NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0650n.06 No. 11-5604 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. L ANDREO LURRY, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE

BEF ORE: MOORE, ROGERS, and GRI FF I N, Circuit J udg es. ROGERS, Circuit Judge

. Def endant L andre o L urry is a felon who soug ht suppression of a confe ssion and a wea

pon in his possession that was seiz ed during a roadside detention for license suspension. During a routine traff ic stop, po l i ce o ff

i ce rs approa ched a car driven by L urry in Memphis, Tenne ssee. L urry beg an movi ng fur t i v el y , causing the police to rush t o the driver-side door of the vehicle. As L urry exit ed the car , one of the office rs saw a plastic bag containing shotgun shells sitti ng on the vehicle’ s rea r seat. The office r sear ched the vehicle and rec overe d a sawe d-off shotgun. L urry was char g ed with being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922(g ). Rely ing on the plain-view doc trine, the district cour t denied L

urry ’s motion to suppress the shotgun. L urry enter ed a conditional plea of g uilty , and now appeal s. Even though L urry is

corr ect that the plain-view doctrine does not apply in thi s ca s e, suppression was still not require d beca use the off

icer s proper ly

conducte d a prote ctive sea rch.No. 11-5604

United States v. Lurry

On Augus t 1 2 , 2009, Offic ers Wil liams and Hazelrig of the Memphis Police Depa rtment initiated a traff

ic stop of a Chevrolet Cavalier afte r an automatic license plate rea der unit indicated that a war rant e x isted for the ve hicle’s owne r or oc cupant. Af ter the Cavalier pulled over, Offic er Wil liams noticed that the driver—L urry —was “moving around a lot” and “nudg ing on the driver’ s [si de] door.” Be lieving this behavior was consistent with flig ht, Offic er Wil liams ran toward the car and told L urry to “quit moving so much.” I n response , L urry exit ed the car and told the office rs that his driver’ s license was suspended. Offic er Wil liams frisked L urry for wea pons, and spotted a 1 plastic bag full of shotgun shells on the “re ar seat rig ht behind the driver’ s side.” L urry was place d in the back of

the squad c ar, but wa s not handcuff ed. Offic er Wil liams told Offic er Hazelrig that he suspected that L urry had a shotgun in the car . Whil e Offic er Hazelrig conducte d a backg round chec k, Offic er Wil liams sear ched the Cavalier. He found a sawe d-off shotgun u n d er n eath the passeng er seat, and returne d to the squad car to arr est L urry . As Offic er Wil liams opened the door, L urry jumped out and exclaimed, “I ain’t g oing to jail.” The off icer s subdued and a

rre sted L urry

afte r a two- minute strugg le. L urry was char g ed with being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g ). Be fore trial, L urry moved to suppress the shotgun as well as various statements he had made
to police. After considering the motion, a mag istrate judge rec ommended that the court find that the

sear ch was permissible beca use the office rs saw the shotgun shells in plain view. The district court

The g overnme nt, in its brief, repr esents that L urry g ot out of the car befor e t h e o ff icer s 1 approa ched, a

nd rapidly

approa ched the office rs. This is contrar y to the rec ord. - 2 -No. 11-5604

United States v. Lurry adopted the R&R, and clar ified that the office r h ad “suff icient justification” to sear ch L urry ’s car based on the presence of shotg un shells in plain view. United States v. Lurry , No. 2:09-cr -20312, 2010 WL 4628129, at *5 (W.D. Tenn. Nov. 8, 2010). L urry filed a conditional plea of g uilty , and timely appea ls. The plain-view exception does not apply in this case beca use the incriminating char acte r of the shotgun shells was not immediately appar ent. Under the plain-view doctrine, an object may be

s ei z ed (1 ) if the “police are lawfully in a position from which they view an object,” (2) “if [ t h e object’s] incriminating char acte r is immediately appar ent,” and (3) “if th e o ffice rs have a lawful rig ht of acc ess to the object.” Minnesota v. Dicke rson , 508 U.S. 366, 375 (1993). The criminality of an object is not immediately appar ent “i f [t he object] appea rs suspicious to an office r but further investiga tion is require d to establish probable cause as to its associ at ion with criminal activity .” United States v. Garcia , 496 F.3d 495, 510 (6th Cir. 2007) (citations omitted). Her e, the criminality of the shotgun shells was not immediately appar ent beca use L urry ’s possession of them was illega l only due to his status as a felon. I t is undisputed that Tenne s s ee permits an ordinary person to transport shotgun shells in a vehicle, or even a shotgun as long as there is no ammunition in the chambe r. See Tenn. Code An n . § 39-17-1307( e)( 1). Fur ther, it is undisputed that the office rs

commence d the sear ch befor e they knew of L urry ’s criminal history

. When the office rs commence d the sear ch, all they knew was that L urry had a suspended license and that shotgun shells wer e on the back seat. At that point, they could not have known that L urry could not lawfully possess a firea rm

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United States v. Lurry

or that a crime was being committed. Acc ording ly , the plain-view exception does not apply in this

case . Nonethele ss, the sear ch of L urry ’s vehicle was a permissible protec tive sear ch under Michigan v. Long , 463 U.S. 1032, 1049-50 (1983). Although the g overnme nt raises this arg ument for the first time on appea l, we “may aff irm on alterna tive gro u n d s supported by the rec ord.” Murphy v. Nat’l City Bank , 560 F.3d 530, 535 (6th Cir. 2009). During a Terry s t o p , L o n g allows office rs to sear ch an automobile’s passeng er compar tment for wea

pons if t h e o ff

i ce rs have a

rea sonable belief—“ based on ‘spec if ic a n d a r ti c u la b le f a c ts ’ ”

— th a t th e suspect is dang erous and may “g ain immediate control of wea pons.” Long , 463 U.S. at 1049 (quoting Terry v. Ohio , 392 U.S. 1, 21 (1968))

. T h i s ru le rec og nizes that “investig ative detentions involving suspects in vehicles are espec ially fra

ug ht with dang er to police office rs.” Id. at 1047. Although Long does not apply wher e the suspect is handcuf

fed and under arr est, see Arizona v. Gant , 556 U.S. 332, 351 (2009), it applies wher e the suspec t is not secured a nd might imminently

ree nter the c ar. Long , 463 U.S. at 1051. After assessing th e to ta li ty o f th e c ir c umstances, Offic er Wil liams had a rea sonable belief that

a wea pon might be prese nt. Following a valid traff ic stop, the office rs observe d L urry making “fur tive movements” inside his vehicle. The movements wer e of such a nature that the office rs felt it nece ssary to rush t o the driver-side door and direct L urry to exi t the vehicle. A fter L urry exit ed the vehicle, Offic er Wil liams conducte d a patdown for office r safe ty , the constitutionalit y of which L urry does not challeng e. During the patdown, Offic er Wil liams observe d shotgun shells on the rea r seat of L urry ’s car . L urry arg ues that the prese nce of the s h el ls did not nece ssarily mean that a

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United States v. Lurry shotgun was prese nt. Certainty of a wea pon’s prese nce, howeve r, is not the s t an d ard. As the Supreme Court ha s stated, “A de termination that rea sonable suspicion exists . . . need not r ule out the possibili ty of innocent conduct.” United States v. Arvi z u , 5 3 4 U.S. 266, 277 (2002). The prese nce of the shells, c ombined with L urry ’s furtive movements, provided Offic er Wil liams w ith

a re asonable belief tha t a wea pon could be in the c ar. Courts have applied the Long rule in case s substa n t i al l y simil ar to L urry ’s case . I n Long itself, the sear ch was permissible beca use the office rs observe d a larg e hunting knife in the interior of the car into which the defe ndant was ab o u t t o re en t er . Long , 463 U.S. at 1050. Although the knife was lawfully possessed and the suspect was in police custody , the Court permitted the office rs to se arc h the car to e nsure other wea pons wer e not a lso pr esent. Id. at 1051, 1052 n.16. I n United States v. W

are , the office rs conducte d a protec tive sear ch of a car afte r stopping the defe ndant. No. 09-4419, 2012 WL 695452, at *7 (6th Cir. Mar. 1, 2012). This court upheld the sear ch beca use the office rs had rec eived an anony mous tip that the defe ndant had a g un an d drug s, and beca use the defe ndant was standing without handcuf fs near the car . Id. Simi lar l y h er e, the shotgun shells provided the office rs with notice that a wea pon could be prese nt and L urry would soon reg ain acc ess to the wea

pons once he returne d to the car at the conc lusion of the Terry stop. Fur ther, L urry ’s acc ess to the location of the wea pon justified a p ro tective sear ch. L urry arg ues that, under Gant , 55 6 U. S

. at 3 5 1 , the police could not perf orm a sear ch of the vehicle beca use L urry was secur ed outside the vehicle. “ Gant , howeve r, dealt with a sear ch incident to arr est and prohibited a sear ch wher e there was no ‘possibilit y of acc ess’ by the suspect.” United States v.

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United States v. Lurry

W alker , 615 F.3d 728, 734 (6th Cir. 2010) (citations omitted). Gant does not apply to case s wher e the suspect ha s not y et bee n arr ested: I t must b e b o rne in mind that we are speaking here only of a rule automatically permitting a

sear ch whe n the driver or an occupa nt is arr ested . . . . I n the no-a rre st case , the possibili ty of acc ess to wea pons in the vehicle alway s exis ts, since the driver or passeng er will be allowed to return to the vehicle when the interrog ation is completed. Gant , 556 U.S. at 352 (Scalia, J ., concur ring ). Other circ uits have simil arly rea d the Gant rule to be limit ed to sear ches conducte d incident to arr est. See, e.g., United States v. Hagins , 452 F. App’x 141, 146 (3rd Cir. 2011); United States v. Vinton, 594 F.3d 14, 24 n.3 (D.C. C i r. 2 010); United States v. Griffin , 589 F.3d 148, 154 n.8 (4th Cir. 2009). I n short, becaus e t h i s wa s a Terry stop, L urry would have been allowed to return to the vehicle when the brief investiga tion conclude d. At that point, unlike the arr estee s in Gant , L urry would reg ain control of the vehicle and any wea pons

rea sonably

believed to be there in. The validity of the sear ch is not, as L urry arg ues, depende nt on whether L urry possessed the shotgun shells lawfully

. I n Long , the defe ndant arg ued that the sear ch was unconstitutional beca use it was based on the discovery of a hunting knife that defe ndant possessed lawfully

. Long , 463 U.S.
at 1052 n.16. The Supreme Court reje cted this arg ument beca use t h e p ro t ec t ive sear ches are not premised on whether a wea pon is leg ally or illega lly possessed. Id. This inquiry instead focuse s on office r and public safe ty

. Id. I f the office rs deem a wea po n t o p o s e a t hrea

t to themselves or the public, it does not matter whether the wea pon is possessed leg ally

. Id. The lega l i t y o f L u rr y ’s possession of shotgun she lls, therefor e, is irre levant.

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United States v. Lurry The judg ment of the district cour t is affirmed.

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United States v. Lurry

KA REN NELSO N MOORE, Circuit Judge, concurring. I concur in the majority opinion and write separ ately only to r aise a conce rn over the propriety of the initial traff ic stop in this case ,

an arg ument that L urry does not make. L urry was stopped solely beca use an automatic license- plate

rea der indicated that the addre ss on the fema le owner ’s vehicle reg istration matched the addre ss on

a black male’s outstanding arr est war rant for driving on a suspended license. I do not see how that information eve n remotely sug g ests that a wa

rra nt exis ted for a current “occupa nt” of the pursued vehicle beca

use that information sug g ests nothing about who is curr ently occupy ing the vehicle. J ust beca use a black male with a war rant at one point lived at an addre ss wher e a fema le’s vehicle is now reg istered is no rea son to think that the prese nt driver of the fema le’s vehicle, who happens to be a black male , is likely

that same indi vidual. This case offe rs y et another example of why

automatic license- plate reade rs warrant f urther a ttention under the Four

th Amendment, a position I raised in g rea ter detail in my dissent in United States v. Ellison , 462 F.3d 557, 566-71 (6th Cir.) (Moore , J ., dissenting) , cert. denied , 552 U.S. 947 (2007). Howeve r, beca use L urry has not raised this arg ument, I concur in this case.

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