United States v. Reginald Smith

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0032p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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v. -

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No. 08-4378

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Defendant-Appellant. -

REGINALD SMITH,

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 07-00039-001—Michael R. Barrett, District Judge.

Argued: January 21, 2010

Decided and Filed: February 10, 2010

Before: SILER, ROGERS, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Bryan Robert Faller, PORTER, WRIGHT, MORRIS & ARTHUR, LLP,

Columbus, Ohio, for Appellant. Karl P. Kadon, III, ASSISTANT UNITED STATES

ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Bryan Robert Faller, PORTER,

WRIGHT, MORRIS & ARTHUR, LLP, Columbus, Ohio, W. Kelly Johnson, PORTER,

WRIGHT, MORRIS & ARTHUR, LLP, Cincinnati, Ohio, for Appellant. Karl P. Kadon,

III, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

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OPINION

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McKEAGUE, Circuit Judge. Defendant-Appellant Reginald Smith unsuccessfully

sought to suppress evidence of a handgun taken from him by Cincinnati police officers as

he was leaving an apartment building in Over-the-Rhine, Cincinnati at approximately 3:00

a.m. on November 21, 2006. The officers encountered Smith in the entrance hallway of the

apartment building while responding to a 911 emergency call. The record reflects that Smith

was not seized until Officer Putnick told him to stop and, at that point, the officers had a

1

No. 08-4378 United States v. Smith Page 2

reasonable, articulable suspicion that he had been engaged in criminal activity. Therefore,

the district court properly found that the officers’ encounter with Smith did not violate the

Fourth Amendment. We AFFIRM the district court’s decision denying suppression and

AFFIRM Smith’s conviction.

I. BACKGROUND

On November 21, 2006, at approximately 3:00 a.m., Cincinnati police officers were

on uniform patrol in Over-the-Rhine, a high-crime, high-drug area just north of downtown

Cincinnati, when they were directed to respond to a 911 emergency call at a four-to-five

story apartment complex in that neighborhood. Officers Luke Putnick and Brendan Rock

were on patrol together and arrived first. They waited for their backup (Officers Herman

Hill and Eric Weyda) to arrive before attempting to enter the apartment complex. However,

when they attempted to enter the apartment complex, the officers could not get into the

building because the front door was locked. The front double doors of the building were

made of glass, so the officers were able to see into the entrance hallway. The entrance

hallway was approximately “6 feet by 6 feet or 7 feet by 7 feet” and led to another set of

double doors which, apparently, were not locked and opened into a lobby. (R. 58 Weyda

17, 21.)

Over the next three to fifteen minutes, the officers sought some way into the building

by ringing the door buzzers, knocking on windows, making noise (in particular, through the

horn attached to their vehicle), using searchlights, and having dispatch try to contact the

residence from which they had received the 911 call. Officer Putnick climbed the fire escape

and knocked on the windows along the second floor. Finally, through the glass front doors,

the officers observed Smith, coming towards them and carrying both a “bike . . . and a bag

of food.” (R. 58 Hill 36-37.) It appears that Smith opened the front door and let the officers

in.

As Smith “unlocked and opened the door, there was kind of an altercation” because,

as the officers were rushing in, Smith “was trying to rush out of the door.” (R. 58 Weyda

22.) Primarily for safety reasons, the officers took up a “tactical position” around Smith as

they moved past him inside the hallway. (R. 58 Hill 45.) Officer Hill was on Smith’s left

and Officers Putnick and Rock were on his right; but Officer Hill testified that Smith was not

No. 08-4378 United States v. Smith Page 3

surrounded because, “[t]he doorway was actually -- was free egress actually to the door.

They were to his right, and I was to his left.” (R. 58 Hill 45; but see R. 30 Putnick 43

(noting that Officer Weyda was behind the officers).) In any event, there certainly was a

“kind of a congestion . . . just inside of the front door” because of the dimensions of the

hallway and because Smith “did not step back and allow the officers to come through” but,

instead, “was trying to push his way out as they were going in . . . .” (R. 58 Weyda 22; see

also R. 30 Putnick 17, 36 (noting that Smith “was basically forcing us out of the way in the

door to try to leave the residence,” “wasn’t looking at us and kind of was keeping his head

down trying to get out right away,” and “forcing his way through” the officers with his

mountain bike).)

As the officers entered the building, they began to ask Smith questions. Officer Hill

testified that Officer Rock “tried to engage in conversation with [Smith] to ask where he

came from. He was kind of evasive in his answers, really didn’t look at Officer Rock and

tried to keep on going outside. We asked him to slow down.” (R. 58 Hill 28.) Officer Hill

also testified as to the content of the questions that Officer Rock asked Smith: first, “what

apartment did he come from”; and, second, Smith’s “name.” (R. 58 Hill 43-44, 46 (Officer

Hill testified that he thought Smith’s responses were “vague.” He could not remember

Smith’s answer to the first question but believed that he provided his name in response to the

second).) Officer Hill also remembered that Officer Rock asked a third question but he

could not remember what it was. Officer Hill noted that, “[d]uring the time that he was

being questioned by Officer Rock,” Smith was “[l]ooking away and still trying to roll his

bike past. I mean, it was a tight spot. They were to his left. I was to his right. He was still

trying to roll the bike.” (R. 58 Hill 46.)

Officer Weyda, who was standing outside the hallway, also observed some of the

“exchange” and he “overheard small blurbs of Officer Rock asking Mr. Smith questions

about what apartment were you coming from, what are you doing here.” (R. 58 Weyda 8.)

Officer Weyda “observed [that] Mr. Smith was very, very agitated as if he was in a hurry.

He was very, very unsettled.” (R. 58 Weyda 8.) Officer Weyda also remarked that he could

only hear Officer Rock’s questions, but not Smith’s responses.

No. 08-4378 United States v. Smith Page 4

Officer Putnick testified that he also, “tried to make some conversation” in order “to

see if I could get any reaction out of [Smith].” (R. 30, Putnick 18.) In particular, Officer

Putnick asked, “‘How you [sic] doing, sir? Do you live here?’ And he really didn’t

acknowledge me. He just kind of kept his head down and tried to keep walking. At that point

when he didn’t acknowledge me, my suspicion raised a little bit and I asked him to stop.”

(R. 30 Putnick 18.) Officer Putnick further clarified that:

Basically I explained to him that we were here for a radio run and that I

wanted to know if he lived there, and as long as he wasn’t involved in any

of the activity upstairs, that he would be free to leave, that we first had to go

up and check that out. But due to my -- due to him trying to force his way

out and everything, I said, you know, “I’m just a little suspicious. I don’t

know if you’re involved. As soon as we can determine that you’re not, you’ll

be free to leave.”

(R. 30 Putnick 19.) Once Officer Putnick told Smith “to stop” he testified that he did not

believe that Smith was “free to leave” although the officers did not put Smith in handcuffs

or draw their firearms at this time. (R. 30 Putnick 19, 40; see also R. 58 Hill 39, 43.)

Finally, after the questions, Officer Weyda, “just observed [Smith] as being very,

very -- in a hurry. You could tell that he was flustered, and then he kind of -- he was making

very (indicating) movements, furtive movements.” (R. 58 Weyda 23.) Officer Putnick

testified that Smith “wasn’t really focused on what I was saying because he said, ‘Well, I’ll

just -- I got an ID.’ And at that point, he started to reach into his jacket.” (R. 30 Putnick 19.)

As Smith, “made a movement towards his coat,” there “was a big rush where Officer Hill

and Officer Rock grabbed him, both of his arms. During that time period, I did overhear

them say, you know, ‘Keep your hands out. What are you reaching for?’ And then they

grabbed him. It all happened very, very fast.” (R. 58 Weyda 8, 23 (testifying that although

he “didn’t exactly see what happened” he did observe a “distinct motion” and “saw the

defendant move very abruptly” which caused Officers Rock and Hill to “grab him from one

side and the other. And then I saw Officer Putnick, who was directly in front of me, just

going inside of the door, lunge at Mr. Smith, and immediately stepped back to me and hand

1

me a firearm.”).) In all, it took “less than two minutes” from the time the officers “got

1

Similarly, Officer Hill testified that:

As Officer Rock was talking with him and Officer Putnick, [Smith] made a quick

No. 08-4378 United States v. Smith Page 5

in the building until the time Officer Putnick retrieve[d] the gun from [Smith’s]

waistband.” (R. 58 Hill 44.)

Smith was charged in federal district court with being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 942(a)(2). Smith moved to suppress

evidence of the firearm. The district court conducted two evidentiary hearings related

to Smith’s motion to suppress and Smith’s motion for reconsideration of the motion to

suppress. At the first evidentiary hearing, the district court heard the testimony of

Officer Putnick; at the second, it heard the testimony of Officers Weyda and Hill. After

receiving Officer Putnick’s testimony in the first evidentiary hearing, the district court

denied Smith’s motion to suppress. After the second evidentiary hearing, the district

court denied Smith’s motion for reconsideration.

II. ANALYSIS

On appeal from the denial of a motion to suppress, this court reviews the district

court’s findings of fact for clear error and its conclusions of law de novo. United States

v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006). “A factual finding will only be clearly

erroneous 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.” United States v. Nichols, 512 F.3d 789, 793 (6th Cir. 2008) (citation

omitted). This court accords “deference to the district court’s assessment of credibility

inasmuch as the court was in the best position to make such a determination.” United

States v. Garrido, 467 F.3d 971, 977 (6th Cir. 2006) (citation omitted). “The evidence

gesture all of a sudden . . . [t]owards the inner part of the jacket. At that point, I just

touched his left arm and told him to slow down. I believe Officer Rock or Putnick

touched his right arm. Just in that movement, Officer Putnick, I think he might have

seen a gun or something. He looks in there, reaches in, pulls out the handle of the gun

and then hands it to Officer Weyda.

(R. 58 Hill 28.) Officer Putnick testified that:

All he did, like I said, he just reached up right away with his hand. I mean, it wasn’t

like, “Hey, I have my ID” and then went in. It was, “I have my ID,” and he was going

into his jacket as he was saying it right away. And that’s -- it’s very alarming for an

officer in that area for someone to immediately reach into their jacket where typically

guns are kept.

(R.30 Putnick 45.)

No. 08-4378 United States v. Smith Page 6

must be considered in the light most favorable to the party that prevailed in the court

below–in this case, the government.” Id.

A. The Fourth Amendment

“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the

Government, and its protections extend to brief investigatory stops of persons or vehicles

that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002)

(quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). This court has stated that “there are three

types of permissible encounters between the police and citizens” under the Fourth

Amendment: “‘(1) the consensual encounter, which may be initiated without any

objective level of suspicion; (2) the investigative detention, which, if non-consensual,

must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the

arrest, valid only if supported by probable cause.’” United States v. Waldon, 206 F.3d

597, 602 (6th Cir. 2000) (quoting United States v. Avery, 137 F.3d 343, 352 (6th Cir.

1997)). Here, the interaction between Smith and the Cincinnati police officers began as

a consensual encounter but developed into an investigatory detention or Terry stop when

Officer Putnick ordered Smith to stop.

i. Encounters that do not amount to a seizure

In order for a seizure to occur, the encounter must not be consensual and the

officers must use physical force or the individual must submit to the officers’ show of

authority. Brendlin v. California, 551 U.S. 249, 254 (2007); California v. Hodari D.,

499 U.S. 621, 628 (1991).2 “[A] consensual encounter becomes a seizure when ‘in view

of all the circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave.’” United States v. Jones, 562 F.3d 768, 772 (6th

Cir. 2009) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). We have

noted that, “[c]ircumstances indicative of a seizure include ‘the threatening presence of

several officers, the display of a weapon by an officer, some physical touching of the

2

Physical force creating a seizure needs more than mere physical contact but, rather, involves the

intentional application of force. Hodari D., 499 U.S. at 624-25.

No. 08-4378 United States v. Smith Page 7

person of the citizen, or the use of language or tone of voice indicating that compliance

with the officer’s request might be compelled.’” Id. (quoting Mendenhall, 446 U.S. at

554).

However, absent the intentional application of physical force, even if there is a

show of authority and a reasonable person would not feel free to leave, in order for a

seizure to occur there must also be submission to the show of authority: “there is no

seizure without actual submission; otherwise, there is at most an attempted seizure, so

far as the Fourth Amendment is concerned.” Brendlin, 551 U.S. at 254 (citations

omitted) (the Court noted that “[a] person is seized by the police and thus entitled to

challenge the government’s action under the Fourth Amendment when the officer, ‘by

means of physical force or show of authority,’ terminates or restrains his freedom of

movement . . . through means intentionally applied” (emphasis in original) (citations

omitted)); see also Hodari D., 499 U.S. at 626 n.2. Concerning submission, the Court

noted that: “what may amount to submission depends on what a person was doing before

the show of authority: a fleeing man is not seized until he is physically overpowered, but

one sitting in a chair may submit to authority by not getting up to run away.” Brendlin,

551 U.S. at 262.

ii. Investigatory Terry stops

In evaluating an investigatory Terry stop, this court engages “in a two-part

analysis of the reasonableness of the stop.” Caruthers, 458 F.3d at 464 (quoting United

States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005)). “We first ask whether there was a

proper basis for the stop” and, if the stop was proper, “then we must determine whether

the degree of intrusion . . . was reasonably related in scope to the situation at hand.” Id.

(quotations omitted).

An investigatory stop of an individual by a law enforcement officer is proper so

long as there is a reasonable basis for the stop. Terry, 392 U.S. at 22-24. An officer can

stop and briefly detain a person when the “officer has reasonable, articulable suspicion

that [a] person has been, is, or is about to be engaged in criminal activity.” United States

v. Atchley, 474 F.3d 840, 847 (6th Cir. 2007) (quoting United States v. Hensley, 469 U.S.

No. 08-4378 United States v. Smith Page 8

221, 227 (1985)) (emphasis in original); see also United States v. Sokolow, 490 U.S. 1,

7 (1989) (“[T]he police can stop and briefly detain a person for investigative purposes

if the officer has a reasonable suspicion supported by articulable facts that criminal

activity ‘may be afoot,’ even if the officer lacks probable cause.”). However, to justify

a Terry stop, an “inchoate and unparticularized suspicion or ‘hunch’” is not sufficient.

Terry, 392 U.S. at 27 (citation omitted). Instead, the officer must be “able to articulate

some minimal level of objective justification for making the stop,” Waldon, 206 F.3d at

604 (quotations omitted), based upon “specific reasonable inferences which he is entitled

to draw from the facts in light of his experience,” United States v. Foster, 376 F.3d 577,

585 (6th Cir. 2004) (quoting Terry, 392 U.S. at 27) (also noting that a “pattern of

suspicious behavior need only be recognizable by one ‘versed in the field of law

enforcement’” (citations omitted)).

This determination is made in light of the totality of the circumstances. Arvizu,

534 U.S. at 273; see also Sokolow, 490 U.S. at 8 (“The process does not deal with hard

certainties, but with probabilities. Long before the law of probabilities was articulated

as such, practical people formulated certain common-sense conclusions about human

behavior; jurors as fact-finders are permitted to do the same–and so are law enforcement

officers” (quoting United States v. Cortez, 449 U.S. 411, 418 (1981).). This process

serves to balance the individual’s interest in personal security with the government’s

interest in preventing ongoing or future criminal activity, solving past crimes, and

bringing offenders to justice. Hensley, 469 U.S. at 228-29.

In the second part of the Terry stop analysis, this court determines whether the

degree of intrusion, “was reasonably related in scope to the situation at hand, which is

judged by examining the reasonableness of the officials’ conduct given their suspicions

and the surrounding circumstances.” Caruthers, 458 F.3d at 464, 468 (quotations

omitted) (noting that this court asks (1) whether the stop “was [] sufficiently limited in

time, and (2) were the investigative means used the least intrusive means reasonably

available”). The scope of the investigative stop depends on “the circumstances that

originally justified the stop,” United States v Martin, 289 F.3d 392, 396 (6th Cir. 2002),

No. 08-4378 United States v. Smith Page 9

and it is appropriate to consider whether the law enforcement officers, “diligently

pursued a means of investigation that was likely to confirm or dispel their suspicions

quickly, during which time it was necessary to detain the defendant,” Foster, 376 F.3d

at 585 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).

B. Initial interactions not a violation of the Fourth Amendment

Initially, Smith was not seized before Officer Putnick told him to stop. Although

the entire encounter took under two minutes, United States v. Drayton, 536 U.S. 194

(2002), which is very analogous to this case, clearly supports a finding that the officers’

initial interactions with Smith were consensual and, consequently, did not violate the

Fourth Amendment. In Drayton, the Supreme Court considered when a reasonable

person would consider an encounter with the police to be consensual. The Court

considered a situation where three police officers dressed in plain clothes (but carrying

weapons and visible badges) boarded a bus while the driver checked paperwork in the

terminal. Id. at 197. One officer knelt in the driver’s seat facing the rear of the bus, and

the other two officers went to the rear. Id. One officer remained at the rear of the bus,

while the other worked his way toward the front, speaking with individual passengers

as he went. Id. at 198. When he got to respondents Drayton and Brown, who were

sitting side by side, the officer approached them from the rear, leaned over Drayton’s

shoulder, briefly held up his badge, and “[w]ith his face 12-to-18 inches away from

Drayton’s . . . spoke in a voice just loud enough for respondents to hear.” Id. He told

them: “I’m Investigator Lang with the Tallahassee Police Department. We’re conducting

bus interdiction [sic], attempting to deter drugs and illegal weapons being transported

on the bus. Do you have any bags on the bus.” Id. (citation omitted) (emphasis in

original). He asked for, and received, consent to search a green bag above the

respondents; but his search did not reveal any contraband. Drayton, 536 U.S. at 199.

Then he asked for, and received, consent from Brown to search his person. Id. He

reached across Drayton to search Brown, and found contraband on Brown. Id. After

handcuffing Brown, and having another officer escort him off the bus, the officer asked

for, and received, consent to search Drayton. Id. He found additional contraband on

No. 08-4378 United States v. Smith Page 10

Drayton. Id. The Court found that this encounter between the officers and both

respondents was consensual. Id. at 203-206, 208.

As Drayton shows, officers can ask questions without reasonable suspicion.

Drayton, 536 U.S. at 197-99. Furthermore, they can position themselves immediately

beside and in front of a suspect and even reach across a suspect, provided they leave a

way out. Id. at 197-99, 201-02. Thus, the fact that uniformed police officers here were

asking Smith questions while surrounding him on both sides, in close physical

proximity, with another officer at some distance in front of him, did not make the

encounter non-consensual. Indeed, the fact that three officers rushed into the building

as Smith opened the door may have given Smith some cause for alarm. However, it is

more significant that the officers did not initially seek to arrest or stop Smith as they

entered the building. They did not block Smith in; instead, they merely tried to move

around and past him. This would have indicated to a reasonable person that the officers

were not trying stop him and that, unless he engaged in activity that generated a

reasonable, articulable suspicion, he was free to leave. Certainly, the officers were not

required to allow Smith out of the building before attempting to respond to an

emergency 911 call; however, their need to enter the building quickly did not mean that

a reasonable person would feel that he could not leave or that their initial encounter was

non-consensual.

Furthermore, even if we assumed that a reasonable person would not feel free to

leave, Smith still was not seized. In United States v. Jones, we considered a situation in

which a suspect did not immediately submit to the officers’ show of authority. 562 F.3d

at 774. In Jones, police officers blocked a car in with their vehicles, after which Jones,

a passenger, jumped out of the vehicle and started walking away from the officers. Id.

We noted that, despite that fact that “generally, when a police officer pulls over a vehicle

during a traffic stop, the officer seizes everyone in the vehicle, not just the driver . . .

there is no seizure without actual submission . . . [w]ithout actual submission, ‘there is

at most an attempted seizure.’” Id. (quoting Brendlin, 551 U.S. at 254). Jones did not

“passively acquiesce,” “remain seated,” or “submit to the show of authority” but instead

No. 08-4378 United States v. Smith Page 11

“opened the car door and ‘jumped out’ as though he wanted to run.” Id. The court held

that, “[b]ecause Jones’s initial response to the officers’ arrival cannot be construed as

submission to authority, there is no need to invoke the Brendlin reasonable person test

to determine when the seizure occurred.”3 Id.; see also United States v. McCauley, 548

F.3d 440, 443-44 (6th Cir. 2008). Instead, Jones’s failure to submit to the officers’ show

of authority meant that there was no seizure.

In this case, the officers did not use physical force to restrain Smith until they

grabbed him when he reached into his jacket (after Officer Putnick told Smith to stop).

Prior to that point, there is no evidence of any physical contact, and any physical contact

would have been unintentional and a byproduct of the hallway’s small parameters and

the officers’ efforts to enter quickly in response to the 911 emergency call (the officers

did not physically block Smith in). Furthermore, even assuming that the officers made

a show of authority when they surrounded Smith in the hallway in close physical

proximity as they attempted to enter the building, Smith did not passively acquiesce or

submit to their show of authority but, instead, tried throughout the encounter to push past

the officers. Continuing efforts to push past the officers do not constitute submission to

a show of authority. Consequently, there was no seizure at this point.

C. Smith’s activity when Officer Putnick told him to stop justified a

Terry stop

Once Officer Putnick asked Smith to stop, a reasonable person would not have

felt free to leave and the interaction turned into a Terry stop.4 Officer Putnick told Smith

that he was not free to leave at some point after the initial encounter but immediately

before Smith reached for his ID.5 At this point, as discussed above, the officers were

3

As discussed above, the reasonable person test asks whether, in view of all the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to leave.

4

Once he was told to stop, Smith stopped and thus submitted to the officers’ show of authority.

(R. 30 Putnick 47.)

5

Officer Putnick told Smith, “as long as he wasn’t involved in any of the activity upstairs, that

he would be free to leave, that we first had to go up and check that out” and “I’m just a little suspicious.

I don’t know if you’re involved. As soon as we can determine that you’re not, you’ll be free to leave.”

(R. 30 Putnick 19.)

Moreover, Officer Hill’s comment that, “[w]e asked him to slow down” is either irrelevant or is

No. 08-4378 United States v. Smith Page 12

justified in making an investigatory Terry stop because the officers had a reasonable

suspicion of criminal activity under the totality of the circumstances, which included:

(1) the emergency 911 call; (2) Smith’s efforts, with his head down, to push past the

officers and exit the building as the officers entered; (3) that these events took place in

a high-crime area in (4) the very early hours of the morning; and (5) Smith’s vague

responses to the officers’ questions.

Smith contends that the 911 call is not a significant factor in considering the

totality of the circumstances. Smith argues and the district court appears to have

assumed that the emergency 911 call was a silent or hang-up 911 call.6 In examining the

911 call, this court has found that a 911 hang-up call “standing alone without follow-up

calls by a dispatcher or other information, is most analogous to an anonymous tip.”

United States v. Cohen, 481 F.3d 896, 899-900 (6th Cir. 2007) (noting that a silent 911

call may be made for numerous, non-criminal reasons and that “without any information

from the caller, the silent 911 hang-up call was the equivalent of an anonymous 911

report that there might be an emergency, which might or might not include criminal

activity, at or near the address from which the call was made”). Cohen noted that a

“silent 911 hang-up call could be said to have suggested the possibility of, among other

things, a limited ‘assertion of illegality’ but, absent any observed suspicious activity or

other corroboration that criminal activity was afoot,” even that limited assertion could

not be accepted. Id. at 900 (citation omitted). The police officer who testified in that

case stated that a person had called 911, but that the person had hung up “right after they

dialed 911” without providing any additional information. Id. at 897 n.1. Thus, Cohen

indicates that a silent 911 call can provide some support for a reasonable suspicion of

identical, for analytical purposes, to Officer Putnick’s command. (R. 58 Hill 28.) Officer Hill’s testimony

may refer to Officer Putnick’s statements instructing Smith to stop. However, even if it referred to a

different comment, it was phrased as a request, which left Smith at liberty to continue on his way.

Furthermore, even it this comment did trigger an investigatory stop it, like Officer Putnick’s request, came

after the police had received sufficient information to justify a Terry stop. Consequently, the same analysis

applied to Office Putnick’s order to stop would apply to Officer Hill’s comment.

6

Officers Putnick and Weyda did not remember what type of 911 call it was. However, Officer

Hill offered testimony that the dispatcher reported that it sounded as if a struggle was going on inside the

apartment.

No. 08-4378 United States v. Smith Page 13

criminal activity but, by itself, cannot support a finding that the law enforcement officers

had a reasonable suspicion of criminal activity.

Therefore, even if we found that this was a silent 911 call, it offered a limited

“assertion of illegality” which, in conjunction with other factors, could provide the

officers with reasonable suspicion. However, in this case, Officer Hill testified that

some additional information was communicated with the 911 call: “I recall the

dispatcher saying it sounded like it was a struggle inside of the apartment building

because the line was still open.” (R. 58 Hill 31.) This information narrowed the

inferences as to what caused the emergency 911 call, suggested criminal activity and,

given the small number of apartments in the residential complex (i.e., there were 12

buzzer buttons or 12 listings for names) and the time of night, significantly increased the

probability that Smith might have been involved in criminal activity.

Furthermore, Smith’s refusal to move out of the way of the officers and his

efforts to push through them as they tried to enter the building and as they moved around

him, also supported a finding of reasonable suspicion. The Supreme Court has found

that flight from law enforcement officers in a high crime area can justify a reasonable

suspicion of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

Furthermore, this court has found that “nervous, evasive behavior is a pertinent factor

in determining reasonable suspicion.” Caruthers, 458 F.3d at 466 (citing Wardlow, 528

U.S. at 124) (finding that Caruthers’s action of “‘hurr[ying]’ away in a ‘semi-running’

manner” while not the same as “headlong flight” was still a relevant consideration in

examining the reasonableness of an investigatory Terry stop). Moreover, “flight is not

the only type of ‘nervous, evasive behavior.’ Furtive movements made in response to a

police presence may also properly contribute to an officer’s suspicions.” Id. at 466-67

(noting that this factor must not be “invoked cavalierly” but finding that Caruthers’s

“unusual posture” of “‘hunch[ing] down’ near a wall, ‘kind of leaning toward the

ground’” supported a finding of reasonable suspicion).

Here, the officers described Smith throughout the encounter as very agitated and

unsettled. More importantly, Smith did not merely run from the officers; instead, he

No. 08-4378 United States v. Smith Page 14

stood in their way, with his head down, and attempted to push through them and past

them. When they sought to enter the building, the police were not trying to investigate

or intimidate Smith, they were not purposefully seeking to slow him down or to inhibit

his movements; rather, they were seeking to respond as quickly as possible to a 911

emergency. In response, Smith did not get out of their way, or simply stand still;

instead, and without any explanation, he attempted, with his head down, to push his way

through and past the officers. Smith’s aggressive behavior, which inhibited the officers’

efforts to respond to a 911 emergency call, distinguishes this case from other Terry stop

situations and contributes significantly to our finding that the officers had a reasonable

suspicion of criminal activity.

Several other contextual considerations were also present, including that it was

“late at night” and “a high-crime area.” Caruthers, 458 F.3d at 467-68. Even though

“these factors may not, without more, give rise to reasonable suspicion . . . they are

relevant to the reasonable suspicion calculus.” Id. at 467 (numerous citations omitted)

(the incident in Caruthers took place at 1:20 a.m.). It was reasonable to conclude, based

on Officer Putnick’s prior testimony regarding his extensive experience in this area (and

with this apartment complex, in particular) that this was a high-crime area. Furthermore,

3:00 a.m., like 1:20 a.m. is, as Caruthers described it, “late at night.” While activity at

such hours and in such an area, by itself, certainly could have an innocent explanation,

in conjunction with the other factors, it supported a finding of reasonable suspicion.

Finally, Smith’s evasive, non-responsive, and vague answers to the officers’

questions, which (in part) prompted Officer Putnick’s instruction to stop, also provided

some additional basis for the officers’ reasonable suspicion. This court has noted that

a suspect, “need not answer any question put to him; indeed, he may decline to listen to

the questions at all and may go on his way. He may not be detained even momentarily

without reasonable, objective grounds for doing so; and his refusal to listen or answer

does not, without more, furnish those grounds.” United States v. Campbell, 486 F.3d

949, 954 (6th Cir. 2007) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)) (emphasis

added). Thus, while a suspect’s refusal to answer or listen does not, by itself, justify a

No. 08-4378 United States v. Smith Page 15

reasonable suspicion of criminal activity, it can be a factor that, together with other

factors, supports a finding of reasonable suspicion.

Here, Officer Weyda could not remember any of Smith’s responses to the

questions he was asked. But Officer Hill testified that Smith, “was kind of evasive in

his answers” and that he thought that Smith’s responses were “vague.” (R. 58 Hill 28,

43-44.) Officer Putnick testified that he asked Smith, “How you [sic] doing, sir? Do

you live here?” and that Smith “didn’t acknowledge me. He just kind of kept his head

down and tried to keep walking. At that point when he didn’t acknowledge me, my

suspicion raised a little bit and I asked him to stop.” (R. 30 Putnick 17-18.) Smith’s

refusal to answer some of the questions posed to him, and his vague and evasive answers

to other questions, provided further support for the officers’ reasonable suspicion that

he was engaged in criminal activity.

The district court could properly conclude that (1) the emergency 911 call,

(2) Smith’s efforts to push past the officers with his head down, (3) the time of night, and

(4) the fact that it was a high crime area, when analyzed together as required by the

Supreme Court, gave the officers a reasonable, articulable suspicion that Smith had been

engaged in criminal activity. The officers’ reasonable suspicion was not merely based

on an inchoate and unparticularized suspicion or hunch but, rather, on a common sense

conclusion and specific reasonable inferences which the officers were entitled to draw

from the facts in light of their experience. In short, when the only person present in the

hallway of a residential complex keeps his head down and tries to push past officers

while they are entering the complex in response to a 911 emergency call late at night,

the district court may properly conclude that those officers have a reasonable suspicion

that he has been engaged in criminal activity. Indeed, “[t]o have simply sent [Smith] on

his way, without brief further questioning at the very least, would have been plainly

unreasonable, even inept, police work.” Foster, 376 F.3d at 587 (citation omitted).7

Furthermore, (5) the fact that the dispatcher communicated that it sounded like a struggle

7

We also note that all of these factors were present before the officers had initially positioned

themselves around Smith.

No. 08-4378 United States v. Smith Page 16

was going during the 911 emergency and (6) Smith’s evasive, non-responsive, and vague

answers to the officers’ questions further support our conclusion.

Moreover, the degree of intrusion was reasonably related in scope to the situation

at hand. Officer Putnick told Smith to stop until they could investigate what sort of

emergency had necessitated the 911 call. Presumably, had Smith not – immediately

thereafter – reached into his jacket, and triggered a greater search, this would have only

taken a few minutes, after which Smith, if there was no further cause for suspicion,

would have been free to leave. Consequently, in the brief time before Smith reached into

his jacket, the police diligently pursued a means of investigation that was likely to

confirm or dispel their suspicions quickly and their actions did not violate the Fourth

Amendment.

D. Once Smith reached for his ID, the officers were justified in

grabbing him and, upon seeing the gun, seizing it

Almost immediately after the officers told Smith to stop, Smith suddenly reached

into his jacket. At this point, the officers were justified in grabbing him and the weapon

they observed in his waistband. An officer is permitted to conduct “a reasonable search

for weapons for [his or her] protection . . . where he [or she] has reason to believe that

he [or she] is dealing with an armed and dangerous individual.” Terry, 392 U.S. at 27

(1968). In making this determination, “the officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.” Id.

Here, Smith’s sudden reach into his jacket, in conjunction with the factors that justified

the initial Terry stop and the fact that he was so close to the officers, gave the officers

reason to believe that they were dealing with an armed and dangerous individual.

Indeed, a reasonably prudent person in the circumstances would be warranted in the

belief that his safety or that of others was in danger. Furthermore, as they moved to keep

Smith from reaching into his jacket, Officer Putnick immediately saw a gun, which he

seized. The officers’ response to Smith’s sudden hand movement into his jacket did not

violate the Fourth Amendment.

No. 08-4378 United States v. Smith Page 17

III. CONCLUSION

The officers’ initial contact with Smith, as they entered the building in an attempt

to respond to the emergency 911 call, did not result in a seizure in violation of the Fourth

Amendment. Furthermore, when Officer Putnick told Smith to stop, there was a proper

basis for an investigatory Terry stop and the degree of intrusion was reasonably related

in scope to the situation at hand. Consequently, since the officers’ actions did not violate

the Fourth Amendment, we AFFIRM the district court’s decision denying Smith’s

motion to suppress and denying his motion for reconsideration and AFFIRM his

conviction.