United States v. Young, No. 11--2296 (6th Cir. Dec. 20, 2012) (designated for publication on Feb. 7, 2013).
Panel of Judges Siler, Cook, and Steeh (E.D. Mich).
Felon-in-possession case.
Procedural wrinkle:
* Defendant moved the district court to suppress evidence in 2007 during his original case. He appealed that court's denial of the motion. The COA affirmed b/c the defendant had not preserved the issue properly.
* The defendant then filed a 2255 based on counsel's failure to preserve the issue.
* The district court vacated the original plea and accepted an amended conditional plea that preserved the issue.
* This appeal then followed.
Facts:
* On December 15, 2006, at 1:15 a.m., the defendant was sitting in the passenger seat of a car, in a reclined position, in a city-owned parking lot outside Julian's Bar and Restaurant in Grand Rapids, MI. It was a lot regularly used by Julian's patrons.
* Area had a recent history of violent crime, including shootings and assaults.
* Police officers testified that those waiting outside Julian's are more likely to be armed, as Julian's conducts pat-downs.
* Officers also testified that they look for those loitering, as loitering leads to "problems."
* Under the city's loitering and trespassing ordinances, it was a crime to be in the lot without business at the adjacent establishments.
* Officers pulled into the lot. They parked behind the defendant. They observed the defendant for about a minute and a half.
* The officers approached the car in which the defendant was sitting. They looked through the windows with flashlights. One officer hit the passenger window with a flashlight. After a fifteen-second pause, the defendant rolled down the window. The officer requested ID. When asked if he was "chillin'," the defendant replied that he'd fallen asleep while his companion ran into Julian's to see if they could get a table, or if they should just get take out.
* The friend returned to the vehicle at that point.
* Officers sent the friend back into Julian's and told the defendant to "sit tight."
* The officers collected the defendant's ID and ran a warrant check.
* The defendant allegedly began making gestures around his pocket, as though he had contraband. An officer asked the defendant to step out of the car. The defendant then disclosed that he had a gun. The defendant was cuffed, an officer reported an outstanding warrant, and the entire incident lasted about four minutes.
Conclusions and reasoning:
* The defendant was subject to a Terry stop when the police car parked behind the vehicle in which he sat.
* COA cited United States v. See, 574 F.3d 309 (6th Cir. 2009), and United States v. Gross, 662 F.3d 393 (6th Cir. 2011). Even though the stop here occurred before these cases were decided, this case was pending on direct review after those decisions.
* At the time the police cruiser parked behind the defendant, the police had reasonable suspicion to stop the defendant: it was a high-crime area, Julian's pats its patrons down, and the defendant was reclined in the car.
* The high-crime area and pat-downs are contextual factors entitled to little weight, but they are still relevant. The COA recognized that the crime in the area was violent crime, as opposed to the trespassing the police suspected the defendant was engaged in, but officers testified that trespassing and guns "are inter-related." The pat-downs at Julian's meant ppl with guns were more likely to wait outside.
* The COA gave reclining in a car at 1:15 a.m. more weight. Officers believed the defendant was trespassing.
* The COA rejected the defendant's "novel argument that suspicion of a mere trespassing violation is not sufficient to support a Terry stop under a 'reasonableness' inquiry because such offenses do not pose a danger to the public."
* The warrant check and initial questioning were permissible under Terry. While the permissibility of the warrant check was undecided prior to this case, the COA concluded that the check was permissible. Other circuits had so held.
* The warrant check would have produced the outstanding warrant regardless, so the officers could have arrested the defendant, and would have discovered the gun.
* The stop, the COA noted, lasted only four minutes. It was reasonable to tell the defendant to "sit tight."
* COA recognized the potential for Terry-stop abuse, but decided that police must be able to investigate actual crimes, even if the crime is just trespassing.
