NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1214n.06 No. 11-6394 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. MARI O HAYWOOD, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEA L FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN NESSEE

Be fore : COOK and WHI TE, Circuit J udg es; SHARP, Dist rict Judge. *
C OO K, Circuit J udg e. Mario Hay wood, who pled g uilty to possessing more than fi v e hundred g rams of coca ine with intent to distribute, a ppeals the district c ourt’s denial of his motion to suppress evidenc e. Alternatively , he ch al l enges the rea sonablene ss of his 87-month sentenc e. Thoug h we disag ree with some of the district court’s leg al conclusions, we AFF I RM its judgme nts for the f ollowing r easons.
I
. I n Marc h 2009, the Memphis Police Depa rtment Org anized Crime Unit rec eived a tip from a conf idential informant that Mar io Hay wood sold coca ine and other drug s from his g randf ather ’s house located on Dwig ht Roa d. This inf ormant, whose cooper ation with the police previously led

* The Honor ab l e Ke vin H. Sharp, United States District J udg e for the Middle District of Tenne ssee, sitting by

desig nation.No. 11-6394

United States v. Hay wood

to two felony -drug arr ests and five drug seizures, descr ibed Hay wood as a “male black [wit h] dark complexion, five-six to five-e ight in heig ht, 30 to 35 y ear s of ag e, [and] 160 to 170 [pounds] .” The informant also provide d the license plate number of Ha y wood’s B onneville.
Fr om this information, Detec tive Mario McNe al dispatched a team of detec tives to watch the Dwig ht Road residenc e while he soug ht a sear ch war rant. Detec tive Wil lard Tate, the first to arr ive, parke d his car a block awa y and positioned it so that he could observe the front porch and the inside of t he Bonneville t hroug h his front windshi eld us ing binoculars. Tate radioed his observations to other de tectives wa iting ar ound the cor ner.
Over the next hour or so, Tate ob s er v ed Ha y wo od walk from the front porch to the Bonne ville at least three times. Eac h time, Hay wood sat inside the car with s ev er al o t h er men. Although Tate could not actua lly see distinct dollar bills or drug s exchang ed, he thought their g estures sug g ested drugtransac tions. Following these transac tions, a Malibu driven by Roshina Holloway pulled up to the residenc e. Ha

y wood approache d the Malibu with a gun in hand, passed the g un to Holloway , and then sat in the passeng er side. Alarme d that Hay wood was about to leave the residenc e, Tate radioe d his team to repor

t what he sa

w. Holloway started driving toward Tate, who t hen ex ited his v eh i cl e, identified hi mself as a police office r, and asked Holloway to stop. Thoug h Tate wore plain clothes, he put on a police vest
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United States v. Hay wood

as he was exit ing. The Malibu slowed down, and two other detec tives pulled u p b eh i n d i t i n a marke d police car. Hay

wood s uddenly g ot out of t he Malibu and fl ed o n fo o t until the detectives eventua lly

arr ested him following a cha se. Following this arr est, the detec tives sear ched Hay woo d ’s pockets, discovering drug s and $4,659. They handcuf

fed Hay wood, place d him in the backse at of the police car , and waited for the
sear ch war

rant to arr ive. McNe al procur ed the sear ch war rant at 6:30 p.m. and immediately broug ht it to the scene . The detec tives then sear ched the Bonne ville, discovering more drug s and cash. Once at the police station, Hay

wood admitted owner ship of the items seized during the sea rch. During the suppression hear ing, Hay wood disputed the office rs’ acc ount of what happene d. Acc ording to Hay

wood, he ar ri v ed at his g randf ather ’s house around 5:00 p.m. but never left the porch to sit in the Bonne ville. He neither trade d drug s, nor car ri ed a gu n . And when he and Holloway left in the Malibu to purcha se beer , a black car “swoope d” in front of them, blocking the Malibu. He then jumped out of the car and ran until the detec tives subdued him. The detec tives then
sear ched him upon arr est and, befor e any sear ch war rant arr ived, sear ched his Bonne ville. Hay wood maintains that he did not know T ate wa s a police of fice r, thoug h he admits seeingthe police e nter his gr andfather’s house during the cha se.
T h e d is tric t court cre dited the detec tives, who corr oborate d eac h other’s testimony
. T h e c o u r t found t he search of Hay

wood’s person a lawful patdown authoriz ed by Te r r y v. Oh i o , 392 U.S. 1

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United States v. Hay wood (1968). The court also found that the au t o m o bile exception authorized the detec tives to sear ch Hay wood’s B onneville eve n in the absenc e of a sear ch wa

rra nt. This timely

appea l followed. 1
I I
. A. Motion to S uppress Evidenc e Hay wood contends that the detec tives had neither rea sonable suspicion to pat him down nor probable cause to arr est him, rende ring the sear ches unrea sonable. As support, he attacks the district court’s f actua l determinations, stressingthe inconsistencies a mong the detec tives’ testimony
. For example, Tate stated that Hay woo d ca rr i ed the gun at his side to the Malibu, but the arr est ticket notes that Hay

wood pulled the g un from his wa i s t band befor e handing it to Holloway
. Tate also testified that he decide d to stop the Malibu, wher eas McNe al rec alled order ing the detec tives to stop the Malibu via radio. Finally , Tate stated that the Malibu slowed down when he asked Holloway to stop; in contra st, McNe al testified that the Malibu sped awa y for a few blocks afte r Tate’ s demand.
These discrepa

ncies do not leave us with “the definite and firm conviction that a mistake has been committed.” United States v. Navarro-Camacho , 186 F.3d 701, 705 (6th Cir. 1999) (citations omitted). They do not chang e the mater i al fa cts: that Hay wood car ried a g un and ran from the detec tives. We thus find no clea r err or arising from the differ ence s betwee n the office rs’ testimony
. The court declined to decide whether the automobile sear ch occur red befor e or afte r McNe al 1 obtained a signe d sear ch war rant. I n another part of the order , howeve r, the court cre dited McNe al’s testimony that the sea

rch did not occ ur until his arrival with a sig ned sea rch w arr ant. -4-No. 11-6394

United States v. Hay wood
See United States v. Foster , 376 F.3d 577, 583–84 (6th Cir. 2004) (no clea r err or wher e unresolved inconsistencies do not materia lly alter the fac ts); United States v. Brown , 20 F. App’x 387, 388–89 (6th Cir. 2001) (same) ; see also United States v. Sweene y , 4 0 2 F. Ap p’x 37, 42 (6th Cir. 2010) (individua l in c o n s is te ncies need not be resolved wher e the district court offe rs adequate explanations for f actua l findings)
. Hay wood also questions Tate’ s cre dibilit y , maintaining t h at Tate could not have observed the inside of the Bonne ville beca use he sat a block awa

y observing throug h tinted windows. He also highlig hts Tate’ s inability to rec all the exact number of drug t ra nsactions he observe d. Absent contra diction by extrinsi c evidenc e or internal inconsistency , howeve r, “[t] here can virtually never be clea r err or” when the trial judge premises his f indings on the cre dibilit y of a witness who offe rs
a coher ent and plausible story
. Brooks v. Tennessee , 62 6 F. 3 d 8 7 8 , 897 (6th Cir. 2010) (interna l q u o t at i o n marks omitted) (citing Anderson v. City of Bessem er City , 470 U.S. 564, 575 (1985)). Her e, Tate explained that he looked throug h the windshield and used binoculars to observe Hay wood inside the Bonne ville.
I n a simi l ar v ein, Hay

wood argues that Tate eng ag ed in selec tive perc eption. Seizi ng on Tate’ s testimony that he wanted to s ee “s o me kind of action,” Hay wood contends that Tate’ s cog nitive bias cause d him to interpre t i n n ocent behavior s as criminal activities. The mag istrate judge , howeve r, hear d and reje cted this c og nitive-bias argument befor e finding Tate cre dible, and the district c ourt adopted this re commendation. A trial judge is be tter fit to e valuate the reliability
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United States v. Hay wood
of Tate’ s testimony
. See Anderson , 470 U.S. at 574 (“The t ri al j udg e’s major role is the deter mination of fac t, and with experience in fulfilling that role comes e x pertise.” ). Thoug h the district court committed no clea r err or, we disag ree with its leg al conclusion that the Terry stop authorized the sear ch of Hay wood’s person. See United States v. Y oon , 398 F.3d 802, 805 (6th Cir. 2005) (appe llate courts revie w de novo district courts’ leg al conclusions). A Terry stop allows office rs only to frisk a person for the safe ty and protec tion of office rs; it does not permit a full
sear ch for evidenc e of criminal activity
. See Minneso t a v. Dicke rson , 508 U.S. 366, 378 (1993) (“[T]he office r’s continued exploration of [defendant’ s] pocket afte r having conclude d that it contained no wea

pon was unrelated to
. . . the protec tion of the p o l i ce o fficer and others
near by
. . . there fore amount[i ng ] to the sort of evidentiar y sear ch that Terry expressly re fu sed to authorize
. . . .” (internal citations and quotation marks omi tted)). An officer can just ifiably seize d ru gs and cash only if their incriminating char acte r is immediately appar ent during the Terr y patdown. See id. at 379. Her e, no testimony or evidenc e supports the view that dete ctives plainly
rec og nized the presenc e of the drug s and ca sh upon placingtheir hands ove r Ha y wood’s pocke ts.
Unlike a Terry stop , h o wever, a lawful arr est authorizes office rs to sear ch and seize destructible evidenc e in defe ndant’s pockets. See Arizona v. Gant , 556 U.S. 332, 339 (2009) (sea rch incident to arr est justifies “saf eguarding any evidenc e of the offe nse of arr est that an arr estee might
conce al or destroy” (citation omitted)); Chimel v. Calif ornia , 395 U.S. 752, 763 (1 9 6 9) (“[I ]t is entirely rea sonable for the arr est i n g o ff i cer to sear ch for and seize any evidenc e on the arr estee ’s
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United States v. Hay wood
person in order to preve nt its conce alment or destruction.”) , abrogated on other ground by New Y ork

v. Belton , 453 U.S. 454 (1981). The lawful arr est validates the sear ch of Hay wood’s pockets in this
case . Thoug h Hay

wood’s flig ht alone was not a crime, see Tenn. Code Ann. §§ 39-16-602( a) (obstruction of law enfor ceme nt require s use of forc e rathe r than mere flig ht); 39-16-603( a) (eva ding
arr est require s knowledg e that an office r is attempting arr est), when other detec tives fr o m th e marke d police car rea ched Hay

wood, he knew that his pursuer s wer e poli ce o ff i ce rs , and y et forc ibly attempted to brea

k fre e, there by committing a crime in their prese nce. See Tenn. Code Ann. § 39-16- 602(a) (“It is an offe nse for a person to intentionally preve nt or obstruct anyone known to the person to be a law enfor ceme nt office r . . . from eff ecting a stop, frisk, halt, arr est or sear ch of any person, including the defe ndant, by using forc e ag ainst the law enfor ceme nt office r or another .”). We note 2 that Tenne ssee law prohibits Hay wood’s conduct even if the detec tives unlawfully stopped him. See T en n . C o d e An n . § 39-16-602( b) (“[I ]t is no defe nse to prosec ution
. . . that the stop, frisk, halt , arr est or sear ch was unlawful.” ). Thus, even under Hay wood’s version of events, the outcome is the
same. See United States v. Castil lo , 238 F.3d 424 (6th Cir. 2000) (table) ; United States v. Jefferson , 182 F.3d 919 ( 6th Cir. 1999) (table)
.

The detec tive s d i d not “stop” Hay wood until they appre hended him afte r chase
. See 2 Calif ornia v. Hodari D. , 499 U.S. 621, 625–26 (1991) (n o s eiz ure of flee ing defe ndant until appre hension). -7-No. 11-6394

United States v. Hay wood Following Hay

wood’s lawful arr est, the detec tives proper ly sear ched H ay wood’s pockets. I t matters not that the sear ch would not have provided further evidenc e of Hay wood’s crime—r esisting office rs. See United States v. Robinson , 414 U.S. 218, 236–37 (1973) (upholding
sear ch incident to lawful arr est even though sear ch would have produce d no further evidenc e of driving with revoke d permit). Once the detec tives discovere d drug s and cash in Hay wood’s pockets, they had the r equisite probable cause to se arc h the Bonne ville in light of Ta te’s obser vations prior to the arr est. Cf. United Sta t es v. S o u t h a r d , 20 F. App’x 304, 307 (6th Cir. 2001) (“O nce [t he
arr esting office r] lawfully discovere d and seized the [contraband in d ef en d an t ’s] pocket
. . . the automobile was subject to sear ch incident to a lawful arr est.” (citations omitted)). Be cause we agree with the district court that the automobile exception authorized the sear ch of the Bonne ville, we need not a ddress Hay

wood’s rema ining arguments reg arding when that sear ch occur red. We affir

m the court’s de nial of Ha

y wood’s motion to suppress evidenc e.
B. Rea sonablene ss of Sentence
Alternatively , Hay

wood challeng es the rea sonablene ss of his sentenc e, arguing that the court failed to consider his individual char acte ris t i cs. The rec ord belies this claim. The court painstaking ly considere d Hay wood’s ear ly criminal history , ear ly educa tion, adult criminal history , gan g m em b ership, phy sical ailments, history of alcoholism, I Q, prospec tive employ ment, and compliance under supervision. Hay wood also re ce i v ed “a littl e bit of plus point” for his family members’ service in the United States arme d forc es. We thus find Hay wood’s sentenc e rea sonable.
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United States v. Hay wood
I I I
. We AFF I RM.

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