United States v. Karlos Love

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0246n.06
No. 12-6582 FILED
Apr 01, 2014
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
KARLOS LOVE, )
)
Defendant-Appellant. )
)
BEFORE: BOGGS and ROGERS, Circuit Judges; and STEEH, District Judge.*
ROGERS, Circuit Judge. Karlos Love appeals the district court’s denial of his motion to
suppress marijuana and a handgun found during a traffic stop and narcotics seized in a subsequent
search of his residence. Love’s arguments on appeal essentially amount to challenges to the lower
court’s credibility determinations. Because the district court’s factual determinations were not
clearly erroneous, the district court properly denied Love’s motion to suppress.
The Memphis Police Department received a tip indicating that two men—Love and Demond
Eddings—were selling drugs from a residence located at 949 Biggs Street in Memphis. The tipster
described the physical appearance of both men and Love’s blue Chrysler PT Cruiser.
After receiving the complaint, officers began watching the residence. Officer Trey Norris
observed a pattern where “an unusual number of cars arrive[d] at the residence where visitors would
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-6582, United States v. Love
pull up, be met by . . . Love, stay approximately four to five minutes, and then leave.” According
to Norris, this pattern of activity is consistent with the sale of drugs. The officers saw Love leave
the residence in the PT Cruiser on multiple occasions, apparently to sell drugs.
Immediately before Love’s arrest, officers watched him leave the residence with what
resembled a large potato chip bag. Officer Norris then saw Love get into his car without buckling
his seatbelt. Officer Norris and his partner, Officer Jerry Graves, began following Love in an
unmarked car. As they tailed Love, Officer Norris saw Love turn right three times without using
his turn signal, but did not recall whether Love ever turned left without signaling. Officer Graves
did not remember whether Love used his turn signals or not.
Officer Norris called Officer Algeron Brown and asked him to conduct a traffic stop. Officer
Brown then saw Love turn left without signaling. Officer Brown pulled alongside Love’s car and
could see through the PT Cruiser’s partially rolled-down window that Love did not have his seatbelt
buckled. After seeing these traffic violations, Officer Brown pulled Love over. As Brown
approached Love’s car, Brown smelled marijuana. After he asked Love to step out of the car, Brown
saw a bag of what appeared to be marijuana partially lodged under the driver’s seat. Brown then
patted down Love and discovered a handgun in his waistband. Brown arrested Love and put him
in the back of his squad car. He then called for a K9 unit, which conducted a sweep of Love’s car
and alerted to the presence of drugs. Officer Brown then searched the car and found approximately
two pounds of marijuana.
Meanwhile, Officers Norris and Graves headed back to the residence. When the officers
arrived, they saw Eddings leaving 949 Biggs Street. When Eddings saw the approaching officers,
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No. 12-6582, United States v. Love
he immediately tried to swallow a large bag of marijuana. The officers ordered him to spit out the
bag and arrested him after he complied. The officers then conducted a protective sweep of the house
to make sure that no one else was in the building and that evidence was not being destroyed. During
the sweep, they observed several bags of marijuana in plain view. After confirming that no one else
was in the building, Officer Graves left to obtain a warrant. He filed an affidavit describing the
initial tip, the surveillance of the house, Love’s arrest, Eddings’ attempt to swallow the marijuana,
and the drugs observed during the protective sweep. The magistrate issued the warrant, and the
officers returned to 949 Biggs. They searched the house and found the drugs they had initially
observed during the protective sweep, other previously undiscovered narcotics, scales, and other
drug paraphernalia.
A grand jury indicted Love on three charges: being a felon in possession of a firearm,
possession of a firearm in furtherance of a felony, and possession of marijuana with intent to
distribute. Love moved to suppress the gun and marijuana that Officer Brown found during the
traffic stop and the drugs discovered at the residence on Fourth Amendment grounds. A magistrate
judge conducted an oral hearing. At the hearing, the officers testified to the facts described above.
Love also took the stand and testified that he had not committed any traffic violations. The
magistrate judge found the officers’ testimony credible and recommended denying the motion. The
district court adopted the magistrate judge’s report and recommendation with modifications and
rejected Love’s various factual objections. After losing the suppression motion, Love pled guilty
to being a felon in possession of a firearm and possession of marijuana with intent to distribute.
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No. 12-6582, United States v. Love
Love reserved the right to appeal the district court’s denial of his motion to suppress and now
challenges that ruling.
The district court did not err in denying Love’s motion to suppress the handgun and
marijuana found during the traffic stop. Love argues that the traffic stop violated the Fourth
Amendment and so therefore all of the subsequently discovered evidence—the handgun, the potato
chip bag filled with marijuana, and the drugs seized at 949 Biggs Street—must be excluded as fruit
of the poisonous tree. This argument is meritless. A traffic stop is reasonable, and therefore does
not violate the Fourth Amendment, when an officer has probable cause to believe that a traffic
violation has occurred. United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). This is true even
when the stop is “a pretext to fish for evidence of other crimes.” United States v. Everett, 601 F.3d
484, 488 (6th Cir. 2010).
Love claims that he never committed a traffic violation and thus the stop was illegal.
Accepting that argument would require this court to overturn several of the district court’s findings
of fact. This court reviews a district court’s findings of facts for clear error. Disturbing a district
court’s factual finding is proper “when, although there may be evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Blair, 524 F.3d at 747.
In an attempt to show that the district court’s finding that Love was driving without a seatbelt
was clearly erroneous, Love points to several supposedly contradictory statements made by the
officers at the suppression hearing. Love first argues that the officers’ testimony contradicts his own
testimony that he had in fact been wearing his seatbelt. This argument fails because the district court
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No. 12-6582, United States v. Love
believed the officers and not Love; it generally is not this court’s place to reconsider “findings of
fact anchored in credibility assessments.” United States v. Hudson, 405 F.3d 425, 442 (6th Cir.
2005) (internal alterations omitted). Love next argues that Norris and Graves did not know whether
Love’s PT Cruiser had tinted windows and that the officers testified inconsistently about how far
from the Biggs Street house they had been positioned while conducting the surveillance. Again,
these arguments go to the credibility of the officers’ testimony; the district court’s decision to credit
the officers’ version over Love’s is supported by Officer Brown’s testimony that he saw Love
driving without a seatbelt when Brown pulled alongside Love’s car. Love’s final argument—that
the sun had set by the time of the arrest and therefore it was too dark for the officers to see whether
or not Love’s seatbelt was unbuckled—is contradicted by Brown’s testimony that he could see Love
driving without the seatbelt through the partially rolled-down window of the PT Cruiser and all of
the officers’ testimony that there was ample light at the time the arrest occurred. None of these
arguments leaves us with a firm conviction that a mistake was made.
The district court’s finding that Love turned without signaling was also not clearly erroneous.
Love attempts to discredit the officers’ testimony by pointing to the fact that Officer Norris never
saw Love turn left without signaling while Officer Brown did, that Officer Graves never saw Love
fail to signal, and that the officers were following from several cars back and thus would have had
difficulty seeing whether Love was signaling or not. These arguments may well have cast doubt on
the officers’ side of the story, but apparently not enough doubt for the district court to credit Love’s
version over the Government’s. This court generally does not second guess credibility assessments
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No. 12-6582, United States v. Love
on appeal. Two different officers said that they saw Love fail to turn without signaling. Accepting
their side of the story was not clear error.
Since the officers observed Love committing two separate traffic violations, they had the
legal authority to stop his vehicle. Love argues that his failure to signal while turning did not
constitute a violation because Tennessee law requires signaling only when “the operation of any
other vehicle may be affected” by the turn and that no vehicles were close to him. Tenn. Code Ann.
§ 55-8-143. This argument is not persuasive because the officers were following behind Love in
unmarked vehicles. In any event, it is undisputed that failing to wear a seatbelt is a traffic violation.
Id. § 55-9-603. Thus the officers observed Love committing traffic violations. And since police
officers have the authority to stop an individual when they see a traffic violation being committed,
United States v. Street, 614 F.3d 228, 232 (6th Cir. 2010), Officer Brown did not violate the Fourth
Amendment when he pulled Love over.1
Finally, the district court did not err in denying Love’s motion to suppress the evidence
obtained during the search of 949 Biggs Street because the information in the warrant affidavit
established probable cause that evidence of drug crimes would be found at 949 Biggs Street. The
Government conceded that the initial protective sweep of the residence was constitutionally suspect.
After the initial protective sweep, the officers obtained a warrant. But the application for the warrant
referred to the drugs the officers observed during the protective sweep. Thus the warrant on which
the subsequent search was based contained illegally obtained evidence. In such cases,
1
Because Officer Brown had the authority to stop Love because of the traffic violations, we need
not address whether the stop was independently justifiable under Terry v. Ohio, 392 U.S. 1 (1968).
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No. 12-6582, United States v. Love
it is well-settled that: when a search warrant is based partially on tainted evidence
and partially on evidence arising from independent sources, if the lawfully obtained
information amounts to probable cause and would have justified issuance of the
warrant apart from the tainted information, the evidence seized pursuant to the
warrant is admitted.
United States v. Smith, 730 F.2d 1052, 1056 (6th Cir. 1984) (internal quotation marks omitted).
The affidavit without the reference to the protective sweep amply supported probable cause.
An affidavit establishes probable cause when, “given all the circumstances set forth in the affidavit,
. . . there is a fair probability that contraband or evidence of a crime will be found in a particular
place.” United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). Excluding the protective sweep,
the affidavit included the initial complaint of drug activity at 949 Biggs Street, the officers’
observation of a pattern of vehicle traffic consistent with drug sales, the actions of Love and Eddings
in leaving the property on several occasions (also consistent with drug sales), Love’s arrest and the
drugs thereupon discovered in his vehicle, and Eddings’ attempt to eat a large bag of marijuana
when he saw the officers approaching. This evidence was easily sufficient to establish probable
cause that the officers would discover additional drugs in the residence. Thus the district court did
not err in denying the motion to suppress the evidence discovered at the residence.
Therefore we uphold the district court’s denial of Love’s motion to suppress and AFFIRM
the district court’s judgment. Love has made several pro se motions before this court, including a
motion to submit an additional brief. We have read the motions and Love’s brief and DENY those
motions.
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