NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1312n.06 No. 11-2495 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. STE VEN JOHNSON, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE E ASTERN DIST RICT OF MICHIG AN

BEFORE: M cK

EAGU E and GRIF F IN, Circ uit Jud ges; DLOTT, District Judge. * SUSAN J. DLOTT , District Judge

. Def endant- appellant St even J ohn son was convicted afte r a jury trial of being a felon in possession of a firea rm i n v i o l at i o n of 18 U.S.C. § 922(g )(1)

. J o h nson now appea ls his conviction, challeng ing both the district court’s denial of his motion t o suppress the wea

pon and the district court’s denial of his motion to exclude the 911 rec ording from evidenc e at tria l. For the following rea sons, we af firm the district cour

t on both rulings. I. F ACTUAL BACK GR OUND At 1:47 a.m. on Au gu s t 2 0 , 2 0 10, a 911 operator rec eived a call from an individual who repor ted that a man with a g un was walking s o u t h b o u n d on Gra tiot Avenue in Detroit, heading towards McDoug all Street from Mack Avenue

. R. 61-1, 911 Call Tr., Pag e I D # 778-79. The caller descr ibed the man as a black male wea ring a blue t-shirt a

nd dark- colore d shorts. Id . at Pag e I D #

* The Honor able Susan J. Dlott, Chief United States District Judge f or the Southern District of Ohio, sitting by

desig nation.778. The caller stated that the g un appea red to be a MAC-10. Id

. Ba sed on this information, police dispatch put out a ca ll for offic ers to re spond to the situation. Detroit Police Offic ers Cy lvester Hill and Dar ry l Davis, who wer e patrolling the ar ea o f Gratiot in a fully

marke d scout ca

r, re ceive d the ca ll. R. 17, Mot . to Suppress Hr’gTr., Pag e I D # 67. The testimony g iven by the office rs differ s on what information was rela y ed in the call. Offic er Hill testified that the dispatcher said that a black male wea ring dark colors and shorts was heading southbound on Gratiot from Mack car rying a possible MAC-10. Id

. at Pa ge I D # 6 2 -6 3. Offic er Davis testified that the dispatc her sa id a per son was brandishing a firea rm at or near

the Marathon g as station on Gratiot and Mack, and also that the person appea red to be heading southbound on Gratiot. Id

. at Pag e I D # 98. Offic er Davis also testified that the dispatcher descr ibed the person

as a black male of medium build, standing 5’10” or 5’11,” wea ring a black shirt and blue jean shorts. Id

. Be cause Offic ers Hill and Davis wer e near the are a of Gra tiot and Mack, they responde d to the call. The office rs drove to the intersec tion of Gra tiot and Mack and pulled into the Marathon g as st ation. Finding nothing suspicious, the officers continued heading southwest on Gra tiot. As the office rs approa ched the intersec tion of Gra tiot and Dubois Street, Offic er Hill observe d a black male wea ring a black shirt and blue shorts, later identified as J ohnson, walking southwest on Gratiot. Id

. at Pag e I D # 66-68. The office rs observe d no other individuals walking in this are a. Id

. at Pag e I D # 66. Offic er Hill observe d t h at J o hnson was walking with an unusual g ait, “with his leg s . . . a littl e bit further apar

t than normal

. . . as though he appea red to be holding his pants up.” Id

. at Pag e I D # 67. As the office rs drove the scout car para llel to Johnson, Of fice r Hill notice d a bulge in the front of J ohnson’s s h i rt “protruding a nice amount.” Id

. Offic er Hill also noticed that the bulge 2moved back and forth as J ohnson walked. Id

. at Pag e I D # 94. At that t i m e, Of fi ce r Hill told Offic er Davis that he believed that J ohnson had a wea pon. Id

. at Pag e I D # 69. The office rs passed J ohnson, made a U-turn (hea ding northea st on Gra tiot), then made another U-turn (hea ding southwest on Gratiot) to position their vehicle behind J ohnson. Id

. at Pag e I D # 103. As the office rs approach ed J o h nson for the second time, J ohnson turned to look at the scout car and Offic er Hill ag ain obs erve d the bul g e protruding from J ohnson’s waistband. Id

. at P ag e I D # 70. Offic er Hill then activate d the scout car ’s lights, stopped the car , jumped out with his wea pon draw n and pointed down, and instructe d J ohnson to stop. Id . at Pag e I D # 69, 89. J ohnson immediately stopped. One or b o th of the office rs order ed J ohnson to place his hands on top of his head. Id

. at Pag e I D # 85-86. J ohnson complied. Offic er Davis approa ched J ohnson, stood behind him, and place d his rig ht hand on top of J ohnson’s interlac ed fing ers. Id

. at Pag e I D # 105. Offic er Hill then holstered his wea pon and completed a patdown sear ch. Id

. at Pag e I D # 70. He felt a “very larg e bulge” in the front of J ohnson’s shirt. Id

. at Pag e I D # 71. Offic er Hill lifted J ohnson’s shirt and found a “9 milli meter high point rifle with

. . . the stock part cut off.” Id

. Offic er Hill rec overe d the weapon from J ohnson’s wa i s tband and place d it in the t runk of the scout car . Id

. at Pag e I D # 72. The off i ce rs al s o found a pair of g ree n g loves in J ohnson’s rea r pocket. Id

. at Pag e I D # 129. The office rs then advised J ohnson that he was under arr est and place d him in handcuf

fs. The duration of t he st op – from when the off i ce rs ex i t ed t he scout car to when the office rs discovere d the wea pon – lasted somewher e betwee n twenty seconds and three minutes. Id . at Pag e I D # 72, 130. J ohnson was char g ed with being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g )(1)

. Prior to tr ial, J ohnson moved to suppr ess the firea rm, claiming that the seizure of the

wea pon was unconstitutional beca use the office rs lacke d rea sonable suspicion to stop an d sear ch

3him. Alternatively , J ohnson argued that the office rs exceede d the permissible scope of the sear ch.

The district c ourt held an evidentiar y hear ing on the motion, during which Offic ers Hill a nd Davis testified for the Gover

nment. At the suppression hea

ring , Offic er Hill was cross-examined on various inconsistencie s in his te stimony as compar ed with his arr est repor t. Specifica lly , defe nse counsel questioned Offic er Hill about the following points: (1) the arr est repor t failed to ment i o n that Offic er Hill observe d J ohnson walking with an unusual g ait, id

. at Pag e I D # 82; (2) the arr est repor t failed to mention that Offic er H ill tol d Offic er D avis that he suspected that J ohnson was ar med, id . at Pag e I D # 84; and (3) the arr est repor

t failed to men t i o n a p at d own sear ch and, instead, states only that Offic er Hill approa ched J ohnson and lifted his shirt, id

. at Pag e I D # 8 8

. Offic er Hill acknow ledg ed the defic iencies in his repor

t but stood by the vera city of his testimony at the suppression hear ing. Offic er Hill also attempted to make clea r that he lifted J ohnson’s shirt while conducting the patdown

sear ch. Id . at Pag e I D # 92. Offic er D avis also was c ross-examined about inconsistencie s betwee n his testimony at the suppression hear ing, his statements in the arr est repor t, and his testimony at the preliminary hear ing. Specifica lly , while Offic er Davis testified at the suppression hear ing that Offic er Hill perf ormed the patdown sear ch and retrie ved the wea pon, his arr est repor

t indicates that he (Off

icer Davis) conducte d the sear ch and lifted J ohnson’s shirt. Id

. at Pag e I D # 122. Simi larly , at the preliminary hear ing Offic er Davis was asked, “When y ou patted him down, did y ou rec over any thing from this person? ” Id

. at Pag e I D # 125. Offic er Davis responde d, “Ye s.” Id

. Def ense c ounsel argued that this evidenc e indicated that it was Offic er Davis—not Offic er Hill—who perf ormed the sear ch and retrie ved the wea

pon, which direc tly contra dicts t h e t es timony of both office rs at the suppression

4hear ing. Be cause of these conflicting statements, defe nse counsel argued that the office rs wer e not

cre dible. I n an oral ruling , the district court denied the motion to suppress. Id

. at Pag e I D # 147. The court noted the conflicting testimony but found the inconsistencies in the office rs’ statements “more semantic in nat u re ” an d t h e result of sl oppiness rathe r t han untruthfulness. Id

. at P ag e I D # 145. The district court cr ed ited the testimony of the office rs and, based on that testimony , found the

sear ch of Johnson’s person a la wful patdown a

uthorized by Terry v. Ohio , 392 U.S. 1 (1968). Be fore trial, J ohnson also soug ht to exclude the rec orded 911 call. The district court denied J ohnson’s motion to exclude, finding that the rec orded conver sation was no n t es timonial and admissible as a prese nt sense impressio n . R

. 5 7 , T ri al Tr., Pag e I D # 413. The district court permitted the 911 tape to be play ed for the jury

. J o h n s o n wa s subsequently convicted and sentenc ed to 96 months in prison. This timel y appea l followed. II. ANALYSIS A. Mot ion to Su ppress the F irear m We revie w the denial of a motion to suppress for clea r err or as t o fa ct u al fi n d ings and de

novo as to c onclusions of law. United States v. Richardson , 385 F.3d 625, 629 (6th Cir. 2004)

. I f the district court denied the motion to suppress, then we must “ view the evidenc e in the light most favor able to the g overnme nt.” United States v. Smith , 549 F.3d 355, 359 (6th Cir. 2008). A fac tual finding is clea

rly err oneous when, althoug h there is evidenc e to support the finding , we are left with the def i n i t e an d fi rm conviction that a mistake has been committed. See Anderson v. City of Bessem er City , 470 U.S. 564, 573 (1985). I f there are two permissible views of the evidenc e, the district court’s de termination betwe en them ca nnot be clea

rly err oneous. Id

. 51. Reasonable Su spicion to Justify th e Stop

J ohnson first contends that the district court erre d when it deter mined that the offic ers ha d

rea sonable suspicion to justify the stop itself. We disagr ee. I n Ter r y , t h e S u p re m e Court held that in the interest of safe ty , a police office r may stop a person in the absenc e of probable cause under cer tain circ umstances. 392 U.S. 1, 27. Specifica lly , a police office r may conduct a brief investigato ry stop, a Terry stop, of a person if the office r has

a rea s o n ab le suspicion, supported by specific articula ble fac ts, that criminal activity has occur red

or is about to occur . United States v. Atchley , 474 F.3d 840, 847 (6th Cir. 2007). When evaluating an investig atory Terrystop, this cour t eng ag es “in a

two-par t analy sis of the rea sonablene ss of the stop.” United States v. Caruthers , 458 F.3d 459, 464 (6th Cir. 2006) (quoting Un i t ed 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 s top was proper, ‘ t h en we must deter mine whether the degr ee of intrusion

... was

rea sonably related in scope to the situation at hand.’” United States v. Smith , 594 F.3d 530, 536 (6th Cir. 2010) (quoting Caruthers , 458 F.3d at 464). This deter mination is made in light of the totality of the c ircumstance s. United States v. Arv izu , 534 U.S. 266, 273 (2002). I n this case , the totality of the circ umstances are as follows: (1) an anony mous caller repor

ted that a black male wea

ring dark colors and shorts and car rying a firea

rm was walking southbound on Gratiot; (2) the office rs responde d and observe d a black male wea ring a black shirt and blue shorts walking southwest on Gratiot; (3) the office rs observe d no one else walking in the are a; (4) one of the offic ers, Of

fice r Hill, observe d that the man was walking with a n unusual g ait; and (5) O ffice r Hill observe d a bulge in the front of the man ’s shirt that moved back and forth when he walked, which Offic er Hill believed to be a wea pon. Thus, at the time of the stop, Offic er Hill observe d that

6J ohnson—an individual whose g ener al appea ranc e and location matched the descr iption g iven in the anony

mous call—wa s walking with an unusual gai t and had a bulge protruding from his waistband. I n their totality , these circ umstances amou nt to a sufficie nt justification for making a Terry stop. On appea l, J ohnson attacks the district court’s fac tual deter minations, arguing th a

t th e d is tric t court should have discredited the testimony of both office rs as inconsistent and unreliable

. Absent their testimony , J ohnson argues, the g overnme nt could not prove that the office rs h ad rea sonable suspicion to stop J ohnson. Specif i ca l l y , J ohnson questions the office rs’ cre dibilit y and pinpoints the following topics on which he claims the office rs testified inconsistently : (1) Offic er Hill did not include in his repor

t that J ohnson walked with an unusual g ait; (2) Offic er Hill did not include in his repor t that he told Offic er Davis that he suspected J ohnson was arme d; (3) Offic er Hill’s repor t makes no mention of a patdown sear ch; (4) Offic er Davis testified that the dispatcher included the suspect’s heig ht and weig ht, which differ s from Offic er Hill’s t es timony ; and (5) Offic er Davis wrote in his repor

t an d testified at an ear lier preliminary hear ing that he—not Offic er Hill—conducted the se arc h. The district cour

t addre ssed these inc onsistencies in the off icer s’ testimony , stating: As I hear d these office rs, I do have to say that they wer e both in prepa ring the repor ts and in their testimony

. . . pretty sloppy

. I do n ’t b el i ev e t h ey came here to lie about what oc curr ed, or lie a bout their observations.

. . . . So much of what is seen by [defen s e counsel] from his point of view to be inconsistencies translated to ly ing on the stand, the Court sees as sloppiness, and also I g uess some evidenc e that can enhanc e the testimony to indicate that these two office rs were not g etting toge t h er t o m ake sure that the s tories m easur ed perfec tly , and rec og nizi ng that in incidents like this which had to be somewhat intense, that is, wher e the office rs approaching someone that they believe may be arme d, are themselves somewhat excited, t h at people hear and see thing[s] differ ently , repor t them differ ently cer

tainly in writing the repor ts, and may

be [ i n a] less desirable manner than we wo u l d like for an office r to rec ord their observations, but ag ain, 7none of tha t Ithink defea ts the ultim ate assessment of the circ umstances whic h the Court finds more than enoug h to establish rea sonable suspicion and rea sonable sear ch to acc ompany the approa ch of Mr. J ohnson at that time of the night on Gratiot. R. 17, Mot. to S uppress Hr ’g Tr., at Pag e I D # 145-47. We aff ord g reat defe renc e to the district court’s cre dibilit y deter minations reg arding witness testimony

. United States v. Hinojosa , 606 F.3d 875, 882 ( 6th Cir. 2010). Wit h reg ard to Terry -stop analy sis in particula r, althoug h the standard of revie w on the ultimate rea sonable suspicion inquiry is de novo , the d i s t ri ct court is at an instit utional ad vantag e, having observe d the testimony of the witnesses and underst an d ing local conditions, in making this deter mination. Acc ording ly , due weig ht should be g iven t o the i nfer ence s draw n from the fac ts by resident judges. Caruthers , 458 F.3d at 464 (internal quotation mar ks, citations, and alter ation omitted). E x am i n ation of the hear ing testimony reve als that some fac tual conflicts exis ted in th e office rs’ testim onies, particula rly with reg ard to which officer conducte d the patdown se arc h, and that the office rs failed to include cer tain details in their arr est repor ts. The district court cre dited the testimony of Offic er Hill on the issue of who conducte d the patdown sear ch, attributing any appar ent conflict in the office rs’ testimonies to “se m an t i cs” or car elessness. R. 17, Mot. to Suppress Hr’g Tr., Pag e I D # 145-46. Having o b s er v ed the office rs and their “deme anor and

. . . manner of responding to the questions,” the district court conclude d that the office rs simply wer en’t “ca ref ul” in their responses. Id

. at P ag e I D # 1 4 5 -4 6

. Al o n g the s ame vein, the di strict court attributed the omissions from the office rs’ arr est repor ts to “sloppiness.” Id

. at Pag e I D # 145, 147. Although the office rs’ testim onies wer e less than i deal , the di strict court ult imately deter mined that the officers

wer e cr edible. Id . at Pag e I D # 145.

8Given t h e “conside rable defe renc e” acc orded to a district court’s fac tual finding s and

cre dibilit y deter

minations, United States v. Moses, 289 F.3d 847, 851 (6th Cir. 2002), we conclude that the district court did not err in cre diting the of

fice rs’ testimony

.
2. Scope of the Stop J ohnson next contends that the actions of the office rs exceede d the limit s of a Terry stop and

rose t o t h e l ev el of an arr est, which was not supported by the more stringe nt probable cause standard. J ohnson argues that the Terry stop ripene d almost immediately into a de fac to arr est when (1) Offic er Hill jumped out of the scout car with his wea pon draw n, (2) the office rs told J ohnson not to move, and (3) the offic ers instructe d J ohnson to put his hands on top of his head. Although no br ight line disting uishes an investig ative dete ntion from an ar rest, Florida v. Roye r , 460 U.S. 491, 506 (1983), off icer s may not “see k to verify

their suspicions by

means that approa ch the c onditions of arre st.” Id . at 499. The f actor s we have conside red in de ciding whether that line has bee n crosse d include tra nsportation to another loc ation, signific ant restra ints on free dom of movement involving phy sical conf inement or other

coer cion, and the use of we apons or bodily forc e. United States v. Lopez–Arias , 344 F.3d 623, 627 ( 6th Cir. 2003). Howe ver, w e also have held that a n office r’s display

of his wea

pon does not exceed the bounds of a Terrystop when re asonably nece ssary

for the pr otection of the of fice rs or to eff ectuate the investig atory

stop. See H

ouston v. Clark Cnty. Sheriff Deputy John D oes 1–5 , 174 F.3d 809, 814–15 ( 6th Cir. 1999). I n this case, the of

fice rs’ a ctions were rea sonably nece ssary

to effe ctuate the stop and to protec t their safe ty . At the time of the stop, the off icer s suspected tha t J ohnson was ar med. To protec t himself and Off

icer Davis fr om a potentially

dang erous situation, Off

icer Hill drew his 9wea

pon, pointed it down, and instructed Johnson to s top. R. 17, Mot. t o Suppress Hr’ g , Pag e I D # 69, 89. One or

both of the off

icer s then order ed Johnson t o place his hands on top of his head. Id . When J ohnson complied, Off icer Hill holst ere d his weapon. Id . at Pag e I D # 70. These prec autions were rea sonably related to the investig ation that initially war rante d the stop and did not exceed the pe rmissible scope of the Terry stop. As the district court dete rmined, the off icer s “only acte d prudently ” to “pr otect themselve s from dang er,” consideringthat they suspected that J ohnson was ar

med. Id . at Pag e I D # 146-47. We affir m the district court’s de nial of Johns on’s motion to suppress the wea pon. B. Motion to Exclude the 911 Rec ording J ohnson also claims that the distr i ct co u rt err ed by denying his motion to exclude the 911

rec ording from evidenc e at trial beca use the rec ording contained inadmissible hear say that violated the Six th Amendment Confrontation Clause. The distr i ct co u rt d enied J ohnson’s motion on the g rounds t h at the statements wer e nontestimonial and thus did not implicate the Confrontation Clause. The court also held t hat t he recording was admissi ble as a present s ense impre ssion. We ty pically revie w a d i s trict court’s evidentiar y decisions for abuse of discretion. United States v. Ma yb erry , 540 F.3d 506, 515 (6th Cir. 2008). Howeve r, a claim that the admission of evidenc e violates the Confrontation Clause is re viewed de novo

. Id . at 515. We first addre ss J ohnson’s Confrontation Clause challeng e. The Confrontation Cl au se prohibits the admission of testimonial stateme nts of a witness who did not testify at trial unless he

was unavailable to testify and the de fenda

nt had a prior opportunity for c ross-examination. Davis v. W ashington , 547 U.S. 813, 821 (2006). The Confrontation Clause d o es not apply , howeve r, t o nontestimonial statements. W horton v. Bock

ting , 549 U.S. 406, 420 (2007). I n Davis , the Supreme Court held that “[ s ]t atements are nontestimonial when made in the course of police interrog ation 1 0under circ umstances objectively indicating that the primary purpose of the interrog ation is to enable

police assistance to meet an ong oing emer g ency . ” 5 4 7 U.S. 813 at 822. I n examining the “cir cumstance s” of the interrog ation, the Court considers wheth er an o ng oing emer g ency exis ted and the formality of the encounte r, including the nature of what was asked and answe red. Michigan v. Bryant , ––– U.S. ––––, ––––, 131 S.C t. 1143, 1162 (2011). Her e, the anony

mous caller called 911 afte r he witnessed a man walking down Gra tiot with what appe are d to be a MAC-10. A lthough the c aller initially states that “ther e’s not no proble m,” he g oes on to descr ibe an ong oing situation requiring p o l ice assistance : “He ’s g oing towards McDoug al and Gratiot. He g ot a g un. . . . He’ s walking towards M cD oug al now.” R. 61-1, 911 Call Tr., Pag e I D # 778-79. The dispatcher ’s questions wer e aimed at soliciting information on the suspect’s phy sical descr iption, his curr ent wher eabouts, a nd the ty pe of wea pon he may have been

car ry i n g. T h e district court found that the caller ’s statements in response to the 911 operator’s questions wer e nontestimonial beca use the primary purpose of the questioning was to enable police assistance in response to an ongoing emer g ency . R. 57, Trial T r. , P age I D # 414-15. We find no

err or in this conclusion. We also conclude that the di strict court properly admitted the 911 recording into evidenc e pursuan t to Rule 803(1) of the Fe dera l Rules of Evidence , which provides that “[a] statement descr ibing or explai n i n g an event or condition made while the declara nt was perce iving the event or conditi on, or i mmediately there afte r” is not hear say . Her e, the anony mous caller descr ibed t he event immediately afte r perc eiving it. This is evident from the 911 transcr ipt, as the caller descr ibes the exact location of the individual car rying the g un. R. 61-1, 911 Call Tr., Pag e I D # 778-79. This 911 call, made “i m m ediately [] afte r” witnessing the descr ibed event, meets the definition of a prese nt sense impression under Rule 803(1). 1 1III. CONCLUSION

For these re asons, we A FF I RM.

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