United States v. Marcus Chandler ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0634n.06
FILED
Nos. 10-6489, 10-6541
Aug 29, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
MARCUS S. CHANDLER and KENNETH N. )
CIERS, )
)
Defendants-Appellants. )
BEFORE: COLE, ROGERS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendants-appellants Marcus S. Chandler and Kenneth N. Ciers each entered conditional
guilty pleas to conspiracy to distribute and possess with intent to distribute Oxycodone, in violation
of 21 U.S.C. § 846, with Chandler also pleading guilty to possession of a firearm in furtherance of
drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A). On appeal, both defendants challenge the
denial of their motions to suppress. Upon review, we affirm.
I.
The undisputed facts of this matter were summarized by the district court as follows:
[This case] commenced [on January 26, 2010,] when Sergeant Bill Birkenhauer
received a telephone call . . . from Brian Hamilton regarding drug activity being
conducted by his roommate, Marcus Chandler. Although Hamilton initially
expressed a desire to remain anonymous, he ultimately identified himself to Sergeant
Birkenhauer. Hamilton advised that Chandler was selling large quantities of
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Oxycontin and that he made frequent trips to Northern Ohio for that purpose.
Sergeant Birkenhauer obtained Hamilton’s name, address and telephone number and
assigned the matter to Agent Brett Benton for further investigation.
Agent Benton met with Hamilton later on January 26, 2010. At that time and
through later contacts with Hamilton, Benton learned additional details regarding the
drug operation being conducted by Defendant Chandler. In relevant part, Hamilton
advised agents of the NKDSF that Chandler made trips to Northern Ohio at least
every other week, that Chandler would pay for Oxycontin and obtain a new shipment
on each trip, that the supplier was from Detroit, Michigan, that Chandler would meet
with his source of supply at Exit 122 or at the Wendy’s restaurant just off Exit 125,
that the supplier drove a dark colored sedan, and that Chandler never drove himself
but would employ different drivers. Hamilton claimed to have the details of
Chandler’s operations because he had previously acted as his driver. Hamilton
provided further details, including that Chandler would obtain a full tank of gas and
supply the driver—usually an addict—with an 80 mg tablet of Oxycontin in exchange
for driving him to Northern Ohio. According to Hamilton, the person with whom
Chandler would meet to obtain additional drugs in exchange for payment was not the
main supplier.
Hamilton also provided the agents with information regarding his living arrangement
with Chandler. According to Hamilton, he began living with Chandler after
Chandler’s father was either arrested or investigated by the Lexington Drug
Enforcement Agency for selling large quantities of Oxycontin. At that time, the DEA
was also investigating Chandler. And according to Hamilton, Chandler maintained
a safe for the storage of Oxycontin at his house that he shared with Hamilton.
Further, after the initial call, agents were able to confirm many of relevant details.
For example, they were able to confirm that Chandler’s father had been investigated
and arrested in Lexington for distributing Oxycontin.
On February 4, 2010, Hamilton notified Agent Benton that Chandler was planning
to make another trip to Northern Ohio to purchase 100 to 200 Oxycontin tablets and
was looking for a driver. Agents of the NKDSF then conducted surveillance of
Chandler’s residence and observed a black Ford F–150 truck arrive at that location.
(Agents later identified [Daniel W.] Profitt as the driver of the Ford truck.) Agents
followed the truck and observed two stops, including one at a gas station, before it
returned to Chandler’s residence. Although Hamilton was not at home at the time
of this activity, he was in contact with Chandler (and NKDSF agents) by telephone.
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Hamilton was advised by Chandler throughout the day that Chandler planned to make
his usual trip to Northern Ohio to obtain Oxycontin and that the transaction would
take place at the Wendy’s restaurant parking lot near Exit 125. However, Chandler
advised Hamilton that he was having difficulty finding a driver and that it might be
necessary for Hamilton to drive. Later that afternoon, however, Chandler advised
Hamilton that Profitt had agreed to drive him to Northern Ohio. (According to
Hamilton, Profitt had previously purchased Oxycontin from Chandler.)
Based on the information received from Hamilton, Sergeant Birkenhauer contacted
the Ohio Highway Patrol and spoke with Sergeant Schultz to advise him of the
ongoing investigation and the events which were expected to transpire at the
Wendy’s restaurant in Northern Ohio. Sergeant Birkenhauer requested that the Ohio
Highway Patrol assist with surveillance at the restaurant and Sergeant Schultz agreed
to place an unmarked unit in the restaurant’s parking lot.
Chandler and Profitt left the Chandler/Hamilton residence in Profitt’s black Ford
truck in the early evening on February 4, 2010, and were followed by members of the
NKDSF as they proceeded to the Wendy’s restaurant parking lot just off Exit 125 in
Northern Ohio. The truck remained in constant surveillance during the trip and made
no other stops during the three hour drive. Shortly after Chandler and Profitt arrived
and entered the restaurant, a black Oldsmobile Alero sedan drove into the parking lot
and parked next to the black truck belonging to Profitt. Profitt stayed inside, but
Chandler exited the restaurant, walked to the black Oldsmobile, opened the
passenger-side door and entered the vehicle. Less than five minutes later, Chandler
exited the sedan and returned to the restaurant. During this time, no one other than
Chandler exited the sedan. After Chandler returned to the restaurant, the sedan left
the parking lot and was followed by an unmarked Ohio Highway Patrol vehicle.
Within fifteen minutes, Chandler and Profitt returned to Profitt’s truck and headed
south on Interstate 75 toward Kentucky. Birkenhauer testified that, based on his
training and experience as well as surveillance and information that had been
obtained throughout the investigation, he believed that a drug transaction had been
completed in the restaurant parking lot. Further, he believed that the information
initially supplied by Hamilton had been corroborated by the actions of Chandler and
Profitt. As a result, Birkenhauer communicated this information to the Ohio
Highway Patrol and requested assistance in stopping the black Oldsmobile.
***
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Although Chandler and Profitt were not stopped initially, they remained under
surveillance by the NKDSF agents. Once Chander and Profitt were in Kentucky,
agents requested that a marked cruiser (operated by Kenton County Officer Darrell
Caldwell) assist with the traffic stop of Profitt’s vehicle. At the time of this stop,
NKDSF agents were aware that the black Oldsmobile had been stopped and that a
large amount of currency had been recovered from that vehicle. The government
concedes that no traffic violations were observed concerning Profitt’s vehicle.
Instead, the stop was made based solely on the request of NKDSF agents.
No display of force was made during the traffic stop of Profitt’s vehicle. During the
stop, Birkenhauer asked Profitt to explain the purpose of the trip and was told that
he had driven Chandler to Ohio to “look at a truck.” Profitt and Chandler were then
asked to exit the vehicle and were patted-down for weapons but none were
discovered. Shortly after the stop, a drug dog was brought to the scene. (Two agents
involved in the surveillance had trained canines.) As an agent placed his arm on
Chandler’s arm to guide him to an officer’s patrol car, the agent felt an unusual bulge
on Chandler’s arm, giving him reason to investigate further. This investigation
resulted in the discovery of 140 Oxycontin tablets taped to Chandler’s bicep area.
Chandler and Profitt were then placed under arrest. Approximately 15 minutes
elapsed from the stop until the arrest of the two Defendants in Kentucky.
Following their arrest, Chandler and Profitt were transported to the Lakeside
Park/Crestview Hills police station and questioned by NKDSF agents. Both
Chandler and Profitt made admissions regarding their conduct. Additionally,
Chandler provided the agents with written consent to search his residence. Following
this search, agents discovered additional prescription pills, drug paraphernalia,
currency, and a stolen handgun.
***
After leaving the Wendy’s restaurant parking lot, the Oldsmobile Alero was followed
by Trooper Stacey Arnold of the Ohio Highway Patrol. Trooper Arnold has 16 years
experience as a law enforcement officer with the past 12 years spent on enforcement
of criminal laws and 10 years as a canine handler. Trooper Arnold was provided with
details of the investigation by Sergeant Schultz as it was relayed to him by the
Kentucky agents. Arnold testified that she followed the Oldsmobile for
approximately 60 miles after it left the Wendy’s lot. Around milepost 187, the
vehicle crossed the right edge line of the highway “more than once” and fluctuated
its speed from the speed limit to slightly over the speed limit. She then stopped the
vehicle for the unmarked lanes violation under O.R.C. § 4511.33. The traffic stop
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occurred at 9:17 p.m. In addition to Trooper Arnold, Sergeant Schultz participated
in the stop. The vehicle was driven by Defendant Kenneth Ciers.
Trooper Arnold testified that, as she approached Ciers’ vehicle, the driver was
observed making “furtive movements” around the center console area. Upon request,
Ciers produced his drivers license and registration. These documents confirmed that
Ciers resided in the Detroit, Michigan area. Trooper Arnold advised Ciers that he
had been stopped for crossing over the lane line, and fluctuating speed, and asked if
he was too tired to drive or if he had been drinking. Ciers responded in the negative
to both questions. In addition to his license and registration, Ciers produced a “stack
of paperwork,” explaining that he had previously had some issues with his driving
privileges. However, he indicated that the paperwork would confirm that the issues
had been resolved. According to Trooper Arnold, Ciers was “fumbling” with the
paperwork and appeared to be “very nervous.” In addition, his hands appeared to
[be] shaking. When asked about the trip to Ohio, Ciers responded that he had argued
with a family member in Michigan and was driving to “get some air.” Arnold
testified that she found this response “suspicious.”
Trooper Arnold asked Ciers to exit the vehicle while Sergeant Schultz ran a check
of the paperwork Ciers had provided. Although Ciers indicated that he did not have
any weapons on his person, Trooper Arnold observed that Ciers “bladed” his body
two times, which she described as an attempt to conceal something on his right side.
Concerned about the possibility of a weapon, Arnold instructed Ciers to take his
hands out of his pockets and then proceeded to conduct a pat-down. During the
course of the pat-down, Arnold observed a large bundle of money in Ciers’ right
jacket pocket. Due to the belief that Ciers might also have a weapon in his pocket,
the Defendant was handcuffed.
Although no weapon was found, Trooper Arnold read Ciers his Miranda rights,
advised him he was under investigative detention, and placed him in the rear seat of
Schultz’s vehicle to permit her trained drug dog to search the vehicle. Although the
dog alerted to the presence of drugs, no drugs were found. According to Trooper
Arnold, the lack of drugs was not particularly unusual because the dog will alert even
if drugs were present recently because an odor will remain in some instances. The
Ohio officers then notified the NKDSF that they had recovered $9,900 in currency.
Ciers was detained for approximately 24 minutes from the time Trooper Arnold
activated her lights until Ciers was taken to the nearby police station. There, police
confiscated the currency but did not immediately charge Ciers with any felony
offenses. The total incident time was listed on Trooper Arnold’s report as being one
hour, twenty minutes.
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United States v. Chandler, Criminal Action No. 2: 10–23–DCR, 2010 WL 2870723, at *2-5 (E.D.
Ky. July 20, 2010) (footnotes omitted).
Following their indictment on various federal drug crimes, both Chandler and Ciers filed
motions to suppress evidence stemming from the February 4, 2010, traffic stops. These motions
were referred to a magistrate judge who, after conducting a hearing and receiving testimony, denied
both motions. Soon thereafter, the district court adopted the magistrate’s report and
recommendation, overruling defendants’ objections. Chandler and Ciers then entered conditional
guilty pleas, reserving the right to appeal the denial of their suppression motions. Following
sentencing, both defendants filed timely appeals.
II.
“The grant or denial of a motion to suppress is a mixed question of fact and law. On appeal,
we review the district court’s findings of fact for clear error and its conclusions of law de novo.”
United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007) (citations omitted). A factual finding is
clearly erroneous when, although there may be evidence to support it, we are “left with the definite
and firm conviction that a mistake has been committed.” Id. (internal quotation marks and citation
omitted). In reviewing the denial of a motion to suppress, we consider the evidence in the light most
favorable to the government. United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006).
III.
We begin our analysis with the claims of Chandler, who challenges the denial of his
suppression motion on two grounds: first, Chandler argues that the traffic stop of Profitt’s vehicle
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was not supported by reasonable suspicion, and second, he argues that the length of the traffic stop
exceeded the bounds of a constitutionally-permissible Terry stop. We disagree with both assertions.
The Fourth Amendment’s protections against unreasonable searches and seizures “‘extend
to brief investigatory stops of persons or vehicles that fall short of traditional arrest.’” United States
v. Luqman, 522 F.3d 613, 616 (6th Cir. 2008) (quoting United States v. Arvizu, 534 U.S. 266, 273
(2002)).1 Nonetheless, if a law enforcement officer has reasonable suspicion that criminal activity
is afoot, the officer may conduct a brief traffic stop for investigative purposes to confirm or dispel
his suspicions. Terry v. Ohio, 392 U.S. 1, 30–31 (1968). Reasonable suspicion
requires more than a mere hunch, but is satisfied by a likelihood of criminal activity
less than probable cause, and falls considerably short of satisfying a preponderance
of the evidence standard. If an officer possesses a particularized and objective basis
for suspecting the particular person of criminal activity based on specific and
articulable facts, he may conduct a Terry stop.
Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (internal quotation marks and citation omitted).
“Reasonable suspicion for an investigative stop must be [assessed] under the totality of the
circumstances, considering all of the information available to law enforcement officials at the time”
of the stop. Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007) (internal quotation marks and
citation omitted). Reasonable suspicion can be gleaned from the investigating officer’s own direct
observations, dispatch information, and directions from other officers. Dorsey, 517 F.3d at 395.
Moreover, “[t]he totality of the circumstances analysis permits police officers to draw on their own
1
It is undisputed that a seizure under the Fourth Amendment occurred in this case and that
Chandler, as a passenger in Profitt’s vehicle, may contest the lawfulness of the stop. See Brendlin
v. California, 551 U.S. 249, 258 (2007).
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experience and specialized training to make inferences from and deductions about the cumulative
information available to them that might well elude an untrained person.” Ellis, 497 F.3d at 613(internal quotation marks and citation omitted). Thus, “individual factors, taken as a whole, [may]
give rise to reasonable suspicion, even if each individual factor is entirely consistent with innocent
behavior when examined separately.” United States v. Perez, 440 F.3d 363, 371 (6th Cir. 2006)
(internal quotation marks and citation omitted).
In the present case, we agree with the district court that the initial stop of Profitt’s vehicle
fell well within the acceptable parameters of a lawful Terry stop based upon a reasonable suspicion
of criminal activity. Indeed, the officers received detailed information from Hamilton, a known
informant who had direct knowledge of Chandler’s drug-related activities. Hamilton was able to
predict when Chandler would leave his residence, the manner of travel, the location of the alleged
narcotics transaction, and the general appearance of the supplier’s vehicle. All of these predictions
were thereafter confirmed by law-enforcement surveillance. In addition, the observed behavior of
Chandler in quickly entering and exiting the black sedan, and the discovery of a large amount of
currency in Ciers’s pocket, provided further support for the brief stop of Profitt’s vehicle.2
In contesting the existence of reasonable suspicion, Chandler asserts that Hamilton was not
a reliable informant. Once again, we disagree. Tips from identified citizens, such as Hamilton, have
a high degree of reliability, in part because such witnesses risk adverse consequences for providing
2
Chandler emphasizes that the officers did not directly observe any criminal activity. “While
true, this [argument] misses the point because if any criminal activity had been observed, our inquiry
would be whether probable cause existed.” Perez, 440 F.3d at 372 n.1.
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faulty information. United States v. Caruthers, 458 F.3d 459, 465 (6th Cir. 2006). Moreover,
Hamilton had direct knowledge of Chandler’s drug-related activities because he was Chandler’s
roommate and had assisted Chandler in a previous drug transaction. See Alabama v. White, 496 U.S.
325, 328 (1990) (noting that an informant’s “basis of knowledge” is “highly relevant” to assessing
informant reliability). Finally, a large portion of the information provided by Hamilton accurately
predicted Chandler’s future behavior. See United States. v. Cohen, 481 F.3d 896, 899 (6th Cir. 2007)
(“[A]n anonymous tip that accurately predicts a subject’s future behavior in detail can be credited
with a special familiarity with [the subject’s] affairs and thus bears sufficient indicia of reliability
to provide reasonable suspicion.”) (internal quotation marks and citation omitted). Accordingly, the
information provided by Hamilton was sufficiently reliable to support a finding of reasonable
suspicion, supplying a basis upon which to perform a lawful Terry stop.
In his second claim of error, Chandler asserts that even if the stop of Profitt’s vehicle was
supported by reasonable suspicion, the duration of the stop was unreasonable and therefore exceeded
the bounds of Terry. This argument is without merit.
A Terry stop must not only be justified at its inception, but also “must be reasonably related
in scope to the circumstances which justified the interference in the first place.” United States v.
Blair, 524 F.3d 740, 750 (6th Cir. 2008). Accordingly, the detention must last no longer than is
necessary to carry out the purpose of the stop. United States v. Garcia, 496 F.3d 495, 504 (6th Cir.
2007). “To assess whether a detention was too long to be justified as an investigative stop, [we]
‘examine whether the police diligently pursued a means of investigation that was likely to confirm
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or dispel their suspicions quickly.’” Perez, 440 F.3d at 372 (quoting United States v. Sharpe, 470
U.S. 675, 686 (1985)).
In this case, there is no evidence in the record indicating that the officers were anything but
diligent in conducting the investigative detention. Following their initial questioning, Chandler and
Profitt were removed from their vehicle and searched for weapons. Thereafter, officers began to
escort Chandler and Profitt to the marked patrol cars where they were to be temporarily detained for
the duration of the on-site investigation. It was at this time that officers felt an unusual bulge on
Chandler’s biceps, which led to the discovery of the narcotics at issue. We find this sequence of
events to demonstrate a reasonable and diligent investigation. See Houston v. Clark Cnty. Sheriff
Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir. 1999) (holding an investigative stop to be
reasonable when it “included several steps, all of them reasonably necessary to ensure the officers’
safety or to confirm or dispel their suspicions”). Moreover, while we do not adopt “rigid time
limitation[s]” for permissible Terry stops, Perez, 440 F.3d at 372, it is relevant to note that the stop
in this case lasted no longer than 15 minutes before the narcotics were discovered. Cf. Sharpe, 470
U.S. at 688 (“We reject the contention that a 20-minute stop is unreasonable when the police have
acted diligently and a suspect’s actions contribute to the added delay about which he complains.”).
Accordingly, for the reasons stated above, we affirm the district court’s denial of Chandler’s
motion to suppress.
IV.
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We now move to the claims of Ciers, who also challenges the denial of his suppression
motion. To begin, we note that Ciers does not dispute the lawfulness of the initial stop of his
vehicle. Indeed, Ciers concedes that law-enforcement officials possessed probable cause to believe
that a traffic violation occurred and reasonable suspicion to believe that Ciers was recently involved
in a narcotics transaction. See Terry, 392 U.S. at 30–31; Gaddis v. Redford Twp., 364 F.3d 763, 771
n.6 (6th Cir. 2004). Additionally, Ciers does not challenge the constitutionality of the pat-down
search that led to the discovery of the currency. See Bennett v. City of Eastpointe, 410 F.3d 810, 822
(6th Cir. 2005). Rather, Ciers asserts that when Trooper Arnold observed the currency in his open
jacket pocket, she was not constitutionally permitted to seize it. This claim, however, fails for two
reasons: first, Ciers forfeited any claim regarding the seizure of the currency by neglecting to raise
the issue before the district court, see Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636
F.3d 235, 242 n.5 (6th Cir. 2011), and second, Ciers’s claim fails on its merits because the seizure
falls within the plain-view exception to the warrant requirement.
“Under the plain view doctrine, ‘if police are lawfully in a position from which they view an
object, if its incriminating character is immediately apparent, and if the officers have a lawful right
of access to the object, they may seize it without a warrant.’” United States v. Herndon, 501 F.3d
683, 692 (6th Cir. 2007) (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)). In this case,
Ciers admits that Trooper Arnold was in a lawful position from which to view the currency and had
“a lawful right of access.” However, Ciers asserts that the incriminating nature of the currency was
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not “immediately apparent,” thereby preventing the application of the plain-view doctrine. We
disagree.
In determining whether the incriminating nature of evidence is “immediately apparent,” we
assess three factors, “none of which is necessary but each of which is instructive[.]” Garcia, 496
F.3d at 510. These factors are:
(1) a nexus between the seized object and the [suspected criminal activity]; (2)
whether the intrinsic nature or appearance of the seized object gives probable cause
to believe that it is associated with criminal activity; and (3) whether the executing
officers can at the time of discovery of the object on the facts then available to them
determine probable cause of the object’s incriminating nature.
Id. (internal quotation marks, citation, and emphasis omitted).
In the case at bar, there was a strong nexus between the purpose of the investigatory stop and
the currency. Indeed, law-enforcement officials had reasonable suspicion to believe that Ciers had
recently participated in an illegal narcotics transaction. Moreover, while the mere possession of
currency is innocent behavior, the large amount of currency possessed by Ciers was unusual.3
Finally, no additional investigation was needed to establish the likely connection between the
currency and the suspected narcotics transaction.4 Therefore, the incriminating nature of the
currency was “immediately apparent.” See United States. v. Green, 599 F.3d 360, 376 (4th Cir.
3
The diameter of the bundle of currency was four to four-and-a-half inches thick, thereby
indicating a likelihood of a large amount of money.
4
Ciers contends that the incriminating nature of the currency was not immediately apparent
to Trooper Arnold. However, this assertion is not supported by the record. More importantly,
Trooper Arnold’s subjective beliefs play no role in our probable-cause analysis. Whren v. United
States, 517 U.S. 806, 813 (1996).
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2010) (holding the incriminating nature of a large sum of money to be “immediately apparent” when
defendant was suspected of drug-related activities); United States v. Bustos-Torres, 396 F.3d 935,
945 (8th Cir. 2005) (holding a large sum of currency to likely be “evidence of the drug trade”);
United States v. Hernandez-Rivas, 348 F.3d 595, 599 (7th Cir. 2003) (upholding seizure of $10,000
cash under plain-view doctrine when “the deputy had reason to believe that the money was proceeds
of the drug trafficking”); United States v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir. 1996) (holding
that “bundles of cash strewn about the inside of the vehicle” were properly seized under the plain-
view doctrine) (overruled on other grounds by Muscarello v. United States, 524 U.S. 125 (1998)).5
Therefore, we affirm the district court’s denial of Ciers’s motion to suppress.
V.
We affirm.
5
Because we find that the seizure of the currency falls within the plain-view exception to the
warrant requirement, we need not address whether the seizure would also be permissible under the
“plain-feel” doctrine. See Garcia, 496 F.3d at 505 (“[A]n officer may seize an object whose contour
or mass makes its identity as contraband immediately apparent.”) (internal quotation marks and
citation omitted).
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