UNITED STATES of America, Plaintiff-Appellee, v. Dennis KING, Defendant-Appellant.
No. 10-3781.
United States Court of Appeals, Sixth Circuit.
March 12, 2012.
484
The district court concluded that the Kentucky Statute of Frauds,
III. CONCLUSION
We REVERSE the district court‘s grant of summary judgment on all of Lairsen‘s claims and remand for further proceedings consistent with this opinion.
OPINION
McKEAGUE, Circuit Judge.
Defendant-Appellant Dennis King was convicted of possession to distribute cocaine base in violation of
I. BACKGROUND
On July 28, 2009, Lakewood Police Detectives Terry Miller and John Guzik were in a Detective Bureau vehicle on a “sexual registration follow up.” R. 53, Suppressiоn Transcript, p. 20. Detective Guzik observed a black Cadillac driven by a large African-American man in his fifties pass through the intersection of Detroit Road and Clarence Avenue. Id. Guzik testified that the driver matched a reliable confidential source‘s description of an individual suspected of drug activity at an apartment on Clarence Avenue. Id. at 16-17. Further, Clarencе Avenue was “deemed a high-drug location within [Lakewood].” Id. at 19. Because Guzik and Miller were in a bureau car, Guzik exited the vehicle, asked Miller to drive away, “and proceeded to do a foot surveillance just to see where this vehicle was going or what might happen at that point in time.” Id. at 20.
The Cadillac subsequently parked “along the east curb, probably 50 feet north of Detroit Avenue.” Id. Guzik observed the driver sit in the Cadillac from approximately 40 yards away. Id. The driver remained in the vehicle for approximately three minutes before exiting the Cadillac, at which point the driver stood by his Cadillac‘s open door and looked around for twenty to thirty seconds. Id. at 22. Guzik watched the driver cross the street while “constantly looking in all directiоns.” Id. at 23. The driver entered the suspect apartment building on Clarence Avenue and remained inside for four minutes. Id. at 26. When the driver emerged from the building, he returned to his car. Id. at 26-27.
Guzik believed that the driver matched the physical description given by the confidential informant. Id. at 22-23. Guzik also considered the driver‘s brief visit to the Clarence Avenue on the apartment to be indicative of a drug sale based on his training and experience. Id. at 22. Accordingly, Guzik intended to stop the driver based on “[r]easonable and articulable suspicion.” Id. at 27. Consequently, Guzik arranged for a uniformed officer to proceed to the area to provide assistance while he continued to monitor the situation. Id.
The individual in the Cadillac then began to drive away, Id. at 28-29, and Guzik—still on foot—returned to Miller‘s vehicle. Id. at 29. Guzik and Miller followed
Romanello approached the driver and obtained his driver‘s license. Id. at 66. The license identified the driver as Dennis King. Id. at 66-67. While Romanello was running King‘s license, Romаnello heard “squealing tires, looked up and the vehicle fled from the stop.” Id. at 68.
Romanello conducted a high-speed chase of King‘s vehicle until King‘s Cadillac crashed into another car. Id. at 69-72. During the chase, Romanello witnessed King commit the following violations, all of which were also recorded by the dashboard camera in Romanello‘s vehicle:
- (1) failure tо use a turn signal before pulling from the curb;
- (2) operating a vehicle to the left of the center line and into oncoming traffic;
- (3) failure to stop at a red traffic light;
- (4) exceeding seventy miles per hour in a twenty-five miles per hour zone;
- (5) operating a vehicle in a reckless manner or with willful, wanton disregard for the safety of others;
- (6) fleeing the scene of an accident;
- (7) felony flight from the police.
Appellee Br. at 11; see also R. 55 at 69-72. When Romanello arrived at the sсene of the accident, he observed King fleeing on foot. R. 55 at 73. Romanello chased King on foot while another officer arrived and attempted to block King with his vehicle. Id.
Once King was caught, he was arrested for felony fleeing and eluding. Id. at 39. Detectives Guzik and Miller searched King incident to his arrest and uncovered 101 individually wrapped rocks of crack coсaine weighing approximately thirty-two grams, a cellular phone, and approximately $250.00. Id. at 40. Guzik then returned to King‘s Cadillac and, on the ground near the vehicle, found a brown paper bag that contained a black bag with 139 unit doses of heroin which exceeded 60 grams in weight. Id. at 41. Finally, Guzik observed a loaded .380 semi-automatic Beretta pistol unobstructed from view on the flоorboard of the passenger‘s front seat. Id. The police seized the evidence. Id.
On August 19, 2009, King was charged with possession to distribute cocaine base, in violation of
On December 15, 2009, a superceding indictment was filed containing the same three counts but amending the quantity of the drugs. R. 31, Superceding Indictment. King pleaded guilty to all three counts pursuant to a plea agreement. R. 42, Plea Agreement. King‘s plea agreement contained an appellate waiver provision that reserved his right to appeal: (1) any punishment in excess of the statutory maximum; (2) any sentence higher than the advisory Sentencing Guideline range deemed applicable by the court; and (3) the denial of his motion to suppress. Id. at 7. After the district court accepted King‘s guilty plea, the United States Probation Office prepared a Presentence Investigation Report (“PSR“). On May 14, 2010, King objected to the PSR on the following grounds: (1) the PSR‘s recommendation that he receive a two-level increase for obstruction of justice; (2) the PSR‘s inclusion in his criminal history of a fifth-degree felony over ten years old; and (3) the enhancement for possession of a firearm. R. 46, Objections to the Presentence Report.
At sentencing, however, King withdrew his objections after the parties stipulated to a base offense level of 24 rather than the PSR‘s recommended base level of 28. R. 55, Sentencing Transcript, pp. 2-3. The district court then determined the base offense level of 24 should be increased by four levels: two for possession of a dangerous weapon pursuant to
On appeal, King asserts three errors. First, King argues that the district court erred by denying his motion to suppress. Second, King contends the district court abused its discretion by imposing a $1,000 fine. Finally, King argues that his 120-month sentence is procedurally and substantively unreasonable.
II. ANALYSIS
A. KING‘S MOTION TO SUPPRESS
When reviewing a district court‘s determination on a motion to suppress, this Court reviews the district court‘s findings of fact for clear error and its ultimate legal conclusion de novo. See United States v. Al-Cholan, 610 F.3d 945, 953 (6th Cir. 2010). “A factual finding will only be
King appeals the district court‘s denial of his motion to suppress for two reasons. First, King asserts that the Lakewood City Police lacked jurisdiction to arrest him because the relevant criminal conduct occurred in Cleveland rather than Lakewood. Second, King argues that his arrest was insufficiently attenuated from the Lakewood Police‘s improper Terry stop.
King‘s first argument is unavailing because, even assuming the Lakewood City Police lacked jurisdiction to arrest King, jurisdictional defects do not amount to per se violations of the Fourth Amendment. See Virginia v. Moore, 553 U.S. 164, 172, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (explaining that the legality of a seizure under the Fourth Amendment “has never depended on the law of the particular State” in which the seizure occurs) (internal quotation marks omitted); see also State v. Weideman, 94 Ohio St.3d 501, 764 N.E.2d 997, 1001-02 (2002) (holding that an officer‘s violation of Ohio‘s jurisdictional law did “not rise to the level of a constitutional violation“).
King next argues that, because the Lakewood Police‘s initial Terry stop was improper, his subsequent arrest and search incident to arrest should be suppressed as “fruits of the poisonous tree.” See Appellant Br. at 15; see also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In particular, King notes that there were “only a few minutes between the unlawful police activity and the defendant‘s actions. That lapse could not in any way dissipate the taint.” Appellant Br. at 18.
Generally, “[i]n order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person,” the United States Supreme Court requires that “evidence seized during an unlawful search [can] not constitute proof against the victim of the search” and must therefore be excluded from trial. Wong Sun, 371 U.S. at 484, 83 S.Ct. 407. There are, however, exceptions to this exclusionary rule. Evidence obtained following an unlawful search or seizure will not be excluded if its discovery results from “an intervening independent act of a free will sufficient to purge the primary taint of the unlawful invasion.” Id. at 486, 83 S.Ct. 407.
In this Circuit, fleeing or otherwise resisting an unlawful search or seizure constitutes an intervening indeрendent act of free will that purges the taint from the initial unlawful search or seizure. See United States v. Allen, 619 F.3d 518 (6th Cir. 2010) (finding that “it is widely recognized that if a suspect‘s response to an illegal stop is itself a new, distinct crime, then the police constitutionally may arrest the suspect for that crime“) (internal alterations omitted). According, we find that the district court properly denied King‘s motion to suppress. The district court first held that Detective Guzik lacked reasonable suspicion to support his initial Terry stop of King‘s vehicle. R. 24, Order Denying Defendant‘s Motion to Suppress, p. 9. Nonetheless, the district court denied King‘s motion because “Defendant‘s flight cannot be said to have resulted from an exploitation of the illegality of the initial traffic stop, but was instead an intervening act of free will that is sufficient to purge
As the district court noted, “[d]uring the course of the high-speed chase that ensued from his flight, the Defendant committed numerous violations, including felony fleeing, which . . . provided probable cause for arrest.” Id. at 12. Accordingly, “the evidence collected post-flight need not be suppressed based upon the illegality of the initial traffic stop, so long as there was a legitimate basis for its seizure following the capture and arrest of the Defendant subsequent to his flight.” Id. When King was finally apprehended, he was arrested and the search incident to arrest uncovered approximately thirty-two grams of crack cocaine. Id. The district court found that because “the arrest of the Defendant was lawful, the evidence recovered from his person was lawfully obtained and need not be suppressed.” Id. We agree.
B. THE $1000 FINE
King next argues that the district court abused its discretion by fining King $1,000. In particular, King asserts that “[b]eing indigent[,] the court should not have imposed a fine,” and that doing so violated
This Court reviews the district court‘s factual finding as to whether King is capable of paying a fine for clear error. United States v. Hickey, 917 F.2d 901, 906 (6th Cir.1990). The United States Sentencing Guidelines provide that “[t]he court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.”
Because King‘s total offense level was 25, his Guidelines fine range was between $10,000 and $100,000. See
C. KING‘S SENTENCE
King argues that the district court erred by “imposing what it believed to be a mandatory sentence . . . without consideration of the § 3553 factors.” Appellant Br. at 20. Toward that end, King relies on the dissent in United States v. Franklin, 622 F.3d 650, 658 (6th Cir.2010) (Moore, J., dissenting), vacated on other grounds, — U.S. —, 131 S.Ct. 1675, 179 L.Ed.2d 611 (2011), which reasoned that “the district court should be able to consider the mandatory seven-year sentence for brandishing a firearm in violation of
This Court reviews a district court‘s sentence for procedural and substаntive reasonableness under the deferential abuse of discretion standard. See, e.g., United States v. Alexander, 543 F.3d 819, 821 (6th Cir.2008). A sentence is procedurally unreasonable if, inter alia, the district court failed to properly calculate the Guidelines range, treated the Guidelines range as mandatory, failed to consider
Because the district court was not allowed to consider the
For the foregoing reasons, this Court AFFIRMS King‘s conviction and sentence.
McKEAGUE
UNITED STATES CIRCUIT JUDGE