NOT RECOMMENDED FOR PUBLICATION File Name: 22a0456n.06
Case No. 2 1

- 4167 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. RICHARD WITHERSPOON, JR. , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO OPINION

B efore : SUTTON, Chief Judge; GRIFFIN and NALBANDIAN , Circuit Judges. SUTTON, Chief Judge

. Richard Witherspoon dropped off a vehicle at a car dealership for repairs

. In the course of working on the car, a mechanic discovered n arcotics and a gun in a hidden compartment of the vehicle

. He notified the police. After their investigation and seizure of the contraband, a grand jury charged Witherspoon with violating federal drug

- distribution and weapons laws. He ple a d ed guilty but conditioned his plea on the right to challenge the district court’s rejection of his motion to suppress the evidence. We affirm.
I. Witherspoon dropped off a maroon Chrysler Pacifica for repairs at the Ganley Chrysler Dodge Jeep Ram Dealership

. The work order specified that the Pacifica was under warranty, had “loose rear suspension components , ” and needed a 23

- point inspection. R.63 at 36. While working on the Pacifica , one of the car mechanic s noticed that the driver’s window did not work

. As a matter of policy, if a Ganley mechanic finds a problem with a vehicle under warranty, he fixes itCase No. 2 1

- 4167 , United States v. Witherspoon

2 without contacting the owner. The mecha nic removed the door panel, revealing a compartment with a gun and a baggie of white powder inside

. The mechanic notified the service manager , who called the police

. Sergeant Sean Allred went to the dealership

. He look ed at the Pacifica without “ touching anything” and “observed the firearm and narcotics

. ” R.63 at 1 2

. He called in the narcotics team : Sergeant Brian Sara and Detective Mike Griffis. T he y too could “ see clearly that there was a gun and what appeared to be narcotics inside the door panel ” and a digital scale on the center console.
R.63 at 27

– 29

. The narcotics team de cided to apprehend Witherspoon. T hey collected the firearm and narcotics from the hidden compartment and left the scale on the consol e . The n the y asked the service manager to reassemble the vehicle and to tell Witherspoon to pick up his car. Th e narcotics
team s taked out the dealership’s parking lot. Using a description of his clothing, the narcotics
team identified Witherspoon as he arrive d , retrieve d the Pacifica , and dr o ve away . Within minutes,
t he officers stopped Witherspoon , arrested him, took the Pacifica to the poli ce department, and searched it. They found t he scale in the hidden compartment along with a new bag of narcotics. A grand jury charged Witherspoon with two counts of possessing with intent to distribute heroin and fentanyl, one count of being a felon in possession of a firearm , and one count of carrying a firearm during a drug trafficking crime. He moved to suppress the evidence

. The court denied the motion. Witherspoon conditionally pleaded guilty and received a 100

- month sentence

. Invoking the condition, h e appeals the denial of his suppression motion

.Case No. 2 1

- 4167 , United States v. Witherspoon

3 II. Witherspoon challenges four features of th is search and seizure. The mechanic’s removal of the door panel

. Witherspoon complains that the mechanic violated the Fourth Amendment ’s guarantee “to be secure

. . . against unreasonable searches and seizures” when he opened the side door compartment. U.S. Const. amend. IV. But the guarantee limits “ only governmental action , ” not the action of private citizens. United States v. Jacobsen , 466 U.S. 109, 113 (1984). The mechanic worked for a private car dealership, and his discovery of the contraband was not “fairly ,” or for that matter remotely, “ attributable to the government

. ” United States v. Miller , 982 F.3d 412, 422 (6th Cir. 202 0 ) (quotations omitted )

. Triggering this sequence of events was With erspoon’s decision to take his car in for repairs, not anything the government did. T h at means the Fourth Amendment does not apply

. Burdeau v. McDowell , 256 U.S. 465, 475 (1921)

. It makes no difference that Witherspoon may have had a subjective expectati on of privacy in the car’s closed containers and that he never consented to the panel’s removal

. That merely shows that the car dealership undercut his expectation of privacy, not that the government did.

“ Whether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character. ”
Ja cobsen , 466 U.S. at 115.
S eizure of the c ontraband

. Witherspoon separately challenges the police officers’ warrantless seizure of the car’s drugs and gun at the dealership when they first arrived

. T he Fourth Amendment ordinarily requires officers to obtain a warrant before seiz ing someone’s property

. Id.
at 113

– 14. But the plain

- view exception to the warrant requirement cover s this seizure

. It applies when an officer occupies a l egitimate vantage point, sees contraband whose “ i ncriminatingCase No. 2 1

- 4167 , United States v. Witherspoon

4 character ” is “ immediately apparent, ” and the officer ha s “ a lawful right of access to the object. ” Horton v. California , 496 U.S. 128, 136

– 37 (1990) ; see United States v. Clancy , 979 F.3d 1135, 1137 (6th Cir. 2020). Recall the sequence of events

. The manager of the car dealership invited the officers into the garage , where the Pacifica was parked with the driver’s door open. The officers were “lawfully in a position from which to view the interior of the vehicle

. ” United States v. Galaviz , 645 F.3d 347, 356 (6th Cir. 2011). They didn’t need to touch anything to see the contraband

. T hey “merely look[ed] at what [was] already exposed to view , without disturbing it,” meaning they did not conduct a “‘search’ for Fourth Amendment purpo ses.” Arizona v. Hicks , 480 U.S. 321, 328 (1987) ;

see Clancy , 979 F.3d at 1138

. T he incriminating location and character of the contraband also were apparent

. Sergeant Allred believed the baggie of white powder was heroin or fentanyl based

on his training and experience. T he gun appeared next to the narcotics , linking it to criminal activity

. Sergeant Sara testified that drug traffickers routinely use hidden compartments in vehicles , called “trap[s],” to store con traband. R.63 at 26. Witherspoon pushes back, noting the Pacifica was parked at the dealership , leaving no time

- based or mobility

- based exigency for declining to get a warrant. All true, but all unhelpful
to Witherspoon a ll the same

. The venerable automobile exception to the warrant requirement permits a warrantless search of a vehicle if an officer has probable cause to believe it contains contraband. Carroll v. United States , 267 U.S. 132, 149 (1925) ; California v. Acevedo , 500 U.S

. 565, 580 (1991) . The seen narcotics and the gun provided probable cause that the Pacifica contained evidence of a crime. The automobile exception requires nothing more, and in particular it does not require a time

- based or travel

- based exigency

. Maryl and v. Dyson , 527 U.S. 465, 46 6

– 67 (1999) (per curiam)

. Keep in mind that mobility is not the only justification for the rule . S oCase No. 2 1

- 4167 , United States v. Witherspoon

5 too is “the pervasive regulation of vehicles.” Collins v. Virginia , 138 S. Ct. 1663, 1670 (2018) ( quotations omitted )

. Hence the Supreme Court has upheld warrantless searches of cars even without a flight risk

. See, e.g. , Florida v. Meyers , 466 U.S. 380, 38 2

– 83 (1984) (per curiam) ; Michigan v. Thomas , 458 U.S. 259 , 261

– 62 (1982) (per curiam)

. That the officers could have obtained a warrant in this case ultimately makes no difference

. Dyson , 527 U.S. at 46 6

– 6 7. Traffic stop and arrest

. Witherspoon separately challenges the traffic stop and arrest. Both of them qualify as seizure s under the Fourth Amendment , to be sure

. Delaware v. Prouse , 440 U.S. 648, 653 (1979). And both were warrantless , to be sure as well

. But officers may stop a vehicle “ without a warrant when they have probable cause to believe that the occupants have

com mitted a crime. ” United States v. Brooks , 987 F.3d 593, 598 (6th Cir. 2021). O fficers likewise
may make a warrantless arrest when , “at the moment the arrest was made, ” they “ had probable cause to make it.” Beck v. Ohio , 379 U.S. 89, 91 (1964). The offic ers checked every box, as a brief reminder of what the y knew confirms

. Witherspoon dropped off the Pacifica. It contained a gun and suspected narcotics in a “trap” and a digital scale on the center consol e . The dealership’s employees provided a description of Witherspoon’s clothing

. A person wearing those clothes retrieve d the Pacifica and dr o ve away. Based on this set of facts , the officers had probable cause to believe that Witherspoon had committed a crime

. It follows that t hey could pull over the Pacifica and arrest Witherspoon without
a warrant , both without running afoul of the Fourth Amendment

. But the officers could not be sure, Witherspoon points out, that he knew about the hidden contraband. But a s the phrase suggests, “ probable cause concerns probabilities, not certainties.” United States v. Lanier , 636 F.3d 228, 234 (6th Cir. 2011). All available information indicated that Witherspoon controlled the Pacifica , creating a fair probability that he knew about its contents.Case No. 2 1

- 4167 , United States v. Witherspoon

6 Plus, the digital scale , a form of drug paraphernalia , sat conspicuously on the center console. See United States v. Montgomery , 377 F.3d 582, 591 n.5 (6th Cir. 2004) ( possessing digital scal e c an violate Ohio drug laws). Th e exposed scale created a fair probability that Witherspoon knew about the hidden contraband too. While t he officers may not have had absolute certainty that Witherspoon was dealing drugs, they had ample information to st op and arrest him

. What of the reality that t he officers removed the gun and drugs prior to the traffic stop, leaving no ongoing crime to prevent, no probable cause to serve as a premise for the stop , and no evidence of a new crime such as a traffic violation? N one of this matters. T he officers had probable cause of a past crime

— indeed considerable evidence of a past crime

— and that

e mpowered them to pull Withersp o on over regardless of whether he had another gun or more drugs with him or whether he s ubsequently violated a traffic law

. See Brooks , 987 F.3d at 598

. Search of the vehicle. A similar conclusion applies to the warrantless search of the Pacifica
at the police department

. T he automobile exception , once again, validates it

. See Meyers , 466 U.S. at 382 ; United States v. Ross , 456 U.S. 798, 82 5 (1982)

. The o fficers found a gun and narcotics in a hidden compartment in the Pacifica. And the officers left drug paraphernalia (the digital scale ) on the vehicl e ’s center console. In be tween retrieving the Pacifica and his arrest, Witherspoon moved the digital scale. All of t his provided a fair probability that the Pacifica contained contraband, enabling a warrantless search of the vehicle at the police department

. See Dyson , 527 U.S. at 467; Collins , 138 S. Ct. at 1670. We affirm.