United States v. George DingessUnited States v. George Dingess
CONCLUSION
Although the district court properly found that Dearborn and Silverman & Morris were subject to
HELENE N. WHITE, Circuit Judge (concurring).
Dеarborn‘s complaint contains a single factual allegation regarding Huntington: “Defendant Huntington is believed to claim an interest in the Property as mortgagee.” There is no contention that this allegation lacks factual support. Additionаlly, as to each count, the complaint asked that the sale and transfer be avoided and for “such relief as is equitable with respect to the mortgage lien of The Huntington National Bank.” Although Dearborn‘s counsel may have been mistaken regarding the need to join Huntington as a party, there is no basis to conclude that such joinder was made “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”
Were this all that was involved here I would dissent from the affirmance of sanctions. It appears, however, that at various points Dearborn took the position that it might, in fact, have substantive claims against Huntington. Huntington‘s requests for voluntary dismissal were not met with an acknowledgment that the bank was joined simply because it might prove to be a necessary party and a preference to have the court rule on the matter, but, rather, with a demand that the bank provide an affidavit denying culрability for claims that were not alleged in the complaint and were not supported by the only discovery conducted. Under these circumstances I concur in the majority‘s determination that Dearborn can fairly be said to have “cоntinu[ed] to insist upon a position that is no longer tenable.” Maj. Op. at 852 (quoting Rentz, 556 F.3d at 395 (citation omitted)).
I join in Section II of the majority‘s opinion.
COOK, Circuit Judge.
After arresting George Dingess, officers discovered a pistol on his person and marijuana in his car. Dingess moved to suppress this evidence, which he claims authorities рrocured during an illegal search. The district court denied Dingess‘s motion, and Dingess entered a conditional guilty plea to possession of a firearm by a convicted felon. Dingess now appeals the denial of his motion to suppress. Wе affirm.
I.
While patrolling a high-crime area of Columbus, Police Officers Jeremy Phalen and John Narewski observed two men parked in a blue Buick in the common driveway of a duplex. Having heard a report that a “stocky black male” was selling drugs from a blue Buick at that very address, the officers ran a check on the license tag. Records revealed that Dingess owned the vehicle. Phalen and Narewski then pulled up Dingess‘s mug shot and arrest record—which included multiple narcotics, weapons, and resisting-arrest charges—and identified Dingess as the driver. Unbeknownst to the officers, Dingess was staying with his girlfriend, who lived in the duplex.
The officers did not immediately initiate contact; instead, they spent approximately twenty minutes conducting an unrelated traffic stop. When the officers returned and observed the occupied Buick still parked in the driveway, they decided to investigate. Phalen and Narewski parked their cruiser on the street, leaving the driveway entrance cleаr. Phalen approached the driver‘s door while Narewski approached the passenger‘s door. According to the officers, both the driver‘s and the passenger‘s windows were down. As the officers approached the rear bumper, they smelled burning marijuana; as they moved closer, Phalen observed Dingess holding a marijuana blunt in his right hand. Both officers reported that, before they said anything, Dingess said that he was not doing anything wrong and demanded that the officers move away. Phаlen responded that he smelled marijuana and saw Dingess holding a blunt. Dingess threw the blunt toward the lap of his passenger, later identified as Dingess‘s brother, Drew. According to the officers, Drew raised his hands in the air and said that he would not be a problem.1 After
A grand jury indicted Dingess for possession of a firearm by a convicted felon. Dingеss moved to suppress evidence. Following an evidentiary hearing, the district court denied Dingess‘s motion. Dingess entered a conditional guilty plea to the one-count indictment. He also moved the court to reconsider its denial of his motion to suppress; the district court adhered to its previous ruling. The court sentenced Dingess to fifty-two months’ imprisonment and three years of supervised release. Dingess appeals the denial of his motion to suppress.
II.
Dingess claims that the district сourt improperly denied his motion to suppress because it misconstrued the nature of his encounter with the officers. Police may engage in a warrantless encounter with a citizen under three circumstances: “(1) consensual encоunters in which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked questions; (2) a temporary involuntary detention or Terry stop which must be predicated upon reasonаble suspicion; and (3) arrests which must be based upon probable cause.” United States v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008) (internal quotation marks and citation omitted). Considering the evidence in the light most favorable to the government, we review the district court‘s findings of fact for clear еrror and its conclusions of law de novo. United States v. Gross, 624 F.3d 309, 314 (6th Cir. 2010).
Dingess claims that the district court erred in denying his motion to suppress because the officers engaged in a Terry stop without a reasonable, articulable suspicion. Because the evidence suggests that the officers initiated a consensual encounter rather than a Terry stop, and the officers had probable cause before the encounter ripened into a Terry stop or an arrest, we disagree. In a cоnsensual encounter, “law enforcement officers may ask citizens general questions without having any reasonable suspicion of criminal activity, so long as the officers refrain from the type of intimidating behavior that would lead a reasonable person to believe that the person was not free to leave.” United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008) (internal quotation marks and citation omitted). “Whether an encounter between a police officer and a citizen is consensual depends on the officer‘s objective behavior, not on any subjective suspicion of criminal activity.” Id. (internal quotation marks and citation omitted). Factors indicating a seizure include “the threatening presence of several officers, the disрlay of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled.” Gross, 624 F.3d at 315 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)).
- (1) Mr. Dingess’ [sic] vehicle was positioned with only one point of egress.
- (2) The front of the vehicle was facing a fence and the rear of the vehicle was towards the street.
- (3) The officers’ initial аpproach was from the rear of Mr. Dingess’ [sic] vehicle which was to [sic] only point of egress.
- (4) The officers were in a marked cruiser and police issued uniforms demonstrating an obvious police authority.
- (5) The officers simultaneously aрproached the driver‘s and passenger side of the vehicle essentially surrounding the occupants.
- (6) And, the officers were armed.
(citations omitted). But Dingess cites no case law explaining how these factors aid his cause. In fact, while the first three factors beаr on Dingess‘s ability to depart from the driveway, none suggests that the officers actually blocked his egress. See United States v. Labelle, 390 Fed.Appx. 539, 542 n. 6 (6th Cir. 2010) (characterizing encounter as consensual in part because officer “in no way constrained defendant‘s movements“); United States v. See, 574 F.3d 309, 314 n. 4 (6th Cir. 2009) (noting 2 thаt officer who initiated a Terry stop “could have properly sought a consensual encounter without blocking [the defendant‘s] ability to exit“); cf. Gross, 624 F.3d at 315-16 (finding that officer began a Terry stop when he blocked the defendant‘s car); United States v. Jones, 562 F.3d 768, 772-73 (6th Cir. 2009) (finding a seizure beсause a reasonable person would not feel free to leave once officers had blocked his car). The next three factors suggest only typical police conduct, not activities indicative of a seizure. See United States v. Williams, 615 F.3d 657, 664 (6th Cir. 2010) (observing that, without more, the approach of two uniformed officers in a marked police car would not suffice to make a reasonable defendant feel as though he could not leave). Because a reasonable person would believe himself free to leave under these circumstances, the district court correctly classified the officers’ initial approach as a consensual encounter. See Davis, 514 F.3d at 607. And, because the officers smelled burnt marijuana emanating from Dingess‘s car and saw the defendant holding marijuana—establishing probable cause—before this encounter ripened into a seizure, the district court properly denied the motion to suppress. See United States v. Ivey, 307 Fed.Appx. 941, 942-43 (6th Cir. 2009) (per curiam) (finding no Fourth Amendment violation where officer‘s plain-view discovery of marijuana on defendant provided probable cause for defendant‘s arrest and vehicle search); United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002) (“[A]n officer‘s detection of the smell of
III.
For the above reasons, we affirm the denial of Dingess‘s motion to suppress.