NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0226n.06 No. 08-6365 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. GRADY STI TTI AMS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE

BEFORE: KEITH, MERRITT, and MARTIN, Cir cuit Judges. P ER CURIAM . This case arises out of defe ndant Gra dy Stit tiams ’ s t o p and subsequent

arr est by Offic er Raoul Gonzalez for being a fel o n in possession of a firea rm in violation of 18 U.S.C. § 922(g ). At issue befor e the court is St i t t i am s ’ appeal of the trial court’s denial of his motion to suppress all evidenc e arising fr o m the alleg edly unlawful stop, notably the g un he was

car rying and his statements admitting such. For the rea sons discussed b el o w, we AF F IRM the district court’s de nial of Stitt iams’ motion to suppress. F ACTUAL BACK GR OUND On October 9, 2007, Stit tiams left his home and proce eded to the residenc e of a friend who lived at 6235 Arc tic Cove in Milli ng ton, Tenne ssee. Stit tiams arr ived there with the intention of having his hair braide d and cut. Approxim ately ten other individuals had also g ather ed in a common

1No. 08-6365, United States of America v . Grady Stittiams

are a outside the residenc e. Some of these individuals wer e having their hair braide d and cut while others had g ather ed to play car ds. At s o m e p o i n t , a dispute broke out among st five of the individuals. Four of the i n d i v i d uals alleg edly beg an to phy sically assault the fifth individual. Stit tiams play ed no role in the alterc ation. Shortly there afte r, an u n named individual called the police re porting an ar

med alter cation at 6235 Ar ctic Cove. Approxim ately twenty -five minutes afte r the call had been place d, three police car s arr ived
at the residenc e on Arc tic Cove. Offic er Raoul Gonzalez, one of the office rs prese nt, had responde d
to disturbance calls from the are a on at least three prior occa sions. Gonzalez, along with a number of other office rs stepped out of his vehicle and beg an to approa ch the g roup of g ather ed individuals. I n response , some of the individuals beg an to approa ch the office rs while others rema ined standing

or sitti ng . Stit tiams at or about this time beg an to walk awa y from the g roup. He specific ally alleg es that he did so at the reque st of a friend who neede d a g uard for the clippers that wer e being used to cut hair. Acc ording to both Stit tiams and the g overnme nt, Stit tiams was the sole individual to walk

awa y from the g roup. Gonzalez, se eing Stit tiams w alk awa y from the g roup, beg an to f ollow a nd call afte r him. The parties dispute exactly what Gonzalez said, but it is undisputed that Gonzalez asked him to stop. Stit tiams ig nored Gonzalez’s initial call and continued walking towards the tr ailer. Upon arr iving
at the trailer, he beg an to walk up the trailer’ s stairs. At this point, Gonzalez called out to Stit tiams

a s econd time. The parties ag ain dispute exactly what Gonzalez said. Stit tiams alleg es t h at Gonzalez stated: “You better not open that door or I am g oing to shoot y ou.” [Tr. 44]. Conversely ,

2No. 08-6365, United States of America v . Grady Stittiams

Gonzalez al l eg es that he y elled: “He y man, come here .” [Tr. 9]. I n response , Stit tiams turned around, put his hands up in the a ir and be g an wa lking towa rds Gonzalez. Once Stit tiams rea ched Gonzalez, Gonzalez asked him if there was any thing he (the office r) should know about. At this point, Stit tiams admitted that he had a pistol in his waistband. W hile Stit tiams kept h i s h an d s in place , Gonzalez walked Stit tiams over to his squad car . Once they

rea ched Gonzalez’s squad car , Gonzalez handcuf fed Stit tiams – there by arr e s ti n g h im – and remove d the g un from his waistband. On J anuar

y 21, 2008, a fede ral g rand jury in the Western District of Tenne ssee returne d an indictment char g ing Stit tiams with being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g ). On May 15, 2008, Stit tiams filed a motion to suppress t h e p i s t o l and his statements disclosing the prese nce of the pistol. During an evidentiar y hear ing, on July

10, 2008, the district
court hear d arguments on the motion. The court conclude d that Gonzalez’s initial stop of Stit tiams

was supported by rea sonable suspicion and, thus, was lawful. The court specific ally cited the fac ts that the office rs wer e responding to a call repor ting an arme d alterc ation, Stit tiams was the only one of t he persons g ather ed who beg an to walk away when the police approac hed, an d h e i gn o red the police off icer ’s re quest to stop. On J uly 25, 2008, Stit tiams ple d g uilty to the underly

ing offe nse. Howeve r, as a condition of his plea ag ree ment, he rese rved the rig ht to appea l the court’s ruling as to his motion to suppress. There afte r, Stitt iams timely appea led the district cour t’s ruling

.

3No. 08-6365, United States of America v . Grady Stittiams STANDARD OF REVIEW When revie wing a district court' s denial of a motion to suppress evidenc e, the district court' s fac tual finding s are examined for clea r err or, and its conclusions o f l aw are subject to de novo revie w. United States v. Jenk ins , 124 F.3d 768, 771-72 (6th Cir. 1997). The evidenc e is revie wed in the light most favor able to the district court' s conclusions. Id. at 772. "A fac tual finding is clea rly

err oneous when, althoug h there may be evidenc e to support it, the revie wing court on the entire evidenc e is left wit h the definite and firm conviction t hat a mistake has bee n committed." United States v. Blair , 524 F.3d 740, 747 ( 6th Cir. 2008) (interna l quotation marks and citation omitted). ANALYSIS The Four th Amendment prohibits "unr easona ble sear ches and seizures." U.S. Const. amend. I V. Evidence rec overe d from an illega l sear ch is inadmissible. W eek s v. United States , 2 3 2 U.S. 383, 398 (1914). For the same rea son, evidenc e rec overe d indirectly from an illega l sear ch or seizure is also inadmissible as "f ruit of t h e p o i s o n ous tree ." Segura v. United States , 468 U.S. 796, 804 (1984) (internal quotation marks and citation omitted); W ong Sun v. U

n i t ed S t a tes , 371 U.S. 471, 484-85 (1963) ; Silverthorne Lumber Co. v. United States , 251 U.S. 385, 392 (1920). As noted, the sole issue befor e the court is whether Gonzalez lawfully stopped Stit tiams. The parties devote t he entirety of t heir briefs t owar ds arguing whether rea sonable suspi cion s upport ed the stop. Howeve r, implicit in eac h party ’s argument is an assumption as to when, in fac t, the stop

occur red. This is important as the fac ts Gonzalez was awa re of differ depending upon when the stop happene d. Acc ording ly , befor e we can addre ss whether the stop was lawful, we must deter mine at what point Stit tiams was seized for F ourth Amendment purpose s.

4No. 08-6365, United States of America v . Grady Stittiams

I. The Stop O ccurr ed When Stittiam s Acc eded to G onzalez’ s Dem and. I n Terry v. Ohio , 392 U.S. 1 (1968), the Supreme Court explained that an investigatory stop

occur s when police use som e form of coercion: "O bviously , not all persona l intercours e betwee n policemen and ci tiz ens involve seizures of persons. Only when the office r, by means of phy sical forc e or show of authority , has in some way restra ined the liberty of a citizen may we conclude that

a seizure has occur

red." Id. at 20 n.16 (intern al q u o t at i o n marks omitted). The test is whether , considering all of the circ umstances, "a rea sonable person wo u l d fe el fre e to decline the office rs' reque sts or otherwise terminate t h e en co u nter." Florida v. Bostick, 501 U.S. 429, 436 (1991). Additionally , in those circ umstances in which a suspect is stopped absent the intentional application of phy sical forc e, there must also be submissi on t o t h e show of authority : "[T]here is no seizure without actua l submissi on; otherwise, there is at most an attempted seizure, so far as the Four th Amendment is conc erne d." Brendlin v. California , 551 U.S. 249, 254 (2007); see also Calif ornia v. Hodari D. , 499 U.S. 621, 626 n.2 (1991) I t is clea r that Gonzalez’s stop of Stit tiams occur red when Gonzalez, chasing afte r Stit tiams, demande d that Stit tiams stop and not when Gonza l ez h andcuffed Stit tiams, as the g overnme nt

assumes. Courts have repe atedly found that when an office r g ives chase to a suspect while

1 demanding that the suspect stop and the suspect does stop, the suspect has been subjected to a stop

The district court found more cre dible the office r’s testimony that he simply asked S t i t t i am s to 1 approa ch him as opposed to Stitti ams’ testimony that Gonzalez thre atene d to shoot. Although we need not decide who wa s co rre ct as a stop occur red under either circ umstance, it seems at least questionable t h at S titti ams would have turned around and put his hands i n the air if Gonzalez did not threa ten to shoot. This suspicion is heig htened by the fac t that Stit tiams ignor ed Gonzalez’s first reque st to sim ply

stop. 5No. 08-6365, United States of America v . Grady Stittiams

for the purposes of the Four th Amendment. United States v. Smith , 594 F.3d 530, 539 (6th Cir. 2010) (“O nce O ffice r Putnick asked Smith to stop, a reasonable person would not have fe lt free to leave and the interac tion turned i n t o a Terry stop.”); Northrop v. Trippett , 265 F.3d 372, 380 (6th Cir. 2001) (finding that the defe ndant had b ee n s ubjected to a Four th Amendment seizure wher e he soug ht to leave the are a, one office r direc ted another office r to stop him, and the office rs asked him
to produce identification); Manley v. Paramount's Kings Island , 299 F. App’x 524, 527 (6th Cir. 2008) (" Even if the shining o f t h e flashlig ht did not constitute a ‘show of authority ,’ chasing [t he defe ndant] throug h the parking lot arguably did. And Manley acquie sced in stopping in the course of the g uard' s pursuit to answer que stions."). Acc ording ly , the o n l y rele vant circ umstances we may consider in assessing the

rea sonablene ss of the stop wer e those of which Gonzalez was awa re when he called to Stit tiams for the sec ond time. II. The Stop Was Sup ported by Reasonable Su spicion . I n order for an investigatory stop a nd sear ch to be valid, the office r' s stop must be based on specific , articula

ble fac ts cre ating rea sonable suspicion that a crime has been committed. Terry , 392 U.S. at 21; see also United States v. Garza , 10 F.3d 1241, 12 4 5 (6th Cir. 1993) (stating that an

o ffice r can conduct an investigatory detention or “ Terry stop” if they can “point to ‘spec ific an d articula ble fac ts’ which justify rea sonable suspicion that a suspect has been or is about to be involved in c riminal activity " (quoting United States v. Sokolow , 490 U.S. 1, 12 (1989))

. “Unde r Terry

. . . wher e a law enfor ceme nt office r lacks probable ca u s e, but possesses a rea sonable and articula ble suspicion that a per son has bee n involved in criminal activity , he may detain the suspect brie fly to

6No. 08-6365, United States of America v . Grady Stittiams

investigate the suspicious circ umstances." United States v. B en t l ey , 29 F.3d 1073, 1075 (6th Cir. 1994) (inter

nal citation omitted). I t is undisputed that Gonzalez was awa re of the following fac ts when he called afte r Stit tiams for the second time asking him to stop : 1 ) t h e ar ea wa s a high- crime are a to which Gonzalez had been called on at least three prior occa sions; 2) the police had rec eived a call reg ar d i n g an arme d disturbance occur

ring at the are a in question; 3) upon arr iving at t h e scene , ever y individual

rema ined wher e they wer e or approa ched the arr ived office rs, but Stit tiams beg an to walk awa y towards the trailer; and 4) Stit tiams, rathe r than stopping when Gonzalez asked him to stop, looked back towa

rds Gonzalez and kept wa lking a way from him. This case prese nts circumstanc es similar to those the Supreme Court c onsidered in Illinois

v. W ardlow , 528 U.S. 119 (2000). I n W ardlow , the Supreme Court held that a defe ndant' s evasive and unprovoked flig ht, along with his prese nce in a high- crime are a, arouse d sufficie nt, rea sonable suspicion to lawfully

stop the individual and conduct a pat-down. Id. at 124. Stit tiams attempts to dis tinguish W ardlow on two g rounds. First, Stit tiams argues t hat t he sole circ umstances supporting his stop wer e the arme d disturbance call and Stit tiams’ choice to walk

awa y from the office rs towards the trailer home. As noted above, this argument overlooks a number of other signific ant fac ts, notably Stit tiams’ ref usal to respond to the office r' s call and t h e ar ea's dang erous history

. Second, and more importantly , Stit tiams posits that we should pay littl e attention
to the fac t Stit tiams walked awa y from Gonzalez and then subsequently ignor ed his reque st to stop

as Stit tiams was simply go i n g t o the home to retrie ve a g uard for the clippers; i.e. Stit tiams was simply car

ry ing on with non-cr ime rela ted affairs as opposed t o fl ee i n g from the scene . Stit tiams

7No. 08-6365, United States of America v . Grady Stittiams

misint erpr ets the appropr iate question when deter mining whether Gonzalez h ad a rea sonable, articula ble suspicion. Whil e a defe ndant can cre ate any number of innocent explanations to justify his actions, t he appropriate question is not what he actua lly intended to do, but rath er whether his actions, viewed from a rea sonable office r' s viewpoint, indicated flig ht from a crime scene , criminal activity or som e other suspicious circ umstance. United St ates v. Luqman , 522 F.3d 613, 617 (6th Cir. 2008). Given the fac t that Stit tiams was the sole individual to leave the are a, he did so only afte r the police arr ived and that he ignor ed Gonzalez's initial re q u es t to stop, instead looking back and continuing to walk awa

y , Gonzalez could have rea sonably conclude d that Stit tiams was flee ing from the police. See United States v. Davis , 331 F. App’x 356, 361 (6th Cir. 2009) (conc luding that the defe ndant attempted to flee from the police beca use even though he did not run, he pi cked up his pace in a manner

consistent with flight a

nd did not respond to the offic er' s commands to stop). Although this case is closer than many , the Six th Circuit has found that simil ar circ umstances support a finding of rea sonable suspicion. See Smith , 594 F.3d at 539 (“[T]he office rs wer e justified in making a

n investigatory Terry stop

. . . under the totality of the c ircumstance s, which included: (1) the emer g ency 911 call; (2) Smit h' s eff orts, with his head down, to push past the office rs and exit the building as the office rs enter ed; (3) that these events took place in a high- crime are a, whose history the office r was persona lly awa re of; (4) the very ear ly hours of the morning ; and (5) Smit h' s

v agu e response s to the office rs' questions); Lee v. Hefner , 136 F. App’x 807, 811 (6th Cir. 2 0 0 5 ) (“O ffice r Hef

ner was . . . patrolling in a high crime are a . . . . Although [t he defe ndant] did not immediately brea

k into a run when he first saw Hef ner' s vehicle

. . . [he] ‘turned about twice’ when Hef ner approac hed in his vehicle. At this point Offic er Hefne r l ikely had reasonable suspicion

. .
8No. 08-6365, United States of America v . Grady Stittiams

. .”); United States v. Helm , 85 F. App’x 475, 477 (6th Cir. 2004) (findin g re as o n able suspicion wher e the defe ndant “wa s parke d next to [a closed building], it was 9:00 p.m. at night, [t he office r] could tell that the car

was oc cupied, ther e had been many burg lar-a larm runs to the

. . . building in the previous six months, [t he suspect] depar ted the parking lot as soon as [t he office r] drove by , the suspect drove in a manner that s t ruck the office r as attempting to avoid her.” ); United States v. Connally , Nos. 91-6401, 6440, 6441, 1993 U.S. App. L EXI S 1090 *1, *5-7 (6th Cir. J an. 15, 1993) (finding the following fac ts sufficie nt to establish rea sonable suspicion: "the office rs knew this was

a h i gh drug traff

icking are a; that they had seen drug dealing taking place here befor e; that t h e pedestria n had thrown something in the van upon seeing the police; and that the pedestria n quickly walked a way and the va

n quickly pulled awa

y .")

. Stit tiams, in response , cites this Court’s rec ent ruling in United States v. Johnson , 620 F.3d 685 (6th Cir. 2010). I n Johnson , we reje cted an office r’s claim that he had rea sonable suspicion to stop the defe ndant wher e: 1 ) t h e defe ndant was in a high crime are a; 2) it was 4:00 a.m.; 3) the office rs wer e respondi n g t o a 911 call; 4) upon arr iving the office rs saw the defe ndant alre ady walking awa

y from the scene ; 5) when called out to, the defe ndant did not s t op; and 6) he was

car rying a bag , which he threw into a white car . In reje cting the g overnme nt’s claim we emphasized
two points. First, we noted that the initial 911 call, while alleg ing suspicious activity , did not repor t any criminal behavior

. Id. at 693. Second, we emphasized that the defe ndant had alre ady beg un to walk in a particula

r direc tion befor e the police’s arr ival and m er el y co n tinued to walk in that direc tion, awa

y from the police, afte r their arr ival, notwithstanding their approa ch and call to him. Id

. at 6 9 4

. This case is clea rly distinguishable on both g rounds. Her e, the 911 call specifical l y

9No. 08-6365, United States of America v . Grady Stittiams

repor ted illega l activity – a fig ht in which one of the individuals had a we ap o n . Ad ditionally , Stit tiams beg an to walk awa y only afte r the office rs arr ived, there by , in part, cre ating the rea sonable belief tha t he was e vading the offic ers. 2 Our holding in Johnson , as well as St i t tiams’ basic asser tion that a person does not cre ate

rea sonable suspicion by simply walking awa y from an office r or ref

using to respond to an office r’s reque st to conver se i n t h e absence of specific alleg ations of criminal activity are both undeniably

corr ect. Johnson , 620 F.3d at 694 (“[T]here was nothing independe ntly suspicious about [t he defe n d ant] continuing to walk toward the white car when [t he office rs] approa ched.” (empha sis added) ); United States v. See , 574 F.3d 309 ( 6th Cir. 2009) (holding that two individuals sitting in

a car in a parking lot at nig ht was not by itself sufficie nt to create re asonable suspicion); Jacobs v

. Village of Ottawa Hills , 5 F. App’x 390 (6th Cir. 2001). Howe ver, w here the offic er is in an area wher e crime is preva lent, he is persona lly awa re of this history , the office r is responding to a specific call repor ting a crime involving a wea pon, and an individual is seen taking evasive behavior in response to the police’s arr i v al , t he circ umstances toge ther establish rea sonable suspicion. Thus, Stit tiams arg uments fall short when a pplied to the fac ts of his case. CONCLUSION Acc ording ly , we, here by , AF F IRM the district court’s denial of defe ndant Gra dy Stit tiams’ motion to s uppress.

The lack of either: 1) a call repor ting criminal activity or 2) the suspect’s movement awa y from the 2 scene in response to the police’s arr ival would likely underc ut a finding of rea sonable suspicion. That said, as both a

re pr esent in the instant ca se, we need not a ddress the ma tter fully here

. 10