United States v. Dennis McKenzie ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0211n.06
Case No. 21-3587
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 31, 2022
DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
DENNIS MCKENZIE, )
Defendant-Appellant. ) OPINION
)
Before: COLE, BUSH, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. One night on patrol, a unit of the Cleveland Police
Department tasked with snuffing out gang activity saw a vehicle parked illegally on the street. The
vehicle’s passenger, Dennis McKenzie, was acting erratically and eventually disobeyed orders and
exited the vehicle. In the ensuing struggle to detain McKenzie, an officer looked into the vehicle
at the floor of the passenger seat—where McKenzie could’ve reached—and saw a gun. McKenzie
was arrested and charged with being a felon in possession.
The district court denied McKenzie’s motion to suppress the gun seized by officers during
his arrest because he lacked Fourth Amendment standing. Prior to that, it also granted in part the
government’s motion to exclude a district court order, which had cast doubt on similar testimony
from the officer who saw McKenzie’s gun, from an unrelated case because that order was extrinsic
evidence. For the reasons below, the district court correctly ruled on both motions, and we
AFFIRM.
No. 21-3578, United States v. McKenzie
I.
The Traffic Stop. Members of the Cleveland Police’s Gang Impact Unit (GIU) were
patrolling Yeakel Avenue, an area in Cleveland known for gang activity. That night, members of
the unit were in unmarked police vehicles and plain clothes but wearing vests that said “Police.”
During the patrol, Sergeant Al Johnson noticed a vehicle parked illegally, so he pulled up behind
it and alerted other GIU members of his location. All told, four squad cars arrived at the scene.
At that point, Sergeant Johnson and other officers approached the vehicle. But as they got
close, McKenzie opened the passenger door and started getting out of the vehicle. One of the
officers ordered McKenzie back inside the vehicle, which he did. Back in the car, McKenzie began
moving back and forth, yelling at the officers. As that was going on, another officer spoke with
the driver of the vehicle who appeared to be an underage female and was wearing only jeans and
a bra.
McKenzie then exited the vehicle, and when the officers tried to detain him, he struggled
against their efforts. During the struggle, Sergeant Johnson stepped between McKenzie and the
vehicle, looked inside at McKenzie’s “lunge area”—where he’d be able to reach in the car—and
saw a gun under the seat. As officers arrested McKenzie, another officer secured the gun.
Concerned for the young woman’s well-being, Detective Robert Kowza checked on her and gave
her a jacket from the backseat. The young woman told Detective Kowza that nothing in the vehicle
was hers.
District Court Proceedings. A grand jury indicted McKenzie for being a felon in
possession of a firearm and ammunition, violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
McKenzie moved to suppress the confiscated gun because it came from an unreasonable search
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and seizure. The government responded that as a passenger, McKenzie didn’t have a reasonable
expectation of privacy in the vehicle and that he wasn’t seized until he tried to flee the scene.
For its part, the government filed a motion in limine to prevent McKenzie from using
extrinsic evidence to attack Sergeant Johnson’s credibility. In particular, the government wanted
to prevent McKenzie from cross-examining Sergeant Johnson about a ruling in another case in
which the district court granted a motion to suppress. In that case, United States v. Fips, the district
court found that some of the government’s testimony (including Sergeant Johnson’s) was
“inconsistent” and “contradictory.” No. 1:18-cr-722, 2020 WL 5814597, at *3 (N.D. Ohio Sept.
30, 2020). Citing Federal Rule of Evidence 608(b), the government argued that the Fips order was
not probative of Sergeant Johnson’s truthfulness and only stood for the district court’s finding that
more evidence weighed in Fips’s favor than the government’s. McKenzie didn’t respond to the
motion.
The district court began the suppression hearing by having both parties argue the motion
in limine. After considering the arguments, the district court found a middle ground. It granted
the government’s motion in part; McKenzie could impeach Sergeant Johnson if he made
statements about GIU procedures inconsistent with his prior testimony, but McKenzie could not
“use [the] opinion and what [was] said in there as extrinsic evidence to impeach.” (R. 41,
Suppression Tr., PageID #216; see also United States v. McKenzie, No. 1:20-cr-22, 2021 WL
698614, at *1 n.1 (N.D. Ohio Feb. 23, 2021) (precluding the introduction of the opinion in Fips
but allowing impeachment during cross-examination of prior inconsistent statements).)
McKenzie’s counsel responded, “I don’t have a problem with that.” (R. 41, Suppression Tr.,
PageID #216.) With that seemingly settled, the district court asked McKenzie to respond to the
government’s argument that McKenzie lacked standing to bring his motion. But McKenzie argued
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that he needed to have the officers testify to make his standing argument, so the district court went
forward with the testimony. All in all, three officers testified: Sergeant Johnson, Detective Kowza,
and Detective Michael Harrigan.
During their testimony, the three officers laid out largely the same version of the events
that occurred the night of McKenzie’s arrest. For example, the district court found that the
“officers testified consistently and convincingly that the SUV in question was parked on a city
street in violation of a Cleveland municipal ordinance.” McKenzie, 2021 WL 698614, at *4.
What’s more, McKenzie cross-examined all three officers, even though he didn’t try to impeach
Sergeant Johnson with any prior inconsistent statements. After the testimony, the government
reiterated its argument that McKenzie lacked standing to challenge the search, and even if he did,
the officers had probable cause to perform the traffic stop and any search was reasonable.
The district court took the arguments and testimony under advisement and then issued a
written opinion denying McKenzie’s suppression motion. See McKenzie, 2021 WL 698614, at *5.
For standing, the district court bifurcated its analysis. Based on our caselaw, it found that
McKenzie lacked standing to challenge any subsequent search of the vehicle. Id. at *3. As a result,
McKenzie would have standing to challenge the initial stop, but only if he could show the stop
was invalid. Id. But because the record demonstrated that the officers had probable cause for the
initial stop, McKenzie lacked standing, so the district court denied his motion. Id. at *4–5. The
district court then said that even if McKenzie had standing to challenge the discovery of the
weapon, his motion would be denied because the officers’ search of the vehicle was reasonable
and supported by probable cause. Id. at *5.
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No. 21-3578, United States v. McKenzie
Following the district court’s denial of the motion to suppress, McKenzie entered into a
plea agreement with the government and the district court sentenced McKenzie to 77 months in
prison. McKenzie timely appeals.
II.
On appeal, McKenzie challenges the district court proceedings in two ways. First, he
argues that the district court erred in partially granting the government’s motion in limine. And
second, McKenzie argues that the district court erred in denying his motion to suppress.
A.
We review a district court’s ruling on a motion in limine for an abuse of discretion. Burley
v. Gagacki, 729 F.3d 610, 620 (6th Cir. 2013). A district court abuses its discretion when it “relies
on clearly erroneous findings of fact, improperly applies the law, or employs an erroneous legal
standard.” United States v. Harris, 881 F.3d 945, 949 (6th Cir. 2018) (internal quotation omitted).
McKenzie attacks the district court’s ruling on the motion in limine in two ways. First, he
argues that the ruling misapplied Federal Rule of Evidence 608(b). Second, he invokes the
Confrontation Clause, but fails to develop an argument on the issue.1
1 We review evidentiary rulings of the district court related to violations of the Confrontation
Clause de novo. See United States v. Adams, 722 F.3d 788, 829 (6th Cir. 2013). True, even though
he cross-examined Sergeant Johnson, McKenzie makes a passing reference to the Confrontation
Clause in his summary of the argument and in the conclusion of his argument on the motion in
limine. But he does nothing else to develop this Confrontation Clause argument except by
reference. It’s well-established that “‘issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed’ forfeited.” United States v. Jenkins, 821
F. App’x 504, 508 (6th Cir. 2020) (quoting United States v. Johnson, 440 F.3d 832, 846 (6th Cir.
2006)). “It is not sufficient for a party to mention a possible argument in the most skeletal way,
leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th
Cir. 1997) (alteration and citation omitted). And for what it’s worth, McKenzie and the
government both agree that the standard of review for this issue is abuse of discretion.
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The applicable law here is Federal Rule of Evidence 608(b). That Rule provides that
“extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to
attack . . . the witness’s character for truthfulness.” Fed. R. Evid. 608(b). “But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character for
truthfulness . . . of . . . the witness.” Id. at (b)(1). Put another way, “Rule 608(b) limits the use of
evidence ‘designed to show that the witness has done things, unrelated to the suit being tried, that
make him more or less believable per se.’” Id. (2003 advisory note) (quoting United States v.
Fusco, 748 F.2d 996, 998 (5th Cir. 1984)). This Rule excluding extrinsic evidence is “designed to
prevent distracting mini-trials on collateral matters.” Boggs v. Collins, 226 F.3d 728, 744 (6th Cir.
2000).
To start with, we’ve held that “a judicial opinion making a credibility determination . . .
appear[s] to be the type of extrinsic evidence disallowed by Rule 608(b).” United States v.
Richardson, 793 F.3d 612, 628 (6th Cir. 2015), vacated on other grounds by 577 U.S. 1129 (2016);
see also United States v. Jones, 889 F.3d 876, 880 (7th Cir. 2018) (finding that a judicial
determination questioning the credibility of a witness was only admissible under Rule 608(b) if it
included a determination that the witness lied); Wright & Miller, 28 Federal Practice & Procedure:
Evidence § 6117 (2d ed. 2020) (including “other judicial decisions” as a type of specific-instance
evidence). The Fips order lacks a finding that Johnson lied, so the district court was within its
discretion to exclude the order in Fips from being used to impeach Sergeant Johnson on cross-
examination.
To be sure, McKenzie doesn’t argue that the opinion should have been admitted. Rather,
he argues that the district court erred when it “prevented . . . McKenzie[] from cross-examining
[Sergeant Johnson]” about inconsistencies in his testimony. Yet that’s not what happened.
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No. 21-3578, United States v. McKenzie
McKenzie was able to, and did, cross-examine Sergeant Johnson. That his counsel chose not to
impeach Sergeant Johnson with prior inconsistent testimony (without using the Fips order) is not
an error on the district court’s part.
Though not entirely clear, McKenzie really seems to be arguing against the language in the
government’s motion instead of what the district court said. True, in its motion in limine the
government sought to “prevent cross-examination by . . . referencing testimony from United States
v. Fips.” But it’s the district court’s language, not the government’s, that matters here. At the
hearing, the district court said that McKenzie couldn’t “use [the] opinion and what [the court] said
in there as extrinsic evidence to impeach.” (R. 41, Suppression Tr., PageID #216.) McKenzie’s
counsel agreed with that ruling. And again, in its written opinion, the district court reiterated that
while it precluded the introduction of the order, it ruled that McKenzie “was free to impeach
Sergeant Johnson with any inconsistent statements from this prior proceeding.” McKenzie, 2021
WL 698614, at *1 n.1.
In any event, even if McKenzie were right about what the district court did, we afford the
district court “discretion to limit the scope of cross-examination.” Boggs, 226 F.3d at 736. But
because the district court didn’t improperly limit McKenzie’s cross-examination of Sergeant
Johnson, our inquiry ends here. The district court properly applied Rule 608(b). It excluded
extrinsic evidence but allowed McKenzie to cross-examine Sergeant Johnson about his prior
testimony. A district court doesn’t abuse its discretion by correctly applying the law.
B.
Next, McKenzie takes aim at the district court’s denial of his suppression motion. When
looking at the denial of a motion to suppress, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v. Russell, 26 F.4th 371, 374 (6th Cir.
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2022). Our review takes the evidence “in the light most likely to support the district court’s
decision” and we will “affirm on appeal if the district court’s conclusion can be justified for any
reason.” Id. (alteration omitted) (quoting United States v. Bateman, 945 F.3d 997, 1005 (6th Cir.
2019)).
The district court denied McKenzie’s motion on two grounds: first, because he didn’t have
standing to suppress the firearm found; and even if he did, the officers’ search of the vehicle was
reasonable.
Start with standing. Because the Fourth Amendment secures people against unreasonable
searches and seizures “in their persons, houses, papers, and effects,” U.S. Const. amend. IV
(emphasis added), “Fourth Amendment rights are said to be ‘personal.’” Russell, 26 F.4th at 374
(quoting Rakas v. Illinois, 439 U.S. 128, 133 (1978)). As a result, “a person must have a cognizable
Fourth Amendment interest in the place searched before seeking relief for an unconstitutional
search.” Byrd v. United States, 138 S. Ct. 1518, 1530 (2018).
To have a Fourth Amendment interest—or put another way, to have Fourth Amendment
standing—the person claiming the constitutional violation needs to have “had a ‘legitimate
expectation of privacy in the premises’ searched.” Id. at 1526 (quoting Rakas, 439 U.S. at 143).
But generally, “[a] person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person’s premises or property
has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134. The person
moving for a suppression motion bears the burden “of establishing that his own Fourth Amendment
rights were violated.” Id. at 130 n.1 (emphasis added).
This issue comes up often, as it does here, when the passenger of a vehicle claims a Fourth
Amendment violation. A passenger of a car he doesn’t own, like McKenzie, doesn’t have a
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property interest in the car, so to show standing he must have a privacy interest. See Byrd, 138
S. Ct. at 1526; Rakas, 439 U.S. at 148–49. In Rakas, the Supreme Court held that passengers of a
car could not challenge the reasonableness of a search. 439 U.S. at 148. But a passenger can
challenge the stop of a vehicle. See Brendlin v. California, 551 U.S. 249, 255 (2007). This
distinction matters. As a passenger, McKenzie cannot challenge the search of the vehicle, only
the traffic stop. But to successfully challenge the traffic stop, McKenzie must show that the stop
was invalid; that is, that the officers lacked probable cause. See id. at 256.2
An officer who observes a traffic violation has probable cause to stop the vehicle. See
United States v. Hughes, 606 F.3d 311, 316–17 (6th Cir. 2010). The same is true for parking
violations. See United States v. Copeland, 321 F.3d 582, 594 (6th Cir. 2003); see also United
States v. Burton, 334 F.3d 514, 517 (6th Cir. 2003) (holding that violations of “local and state
traffic laws” gave an officer probable cause to make a stop). At the suppression hearing, all three
officers “testified consistently and convincingly” that the vehicle was parked more than 12 inches
from the curb, in violation of Cleveland Municipal Ordinance § 451.04(a). McKenzie, 2021 WL
698614, at *4. Indeed, the government entered photographs into the record showing how far the
vehicle was parked from the curb. See id. & id. at *1 n.2.
Although he doesn’t make the argument as forcefully here on appeal, below McKenzie
argued that the parking violation was just a pretext for the GIU to monitor gang activity. But that
argument is unfounded. “Under the Fourth Amendment, officers may stop a car as long as they
objectively have probable cause that an occupant of the car has committed a traffic offense, even
2
We note that McKenzie’s main issue on appeal is his challenge to the scope of his cross-
examination of Sergeant Johnson. But it appears that his primary challenge to Sergeant Johnson’s
credibility goes to Sergeant Johnson’s testimony about seeing the gun underneath the seat. That,
of course, concerns the search of the car itself and not the initial stop. So even if the court erred
on the cross-examination issue, it’s not clear that McKenzie was prejudiced.
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No. 21-3578, United States v. McKenzie
if they subjectively do so for a different reason.” United States v. Brooks, 987 F.3d 593, 599 (6th
Cir. 2021); see also Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play
no role in ordinary, probable-cause Fourth Amendment analysis.”).
Because the officers had probable cause to perform an investigatory stop on the vehicle
based on a violation of local traffic laws, the stop was valid. So McKenzie doesn’t have standing
to challenge the stop, let alone the search of the vehicle. But as the district court correctly
concluded, even if McKenzie could challenge the search, he would still come up short.
The reasons for a traffic stop “may ripen into probable cause to search a vehicle based on
the officer’s interactions with the vehicle’s occupants.” United States v. Lyons, 687 F.3d 754,
769–70 (6th Cir. 2012). To determine whether probable cause existed, we look at the totality of
the circumstances. See United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993).
It’s clear that the officers had probable cause to look into McKenzie’s “lunge” area during
the stop. He was acting erratically, with a young-looking woman not dressed for the weather. The
vehicle was parked in an area known for gang activity. And McKenzie exited the vehicle against
the officers’ orders and was struggling against their efforts to handcuff him. For these reasons, the
officers had reason to believe McKenzie posed a risk or had weapons by him. See Michigan v.
Long, 463 U.S. 1032, 1049–50 (1983). What’s more, Sergeant Johnson didn’t even perform a full
“search.” Rather, he saw the weapon in plain view. See United States v. Galaviz, 645 F.3d 347,
355 (6th Cir. 2011).
In sum, even if McKenzie had standing to challenge the search, the search was reasonable.
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No. 21-3578, United States v. McKenzie
III.
The district court correctly denied McKenzie’s motion to suppress. He lacked standing to
challenge the recovery of his weapon and, in any event, the search was reasonable. The district
court’s judgment is affirmed.
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