NOT RECOMMENDED FOR FULL TEXT PUBLICATION

File Name: 10a0764n.06

No. 09-3996

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

) ON APPEAL FROM THE UNITED

v. ) STATES DISTRICT COURT FOR THE

) SOUTHERN DISTRICT OF OHIO

ANTHONY DIXON, )

)

Defendant-Appellant. )

BEFORE: KENNEDY, COLE, and ROGERS, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge. Defendant Anthony Dixon was a passenger

in a car driven with only one working headlight. After Officer Joshua Frisby of the Dayton Police

Department stopped the car for this violation and removed Dixon from the vehicle, he observed a

part of Glock’s handgun in the car under a floor mat and arrested Dixon. Dixon sought to suppress

the Glock, but the district court held that the handgun was in plain view of the arresting officer and

was properly seized. Dixon pleaded guilty to one count of possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g), preserving his right to appeal the denial of his motion to

suppress the search. On appeal, Dixon argues that his detention by Officer Frisby was

inappropriately prolonged beyond the scope of the traffic stop by an improper pat search in violation

of his Fourth Amendment rights, that the Glock was only observed because of this pat search, and

that it should have therefore been suppressed as fruit of the poisonous tree. For the reasons that

follow, we AFFIRM.
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FACTUAL AND PROCEDURAL BACKGROUND

At about 6:45 p.m. on November 16, 2008, Officer Frisby was on routine patrol traveling

westbound when he observed an automobile being driven eastbound with only one headlight

illuminated. This is a traffic violation in Ohio. See Ohio Revised Code § 4513.04(A). Officer

Frisby responded by turning around to initiate a traffic stop. Officer Frisby observed two occupants

in the vehicle, the driver, Letitia Rose, and, seated in the front passenger seat, defendant Dixon.

Officer Frisby approached the vehicle on the driver’s side, identified himself, explained to Rose why

he had stopped the vehicle, and asked her for identification and proof of insurance. Officer Frisby

also requested identification from Dixon.

Officer Frisby testified that he then returned to his cruiser to issue a citation and upon

entering his cruiser, inputted the information he had obtained from Rose and Dixon into the

computer in his cruiser, which provided their criminal histories and Bureau of Motor Vehicle

records. According to Officer Frisby, the computer reported that Dixon had recently been arrested

several times for carrying concealed weapons and trafficking in drugs. Officer Frisby testified that

this information made him uncomfortable, but that he did not call for backup because his cruiser

computer indicated that all of his colleagues were already occupied at other locations. While he was

in the cruiser obtaining the information regarding Rose and Dixon, Officer Dixon testified to

witnessing “a lot of movements” within the car, though he did not mention these movements in his

police report.

Officer Frisby returned to the vehicle and approached Dixon on the passenger’s side of the

vehicle. Officer Frisby testified that he asked Dixon to step out of the car so that he could talk to

him. Dixon complied, leaving the passenger door open. Officer Frisby asked Dixon to put his hands
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on the vehicle and began a pat search of Dixon to ensure that he did not have a weapon on his

person. While Officer Frisby was pat searching Dixon, he saw a pistol protruding from under the

floor mat on the passenger’s side of the vehicle. Officer Frisby testified that approximately

one-quarter of the butt of the pistol and its slide rail could be seen sticking out from under the floor

mat and that he was able to recognize the gun as a Glock because that is the model of firearm that

he had previously carried throughout his five years as a police officer. Officer Frisby did not

manipulate the floor mat or move anything to see the Glock. Officer Frisby then placed Dixon in

handcuffs and retrieved the handgun from the automobile.

On November 25, 2008, Dixon was indicted in the Southern District of Ohio on one count

of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Dixon filed

a motion to suppress the handgun. The district court held an evidentiary hearing on the motion and

subsequently denied it. Dixon entered a plea of guilty, preserving his right to appeal the district

court’s decision denying his motion to suppress. Dixon was sentenced to seventy-two months

incarceration. Dixon timely appealed the district court’s refusal to suppress the Glock.

STANDARD OF REVIEW

“We review the denial of a motion to suppress de novo, but will accept the district court’s

factual findings unless they are clearly erroneous.” United States v. Garrido, 467 F.3d 971, 977 (6th

Cir. 2006). “A factual finding ‘is clearly erroneous when the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’” Id. (quoting Tran

v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006)). “‘The evidence must be considered in the light

most favorable to the party that prevailed in the court below—in this case, the government.’” United

States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010) (quoting Garrido, 467 F.3d at 977).
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DISCUSSION

Dixon argues on appeal that his detention by Officer Frisby was prolonged beyond the point

justified by the traffic stop in order to pat search him, that it was therefore illegal under the Fourth

Amendment, and that the evidence seized during this prolonged detention—the Glock found in the

vehicle—must be suppressed as fruit of the poisonous tree. Dixon further argues that the plain-view

doctrine does not apply because Officer Frisby’s observation of the handgun occurred during an

illegally prolonged detention.

We begin, as the district court did, by concluding that Officer Frisby unquestionably had the

authority to stop the vehicle Rose was driving. It is a traffic violation in Ohio to drive with only one

headlight. See Ohio Revised Code § 4513.04(A). As we recently held, “[w]hen law enforcement

officers witness a traffic violation, they may stop the driver and his car. . . . [T]here is nothing

‘unreasonable’ about stopping a vehicle whose driver has just committed a traffic violation.” United

States v. Street, 614 F.3d 228, 232 (6th Cir. 2010) (citations omitted).

It is established law that a traffic stop must “last no longer than is necessary to effectuate the

purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983); United States v. Perez, 440 F.3d

363, 370 (6th Cir. 2006) (“Once the purpose of an ordinary traffic stop is completed, the officer may

not ‘further detain the vehicle or its occupants unless something that occurred during the traffic stop

generated the necessary reasonable suspicion to justify a further detention.’” (quoting United States

v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995))). Here, however, Officer Frisby had not completed his

traffic stop when he requested that Dixon exit the vehicle because Officer Frisby had not yet

completed his actions in connection with the issuance or non-issuance of a citation to Rose for

driving a vehicle with only a single operative headlight. Therefore, our prior decisions discussing
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improper prolongations of traffic stops are not implicated; Officer Frisby was within his rights to

request that Dixon exit the car for safety reasons while in the course of issuing a citation, even if the

citation could have been issued with Dixon remaining within the car and even though removing

Dixon from the car prolonged the traffic stop by approximately thirty seconds, as timed by a video

recording of the encounter. “In the course of a stop premised on a traffic violation, police may

instruct the driver or occupant to exit the vehicle.” Street, 614 F.3d at 232. (citing Pennsylvania v.

Mimms, 434 U.S. 106, 111 n.6 (1977)). “In Mimms, the Court held that ‘once a motor vehicle has

been lawfully detained for a traffic violation, the police officers may order the driver to get out of

the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and

seizures.’” Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (quoting Mimms, 434 U.S. at 111 n.6).

This bright line rule exists because “[t]raffic stops are fraught with danger to police officers, and the

Fourth Amendment permits officers to conduct an otherwise-legitimate stop on their own

terms—whether by keeping the driver (and occupants) in the car or by asking them to exit the car,

depending on what they perceive as safer.” Street, 614 F.3d at 232 (internal quotation marks and

citations omitted). Here, while in the process of issuing a traffic citation to Rose, Officer Frisby

perceived it to be necessary for his safety to have Dixon exit the car. This decision was within his

discretion.

Because Officer Frisby ordered Dixon from the car and stood in close proximity to the

passenger side car door, he was able to see the Glock within the vehicle. This is quintessentially

what the plain-view doctrine permits. “Under ordinary circumstances, the plain view exception

permits the warrantless seizure of an object provided that (1) the officer is lawfully positioned in a

place from which the object can be plainly viewed; (2) the incriminating character of the object is
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immediately apparent; and, (3) the officer has a lawful right of access to the object itself.” United

States v. Bishop, 338 F.3d 623, 626 (6th Cir. 2003). All of the prongs of the plain-view test were

satisfied in this case. Officer Frisby was in a lawful position outside the open passenger door of the

vehicle. The firearm was immediately recognizable as contraband: under Ohio law, it is illegal to

store a firearm under the floor mat of a vehicle, see Ohio Rev. Code §§ 2923.12(A)(2); 2923.16(C).

“The final requirement, that the officer have a lawful right of access to the object, is meant to guard

against warrantless entry onto premises whenever contraband is viewed from off the premises in the

absence of exigent circumstances, but does not bar the seizure of evidence in a parked car. The

difference between ‘lawfully positioned’ and ‘lawful right of access’ is thus that the former refers

to where the officer stands when she sees the item, and the latter to where she must be to retrieve the

item.” Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir. 2004) (citations omitted). Therefore, Officer

Frisby properly seized the firearm pursuant to the plain-view doctrine.

We agree with the district court that the pat search was irrelevant to the seizure of the firearm.

We need not, therefore, consider the lawfulness of the pat search or whether, as the Government

asserts, the exclusionary rule is inapplicable to the Glock’s seizure because there was no causal, or

“but-for,” connection between the pat search and its discovery. See United States v. Pearce, 531

F.3d 374, 381 (6th Cir. 2008) (holding that the exclusionary rule is inapplicable where evidence has

been obtained by means sufficiently separate from the illegal activity to be free of any taint).

CONCLUSION

Because the district court did not err in denying Dixon’s motion to suppress, we AFFIRM.