United States v. Russell Porter ( 2010 )


Menu:
  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 10a0180n.06
    No. 08-4264                                   FILED
    Mar 23, 2010
    UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                                 )
    )
    Plaintiff-Appellee,                                )
    )
    v.                                                        )        ON APPEAL FROM THE
    )        UNITED STATES DISTRICT
    RUSSELL PORTER,                                           )        COURT FOR THE NORTHERN
    )        DISTRICT OF OHIO
    Defendant-Appellant.                               )
    )                           OPINION
    )
    )
    BEFORE:        COLE, GILMAN and WHITE, Circuit Judges.
    COLE, Circuit Judge. At issue in this appeal is whether the district court correctly denied
    Russell Porter’s motion to suppress evidence uncovered during a patdown search. Because the
    district court applied the incorrect legal standard when ruling on Porter’s motion, we VACATE and
    REMAND so that it may consider the motion under the proper standard.
    I.
    Warren Police Department Narcotics Unit detectives spotted a grey Chevrolet Caprice parked
    in the vicinity of 1653 Fremont Street in Warren, Ohio, on the afternoon of May 23, 2007. The
    detectives considered this to be a high-drug trafficking area. They noticed a man, later identified as
    Porter, sitting in the car’s passenger seat in a sleeveless T-shirt counting what looked like a large
    No. 08-4264
    USA v. Russell Porter
    amount of money. The detectives continued to watch the vehicle and saw another man, later
    identified as Brian Poole, walk multiple times between the vehicle and one of the Fremont Street
    houses. Suspecting that a possible drug transaction was in progress, the detectives contacted a
    canine unit and requested that an officer be ready to proceed to the scene if a traffic stop ensued.
    Poole then drove off in the car, with Porter in the passenger seat, and the detectives followed.
    The detectives observed the vehicle cross a double yellow line and pass another vehicle in
    a no-passing zone and pulled Poole over. They approached the stopped car and recognized the driver
    from previous encounters as Poole. Poole gave an inconsistent answer when asked about his travel
    plans. He was talking fast, appeared nervous, and sweat was dripping from his forehead and down
    his face. Porter also appeared nervous and was sweating.
    Once the canine officer arrived at the scene, she requested that Poole and Porter exit the car
    so her dog could conduct a sniff. When Porter exited, a detective commenced a patdown for
    weapons, during which a plastic baggie fell from Porter’s shorts onto the ground. Inside the baggie
    were 55.9 grams of crack and 125 grams of cocaine.
    The Government filed a two-count indictment against Porter.            It charged him with
    intentionally possessing with intent to distribute approximately 55.9 grams of crack in violation of
    21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2, and intentionally possessing with intent to
    distribute approximately 125 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)
    and 18 U.S.C. § 2. Porter filed a motion to suppress the evidence found during the patdown search,
    arguing that officers lacked any reason to believe that he was armed and dangerous. After a
    suppression hearing, the district court entered an oral order denying the motion. The court concluded
    -2-
    No. 08-4264
    USA v. Russell Porter
    that because the officers could constitutionally conduct a canine sniff of the vehicle, and order the
    driver and passenger to exit the vehicle, the subsequent patdown search of Porter also was
    constitutional. The district court found that there was no need to determine whether there was
    reasonable suspicion that Porter was armed and dangerous:
    [T]he court finds it’s not necessary to find that there was reasonable belief to believe
    the passenger was armed and dangerous. I don’t believe that test applies in this case
    because of the legitimate use of the canine, and then the right of the officers to
    remove the occupants of the vehicle to complete the canine search and also the right
    of the officers to protect themselves during such an exercise and without the
    necessity of finding that the defendant was armed and dangerous.
    (Dist. Ct. Doc. No. 41 at 86-87.)
    Porter pleaded guilty to both counts, reserving his right to appeal the validity of the patdown
    search, which he does now.
    II.
    The district court misidentified the appropriate legal standard. In the context of a traffic stop,
    to justify “a patdown of the driver or a passenger[,] . . . just as in the case of a pedestrian reasonably
    suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected
    to the frisk is armed and dangerous.” Arizona v. Johnson, 
    129 S. Ct. 781
    , 784 (2009). Rather than
    decide for ourselves whether the detectives had reasonable suspicion that Porter was armed and
    dangerous, we remand the issue to the district court so that it may consider the question in the first
    instance.
    -3-
    No. 08-4264
    USA v. Russell Porter
    III.
    We VACATE and REMAND this case with instructions that the district court conduct an
    evidentiary hearing in connection with Porter’s motion to suppress using the legal standard
    articulated in Arizona v. Johnson.
    -4-
    

Document Info

Docket Number: 08-4264

Judges: Cole, Gilman, White

Filed Date: 3/23/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024