United States v. Keith , 559 F.3d 499 ( 2009 )

COLE, J., delivered the opinion of the court, in which GILMAN, J., joined. KENNEDY, J. (pp. 507-11), delivered a separate dissenting opinion.

OPINION

COLE, Circuit Judge.

Jonathan Keith pleaded guilty to several counts, including possession of crack cocaine with intent to distribute and possession of a firearm in furtherance of drug-trafficking. He reserved the right to appeal the district court’s denial of his motion to suppress evidence obtained as a result of an investigatory Terry stop. He claims that the officer who stopped him lacked the requisite reasonable suspicion of criminal conduct. He also asserts that the district court committed errors at sentencing. For the following reasons, we REVERSE the district court’s denial of Keith’s motion to suppress evidence. This renders the sentencing issues moot.

I. BACKGROUND

At 1:45 a.m. on March 29, 2006, Newport, Kentucky police officers Gregory Ripberger and Leonard Stephens were on patrol. They had just finished assisting with an arrest (unrelated to this case) and were standing on a corner next to multiple marked police cars with their lights flashing. On the opposite corner of the intersection, about fifty yards away, was “Big Daddy’s” liquor store. The officers could see the two sides of the building facing the intersecting streets: one side was the front of the store, and the other side contained a drive-through window sheltered by an overhang. They were not surveilling Big Daddy’s in particular, but the officers could see the store clearly. Their unit dealt frequently with narcotics crimes, and the officers knew that, in addition to the standard liquor-store fare, Big Daddy’s sold certain items that could be used to smoke crack cocaine, including filters and glass vials. Officer Ripberger had effected narcotics arrests in the surrounding area before, and, based on his “experience and training as a Newport police officer,” he considered “Big Daddy’s and [its] parking lot to be a high drug trafficking crime area.” (Joint Appendix “JA” 74.)

As they stood on the corner, the two officers observed a man on foot, later identified as Brandon Crawford, approach a car that had pulled up to the Big Daddy’s drive-through window. Another man, later identified as Keith, was in the driver’s seat of the car. Officer Ripberger testified that Crawford “walked up to the vehicle and appeared to start talking to the driver, stuck his head inside the [passenger-side window of] the vehicle, and at one point in time he looked back at us and then removed himself from the vehicle that he was leaning into.” (JA 77, 97.) His head was in the car “|j]ust a few brief seconds.” (JA 78.) The car then pulled away from the drive-through window. The testimony of Officer Ripberger suggests that Keith did not pull out of the drive-through line prior to reaching the drive-through window: “[Crawford] approached a silver Pontiac that was parked in the drive-through at the window.” (JA 77-78 (emphasis added).) Additionally, Officer Stephens stated twice that he was uncertain whether Keith had purchased something in the drive-through; if Keith had pulled out of line prior to reaching the window, Officer Stephens would have been certain that Keith had not purchased anything. Rather than leaving the parking lot through an exit near the drive-through window, Keith turned and drove across the parking lot in front of Big Daddy’s, turned again at the corner of the building, and proceeded along the side of the store, which the officers could not see from their vantage point. The officers were aware that there were parking places and a dumpster located on that side of Big Daddy’s.

At the suppression hearing, the officers repeatedly spoke of Keith going “behind” Big Daddy’s, but the south side of the building, which is where the officers lost sight of Keith, is more accurately described as the “side” of the Big Daddy’s because the building’s facade faces westward onto Central Avenue. Keith was only “behind” Big Daddy’s from the perspective of the officers, who were looking at the store from the northwest. As Keith was driving around the building, Crawford also walked across the front of Big Daddy’s toward the south side of the building, and, while doing so, he looked in the officers’ direction again. Officer Ripberger interpreted this as an attempt “to see what [the officers] were doing.” (JA 78-79.) When Crawford reached the corner of the building he turned, and the officers lost sight of him on the far side of the building. Officer Stephens testified that Keith’s car was out of their sight for “a few seconds,” and Crawford was out of sight for “|j]ust a few seconds.” (JA 123-24, 132.) In his incident report, Officer Ripberger stated that Crawford was out of sight and then appeared again “within seconds.” (JA 102.) Ripberger testified that Keith’s car was out of sight for approximately fifty seconds. (JA 102.) Both officers acknowledged that they did not know if the two men had any contact on the far side of the building. Officer Ripberger testified that he and Officer Stephens suspected that the two men had met on the side of the building to engage in a drug deal or exchange alcohol that had been purchased for someone under age. Accordingly, the officers entered their respective patrol cars intending to confront the two individuals.

When Keith’s car emerged from the far side of the building, it exited the parking lot and drove into the street. Officer Rip-berger followed Keith and stopped his car, based solely on his suspicion that some kind of criminal activity had occurred in the few seconds that the officers had lost sight of Keith and Crawford (Keith did not commit any kind of traffic infraction). Officer Ripberger then ran a check on Keith’s driver’s license and learned that it was suspended. He also viewed what appeared to be marijuana in plain sight in the car. A subsequent search of Keith’s car revealed a gun, and a later body-cavity search revealed approximately 19.8 grams of cocaine base hidden in Keith’s rectum. Officer Stephens conducted a separate stop of Crawford, found nothing suspicious on him, and allowed him to go.

Keith was charged in a five-count indictment with: 1) possession with intent to distribute crack cocaine; 2) possession of a firearm by a convicted felon; 3) possession of a firearm in furtherance of drug-trafficking; 4) forfeiture of firearm and currency; and 5) forfeiture of firearm. Claiming that Officer Ripberger did not have reasonable suspicion to believe that he had engaged in criminal activity, Keith moved to suppress the fruits of the initial stop of his car. He did not challenge any of the officers’ actions subsequent to the stop and does not make any such challenge on appeal. A magistrate judge issued a Report and Recommendation denying the motion to suppress, and the district judge adopted the Report and Recommendation in full. Keith entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion.

II. ANALYSIS

A. Standard of review

In reviewing a district court’s decision on a motion to suppress, we review factual findings for clear error and the application of the law to those findings de novo. United States v. Garcia, 496 F.3d 495, 502 (6th Cir.2007). We “ ‘must consider evidence in the light most likely to support the district court’s decision[.]’ ” Id. (quoting United States v. Marxen, 410 F.3d 326, 328 (6th Cir.2005)). Keith does not challenge the facts as stated by the magistrate judge and the district court— the issue before us is the application of the law to those facts.

B. Legal standard for existence of reasonable suspicion

A Terry stop is permissible only if law enforcement officers had a “particularized and objective basis for suspecting the particular person stopped of criminal activity,” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), and “were aware of specific and articulable facts which gave rise to reasonable suspicion.” United States v. Davis, 514 F.3d 596, 608 (6th Cir.2008) (internal quotation marks omitted). Reasonable suspicion does not materialize merely because a person “looked suspicious” and was in a “high drug problem area.” Brown v. Texas, 443 U.S. 47, 49, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”). “An officer must not act on an ‘inchoate and unparticularized suspicion or ‘hunch,’ but [on] the specific reasonable inferences [ ] which he is entitled to draw from the facts in light of his experience.’ ” United States v. Urrieta, 520 F.3d 569, 573 (6th Cir.2008) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We consider the totality of the circumstances to determine the reasonableness of the stop. Id.

In United States v. Urrieta, we reversed a district court’s denial of a motion to suppress evidence in the context of a stop and detention of a motorist suspected of drug-trafficking. 520 F.3d at 579. Urrieta was driving a sports utility vehicle (“SUV”) fully packed with belongings and towing another car packed similarly. Id. at 575. He had a Mexican driver’s license, the SUV had an expired registration tag, and the two passengers in the SUV appeared nervous. Id. Urrieta misrepresented his immigration status to the deputy sheriff conducting the stop and said he could not find his passport. Id. The deputy sheriff claimed that these facts provided him with reasonable suspicion that Urrieta was transporting drugs. Id. We disagreed and held that the circumstances did not support such a finding. We noted that “[t]he Fourth Amendment simply does not allow a detention based on an officer’s ‘gut feeling’ that a suspect is up to no good.” Id. at 578.

In United States v. Townsend, 305 F.3d 537, 545 (6th Cir.2002), we affirmed the district court’s suppression of evidence based on a finding that officers lacked reasonable suspicion to detain a car for the arrival of drug-detection dogs after validly stopping the car for speeding. The government offered ten reasons to support its claim that the officers had reasonable suspicion that Townsend was transporting drugs, including that the stop occurred at 3:00 a.m., the passengers were overly cooperative and appeared nervous, the driver was not the owner of the car (although he was listed on the insurance), and the suspects’ travel plans were slightly dubious. Id. at 542-45. We assessed the persuasiveness of each of the asserted reasons and then considered all the reasons together to determine whether they amounted to reasonable suspicion of criminal activity. Id. There, we held that they did not because “[although the government has pointed to several factors ... which we have recognized as valid considerations in forming reasonable suspicion, they are all relatively minor[,] and ... this case lacks any of the stronger indicators of criminal conduct that have accompanied these minor factors in other cases.” Id. at 545.

In Patterson v. City of Cleveland, which involved a 42 U.S.C. § 1983 claim rather a suppression motion, an officer whose unit specialized in “high crime drug areas” was on patrol around midnight when she saw two African-American men, about whom she had no information, “involved in some type of exchange ... huddled together on the sidewalk.” 1999 WL 68576, at *1,1999 U.S.App. LEXIS 1203, at *2 (6th Cir. Jan. 21, 1999) (unpublished). The officer did not see anything exchanged, although one of the men “had his hands in a ‘cup-like fashion.’ ” Id. When the police arrived, the two men “pulled their hands apart” and walked quickly up the street. Id. at *1, 1999 U.S.App. LEXIS 1203, at *2-3. We held that “[t]hese facts, standing alone, would not allow a reasonable police officer to conclude that illicit activity was in progress,” and we reversed a grant of summary judgment that had been based on a finding of qualified immunity. Id. at *6, 1999 U.S.App. LEXIS 1203, at *19-20.

On the other hand, factors that appear innocent in isolation may combine to form circumstances that, as a whole, support a finding of reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 273-75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person’ ” (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690)); United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In addition, evasive behavior on the part of a suspect is a factor that may support a finding of reasonable suspicion. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (unprovoked flight upon noticing the police in an area of heavy narcotics trafficking supports reasonable suspicion). While presence in a high crime area does not, on its own, create reasonable suspicion, it is “among the relevant contextual considerations.” Id.

We have found reasonable suspicion in several cases with facts that, at first blush, seem somewhat similar to those at issue here. In United States v. Green, an unpublished decision, we held that officers had reasonable suspicion to support an investigatory stop because although

[a] solitary female might lawfully pause and lean toward the window of a stopped vehicle at 2:45 a.m. in an area known for drug trafficking and prostitution, and then decide to walk away as a squad car approached[,] ... that possibility is so slight that a reasonable police officer encountering that situation can properly conclude that something illegal (most likely solicitation for prostitution) is afoot.

157 F. App’x 853, 856 (6th Cir.2005); see also United States v. Lewis, 2000 WL 263340, at *1, 2000 U.S.App. LEXIS 3308, at *2-3 (6th Cir. Feb. 29, 2000) (finding reasonable suspicion where undercover officers observed two juveniles acting as “decoys” and then noticed defendant and others exiting a vehicle and “looking] nervous and frightened as if they desired to flee”). Similarly, in United States v. Connally, 1993 WL 8151, at *2, 1993 U.S.App. LEXIS 1090, at *5 (6th Cir. Jan. 15, 1993), we found that, although no single factor was sufficient, the following factors, in combination, provided reasonable suspicion for a stop: “the officers knew this was a high drug trafficking area; [ ] they had seen drug dealing taking place here before; [ ] the pedestrian had thrown something in the van upon seeing the police; and [ ] the pedestrian quickly walked away and the van quickly pulled away.” Although unpublished decisions do not have prece-dential authority, see United States v. Sanford, 476 F.3d 391, 396 (6th Cir.2007), they may be considered for their persuasive value in our analysis of “[t]he conceptf ] of ‘reasonable suspicion,’ ” which “do[es] not permit of precise judicial definition and [is] dependent on circumstances.” Townsend, 305 F.3d at 542. With this in mind, we turn to whether the facts known to Officer Ripberger at the time he stopped Keith were sufficient to create reasonable suspicion that Keith had been engaged in criminal activity.

C. The officers did not have reasonable suspicion of criminal activity

In this case, although the officers were aware that Big Daddy’s sold items that can be used in the consumption of crack cocaine, the suspects’ encounter took place outside an open, operating business that sold a full range of legal products. Officer Ripberger agreed that there was nothing unusual about Keith patronizing Big Daddy’s around 2:00 a.m. and that it is, in fact, “kind of a popular place” at that time. (JA 96.) While Officer Ripberger testified that, based on his experience and knowledge of the area, he considered the parking lot of Big Daddy’s to be a location where drug-trafficking is likely to occur, he did not state that he had actually made drug-related arrests in the parking lot or witnessed drug transactions there in the past.

Initially, Officer Ripberger thought it was “out of the ordinary” for a pedestrian to approach a car parked at the drive-through window and talk to the driver, although this carries little weight, as it was based on Ripberger’s personal experience of having gone “through the drive-through several times and never [having] had someone come up to [his] window.” (JA 115.) The officers then thought it suspicious that Crawford looked in their direction while talking to the man in the car and then looked toward them again while walking across the front of the building. This contributed to the officers’ feeling that the two men intended to re-join each other out the officers’ sight. However, it is entirely to be expected that, out of curiosity, Crawford’s attention was drawn to the nearby police cars with flashing lights at that time of the night. Counsel for the Government conceded at oral argument that he, too, would likely have looked over toward the spectacle on the opposite corner.

The main factor that Officers Ripberger and Stephens found suspicious was that after Crawford had glanced in their direction, both Keith and Crawford moved to the far side of Big Daddy’s. The officers interpreted this as evincing an intent to avoid police observation, but Keith’s and Crawford’s actions were more ambiguous than the examples of “evasion” that have contributed to findings of reasonable suspicion in other cases. See United States v. Patterson, 340 F.3d 368, 372 (6th Cir.2003) (finding that “walking away from the police when they got out of their unmarked car constitutes a factor” so innocent as “to be outrightly dismissed” in assessing whether police had reasonable suspicion); Patterson v. City of Cleveland, 1999 WL 68576, at *1, 1999 U.S.App. LEXIS 1203, at *2-3 (finding no reasonable suspicion where, when suspects saw police arrive, they pulled their hands apart and departed up the street); cf. Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (finding reasonable suspicion based on “headlong flight” from officers); Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (finding reasonable suspicion where one suspect was overheard urging another to “get out of here” and suspect made movements suggesting attempt to flee); United States v. Caruthers, 458 F.3d 459, 462 (6th Cir.2006) (finding reasonable suspicion where, after officer asked him to approach police car, defendant “took off real quick ... semi-running” and “hunched down” against a wall); United States v. Helm, 85 F. App’x 475, 476 (6th Cir.2004) (finding reasonable suspicion where, in addition to other suspicious conduct, driver drove in an evasive manner); Lewis, 2000 WL 263340, at *1, 2000 U.S.App. LEXIS 3308, at *2-3 (finding reasonable suspicion where officers recognized use of decoys and observed nervousness and an apparent desire to flee).

We are not convinced that the manner in which Keith and Crawford moved from one side of Big Daddy’s to the other, combined with Crawford’s two glances in the direction of the officers’ flashing police lights, created reasonable suspicion of criminal conduct. The officers had no information about these two men nor any additional facts to support their claim of reasonable suspicion, other than the late hour and the “bad” neighborhood in which they were located. In United States v. Paulette, on which the dissent relies, the officers actually “observed [the defendant] and another individual engage in a hand-to-hand transaction.” 457 F.3d 601, 602 (6th Cir.2006). Here, Keith and Crawford did not exchange anything or attempt to hide any object from sight. See, e.g., Joshua v. DeWitt, 341 F.3d 430, 443-44 (6th Cir.2003) (rejecting state court’s reliance on “furtive gestures” where record did not indicate that suspects engaged in any specific furtive conduct, such as “mov[ing] their bodies or arms to conceal anything”); cf. Connally, 1993 WL 8151, at *2, 1993 U.S.App. LEXIS 1090, at *5 (finding reasonable suspicion, in part because an object was thrown into a van when police approached). Though their knowledge of the parking area on the far side of Big Daddy’s led the officers to believe that Keith and Crawford would not have had any reason to go there, it was possible that Keith was indecisive about which exit from the parking lot to use or that one of the men wished to discard trash in the dumpster.

The Green case, in which a solitary woman leaned into a car at 2:45 a.m. in an area known for prostitution and then walked away when the police appeared, is also distinguishable. Although the officers’ observations there were similar to those in this case, in Green the conversation itself constituted the suspected crime (soliciting prostitution), and the officers observed that conduct directly. Here, by contrast, the officers did not witness any act that arguably appeared to be illegal. Crawford and Keith could very well have been neighborhood acquaintances rather than drug traffickers, and Crawford might well have leaned into Keith’s car window to greet him or to ask if he knew why police cars with flashing lights were gathered on the corner. The two men might have had no further contact in the parking lot on the opposite side of Big Daddy’s, or they might have exchanged a few innocuous words.

Considering the totality of the circumstances, this sequence of events was insufficient to provide the officers with reasonable suspicion that a crime had been committed. Without more information, they were not justified in stopping Keith or Crawford. That the two men greeted each other in a “bad” neighborhood late at night, glanced toward flashing police lights, and then spent several seconds, during which they may or may not have had any contact, in a parking area beside an open, operating liquor store — a parking area that the police, from their vantage point, could not see — was not enough, under the Fourth Amendment, to justify the intrusion of a police stop. See Terry, 392 U.S. at 27, 88 S.Ct. 1868 (an “unparticularized suspicion or ‘hunch’ ” is not enough); Urrieta, 520 F.3d at 575 (“an officer’s ‘gut feeling’ that a suspect is up to no good” is not enough).

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s denial of Keith’s motion to suppress and REMAND for proceedings consistent with this opinion.