NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0406n.06 No. 09-4302 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellant,

v. L AMAR W. C OOPER, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST R I CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

Be fore : SUHRHEI

NRI CH, COL E, and COOK, Circ uit J udg es. COOK, Circuit J udg e. After office rs discovere d a g un on L amar W. Cooper during a Terry stop, a g rand jury char g ed him with possession of a firea rm and ammunition by a convicted felon. Cooper moved to suppress evidenc e as the product of an illega l sear ch and seizure. The district court g rante d his moti on. We reve rse.
I
. Cooper’s trouble s beg an with a traffic stop. Whil e patrolling a high- crime a rea during the afte rnoon, Offic ers Robert Sautere r and Robert Taylor drove past three people parke d outside an apar tment building in a silver Toy ota. Upon chec king the car ’s reg istration, the office rs found that it was l i s t ed as a red Toy ota. The office rs later testified that, in their experience , a discrepa ncyNo. 09-4302

United States v. Cooper
betwee n a car ’s actua l color and the color rec orded on its reg istration often sug g ests a stolen vehicle. The office rs turned around, pulled up behind the car , an d ac t i v ated their overhe ad lights to investigate.
Sautere r a p p r o a c h e d th e d

r iv e r ’ s s id e o f th e c a

r wh ile Tay

lor approa ched the passeng er’ s side. Taylor testified that, as he approa ched, Cooper appea red ag itated, looked around nervously , and hid his hands. When Taylor told Cooper to show his hands and asked if he had any t h i ng , Cooper admitted to having marijuana

. Taylor instructed him to exit the vehicle and retrie ved the marijuana from Cooper’s pocket. As T ay l o r p att ed Cooper down for wea pons, Cooper leane d closer to the vehicle. Taylor g rabbe d him by his waistband and ag ain asked him if he had any thing. Cooper then admitted he had a g un. Taylor handcuf fed Cooper. When Taylor turned Cooper around to rec over the wea pon, the g un fell to the g round. The office rs deter mined that the vehicle was not stolen. A g rand jury char g ed C ooper with possession of a firea rm and ammuniti on by

a convic ted felon. Cooper moved to suppress the evidenc e procur ed during the stop. Following a hear ing, the dist ri ct court deter

mined that the office rs lacke d rea sonable suspicion to initiate the seizure and g rante d Cooper’s motion. The g overnme nt now appea ls.
I I
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United States v. Cooper
Neither party contests that a seizure occur red; they battle over whether the s ei z u re was justified. The g overnme nt claims that beca use the office rs rea sonably suspected criminal activity , the district court improper ly g rante d Cooper’s motion to suppress.
W e em p l oy a two-par

t analy sis when deter

mining the constitutionalit y of a Terry s t o p . United States v. See , 574 F.3d 309, 313 (6th Cir. 2009). First, we assess “whe ther there was a proper basis for the stop” by “examin[ ing] the totality of the c ircumstance s” and a sking “ whether the law enfor ceme nt official s wer e awa re of specific and articula ble fac ts which g ave rise to rea sonable suspicion.” Id

. (interna l quotation marks and citation omitted). Second, we deter mine “whe ther the deg ree of i ntrusion . . . was re asonably rela ted in scope to the situation at hand.” Id

. (alter ation in orig inal) (interna l quotation marks and citation omitte d ). Be cause neither party challeng es the district court’s finding that the officers did not exceed the pe rmissible scope of the stop with their

sear ch and seizure of Cooper (which we see no rea son to question), we conce ntrate on the first part of the analy sis—determining whether the office rs had rea sonable suspicion to justify the stop itself. Considering “the evidence in the light most likely to support the di strict court’s decision,”

we revie w the district court’s fac tual finding s for clea r err or and its leg al conclusions de novo. Id

. (interna l quotation marks and citation omitted). “The specific deter mination of whether rea sonable suspicion of criminal activity exis ts to justify a traff ic stop is a mix ed question of law and fac t which we review de novo.” United St ates v. C ampbell , 549 F.3d 364, 370 (6th Cir. 2008). But because “the district court is at an instit utional advanta g e, having observe d the testimony of the witnesses and
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United States v. Cooper understanding local conditions,” we must g rant “due weig ht

. . . to the infere nces draw n from the fac ts by resident judges.” United St ates v. T ownsend , 305 F.3d 537, 542 (6th Cir. 2002) (internal quotation marks and citation omitted). And we must also gr ant “due weig ht” to infere nces dr awn by the office rs involved beca use “a p o lice office r views the fac ts throug h the lens of his police experience and expertise.” Ornelas v. United States , 517 U.S. 690, 699 (1996).
The district court found that “[t] he only information the office rs possessed supporting their belief that the ca r could have been stolen was that the color of t he Toy ota di d not match the color of the reg istered vehicle co rr es p o n d i n g to the plates and that the car was parke d in a high crime

are a.” United States v. Cooper , No. 1:09-CR-353, 2009 WL 3321384, at *4 (N. D. Oh io Oct. 13, 2009) (orde r g ranting motion to suppress). This information, the court held, did not suffice to
es t ab lish rea sonable suspicion when considere d in conjunction with the other circ umstan ce s involved—including that the office rs observe d no illega l activity prior to the mid-after noon seizure, all of the car ’s other char acte ristics matched its reg istration information, and no one had repor ted the license plate or car as stolen. Be cause the district court’s assessment shortchang ed the office rs’ previous-e x perie nce testimony as a basis for ty ing the color discrepa ncy to likely theft, we disag ree with its decision to gra

nt suppression.
The district court beg an its Terry -stop analy sis on the rig ht trac k. First, as the district court found, the office rs’ testimony established that the stop oc curr ed in a high- crime are a. The office rs descr ibed a specific , circ umscribed location—a particula r intersec tion—and noted the fre quency of
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United States v. Cooper

car thefts and other crimes in that are a. See United States v. Caruthers , 458 F.3d 459, 467–68 (6th Cir. 2006) (per

mitti ng consideration of high- crime location wher e area was limit ed to a specific intersec tion beca

use doing so allevia t ed “spec ial conce rns of rac ial, ethnic, and socioec onomic profiling ”). This fac tor proper l y fi t s i n t o the office rs’ rea sonable-suspicion calc ulus. See United S t a t es v. Johnson , 620 F.3d 685, 692–93 (6th Cir. 2010) (explaining that a court may consi d er defe ndant’s prese nce in a high- crime are a “in the totality of the circ umstances” so long as that fac tor is not “g iven undue weig ht” (interna l quotation marks and citation omitted)); United States v. Smith , 594 F.3d 530, 541 (6 th Cir. 2010) (obser ving that while a defe ndant’s prese nce in a high- crime location “may not, without more, g ive rise to rea sonable suspicion,” it is “re levant to the rea sonable suspicion calc ulus” (interna l quotation marks and c itation omit ted)). A nd, second, a long with the high- crime- are a feature, the distri ct court acknow ledg ed that the office rs observe d a discrepa ncy betwee n the color of the vehicle and its reg istration information. See United States v. Caro , 248 F.3d 1240, 1246 (10th Cir. 2001) (obser ving that office r’s deter

mination that car color differ ed from the reg istration-repor

ted color, coupled with defe ndant’s inability to rec all car owner ’s last name, “sug g est[ed] that [t he office r] should have taken all appropr iate steps to asce rtain the leg al status of the ca r”)

.
But the court ended its analy sis too soon. I n stating that only these two fac tors supported a finding of rea sonable suspicion, the district court neg lected the office rs’ tes t i m o n y t h at, in their experience , this color discrepa ncy trig g ere d a suspicion of car theft. Taylor testified that “[a] lot of times with stol en vehic les, they will go stea l a vehicle , and a lot of times the y will steal a plate of f - 5 -No. 09-4302

United States v. Cooper
of a car that matches it, to put on . . . the stolen vehicle” —a situation Taylor had observe d more than twenty times. Sautere r conc urre d that the color discrepa ncy caught his attention beca use “[o] cca sionally , car s are stolen or license plates are stolen and they are put on car s to mimic the same model, sty le.” We must aff ord “due weig ht” t o such an in fe re n ce . See Ornelas , 517 U.S. at 699; United States v. Cortez , 449 U.S. 411, 418 (1981) (“[T]he evidenc e thus collecte d must be seen and weig hed not in terms of library analy sis by scholars, but a s understood by those verse d in the field of law enfor ceme nt.”); United States v. Marxe n , 410 F.3d 326, 331–32 (6th Cir. 2005) (“The Court has held that an office r’s specia liz ed tr ai ning and experience may permit him to make infere nces from and deductions about t h e cu m u l at i v e information available to him that ‘mig ht well elude an untrained pe rson.’” (quoting United States v. Arv izu , 534 U.S. 266, 273 (2002)))

.
We thus find that this testimony —in conjunction with the color discrepa ncy and the fac t that the office rs spotted the vehicle in a high- crime are a—suff ices to establish “spec ific and articula ble fac ts w hich g ave rise to rea sonable suspicion,” notwithstanding the other fac tors Cooper relies upon. See Se e , 574 F.3d at 313 (internal quotation mar ks and citation omitted). Attempting to avoid this conclusion, Cooper focuse s upon two case s— Un it e d S ta te s v . Keith , 559 F.3d 499 (6t h C i r. 2 0 09), and United States v. Townsend , 305 F.3d 537 (6th Cir. 2002). But these case s have limit ed prec edential value in assessing rea sonable suspicion. See United States v. Torres-Ramos , 536 F.3d 542, 553 (6t h C i r. 2008) (explaining that one rea sonable suspicion deter mination will seldom be a u s ef u l prec edent for another ). And these case s are nonetheless
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United States v. Cooper distinguishable. I n neither Keith nor Townsend did this co u rt as s ess whether the office rs had

rea sonable suspicion of car theft; both involved other suspected criminal activity

. And neither case
conce rned the paint-color disc repa ncy and ac company

ing of fice r testimony

at issue her e. Instead,

eac h involved a wholly distinct set of circ umstances—including prese nting dubious t ra vel plans, possessing multipl e cell phones, and g lancing in the direc tion of the police. See Keith , 559 F.3d at 505–07; Townsend , 305 F.3d at 542–45.
I I I
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For the above rea sons, we re verse the district court’s or der g ranting Cooper’s motion to suppress.

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United States v. Cooper COLE, Circuit Jud ge, dissenting . Be cause the Terry stop c onducted by the office rs was not supported by

rea sonable suspicion, I

respe ctfully

dissent.
The ve hicle wa s leg ally parke d during the middle of the af ternoon in fr ont of an a

partment complex. As the office rs drove past the vehicle, they did not observe any suspicious activity by the vehicle’ s occupa

nts, nor was the loc ation of the ve hicle suspicious. The officer s had not rec eived any repor ts of criminal activity on Ridpath Av en u e t h at afte rnoon. Even so, the office rs ran the vehicle’ s license plate number. The sear ch revea led t hat t he vehicle was reg istered not to a si lver T o y o t a, but a red one. The vehicle matched the reg istration in all other respe cts. Ba sed on t h i s information, the office rs suspected t h e v eh icle was stolen. But the vehicle had not been repor ted stolen, and the office rs had not rec eived a complaint of a s t o l en v eh icle matching the vehicle’ s descr iption. The color discrepa ncy alone—e asily cause d by a cler ical err or or rec ent paint job—is insufficient to cre ate rea sonable suspicion that the vehic l e wa s s t o len, and neither the office rs’ p re v i o u s ex p erience, nor the fac t that the vehicle was parke d in a high- crime are a, tips the scale toward a finding of re asonable suspicion.
Aside from this innocuous detail, the majority relies in part on the fac t that this was a highcrime are a, but we must be car eful not to g ive this fac tor “undue weig ht,” United States v. Johnson , 620 F.3d 685, 693 (6th Cir. 2010); see also United States v. Caruthers , 458 F.3d 459, 467 (6th Cir. 2006) (ca utioning ag ainst relying on this contextual fac tor “too easily or too heavil y ”) , an d the testimony here does not support the conclusion that car t hefts o cc u rr ed i n this are a with “unusual
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United States v. Cooper
regularity ,” Caruthers , 458 F.3d at 468 (quoting United States v. Montero-Camargo , 208 F.3d 1122, 1138 (9th Cir. 2000)). For this rea son, the fac t that this vehicle happene d to be parke d in a g ener al “hig h-cr ime are a” is of de minimi s signific ance to our analy sis. See id. (explaining that this fac tor
was permissibly considere d g iven that “the crimes that fre quently occur in the are a are specific and related to the reason for which Caruthers was st opped ” (e mphasis added) ). Additionally , the majority criticizes the district court fo r “neg lect[ing] the office rs’ testimony ,” Maj. Op. at 5, that in their experience car thieves sometimes steal the license plate of a simil ar vehicle and put it on the stolen vehicle. But the motion to suppress hear ing transcr ipt reve als that the district court did not “neg lect” this testimony , but f ound it unpersua sive g iven the fac t that here neither the vehicle nor the plates had been repor ted stolen. When presse d by the district court
o n t h e re l evanc e of the office rs’ previous experience to the situation at hand, the g overnme n t
conce ded that they

failed to put for

th evidence that in those previous experienc es the stolen plates h a d not been reported stolen —as was the case here

. This testimony , then, does not support th e conclusion that the office rs’ actions wer e rea sonable in light of the benig n circ umstances of that afte rnoon.
Acc ording ly , beca

use I believe the totality of the circ umstances prese nted to the office rs that afte rnoon, proper ly viewed in light of their expertise and experience , was insufficient to cre ate
rea sonable suspicion that the vehicle was stolen, I would AF F IRM the district co u rt ’s gra nt of Cooper’s motion to suppress.
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