United States v. Perkins , 209 F. App'x 502 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0927n.06
Filed: December 22, 2006
No. 05-4095
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________________________________________________________
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JAMES E. PERKINS, ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
Defendant-Appellant. )
)
________________________________________ )
)
BEFORE: SUTTON and GRIFFIN, Circuit Judges; and COHN, District Judge.*
PER CURIAM.
Defendant James Perkins appeals the district court’s denial of his motion to suppress
evidence discovered after a traffic stop for the violation of a city ordinance. Specifically, Perkins
claims that the initial stop was not supported by probable cause or reasonable suspicion and the
ensuing detention, search, and arrest were consequently tainted and unconstitutional. As a result of
the search, Perkins was charged with possession with intent to distribute crack cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(a). Following the denial of his motion to suppress, Perkins
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-4095
United States v. James Perkins
entered a conditional plea of guilty on May 9, 2005. He now timely appeals. For the reasons set
forth below, we affirm the judgment and order of the district court.
I.
On February 19, 2005, police officer Robert Petchler was monitoring for traffic violations
in a marked patrol car in the city of Cleveland. At approximately 6:10 p.m., Petchler observed a
metallic orange Cadillac Seville bearing Ohio license plate number DEK-2768 traveling northbound
on E. 153rd Street. According to Petchler, as the car drove past him, he observed that the front left
side window, the driver’s window, was heavily tinted and in violation of City of Cleveland
Ordinance § 437.28. This ordinance prohibits the use of window tints allowing less than fifty
percent light transmission, and Petchler had previously performed many stops for violations of this
ordinance.
After observing the Cadillac drive past him with what he perceived to be windows in
violation of the ordinance, Petchler followed the vehicle while checking the license plate number.
He then activated his overhead lights and siren and initiated a traffic stop. The vehicle did not stop
immediately, but drove approximately 450 more feet (ten to twelve houses), then pulled to the right
side of the road. Once the vehicle stopped, Petchler observed the front passenger-side door open and
the occupant lean out of the car. Although the passenger did not flee, as Petchler initially suspected
that he might, Petchler believed that the passenger had placed something outside of the car.
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No. 05-4095
United States v. James Perkins
Upon approaching the driver of the vehicle, Petchler explained why he had pulled her over
and requested that she produce identification. The driver, later identified as Brandy Johnson,
admitted that she did not have a driver’s license. Petchler then placed her under arrest and asked her
to step out of the car. The passenger, defendant Perkins, then volunteered his identification to
Petchler. Petchler placed Johnson in the rear of the police vehicle, and then checked Perkins’
license. Upon calling in Perkins’ license, he discovered that there were unconfirmed warrants for
Perkins’ arrest, and that Perkins lacked driving privileges. According to Petchler, because he
suspected Perkins may have placed something outside of the passenger door, he never took his eyes
off the car for more than a second or two.
Next, Petchler removed Perkins from his vehicle and cuffed and placed him in the rear of the
police cruiser. Petchler then initiated the procedure of confirming the warrants. Once he placed
Perkins in the rear of the police car, Perkins returned to the passenger-side door to investigate what
Perkins may have placed outside of it. According to Petchler, he was concerned that a weapon may
have been placed under the car. Petchler looked underneath the car in the area where he had seen
a passenger lean out, and there he found a folded-up newspaper containing a plastic bag with a large
amount of crack cocaine. The newspaper, despite being in the car’s line of travel, was not flat or
crushed and Petchler concluded that the newspaper was placed there after the car had been stopped.
Further, the bottom of the newspaper was wet with snow, but the top was dry. Later, Petchler found
a page from the same newspaper on the floorboard of the car. Petchler returned to the vehicle and
informed Johnson and Perkins that they were under arrest.
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No. 05-4095
United States v. James Perkins
After completing the search, Petchler tested the tint on the front left window using a “tint-
meter.” According to his testimony, the window measurement was thirty-one percent, far less than
the allowable fifty percent. He did not measure any of the other windows with the tint-meter, but
testified that both the front and the back windows appeared to be tinted to the same degree and
manner and were “identical in appearance.”
On May 3, 2005, the district court held an evidentiary hearing on Perkins’ motion to
suppress. At the hearing, the parties presented conflicting evidence with respect to the amount of
tint on the windows on the day of the stop. Petchler testified to the foregoing facts, and the
government presented three Polaroid photographs of the passenger side of the Cadillac, taken
approximately one to two hours after the stop. Perkins relied on Petchler’s testimony that he noticed,
through the tinted window, that the driver of the vehicle might not be wearing a seatbelt, that the sun
had recently set, and that the tinted windows might appear darker under dark conditions. Perkins
also presented two photographs, taken approximately two months after the hearing, in which the
front windows appear significantly lighter than the back windows. Perkins also presented the car
itself, which further showed a difference in shading. During the hearing, Petchler measured the
vehicle’s windows. Although the rear window measured thirty-one percent, the reading from the
front driver’s window was seventy-nine percent – a drastic change from the reading Petchler testified
that he took on February 19, 2005. Petchler testified that, based upon these readings, the tinting had
been removed from the front window. The owner of the car, Michele Lenix, testified that the
window tinting had not been changed.
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No. 05-4095
United States v. James Perkins
The district court issued an opinion and order on May 5, 2005, denying Perkins’ motion to
suppress. Specifically, the district court found Petchler’s testimony to be credible and Lenix’s
testimony to be incredible, thus concluding that Petchler had probable cause to initiate a traffic stop.
Defendant has timely appealed.
II.
Reviewing the denial, or the grant, of a motion to suppress is a mixed question of fact and
law. United States v. Hurst, 228 F.3d 751, 756 n.1 (6th Cir. 2000). Thus, this court reviews the
district court’s findings of fact for clear error and the district court’s conclusions of law de novo.
United States v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006). A factual finding is clearly erroneous
when, although there may be evidence to support it, the reviewing court, utilizing the entire evidence,
“is left with the definite and firm conviction that a mistake has been committed.” United States v.
Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999). The reviewed evidence must be viewed “in
the light most likely to support the district court’s decision.” Dillard, 438 F.3d at 680 (internal
quotation marks and citations omitted). Finally, “‘[w]here there are two permissible views of the
evidence’ the district court’s conclusions ‘cannot be clearly erroneous.’” United States v. Worley,
193 F.3d 380, 384 (6th Cir. 1999) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985)).
On appeal, Perkins reasserts the arguments and evidence he presented at the suppression
hearing; namely, that the district court erred in determining that the window tint of the Cadillac had
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No. 05-4095
United States v. James Perkins
been altered and, thus, Officer Petchler did not have probable cause to stop the vehicle. Accordingly,
Perkins urges this court to reverse the district court. We disagree and affirm.
First, with respect to the window tinting, the district court found Officer Petchler credible and
Perkins’ witness incredible, stating:
Although the Defendant has presented some evidence to question the officer’s
perception, this evidence is insufficient to convince the Court that Petchler measured
the wrong window on February 19, 2005, or that his meter somehow mistakenly read
31% when the tint was really at 79%. Defendant argues that the Court should find
credible Michele Lenix’s testimony that the tints had not been changed since
February 19, 2005. As Lenix’s testimony revealed, however, she may have had
reason to try to protect the Defendant. Moreover, she had every incentive to bring
the windows into compliance after she discovered the tint had been the subject of a
traffic citation. Most persuasive to the Court are the Polaroid photographs, taken an
hour or two after the traffic stop, showing that the front and back windows were
tinted at the same level. See Gov’t Exh. 3B and 3C. The image of the windows in
these photos is bolstered by the fact that, on the day of the hearing, the back
passenger-side window measured at 31%, matching Petchler’s measurement of the
front driver-side window on February 19, 2005.
Thus, the district court determined “it more plausible that the window tints were changed after
February 19, 2005, than that Officer Petchler took faulty or false measurements.”
On appeal, Perkins reargues the credibility of Lenix, contending that it is illogical that she
would have altered the tint of the front windows and not the back windows, because both tints
violate the ordinance. Perkins further asserts that Petchler’s testimony stating that, prior to the stop,
he thought, based on his view through the tinted window, that the driver was not wearing a seatbelt
demonstrates that the windows were not illegally tinted. Finally, defendant contends that the
Polaroid photographs relied upon by the district court do not sufficiently show the front driver’s side
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No. 05-4095
United States v. James Perkins
window. The combination of these factors, Perkins contends, renders the district court’s finding
clearly erroneous. We disagree.
The factors cited by Perkins are insufficient to leave this reviewing court with the “definite
and firm conviction that a mistake has been committed,” Navarro-Camacho, 186 F.3d at 705,
especially when “viewed in the light most likely to support the district court’s decision.” Dillard,
438 F.3d at 680 (internal quotation marks and citations omitted). We are not left with such a definite
and firm conviction here.
Second, Perkins contends that the combination of Petchler’s testimony that he had seen, but
not stopped, the Cadillac before and his previously discussed contention that the windows were not
altered rendered the traffic stop lacking in probable cause. “A police officer may effect a traffic stop
of any motorist for any traffic infraction, even if the officer’s true motive is to detect more extensive
criminal conduct.” United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002). This court has
recently affirmed that “a roadside detention is lawful so long as the officer has probable cause to
believe that the motorist has violated the traffic laws.” United States v. Garrido, 467 F.3d 971, 977-
78 (6th Cir. 2006) (holding that officer had probable cause to stop truck because driver violated
statute prohibiting following too closely) (citations omitted); see also United States v. Davis, 430
F.3d 345 (6th Cir. 2005) (holding that an officer’s observation of speeding vehicle provided police
with probable cause to detain driver for limited purpose of issuing traffic warning). Probable cause
is determined by the totality of the circumstances, United States v. Pasquarille, 20 F.3d 682, 686 (6th
Cir. 1994); is a fact-dependent determination; and will turn on what the police officer knew at the
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No. 05-4095
United States v. James Perkins
time he initiated the stop. United States v. Johnson, 242 F.3d 707, 709 (6th Cir. 2001); see also
United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc) (“This totality of the
circumstances analysis includes a realistic assessment of the situation from a law enforcement
officer’s perspective.”).
In the present case, we have affirmed the district court’s factual finding that the windows
were illegally tinted on February 19, 2005. Thus, it follows that Officer Petchler possessed sufficient
probable cause to stop the vehicle due to the illegally tinted windows.
III.
For the foregoing reasons, we affirm.
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