person following a traffic stop. The
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traffic stop occurred after a police officer received word that a vehicle fitting the description
of the car carrying Defendant and driven by Melissa Moore contained crack cocaine. The
officer received permission from the car’s driver to search the car but failed to locate any
drugs. He then decided to search Defendant’s person, seemingly as a last resort after spending
nearly forty-three minutes at the scene of the traffic stop searching the vehicle.
The magistrate judge conducted an evidentiary hearing in connection with Defendant’s
motion to suppress at which the government’s only witness was Chattanooga Police Officer
Robert Lewis. The magistrate judge denied the motion, and Defendant filed no objections.
Subsequently, Defendant obtained new counsel, who filed a new motion to suppress the same
drugs and a motion for reconsideration of the district court’s order adopting the magistrate
judge’s Report and Recommendation. The magistrate judge granted the motion for
reconsideration and consulted a video recording of the traffic stop in question that had not
been submitted as an exhibit at the initial hearing. On September 29, 2008, the magistrate
judge, after reviewing the video recording, again recommended denying the motion to
suppress.
Defendant objected to the magistrate judge’s Report and Recommendation, and prior
to ruling on the suppression motion, the district court reviewed the video recording of the
traffic stop where the challenged search occurred. The district court also reviewed the
transcript from the suppression hearing, and found the following facts:
On September 27, 2007, Officer Robert Lewis of the Chattanooga police
department was contacted “previously” by Detective Hixon and told that they
were conducting surveillance on a silver Malibu and observed a drug
transaction. Detective Hixon asked that the vehicle be stopped as it was
believed that it contained ten ounces of crack cocaine. Officer Lewis saw the
vehicle and observed it as it failed to stop at two successive stop signs. Officer
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Lewis activated his blue lights and stopped the vehicle. The driver was Melissa
Moore and the defendant Gary Moore was the only passenger. Officer Lewis
explained the reason for the stop to Ms. Moore and asked for her driver’s
license, registration, and proof of insurance. He asked her to stand at the side
of the road away from the traffic. Ms. Moore was visibly crying.
After checking Ms. Moore’s license, Officer Lewis asked her if she had any
firearms, money or contraband in the car or on her person. Ms. Moore said she
did not, and Officer Lewis asked if she would consent to a search of her
vehicle. Ms. Moore agreed to the search. This exchange occurred about ten
minutes after the stop.
Officer Lewis then approached the passenger, defendant Gary Moore, and
asked him if he had a driver’s license because Ms. Moore seemed too upset to
drive. He also asked the defendant to get out of the vehicle. The defendant
produced his license, and Officer Lewis told him to stand with Ms. Moore
between the patrol car and Ms. Moore’s vehicle, out of the way of traffic.
Officer Lewis testified that he thought it was unusual that the defendant
seemed “overly friendly” while Ms. Moore was crying. Officer Lewis asked the
defendant only once to keep his hands out of his pockets and asked him if he
had any firearms, money or contraband on his person. The defendant pulled a
roll of money ($425.00) from his front pants pocket. The roll was secured with
a rubber band. As Officer Lewis walked away toward Ms. Moore’s vehicle, he
told another officer standing with Ms. Moore that he had not “patted down” the
defendant so the officer should keep an eye on him. This exchange took about
two minutes.
For the next thirty-one minutes, the officers thoroughly searched the vehicle.
During this time, the video shows the defendant and Ms. Moore standing in
front of the patrol car. The court has reviewed the video several times and it
does not appear that the defendant ever put his hands in his pockets or did
anything suspicious. About twenty-seven minutes into the search, an officer
(probably Officer Lewis) stated something to the effect: “ I think I’m going to
search him in a second – can’t hurt.1” Then, about four minutes later, an officer
(again, probably Officer Lewis) said: “. . . go ahead and check him real quick.”
After searching the vehicle, the officers had not been able to find any
controlled substances, firearms, or money, but the officers noticed that the
1
The government states in its briefs before this Court that Lewis said he was going to search
him “to be safe” rather than “in a second.” After reviewing the recording, we agree with the district
court that Lewis states “in a second.”
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carpeting was lifted up on the passenger side and that the lining of the back
seat was held up with a safety pin. Officer Lewis approached the defendant and
asked him once again if he had any of those items on his person. Again, the
defendant said no. At that point, Officer Lewis told the defendant to place his
hands on the hood of the patrol car and to spread his legs. The defendant began
to comply with Officer Lewis’s request, but then turned and tried to flee. After
he was taken down only a few feet away, the crack cocaine was found in his
pocket. He and Ms. Moore were arrested.
The government takes issue with two statements in this recitation of the facts. First,
it argues that Officer Lewis asked Defendant not once, but twice, to keep his hands visible.
The government also states that even though the district court found that Defendant did not
put his hands in his pockets, Lewis testified that Defendant “continued to put his hands in his
pockets” and “several times . . . stuck his hands back in his pockets.” (Suppression Hr. Tr. 16,
21). Defendant admits that he stuck his hands in his pockets twice, but after reviewing the
video recording of the traffic stop, we agree with the district court that Defendant did not have
his hands in his pockets during the search of the vehicle.
Based on these facts, the district court granted the motion to suppress. The government
filed a motion for reconsideration, which was denied. The government’s timely appeal
followed.
DISCUSSION
“This court reviews a district court's decision on a motion to suppress under two
standards. ‘Findings of fact are upheld unless clearly erroneous, while conclusions of law are
reviewed de novo.’” United States v. Jenkins, 396 F.3d 751, 757 (6th Cir. 2005) (quoting
United States v. Leaks, 95 F.3d 409, 416 (6th Cir.1996)). “This court views the evidence in
the light most likely to support the district court's decision.” United States v. McPhearson,
469 F.3d 518, 523 (6th Cir. 2006) (internal quotation omitted). “A factual finding is clearly
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erroneous when, although there may be evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. Blair, 524 F.3d 740, 747 (6th Cir. 2008) (internal quotation
omitted). Whether probable cause exists to arrest and detain a suspect generally is a question
of law that we review de novo. See Moldowan v. City of Warren, 578 F.3d 351, 396 (6th Cir.
2009).
As a preliminary matter, we acknowledge that traffic stops are often considered in the
framework of Terry v. Ohio, 392 U.S. 1 (1968). “A concern for officer safety permits a variety
of police responses in differing circumstances, including ordering a driver and passenger out
of a car during a traffic stop, . . . and conducting pat-down searches upon reasonable suspicion
that they may be armed and dangerous.” United States v. Campbell, 549 F.3d 364, 372 (6th
Cir. 2008) (quoting Bennett v. City of Eastpointe, 410 F.3d 810, 822 (6th Cir. 2005)).
However, an officer is only allowed to pat-down a person in performing a Terry stop if he can
“point to particular facts from which he reasonably inferred that the individual was armed and
dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968) (holding search for drugs, not
weapons, required probable cause, not merely a reasonable suspicion).
In this case, the district court rejected the officer’s claim that he was searching for
weapons because the officer’s testimony that he suspected Defendant was armed and
dangerous was inconsistent with the facts. The district court correctly found that “whatever
reasonable concern for his safety Officer Lewis could articulate at the beginning of the stop
dissipated during the nearly forty-three minutes he allowed the Defendant to sit in Ms.
Moore’s vehicle and stand along the roadside during the search of the vehicle.” United States
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v. Moore, No. 08-CR-16, 2008 WL 4981704, at *3 (E.D. Tenn. Nov. 19, 2008). The
government does not contest this finding on appeal, and it was uncontested that there was no
search or pat-down of Defendant during the forty-three minute interval the officers questioned
Defendant and searched the car.
Because there was no Terry stop search, the search was valid only if the officer had
probable cause to believe that Defendant had drugs at the time of the search. “For probable
cause to exist, the facts and circumstances within the officers’ knowledge must be sufficient
to warrant a man of reasonable caution to believe that an offense had been, was being, or was
about to be committed.” Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2007). “Whether
probable cause exists depends on the reasonable conclusion to be drawn from the facts known
to the arresting officer at the time of the arrest.” United States v. Pearce, 531 F.3d 374, 380-
81 (6th Cir. 2008) (quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004)).
A. Lack of Probable Cause for Search
Drugs were eventually found on Defendant following a search performed at the
conclusion of a forty-minute traffic stop. According to the video, at 10:52 p.m., the officer
approached Defendant and initiated an interaction that eventually led to the discovery of the
drugs in Defendant’s possession less than a minute later. When the officer initially
approached Defendant at 10:52 p.m., he simply did not have probable cause to effectuate a
search. Without citation to any case law involving similar facts, the government argues that
the undisputed facts “considered in their totality, provide probable cause to believe that
defendant was committing a criminal offense, specifically possessing drugs.” (Appellant’s Br.
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at 17). We disagree. Before Defendant’s futile attempt to flee from the officer, the
government undoubtedly did not have probable cause to effectuate a search.
Supreme Court case law is clear that the standard for searching a car is very different
than that of searching a passenger of a car. In allowing police officers to search a passenger’s
belongings, the Court distinguished between the search of a vehicle and a personal search
because of “the unique, significantly heightened protection afforded against searches of one’s
person.” Wyoming v. Houhgton, 526 U.S. 295, 301 (1999). This holding is based on a long-
standing rule that probable cause to search a car does not mean that “a person, by mere
presence in a suspected car, loses immunities from search of his person to which he would
otherwise be entitled.” United States v. Di Re, 332 U.S. 581, 587 (1948).
In this case, no evidence in the record even suggests that Defendant was involved in
the drug transaction that may have triggered Officer Lewis’ response. Officer Lewis’
testimony at the suppression hearing indicates that he had no specific suspicion of Defendant.
He stopped the car because it ran two stop signs, but his full testimony on the car’s link to drug
activity stated:
I had been contacted just previously, I think, by Detective Hixon, who also
works for us. He stated that they had just, or I learned that they were doing
surveillance on a vehicle that they'd just done a drug transaction with and that
they were surveilling the vehicle and they wanted the vehicle stopped. It was
my understanding that there was around 10 ounces of crack cocaine hidden
inside the vehicle.
(Suppression Hr. Tr. at 22). No evidence provided to Officer Lewis tied Defendant directly
to the drugs, and even if it were assumed that drugs were in the car, they were no more likely
to be possessed by Defendant than Ms. Moore. This one tip from another officer without a
clear temporal description and without constant surveillance of the subject vehicle may not
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have even been sufficient to provide probable cause to search the car. The search of the car
was permissible because Ms. Moore consented to the search, but the government never
received consent to search Defendant’s person and did not attempt to conduct a timely Terry
search following the traffic stop; it certainly did not have the probable cause necessary to
overcome “the unique, significantly heightened protection afforded against searches of one’s
person.” Houghton, 526 U.S. at 301. The government acknowledges the holding in Di
Re but argues that when no drugs were found in the car, the likelihood that drugs would be
found on Defendant was increased. For support, the government relies on a Tenth Circuit
case, United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998). In that case, a search of the
person was allowed following an unsuccessful search of the car. The crucial difference,
however, is that the search of the car was triggered by a drug detection dog. The Tenth Circuit
considers a canine alert probable cause for search and seizures. Once the dog had highlighted
the presence of drugs, the lack of drugs in the car, “increased the chances that whatever the
dog had alerted to was on the defendants’ bodies.” Id. at 1045. In the instant case, no drug
dog was present, and the testimony does not suggest that Defendant had been under constant
surveillance after another officer viewed a similar car participating in a drug transaction.
Therefore, the officer could not be certain that he had stopped the car observed during the drug
transaction or that drugs were even in the car.
Furthermore, Officer Lewis’ testimony regarding his on-the-scene observations is
insufficient to provide probable cause that Defendant possessed drugs. Officer Lewis testified
that Defendant and Ms. Moore asked directions to a mall that was closed, that Ms. Moore was
crying but Defendant was “overly-friendly,” that Defendant had $425 in a rubber band, and
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that Defendant put his hands in his pockets. Such relatively benign behavior and the tip from
another officer that failed to provide any information about Defendant himself certainly did
not provide the probable cause for an arrest.
In addition, the government argues that the district court made several “clearly
erroneous” factual determinations, but these alleged errors were either immaterial or
technically not errors. Specifically, the government finds clearly erroneous (a) the
determination that Lewis only asked Defendant once to take his hands out of his pockets; and
(b) the finding that Defendant did not put his hands in his pockets. Even if the government
were correct that the district court erred in these two instances, any alleged error is irrelevant
to the probable cause determination. In fact, Lewis told Defendant twice, not once, to take his
hands out of his pockets. The two admonitions from Lewis occurred about a minute apart and
fully thirty-two minutes before the actual search. That minor error had no impact on the
district court’s probable cause analysis.
The district court’s contention that Defendant did not put his hands in his pocket was
not clearly erroneous because the district court was referring to what occurred during the
search of the vehicle. Defendant had put his hands in his pockets before the search of the
vehicle began. Even if the district court’s determination were incorrect, the fact Defendant put
his hands in his pockets twice does not contribute to a probable cause determination that he
had drugs. The number of times Defendant reached into his pockets would perhaps be relevant
had the government continued to press its argument that the search was permissible because
the officer had a reasonable fear for his safety. When pulled over by the police, Defendant had
ample opportunity to put drugs into his pockets before the police officer got to the car, and
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subsequently putting his hands into his pockets on two occasions does not in any way increase
the likelihood that he illegally possessed drugs. The government offers no persuasive reason
why the Defendant putting his hands in his pockets would increase the likelihood that he had
drugs on his person. These two alleged factual errors should have had no cognizable effect
on the probable cause analysis.
B. Propriety of Search in the Absence of Probable Cause
The government contends that, even if these facts did not support a finding of probable
cause when Officer Lewis approached Defendant to conduct a search of Defendant’s person,
Defendant’s attempt to run away provided the necessary probable cause to allow for a search.
“Headlong flight – wherever it occurs – is the consummate act of evasion: It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S.
119, 124 (2000). Arguably, the attempt to flee plus the other indications that Defendant could
have had drugs might create the necessary probable cause to allow for an arrest and search
incident to arrest. The district court did not reach this issue because it reasoned that the search
had already commenced before Defendant attempted to flee. The district court found that
“defendant’s attempted flight occurred after the officer tried to search him” and further held
that evidence “obtained after the officers began to search cannot be used later to justify the
search.” (Order on Mot. for Reconsideration at 2). Since “the fruits” of a search incident to
arrest cannot be used to sustain probable cause, United States v. Montgomery, 377 F.3d 582,
586 (6th Cir. 2004), the question of whether the search had begun before Defendant tried to
run therefore becomes the crucial question to be resolved.
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The government argues that the district court made an erroneous factual finding by
holding that Defendant’s attempt to flee occurred after the search had commenced. It argues
that: “Because defendant’s flight preceded any frisk or search, the district court erred by not
considering it as a factor contributing to probable cause to arrest and search defendant.”
(Appellant’s Br. at 20). If the determination were purely a factual determination, the district
court’s judgment would easily be upheld as not clearly erroneous. The government, however,
has actually misstated the standard of review in Defendant’s favor. “In reviewing a decision
on a suppression issue, we review the lower court’s findings of fact for clear error and its
conclusions of law de novo.” United States v. Salgado, 250 F.3d 438, 455 (6th Cir. 2001).
We accept the district court’s factual determinations unless they are clearly erroneous and then
make a de novo determination of whether those facts mean that a search had occurred. Id.
(accepting the district court’s factual findings as not clearly erroneous but reviewing de novo
the legal determination that the insertion of a key into a lock was not the beginning of a
search).
Even under the de novo standard, the district court was correct that the search began
before Defendant attempted to run away. While the officer had yet to physically reach into
Defendant’s pockets, he had physically placed Defendant next to a car and told him to spread
his legs. He also had placed his hand on Defendant’s side. He motioned for another officer
to assist, and Defendant then attempted to run away, never escaping the officer and quickly
being corralled by a number of officers. We agree with the district court that, as a matter of
law, the search began when the officer physically positioned Defendant on the hood of a police
car by grabbing his shirt, instructed him to spread his legs, and then physically touched him
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on his side, presumably in an attempt to uncover contraband or a weapon. Officer Lewis’
intent to search was apparent, and the physical contact clearly indicates that the search had
begun. “Before [an officer] places a hand on the person of a citizen in search of anything, he
must have constitutionally adequate, reasonable grounds for doing so.” Sibron v. New York,
392 U.S. 40, 64 (1968).2 In this case, Officer Lewis lacked the requisite probable cause to
begin the search when he placed a hand on Defendant. While the drugs were only recovered
after Defendant attempted to flee, the search that led to the discovery of the drugs began before
the officers had probable cause, and the evidence was therefore properly suppressed. See id.
at 63 (holding that it is “axiomatic that an incident search may not precede an arrest and serve
as part of its justification”). The dissent’s repeated fixation on the use of the term “attempted
search” obscures the fact that the district court clearly held that the search began before
Defendant attempted to flee. “The court finds that the defendant’s attempted flight occurred
after the officer tried to search him. Evidence obtained after the officers began to search
cannot be used to later justify the search.” United States v. Moore, No. 08-CR-16, 2009 WL
2
The dissent cites language from a number of irrelevant cases to create the illusion that the
officer’s conduct could not constitute a search. First the dissent cites a series of cases that all deal
with searches of objects rather than searches of persons. (Dissent at 9). Then, the dissent cites a
string of cases stemming from the Supreme Court’s decision in United States v. Dionisio, 410 U.S.
1 (1973). (Dissent at 10-11). The Supreme Court in Dionisio found that the Fourth Amendment
provided no protection for “what a person knowingly exposes to the public . . . The physical
characteristics of a person’s voice, its tone and manner, as oppose to the content of a specific
conversation are constantly exposed to the public. Like a man’s facial characteristics, or
handwriting, his voice is repeatedly produced for others to hear.” 410 U.S. at 14 (citation and
quotation omitted). In these cases, the only evidence being sought consists of observable physical
characteristics, not, by way of example, what a citizen might be intentionally concealing inside his
clothing. None of these cases have any relevance to an officer’s conduct in searching for drugs in
a roadside stop.
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73148, at *1 (E.D. Tenn. Jan. 6, 2009). The use of the term “attempt” elsewhere in the
opinion only implies that the search was not completed, not that it was not begun.
We acknowledge that Defendant’s attempt to flee after the search began may have
implications for the probable cause analysis, but those implications were never properly raised
by the government before this Court. While the government referenced Defendant’s flight as
a factor in the probable cause analysis, it failed to properly make any argument that
Defendant’s attempt to break free from the officer’s grip could turn an unconstitutional search
into a constitutional search.3 Defendant’s attempt to resist the search raises a host of
complicated issues including whether Defendant’s lack of cooperation with the search
constituted a crime, whether Defendant should have been allowed to depart the scene prior to
the illegal search, and what a person’s obligations are to submit to unconstitutional searches.
These arguments have not been properly raised or briefed before this Court, and we decline
to consider them.
The dissent misapprehends our position in declining to reach this issue. We decline
to reach the issue because the government, while referencing Defendant’s flight, never
discussed whether an unlawful search could turn lawful if Defendant attempted to flee. The
government’s failure to raise the issue is apparent based on the dissent’s own analysis of the
issue. The dissent finds for the government on the issue by relying on five separate cases. Not
one of those cases appears in the government’s brief to this court. The government, as
3
The district court also declined to consider this argument because it was not made until the
government’s motion for reconsideration of the district court’s grant of Defendant’s motion to
suppress. In that motion, the government raised for the first time T.C.A. § 39-16-602, which makes
it an offense to stop a law enforcement officer from searching a person. That statute was never
referenced before the magistrate judge or before this Court.
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appellant in this case, could have located the cases found by the dissent and therefore allowed
Defendant, as appellee, an opportunity to respond. The dissent argues that “we have not
addressed this precise issue in a published decision,” but appears to believe that such standard
operating procedure as considering reasoned arguments by both parties is unnecessary to
answering unresolved questions. Actually, the dissent seems to prefer to derive its legal
position from opinions from the Eighth Circuit and several unpublished opinions in this
Circuit.4 Contrary to the dissent’s approach, we decline to decide a legal issue never briefed
or argued before this Court.5
To summarize, our holding is two-fold. First, Officer Lewis did not have probable
cause to search Defendant’s person based on the tip that a similarly described car might be
transporting drugs and based on Defendant’s behavior before and during the search of the car.
Additionally, we hold that the search of Defendant began in the absence of probable cause
before he attempted to flee. Consequently, the officer did not have probable cause to search
Defendant at the time that the actual search began.
CONCLUSION
For the foregoing reasons, the district court’s grant of Defendant’s motion to suppress
is AFFIRMED.
4
In one of those unpublished opinions, United States v. Baldwin, 114 F. App’x 675, 687 (6th
Cir. 2004), the dissent relies on language from that case’s dissent and is forced to distinguish the
majority opinion. The need to distinguish Baldwin underscores the complexity of the issue and
bolsters our decision to decline to rule on this issue without proper briefing and argument.
5
The dissent appears to understand this concept when it declines to consider whether
Defendant was improperly seized because Defendant “makes no argument that he was unlawfully
seized.” (Dissent at 12).
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GRIFFIN, Circuit Judge, dissenting.
I respectfully dissent. In my view, the undisputed evidence demonstrates that
defendant Moore was not searched until after he fled from Officer Lewis, thereby providing
probable cause for his subsequent arrest and search, which led to the recovery of crack cocaine
from his pocket. Alternatively, assuming arguendo that an unlawful search or seizure
occurred, I would hold that Moore’s conduct in resisting and fleeing from Officer Lewis
constituted an independent, intervening act which rendered his subsequent arrest and search
incident to that arrest lawful. For these reasons, I would reverse the district court’s
suppression of the crack cocaine found in Moore’s pocket.
I.
As a preliminary matter, I note that Moore did not object to below, and he does not
challenge in this appeal, the magistrate judge’s ruling that the initial stop of the vehicle in
which he was a passenger was constitutional. Officer Lewis, who stopped the car, had been
notified by another detective that “they’d just done a drug transaction with” a particular silver
Malibu and “wanted the vehicle stopped.” “It was [Officer Lewis’s] understanding that there
[were] around 10 ounces of crack cocaine hidden inside the vehicle.” Officer Lewis stopped
the Malibu after it failed to obey two stop signs. See United States v. Canipe, 569 F.3d 597,
601 (6th Cir. 2009) (holding that an officer does not violate the Fourth Amendment when he
stops a vehicle for a traffic violation, even though the officer’s subjective purpose for making
the stop was his suspicion that another crime had been committed) (citing Whren v. United
States, 517 U.S. 806, 813-19 (1996)).
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II.
Moore also does not argue that the search of his car was unlawful. After Officer Lewis
explained the reason for the stop – failure to obey two stop signs – Moore stated that he and
his wife were lost and asked Officer Lewis to write down directions to a local mall. According
to Officer Lewis, “it was obvious that [Mrs. Moore] was crying[,]” shaking, and appeared to
be more nervous than the “average motorist.” In addition, “there was a strong odor of air
freshener” emanating from the car. When asked by Officer Lewis why she came to
Chattanooga, Mrs. Moore responded that she was visiting a friend and shopping at the mall.
In Officer Lewis’s view, Mrs. Moore’s explanation was “odd” because she stated she had
finished work at 5:00 p.m., had driven three hours for the trip and was heading home (a “far
[distance] [for] such a short turnaround”), was driving toward the mall rather than away from
it, and the mall was closed at that hour. In light of this suspicious information, Officer Lewis
requested, and obtained, Mrs. Moore’s consent to search her vehicle. The district court held
correctly that “the officers could thoroughly search the vehicle and its contents” based upon
Mrs. Moore’s lawful consent. See United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998)
(en banc) (holding that “[a] law enforcement officer does not violate the Fourth Amendment”
when he “request[s] for consent to search the individual’s vehicle”).
Immediately prior to the search of the car, Moore denied having contraband and pulled
a cash roll of approximately $400 from his front pants pocket, which was wrapped in a rubber
band. According to Officer Lewis, “[A] lot of time drug couriers wrap their money in rubber
bands.” During his search of the vehicle, Officer Lewis observed that the carpet was “pulled
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back” on the floor of the passenger side and that the lining of a back seat cushion had also
been displaced and re-secured with a safety pin as if they were hiding spots.
III.
The events most critical to this appeal occurred when officers failed to find contraband
in Moore’s vehicle following their search of it. At that point, Officer Lewis approached
defendant Moore and his wife and asked whether they had anything illegal on themselves.
According to Officer Lewis, defendant Moore initially “wouldn’t look at me and I don’t think
he even made a statement[,]” but he then said no and appeared “a little bit fidgety[.]” Moore’s
reaction made Officer Lewis “suspicious.” After assuring Moore that he would be on his way
in “just a second[,]” Officer Lewis told Moore to place his hands on the hood of the patrol car.
When Moore turned around to do so, Officer Lewis, now standing behind him, placed one
hand on defendant’s left shoulder, briefly touched his left side, motioned for another officer
to approach, and instructed Moore to spread his legs. Officer Lewis testified that he “was
about to ask [Moore] for consent” to search him.
Defendant is mistaken when he asserts that the district court rejected Officer Lewis’s
testimony that he was “about to ask” for permission to search defendant. In fact, the district
court made no such finding. The evidentiary hearing on Moore’s motion to suppress was held
before a magistrate judge, who found that Officer Lewis, the only witness to testify about the
alleged search, was “an extremely creditable and forthcoming witness. He is believed, and
nothing else in this regard need be said . . . .” Moore filed no objections to the magistrate
judge’s finding that Officer Lewis was credible, and the district court did not address, let alone
“reject,” any of Officer Lewis’s testimony.
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Although Moore complied initially with Officer Lewis’s instructions, he then turned
and fled. The entire incident, from the time Officer Lewis told Moore to place his hands on
the hood of the police car to when Moore fled, lasted less than ten seconds. He was tackled
a few feet away by three officers and handcuffed following a brief struggle. Approximately
two ounces of crack cocaine were found in Moore’s pocket.
IV.
According to my colleagues, “the question of whether the search had begun before
[Moore] tried to run . . . becomes the crucial question to be resolved.” Maj. Op. at 10. The
Fourth Amendment to the United States Constitution protects against “unreasonable searches
and seizures[.]” U.S. Const. amend. IV. Because the district court and my colleagues do not
hold, and Moore does not argue in this appeal, that he was unreasonably seized following the
lawful search of his vehicle, only the “unreasonable search[]” prohibition of the Fourth
Amendment arguably applies. Cf. Sibron v. New York, 392 U.S. 40, 63 (1968) (“We are not
called upon to decide in this case whether there was a ‘seizure’ of Sibron inside the restaurant
antecedent to the physical seizure which accompanied the search.”).
However, the law is well-established that police conduct which does not amount to a
“search” does not violate the Fourth Amendment’s protection from unreasonable searches.
See United States v. Long, 464 F.3d 569, 573 n.1 (6th Cir. 2006) (stating that there is “no
cognizable Fourth Amendment” claim when there is no search or seizure). As the majority
correctly acknowledges, we give no deference to the district court’s legal determination that
a search occurred; rather, we give the issue our fresh review. United States v. Salgado, 250
F.3d 438, 455 (6th Cir. 2001) (accepting the district court’s factual findings as not clearly
No. 09-5054
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erroneous but reviewing de novo and affirming the district court’s ruling that the insertion of
a key into a lock was not a search under the Fourth Amendment).
A.
The majority interprets the district court’s holding as follows: “[Moore’s] attempt to
flee occurred after the search had commenced.” Maj. Op. at 10. However, my colleagues
misread the district court’s holding. In at least six places, the district court characterizes
Officer Lewis’s conduct with respect to Moore not as a search, but as an “attempted search”
or an “attempt to search” only. (Emphasis added.)1 In its order on the government’s motion
for reconsideration, the district court held similarly that “the defendant’s attempted flight
occurred after the officer tried to search him.” (First emphasis omitted; second emphasis
added.) Consistent with this interpretation of the district court’s holding, Moore states in his
appellate brief that “[t]he District Court reasoned that this attempted search was unreasonable
. . . .” (emphasis added), and “[t]he District Court rightly concluded that the officer’s attempt
to search the Defendant was a search for drugs and not weapons. Both the conduct of the
officers during the search and the fact that they waited until they completed the vehicle search
to attempt to search the Defendant supports this conclusion.” (Emphasis added.) In fact,
1
The district court stated: “For the reasons discussed below, the defendant’s objection to the
finding related to the attempted search of his person will be granted and the evidence seized from
his person will be suppressed” (emphasis added); “[t]he defendant’s second objection concerns the
attempted search of the defendant’s person” (emphasis added); “[t]he court finds that Officer Lewis’s
attempt to search the defendant’s person was not related to any concern for ‘officer safety’ and the
search cannot be justified as a patdown for weapons” (emphasis added); “[t]he court has thoroughly
reviewed the video and the events leading up to the attempted search . . . .” (emphasis added); “[t]he
crack cocaine that was found on the defendant was a direct result of the unlawful attempt to search
the defendant” (emphasis added); “[t]herefore, the court finds the defendant’s objection to the report
and recommendation concerning the attempted search of his person well taken.”
No. 09-5054
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Moore virtually concedes that he was not searched when he emphasizes in the last paragraph
of his argument section that “there is no question the officer was going to search him” and
“Officer Lewis was going to search the Defendant for narcotics . . . .” (Emphasis added.)
The law has long distinguished between conduct constituting a mere intent to violate
the law, an attempt to do so, and the actual commission of an offense. See United States v.
Resendiz-Ponce, 549 U.S. 102, 107 (2007). Regarding the Fourth Amendment, the proper
characterization of Officer Lewis’s conduct is not only “crucial” as the majority characterizes
it, but dispositive as to whether a constitutional violation occurred because, unlike statutes
which proscribe both attempts and completed offenses, the text of the Fourth Amendment does
not.
B.
The majority fails to support its holding that a search occurred at the hood of the police
car. In affirming the district court’s ruling that a Fourth Amendment violation occurred, the
majority reasons:
While the officer had yet to physically reach into [Moore’s] pockets, he had
physically placed [Moore] next to a car and told him to spread his legs. He
also had placed his hand on [Moore’s] side. He motioned for another officer
to assist, and [Moore] then attempted to run away, never escaping the officer
and quickly being corralled by a number of officers. We agree with the district
court that, as a matter of law, the search began when the officer physically
positioned [Moore] on the hood of a police car by grabbing his shirt, instructed
him to spread his legs, and then physically touched him on his side,
presumably in an attempt to uncover contraband or a weapon. Officer Lewis’
intent to search was apparent, and the physical contact clearly indicates that the
search had begun. . . . In this case, Officer Lewis lacked the requisite probable
cause to begin the search when he placed a hand on [Moore]. While the drugs
were only recovered after [Moore] attempted to flee, the search that led to the
discovery of the drugs began before the officers had probable cause, and the
evidence was therefore properly suppressed.
No. 09-5054
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Maj. Op. at 11-12 (internal citation omitted).
In addition to the majority’s mistaken reliance upon Officer Lewis’s purported “intent”
as evidence that a search occurred, see Bond v. United States, 529 U.S. 334, 338 n.2 (2000)
(“[T]he issue [in determining whether an officer’s actions violate the Fourth Amendment] is
not his state of mind, but the objective effect of his actions”); cf. Resendiz-Ponce, 549 U.S. at
107 (stating that “mere intent” to violate the law is not an offense), my colleagues also
speculate that Officer Lewis “physically touched [Moore] on his side, presumably in an
attempt to uncover contraband or a weapon.” Maj. Op. at 11. However, neither the magistrate
judge nor the district court found that the very brief, fraction-of-a-second touching was “an
attempt to uncover contraband or a weapon.”
In his R&R, the magistrate judge found that Officer Lewis “placed one of defendant’s
hands on top of the car, while placing his own hand on defendant’s shoulder. At that point,
defendant bolted and ran.” Similarly, the district court found that “Officer Lewis told the
defendant to place his hands on the hood of the patrol car and spread his legs. The defendant
began to comply with Officer Lewis’s request, but then turned and tried to flee.” Significantly,
Officer Lewis did not pat down Moore; rather, after positioning Moore on the police cruiser,
Officer Lewis motioned for another officer to approach. Immediately thereafter and before the
other officer responded, Moore fled.
The majority disposes of its “crucial” question – whether Officer Lewis’s conduct
amounted to a search – by quoting a single sentence from an inapposite Supreme Court
decision, Sibron v. New York. In Sibron, a companion case to Terry v. Ohio, 392 U.S. 1
(1968), the Supreme Court held, in relevant part, that a police officer’s search of a defendant
No. 09-5054
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and seizure of heroin from him were unlawful because they were not supported by probable
cause or a reasonable fear for officer safety. 392 U.S. at 62-64. However, Sibron did not
address the threshold issue posed in the present case – whether police conduct constituted a
search. In fact, there was no dispute in Sibron that a search occurred when the officer “thrust
his hand into [the defendant’s] pocket, discovering several glassine envelopes, which, it turned
out, contained heroin.” Id. at 45. The Sibron Court’s statement that, “[b]efore [an officer]
places a hand on the person of a citizen in search of anything, he must have constitutionally
adequate, reasonable grounds for doing so[,]” 392 U.S. at 64, is not a holding that a search
occurs whenever an officer “places a hand” on someone, as the majority erroneously implies.
Instead, the Supreme Court was merely expounding upon its general admonition in the
sentence immediately preceding the quoted one that “[t]he police officer is not entitled to seize
and search every person whom he sees on the street or of whom he makes inquiries.” Id. at
64.
C.
There was no search of Moore at the hood of the cruiser. “The touchstone of Fourth
Amendment analysis is whether a person has a constitutionally protected reasonable
expectation of privacy.” California v. Ciraolo, 476 U.S. 207, 211 (1986) (citations and
internal quotation marks omitted). “What a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United
States, 389 U.S. 347, 351 (1967). Moreover, “[u]nder either the King’s or the Colonists’
English, the term ‘search’ implies something more than a superficial, external examination.
It entails ‘looking through,’ ‘rummaging,’ ‘probing,’ ‘scrutiny,’ and ‘examining internally.’”
No. 09-5054
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Canipe, 569 F.3d at 605 (quoting United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995)); see
also Kyllo v. United States, 533 U.S. 27, 32 n.1 (2001) (“When the Fourth Amendment was
adopted, as now, to ‘search’ meant ‘to look over or through for the purpose of finding
something; to explore; to examine by inspection; as, to search the house for a book; to search
the wood for a thief.’”) (citation omitted); Arizona v. Hicks, 480 U.S. 321, 328 (1987) (“[A]
truly cursory inspection – one that involves merely looking at what is already exposed to view,
without disturbing it – is not a ‘search’ for Fourth Amendment purposes, and therefore does
not even require reasonable suspicion.”). In the present case, the majority cites no relevant
authority that Officer Lewis’s superficial touching of Moore’s shoulder and side infringed
upon Moore’s reasonable privacy expectations or amounted to the type of intrusion that we
recognize as a search under the Fourth Amendment.
In this regard, Officer Lewis did not search Moore’s body for either evidence or
weapons before his flight. Moreover, Officer Lewis’s touch of Moore’s shoulder and fleeting
contact to his side were less intrusive than the “careful exploration of the outer surfaces of a
person’s clothing all over his or her body in an attempt to find weapons” that the Supreme
Court qualified as a “limited search” in Terry v. Ohio, 392 U.S. at 16, 24 (emphasis added).
In fact, Officer Lewis’s non-invasive conduct falls short of even that which has been held to
be beyond the purview of a Fourth Amendment search. See United States v. Richardson, 388
F.2d 842, 845 (6th Cir. 1968) (holding that an “examination of appellant’s hands under the
ultraviolet light [w]as [not] a search within the meaning of the Fourth Amendment”); United
States v. Ferri, 778 F.2d 985, 995 (3d Cir. 1985) (holding that “the grand jury’s directive that
[the defendant] submit his feet and shoes for ink printing did not constitute a ‘search’ of his
No. 09-5054
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person”); Stehney v. Perry, 907 F. Supp. 806, 823 (D. N.J. 1995) (“[T]he taking of a
fingerprint is not a search even though it involves touching and pressing, and reveals
physiological traits too minute to be considered exposed to public view in any meaningful
sense.”) (citing United States v. Dionisio, 410 U.S. 1, 15 (1973)); State v. Chesney, 353 A.2d
783, 788 (Conn. 1974) (holding that “applying paraffin casts to the accused’s hands [to test
for gunpowder reside] did not violate the fourth . . . amendment[] any more than
fingerprinting”), overruled on other grounds, State v. Stange, 563 A.2d 681 (Conn. 1989);
United States v. Holland, 378 F. Supp. 144, 155 (E.D. Pa. 1974) (holding that a dental
examination to see if a tooth is missing is not a search, even though it involves an intrusion
into a body cavity); Perry, 907 F. Supp. at 823 (holding that a polygraph test does not
constitute a search because “[t]he incidental contact involved in attaching polygraph
equipment and the rather innocuous readings of heart rate, respiration and perspiration changes
are hardly more intrusive than a dental examination”); Dionisio, 410 U.S. at 14-15 (1973)
(stating that “[t]he physical characteristics of a person’s voice, its tone and manner, as opposed
to the content of a specific conversation, are constantly exposed to the public[,]” and “[l]ike
a man’s facial characteristics, or handwriting, his voice is repeatedly produced for others to
hear” so that “[n]o person can have a reasonable expectation that others will not know the
sound of his voice, any more than he can reasonably expect that his face will be a mystery to
the world”); United States v. Mara, 410 U.S. 19, 21 (1973) (“Handwriting, like speech, is
repeatedly shown to the public, and there is no more expectation of privacy in the physical
characteristics of a person’s script than there is in the tone of his voice.”).
No. 09-5054
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Although each of these cases involved touching and/or actual scrutiny of a suspect –
a stark contrast to the facts here – the examinations at issue nevertheless failed to qualify as
Fourth Amendment searches because the suspect had no reasonable privacy expectation in the
object examined, and/or the intrusion, if any, was minimal or de minimis. Such is the case
here. Officer Lewis’s conduct is clearly distinguishable from other police touchings that have
been held to constitute searches. See, e.g., United States v. Askew, 529 F.3d 1119, 1127 (D.C.
Cir. 2008) (en banc) (holding that a partial unzipping of the defendant’s jacket to facilitate a
show-up identification procedure during a Terry stop constituted a search); Minnesota v.
Dickerson, 508 U.S. 366, 378 (1993) (holding that “‘squeezing, sliding and otherwise
manipulating the contents of the defendant’s pocket’ – a pocket which the officer already knew
contained no weapon . . . overstepped the bounds of the ‘strictly circumscribed’ search for
weapons allowed under Terry”) (internal citations omitted); see also Smith v. Maryland, 442
U.S. 735, 740 (1979) (holding that the individual’s expectation of privacy triggering Fourth
Amendment protections must be “one that society is prepared to recognize as reasonable”)
(internal citation and quotation marks omitted); cf. Bond, 529 U.S. at 338-39 (stating that a bus
passenger who places his bag in an overhead bin “expects that other passengers or bus
employees may move it” or “handle[]” it “for one reason or another” without violating his
privacy expectations, so long as other passengers or bus employees do not, “as a matter of
course, feel the bag in an exploratory manner.”) (emphasis added). Because the majority’s
interpretation would contravene the plain meaning of a “search” under the Fourth Amendment
and the judicial mandate that the search must infringe upon a legitimate privacy interest, I
No. 09-5054
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would hold, consistent with Moore’s own admission that “Officer Lewis was going to search”
him (emphasis added), that a search did not occur.
V.
Because Moore was not searched at the hood of the cruiser (and makes no argument
that he was unlawfully seized), his flight, coupled with the panoply of other evidence causing
at least reasonable suspicion to believe he possessed drugs, turned reasonable suspicion into
probable cause to arrest him. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Headlong flight
. . . is the consummate act of evasion” and suggestive of guilt); see also United States v.
Schaafsma, 318 F.3d 718, 722 (7th Cir. 2003) (“[I]t is generally accepted that flight can be
strong evidence of guilt.”) (citation and internal quotation marks omitted); United States v.
Dotson, 49 F.3d 227, 231 (6th Cir. 1995) (collecting cases and holding that the defendant’s
“efforts to flee, coupled with [a detective’s] reasonable suspicion that [he] was involved in
criminal activities, established probable cause to arrest” him); cf. Sixth Cir. Crim. Pattern Jury
Instr. § 7.14 (2009) (permitting a jury to consider a defendant’s flight following his alleged
commission of a crime as evidence of guilt). Thereafter, the officers’ search of Moore and
seizure of the crack cocaine from his pocket were lawful as a search incident to his valid arrest.
United States v. Robinson, 414 U.S. 218, 235 (1973) (holding that after “a lawful custodial
arrest a full search of the person is not only an exception to the warrant requirement of the
Fourth Amendment, but is also a ‘reasonable’ search under that Amendment”).
VI.
Finally, assuming arguendo that an unlawful search or seizure occurred at the hood of
the police car, I would also hold that Moore’s conduct in resisting and fleeing from Officer
No. 09-5054
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Lewis rendered his subsequent arrest and search lawful. Although we have not addressed this
precise issue in a published decision, numerous courts have held consistently that resistance
to an unlawful search or seizure constitutes an independent, intervening act that sufficiently
attenuates any connection between the unlawful search and seizure and provides legitimate
grounds for a second seizure and search. See United States v. Dawdy, 46 F.3d 1427, 1431 (8th
Cir. 1995) (relying upon cases from the Fifth, Ninth, Tenth, and Eleventh Circuits and stating,
“assuming arguendo that [the officer’s] initial stop and arrest of [the defendant] were invalid,
[the defendant’s] resistance provided independent grounds for his arrest, and the evidence
discovered in the subsequent searches of his person and his automobile is admissible”); see
also United States v. Baldwin, 114 F. App’x 675, 687 (6th Cir. 2004) (unpublished) (Sutton,
J., dissenting) (“The exclusionary rule protects those who follow police direction after an
illegal stop, not those who seek to escape out of a sense of panic or on their own suspicion that
a police search is unsupported.”);2 United States v. Castillo, No. 99-5463, 2000 WL 1800481,
at *17-*18 (6th Cir. Nov. 28, 2000) (unpublished) (holding that the defendant’s “high-speed
flight from [law enforcement] constituted an intervening act that purged the taint of his”
allegedly unlawful detention because “[i]t is widely recognized that if a suspect’s response to
an illegal stop is itself a new, distinct crime, then the police constitutionally may arrest the
2
In Baldwin, the majority rejected the government’s argument that the defendant’s resistance
and flight following an illegal detention and pat down search established an “independent source[]
for the admission of [] evidence[.]” 114 F. App’x at 682. However, it did so because “the
subsequent detention following [the defendant’s] resistance failed to reveal any evidence that was
not already known to [the officer.] . . . [T]he subsequent searches . . . uncovered no new or additional
evidence.” Id. These facts, which the Baldwin majority characterized as “critical” and
distinguishable from those in Dawdy, 114 F. App’x at 682, are absent from the present case. Here,
Officer Lewis did not discover the crack cocaine prior to Moore’s flight; rather, the contraband was
found after Moore fled and therefore constituted “new or additional evidence.” Id.
No. 09-5054
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[suspect] for that crime . . . even if the new crime is in response to police misconduct and
causally connected thereto”) (internal citations and quotation marks omitted);3 United States
v. Jefferson, No. 98-5273, 1999 WL 519298, at *4 (6th Cir. July 15, 1999) (unpublished)
(relying upon Wong Sun v. United States, 371 U.S. 471 (1963) and holding that, “[w]hen [the
defendant] used force against the officer [in an attempt to flee], even assuming the original
stop did not justify a search under Terry, the officers had probable cause to arrest him for this
new and independent offense. Pursuant to this lawful arrest, the officers were authorized to
search [the defendant], and the evidence seized as a result of the search is admissible”); cf.
United States v. Grajeda, 497 F.3d 879, 881-82 (8th Cir. 2007) (“Where the initial search is
invalid, the fruit of that unlawful search must be suppressed unless the evidence resulted from
an intervening independent act of free will[.]”) (internal citations and quotation marks
omitted).
I agree with the well-reasoned principles articulated in these cases and find them
applicable to the present case. Further supporting their rationale is that Tennessee law makes
it a crime “to intentionally prevent or obstruct anyone known to the person to be a law
enforcement officer . . . from effecting a stop, frisk, halt, arrest or search of any person,
including the defendant, by using force against the law enforcement officer or another.” Tenn.
Code. Ann. § 39-16-602 (a). The definition of “[f]orce . . . shall be broadly construed to
accomplish the purposes of this title[,]” Tenn. Code Ann. § 39-11-106(a)(12), and except for
specific reasons, none of which are applicable here, “it is no defense to prosecution under this
3
Unpublished opinions of this court are not precedentially binding under the doctrine of stare
decisis but may be considered for their persuasive value. United States v. Sanford, 476 F.3d 391,
396 (6th Cir. 2007).
No. 09-5054
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section that the stop, frisk, halt, arrest or search was unlawful.” Tenn. Code Ann. §
39-16-602(b). The Tennessee courts have held that “movements such as ‘twisting, turning,
pulling away,’ and ‘flailing one’s arms’ while police officers are attempting to place a
defendant in custody is sufficient force to sustain a conviction” under § 39-16-602(a). State
v. Powell, No. M2004-03034-CCA-R3-CD, 2005 WL 1950221, at *3 (Tenn. Crim. App. Aug.
15, 2005) (unpublished) (affirming conviction under § 39-16-602(a) where the defendant
“pulled one of his arms away as he was being handcuffed”) (internal quotation marks omitted);
see also State v. Boyd, No. M2004-00580-CCA-R3-CD, 2005 WL 885091, at *3 (Tenn. Crim.
App. Apr. 15, 2005) (unpublished) (collecting cases). Thus, assuming arguendo that Officer
Lewis unlawfully searched or seized Moore when he instructed Moore to put his hands on the
hood of the police car and touched his shoulder and side, Moore’s conduct in turning, pulling,
and attempting to run away from Officer Lewis constituted probable cause to arrest Moore for
committing the independent crime of resisting and obstructing an officer under Tennessee
Code Annotated § 39-16-602(a). Moore’s subsequent arrest and search incident to that arrest
were then lawful, and the crack cocaine obtained pursuant to them should not have been
suppressed.4 Robinson, 414 U.S. at 234.
4
Although the majority “acknowledge[s] that Defendant’s attempt to flee after the search
began may have implications for the probable cause analysis,” it declines to consider them.
The government raised the issue in its response to Moore’s motion to suppress, in which it
argued that “[t]he defendant’s sudden flight then translated the affair from one of reasonable
suspicion under Terry to one of probable cause to make an arrest. Therefore, the search of defendant
Gary Moore’s person after his seizure was justified.” In his R&R, the magistrate judge addressed
the three arguments made by Moore in support of his motion to suppress, none of which asserted that
his attempt to escape was irrelevant to the probable cause determination. The magistrate judge
denied Moore’s suppression motion on the alternative grounds that the police had either reasonable
suspicion that Moore was armed to justify a pat down or probable cause to believe he possessed
No. 09-5054
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VII.
For these reasons, the district court erred in granting Moore’s motion to suppress, and
I would reverse that judgment. I therefore respectfully dissent.
contraband to warrant an arrest and search. In so ruling, the magistrate judge did not address the
issue of Moore’s flight, although he had done so in his first R&R in which he held that “Defendant’s
sudden flight on foot translated the affair from one of reasonable suspicion under Terry to one of
probable cause to make an arrest, and the search of defendant’s person after his seizure was
justified.”
The majority and the district court would apparently impart upon the government an unfair
obligation to object not only to a favorable ruling, but also to a ruling that was never made because
the movant chose not to raise the issue again after having already received an adverse ruling in a
prior R&R from the same magistrate judge. Significantly, Moore did not make any arguments about
his flight in his own objections to the operative R&R. The district court’s order sustaining Moore’s
objections, declining to adopt the R&R, and granting the motion to suppress did not address or
provide any indication that it had considered his flight as relevant. Therefore, it was wholly proper
for the government to remind the court in its motion for reconsideration, as it had argued previously
and to which the magistrate judge had agreed, that Moore’s flight was crucial to the probable cause
inquiry. Under our precedent, the government did not waive the issue. Cf. Souter v. Jones, 395 F.3d
577, 586 (6th Cir. 2005) (“[W]e have held that a party, who substantially prevails in a magistrate
judge’s recommendation, does not waive the right to appeal secondary issues resolved against him
by failing to object to the recommendation.”).
Moreover, although the government did not cite to Tennessee Revised Code Annotated § 39-
16-602(a) in its appellate brief, it argued that, “at the time defendant’s person was searched and the
crack cocaine was seized from his pocket, the following circumstances established probable cause
that defendant possessed illegal drugs: . . . When ordered to place his hands on the cruiser and spread
his legs, thereby suggesting that a frisk or search was imminent, defendant fled[,]” and “[t]he search
of defendant’s person was therefore lawful as a search incident to arrest.” The government also
emphasized in its brief that “no actual violation of the Fourth Amendment precipitated defendant’s
flight[,]” and “the [district] court refused to even consider defendant’s flight as a factor in its
probable-cause assessment because of its erroneous finding about its temporal relationship to a
potential search by Lewis.” (Second emphasis added.) At oral argument, the government argued
vigorously that Moore’s flight allowed law enforcement to arrest and search him. Therefore, the
government did not forfeit the issue in this appeal.