NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0244n.06 No. 09-4419 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff - Appellee

v. MI GUEL WARE, Def endant - Appellant ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O OPI NI ON

Be fore : GI BB ONS, STRANCH, and ROTH, Circuit J udg es. * JANE B. STRANCH, Circuit Judge. A jury convicted Migue l Ware of drug and firea rm offe nses. He now appea ls the denial of hi s motion to s uppress a firea rm and c rac k coca ine seized from his vehicle during a traff ic stop, as well as inculpatory statements he made to law enfor ceme nt office rs. We conclude that the district court’s fac tual finding s wer e not clea rly err oneous, the Four

th Amendment was not violated, and any inculpatory statements Ware made wer e not “fr u i t o f the poisonous tree.” Acc ording ly , we AF F IRM

. I. F ACTS On October 1, 2008, shortly befor e 5:00 p.m., Cleveland Det. Todd Staimpel recei v ed a telephone call from a known fema le i nformant, who repor ted t hat a y oung er bla ck male known to her as “G” and driving a newe r black For d Foc us was on his way to West 58th a nd L awn Avenue

.

The Honor able Jane R. Roth, Ci rcuit Judge f or the United States Court of Appea ls f or the * Third Circuit, sitti ng by

desig nation.United States v. W are No. 09-4419 Pag e 2 The informant claimed that “G” possessed a larg e amount o f cr ac k coca ine and he alway s car ried

a g un. She provided no other in fo rmation. Be cause the specifie d location was known for drug traff icking , prostitution, and ga ng activity , Det. Staimpel assumed that “G ” wa s a drug deale r. De t

. Staimpel and his partne r, Det. Robert Miles, responde d quickly

. Wit hin ten m i n u t es they drove from their detec tive burea u to West 58th and L aw n Av en u e in their unmarke d black Crown Victoria. Det. Miles reque sted backup assistance from uniformed police office rs in the are a. Be cause the detec tives initially intended to locate and follow the For d Foc us, Det. Miles instructed any responding

office rs to repor

t to W est 65th and L orain to plan a n investiga

tion. J ust befor e the detec tives rea ched their destination, howeve r, the informant called Det. Staimpel a s ec ond time to repor t that “G” was leaving her house. Wit hin thirty seconds, the detec tives spotted a late model black For d Foc us near West 58th and L awn, just as the informant said they would. Two black males wer e riding in the car . Det. Staimpel mad e a u -t u rn and pulled in behind the For d, which wa s wa i t i n g at a red light on the corne r of West 58th and L orain. The detec tives watche d as the For d turned rig ht onto L orain without a turn signa l. A license plate chec k 1

reve aled that Ware and a f emale ow ned the c ar. Having observe d the traff ic violation, the detec tives followed the For d westbound on L orain until four or five marked patrol units arrived in the a rea . At that time, Det. Staimpel activate d his

car ’s lights a

nd siren. The For d immediately pulled over to the rig ht side of the roa d at West 65th

Under Ohio law, the failure to use a turn signa l constitutes a traff ic violation. Ohio Rev. 1 Code Ann. § 4511.39 (West 2006).United States v. W are No. 09-4419 Pag e 3 and L orain. Det. Staimpel parke d the Crown Victoria direc tly behind the Fo rd

. An eastbound

2 marke d police unit stopped direc tly in front of the F ord, pinning it in. Three or four other

marke d police vehic les stopped nea r the F ord, and a ll of the police off icer s g ot out of their vehicle s. As Det. Staimpel and Det. Miles approa ched the For d from the rea r, they observ ed both occupa nts moving ar ound inside the car . The driver l ooked down a nd rea ched w ith both hands to the cente r console on his rig ht. Det. Staimpel advised Det. Miles to watch the driver’ s hands; Det. Miles war ned Det. Staimpel to “be car eful.” The office rs drew their wea pons beca use the driver’ s

rea ching action heig htened their conce rn for office r safe ty

. They order ed the car ’s occupa nts to put their hands into the air , and they complied. Det. Staimpel then opened the driver’s door to find that the driver , Ware, wa s not wear ing

a seat belt. Det. Staimpel order ed Ware to g et out of the car , turn, and immediately place his hands

on the roof. Ware complied with this demand, but he was still within rea ch of the car ’s interior. Det. Staimpel sprea d Ware’s leg s and started patting him down for wea pons. On the other side of the car , Det. Miles took the same action with the passeng er, Ray shun McKinley

. Approxim ately t h i rty seconds e lapsed be tween the traff ic stop and the re moval of Ware a nd McKinley

from the c ar. As the detec tives frisked Ware and McKinley for wea pons, Offic er McClain opened the car ’s cente r console and said, “The re’ s a g un.” Sgt. Shoulders immediately looked into the cente r console and saw a Red Bull can. Be lieving the ca n t o b e a fake canister for hiding drug s, Sgt. Shoulders pulled it apa rt and found sever al bag g ies containing cra ck coca ine. Sgt. Shoulders emptied the

There are not seven city blocks betwee n West 58th and West 65th. Det. Miles testified there 2 are only three intersec tions on that stretch of L orain: West 58th, West 61st, and West 65th, wher e the traf fic stop occ urre d. Ware did not controve rt this testim ony .United States v. W are No. 09-4419 Pag e 4 contents of the Red Bull ca n onto the front passe ng er se at. Det. Staimpel told Offic er McClain to leave the gu n wh er e h e fo u nd it with the console open. Det. Staimpel could see the g un in the console a s he finished fr isking Ware and handc uffe d him. De t. Miles handcuf

fed McKinley and turned him over to a uniformed office r, who p l ac ed McKinley in the back seat of a marke d patrol unit. Det. Mile s t hen escor ted Ware to the Crown Victoria and place d him in the back seat. Det. Miles verba lly advised both Ware and McKinley of their Miranda rig hts, but he did not question them. Det. Miles issued a t ra ff

i c ticket to Ware for failing to use a turn signa l and a citation for failing to wea

r a seat belt. The For d was inventoried and impounded. ATF Ag ent Nathan Honake r and De t. Miles subsequently interviewe d Ware a t the detec tive burea u afte r aga in advising him of his Miranda rig hts. During questioning, Ware made inculpa tory statements. Det. Miles’s police repor

t about the traff

ic stop stated that the g un was found inside the For d afte r Ware and McKinley wer e handcuf fed and place d in separ ate car s. At the suppression hear ing, howeve r, the det ec t i v es insisted that the repor t was incorre ct and that their testimony acc urate ly portray ed the se quence of eve nts. Det. Staimpel informed the court that he had worke d with the informant on two previous

occa sions, most rec ently two day s befor e Ware was arr ested, but the information she provided about g ang activity in her neig hborhood was not helpful to the police. Det. Staimpel knew the informant had acc ess to inside information beca use her sons wer e g ang members involved in drug activity , and the police valued any information she could provide. He also knew that Det. Miles had talked to the informant two y ear s ear lier and Det. Miles believed the informant was a reliable source . Det. MilesUnited States v. W are No. 09-4419 Pag e 5 disclosed that he had obtained information from the informant on three or four occa sions that led to the re cover

y of seve ral stolen ca

rs and the ide ntities of those who stole the ca rs. The informant, Sheretta Allen, was c a ll ed to testify at the suppression hear ing. She explained that “G” was her daug hter’s boy friend and the fathe r of her g randc h i l d

. Be cause “G” and her daug hter wer e having rela tionship problems, Allen wanted to g et “G” awa y from her daug hter. Allen called Det. Staimpel and asked him to do her the favor of stopping “G” beca use he car ried a g un and drug s. She identified “G’ s” vehicle as a 2008 or 2009 black For d Foc us, and explained that he was expected to stop by her house at West 58th and L awn to pay her for baby sitti ng , but he would leave ag ain shortly

. Allen then ca l l ed De t

. S t aimpel a second time to let him know when “G” left her house. She stated: “T hey went and did it for me. T hen af ter they done it they

said, boy , he must have ma de y ou awf

ully mad.” Allen also reve aled that the two detec tives had been to her house ear lier that day looking for her y oung est son. They acc used him of being a g ang member and shooting into a house. Allen was afr aid her son would be arr ested, so she lied to the detec tives and told them that her son was not at home, even though he was. The detec tives ultimately arr ested her son later that evening

. Allen first met the detec tives sever al y ear s ear lier when her oldest son was stealing car s, but she denied that she worke d as an informant for the C leveland Poli ce or th at s h e p rovi ded the police with information about g ang and drug activity or stolen ca

rs. Ware, who was 20 y ear s old and admitt ed he used t he nickna me “G,” provided a differe nt version of events. On the day of the traff ic stop, he left his mother-in-la w’s house at West 58th and L awn. As he approa ched the i ntersec tion at West 58th and L orain, he and McKinley noticed anUnited States v. W are No. 09-4419 Pag e 6 unmarke d Crown Victoria as it made a u-turn and pulled in behind them. Ware claimed that he used his turn signa l when he turned right onto L ora i n . He d en i ed that he pull ed over at W est 65th and L orain, and instead claimed that he wa s “stormed” in the middle of the i ntersec tion by police cars appea ring “fr om nowher e” and eig ht police office rs who approa ched his car with their g uns draw n. Ware also denied that he made any movements in the car or put his hands near the cente r console. He claimed his hands wer e up in the air befor e the police office rs approa ched the car , and the police “snatc hed” him out of the c ar. As Ware rec alled the events, he stood at the driver’ s door betwee n fiftee n and thirty seconds for f risking a nd handcuf

fing

. During that time, three police officer s sear ched his c ar, but they did not f ind a ny thing. He was then place d in a police car , but he was not told that he was under arr est, and he did not rec eive the Miranda war nings until he rea ched the police station. The g un and drug s

wer e found in his car five minutes afte r he was seate d in the police car . Ware watche d as Sgt. Shoulders shook the drug s from a can onto the top of the car . Sgt. S h o u l d er s t h en walked to the police car wher e Ware was seate d, called Ware a liar, and asked Ware if he knew wher e there wer e “any more drug s or g uns.” Ware thought Sgt. Shoulders wanted him to “tell on somebody .” Ware did not lear

n that Det. Miles had issued a traff ic t i ck et an d a citation to him until he rec eived discovery in his criminal case

. McKinley confirme d that Ware was wea ring a seat belt and used his t u rn s i gn al when he turned rig ht onto L orain at the traff ic light. Shortly afte r the turn, the police “stormed” them in the middle of the road with g uns draw n, and the police did not g ive Ware a ch an ce to pull over. McKinley

denied that he or Ware ma de any movements inside the car . He rec alled that the policeUnited States v. W are No. 09-4419 Pag e 7 said, “The re is a g un in the car ,” even befor e the police actua lly located the g un. McKinley denied that the police said any

thing to them, like “put y our hands up,” but he contra dicted himself and also acknow ledg ed that the police told th em t o ra i s e t heir hands. As the police approa ched the car , McKinley

hear d Ware say , “I

g ot a license and ins uranc e.” A police off icer answe red, “ We know y ou g ot a license and i n s u ra nce,” but the office r did not ask to see the documents or any identification. I nstead, the police pulled Ware and McKinley from the ca r a n d p u t them in handcuf

fs. None of the office rs said any thing about writing a ticket for failing to use a turn signa l. McKinley

rema ined by the For d only “a minute” befor e he was place d in a police car . He could not te ll what

was happening to Ware, who was remove d from the car on the opposite side. McKinley denied that he and War e re ceive d the Miranda rig hts. McKinley repor

ted that he spoke with War e’s lawy er approximately six months be fore the suppression hear ing while he was hospitaliz ed for a g unshot wound. Du ri ng that conver sation, McKinley reme mbere d that Ware used his turn signa l befor e the traff ic stop. When the prosec utor presse d for the date of McKinley ’s conver sation with defe nse counsel, McKinley answe red that he had been shot six differ ent times and he could not r eca ll the date of the most re cent shooting. Yet, he was cer

tain that Ware used a turn signa l on October 1, 2008. M cK i nley also admitted that he smoked marijuana , but he denied tha t the drug aff ecte d his memory

. Noting “[t] here are arg uments that support or contra dict the c r e d ibility of both camps here [,] ” the district court made an express finding that the detec tives’ testimony was more cre dible than Ware’s and McKinley ’s t es t i m o n y . The court found that McKinley was not a cre dible witness beca use he “almost never looked up when he was an swering a question[,] ” and he could notUnited States v. W are No. 09-4419 Pag e 8

reme mber the date of a rec ent hospitaliz ation for a g unshot wound, y et he rec alled in vivid detail that Ware used a turn signa l on October 1, 2008. The court doubted McKinley actua lly paid such car eful attention to Ware’s driving

. The court discredited Ware’s testimony beca use he was the only witness who insisted the g un

was found five minutes afte r the traff ic stop when he was alre ad y i n the police car , while the detec tives and McKinley all rec alled that the g un wa s l ocate d very soon afte r the initial stop. Fur ther, the court reje cted as “not cre dible at all” Ware’s testimony that three office rs sear ched his

car and did not find a wea pon. The court did not believe the events happene d as Ware said they did and “[o] ne o ff

i ce r wo u l d have found [t he g un] in a matter of seconds, and I think that’s what

occur red.” Be cause the court deter mined Ware was not cre dible on the “ver y important fac t” of when the g un was loca ted, t he cour t found Ware a lso was not cre dible when he testified he use d a turn signa l. II. ST ANDAR D OF REVIEW I n revie wing the denial of a motion to suppress, we examine the d i s t rict court’s fac tual finding s for clea

r err or and its c onclusions of law de novo . United States v. Buford , 632 F.3d 264, 268 (6th Cir. 2011)

. We r eview the evidenc e in the light most li kely to suppor t the district c ourt’s decision, United States v. See , 574 F.3d 309, 313 (6th Cir. 2009) , and we aff ord g rea t de fer ence to the district court’s cre dibilit y deter mina ti o n s r e g a r d in g w it n e s s te s ti mony . United States v. Hinojosa , 606 F.3d 875, 882 (6 t h C i r. 2 0 1 0 ). A factual finding i s clea rly err oneous when, althoug h there is evidenc e to support the finding , we are left with the definite and firm conviction that a mistake has been committed. See Anderson v. City of Bessem er City , 470 U.S. 564, 573 (1985). I f there are twoUnited States v. W are No. 09-4419 Pag e 9 permissible views of the evidenc e, the district court’s deter mination betwee n them cannot be clea rly

err oneous. Id. III. ANALYSIS Ware has not car

ried his substantial burden to persua de us that the district court’s cre dibilit y and fac tual finding s wer e clea rly err oneous in light of the evidenc e presen ted at the suppression hear ing. See Anderson , 470 U.S. at 573; Buford , 632 F.3d at 268. Having hear d the witnesses testify and having judge d their demea nor, the district court acknow ledg ed the exis tence of cre dibilit y issues throug hout the testimony

. The court sufficie ntly explained why it believed the de tectives, and not Ware or Mc Kinley , and the c ourt’s fa ctual finding s and leg al conclusions logic ally followed from its cre dibilit y deter

minations. For the rea sons we explain below, Ware has not shown that reve rsal is warr anted. A. Legality of the traff

ic stop Ware first contends that the detec tives stopp ed h i s car based on an unfounded and

unrea sonable suspicion that he might be involved in c riminal activity as the result of a n unreliable informant’s tip, re l y i n g on Florida v. J.L. , 529 U.S. 266 (2000), and Terry v. Ohio , 392 U.S. 1 (1 9 68). But the district court did not rest its analy sis on whether the detec tives had rea sonab l e suspicion to conduct a Terry stop. I n fac t, the court pointedly noted the officers themselves well knew they

did not have a suf

ficient ba sis to st op the ca r base d only

on Allen’s tip. I nstead, the district court dete rmined t hat t he detectives had probable cause to stop the car when Ware committed a traff ic v i o l at ion by turning rig ht without using a turn signa l. Be cause probable cause exis ted for the traff ic stop, the district court corr ectly held that the office rs’ subjectiveUnited States v. W are No. 09-4419 Pag e 10

or prete x tual motivation for making the stop was not rele vant under W hren v. United States , 517 U.S. 806, 812-13 (1996). See also United States v . Hill , 195 F.3d 258, 264 (6th Cir. 1999) (observing , under W hren , that “an of

fice r may stop a vehicle for a traff

ic violation whe n his true motivation is to sear ch for contra

band, as long as t h e o ff

i cer had probable cause to initially stop the vehicle.” ); United States v. Akram , 165 F.3d 452, 455 (6th Cir. 1999) (af firming constitutionalit y of traff ic stop under W hren wher e driver failed to use turn signa l, despite strong case for disbelieving the office r’s explanation for the stop). Ware has not explained why the di strict court’s factua l finding s on this point are clea

rly err oneous or why we should set asid e t h e l ega l conclusion that the stop was supported by

probable cause and ther efor e constitutional under the F ourth Amendment. B. Legality of

the sear ch Ware next challe n ges h i s detention and the sear ch of his car , claiming the conduct of the police exceede d the scope of an ordinary traff ic stop. I n light of the district court’s supported fac tual finding s, there is no merit in War e’s arg ument that the detec tives lacke d rea sonable suspicion that he was eng ag ed i n cr i m i n al activity and that the detec tives could only ask for his identification, driver’ s license, a

nd proof of insurance , write him a traff ic ticket, and allow him to proce ed on his way . See United St ates v. Erw in , 155 F.3d 818, 822 ( 6th Cir. 1998) (en banc) (“af ter the deputies satisfied themselves that Erwin was not drunk or otherwise impair ed , t h ey wer e justified in continuing to detain Erwin if, by then, they had rea sonable and articula ble suspicion that Erwin was eng ag ed in other criminal activity .”) “To justify a patdown of the driver or a passeng er during a traff ic stop .

. . the police must harbor rea sonable suspicion that the person subjected to the frisk is

arme d and dang erous.” Arizona v. Johnson , 555 U.S. 323, 129 S.Ct

. 781, 784 (2009). I n acc ordanc eUnited States v. W are No. 09-4419 Pag e 11 with Johnson , the district court found that the detec tives rea sonably suspected Ware was arme d and dang erous based on Allen’s reliable tip that Ware was car ry ing a g un, combined with Ware’s furtive movements toward the cente r console a s the offic ers a pproac hed the c ar. Upon reach i n g t h e driver’ s door, Det. Staimpel was not require d to ask Ware for ident ification, reg istration, and proof of insurance

. “[O]nce a motor vehicle has been lawfully detained for a traff

ic violat i o n , the police office rs may order the driver to g et out of the vehicle without violating the Four th Amendment’s proscr iption of unrea s o nable sear ches and seizures.” Pennsylv ania v. Mimms , 434 U.S. 106, 111 n.6 (1977) (per curiam). As explained in Mimms an d Johnson , the leg itimate and weig hty interest in police office r saf et y outweig hs the de minimis additional intrusion of requiring a driver who is al re ady lawfully stopped to g et out of the car . Mimms , 434 U.S. at 110-11; Johnson , 129 S. Ct. at 786. The Mimms rule applies to passeng ers just

as it does to drivers, Maryland v. W ilson , 519 U.S. 408, 415 (1997), so the detec tives here wer e well within the bounds of the law when they direc ted Ware and McKinley to get o u t o f t h e car . Once Ware was standing at the driver’ s door, Det. Staimpel had authority to frisk him for wea pons based

on the rea sonable suspicion that Ware was arme d and dang erous. Johnson , 129 S. Ct. at 786-87; Mimms , 434 U.S. at 112 (citing Terry , 392 U.S. at 21-22). The rema ining iss u e i s whether the police violated the Four th Amendment when they

sear ched the cente r console of the Ford an d l o ca ted the firea rm and cra ck coca ine. I n Arizona v. Ga n t , — U.S. —, 129 S. Ct. 1710, 1714, 1718 (2009), the Supreme Court held that Ne w Y o r k v. Belton , 453 U.S. 454 (1981 ), “d o es not authorize a vehicle sear ch incident to a rec ent occupa nt’s

arr est afte r the arr estee has been secur ed and cannot acc ess the interior of the vehicle.” Ware arg uesUnited States v. W are No. 09-4419 Pag e 12 that he falls within the Gant rule beca use he was alre ady handcuf fed and si t t i n g in the Crown Victoria when t he poli ce office rs s ear ched hi s ca r. Thus, beca use he was already secur ed and did not have acc ess to his car ’s interior wher e he might acc ess a weap o n t o use ag ainst the police, he contends that the se arc h of his car violated the F ourth Amendment. Ware’s view of the events, h o we v er , does not control our analy sis. The district court expressly found that , wi t h i n seconds of the traff ic stop, Ware was standing by the driver’ s door, fa ci n g the car’s int erior and wit hin rea ch of the passenge r compartment with his hands unsecu re d when Offic er McClain quickly rea ched into the car and opened the cente r console, reve aling the g un and the Red Bull can. The district c ourt also acc epted Det. Staimpel’s te stimony that he could see the g un from his position standing next to Ware at the door while he fini s h ed frisking Ware for

wea pons, handcuf

fed him, place d him under arr est, and direc ted Det. Miles to take him to the Crown Victoria. The sea rch f or the fir ear

m in the cente r console falls clea nly within Michigan v. Long , 463 U.S. 1032, 1049 (1983), which allows a poli ce office r t o sear ch a v ehicle passeng er compartment when the office r h as a rea sonable suspicion that an individual, whether or not the arr estee , is dang erous and might acc ess the vehicle to g ain immediate control of a wea pon. “[T] he conce rn for office r safe ty extends not only to the suspect himself but to ‘the are a surrounding a suspect’ wher e he mi g ht ‘g ain i mmediate control of weapons.’” United St ates v. W a lker , 615 F.3d 728, 732 (6th Cir. 2010) (quoting Long , 463 U.S. at 1049). I n Gant , the Supreme Court rec og nized the continuing validity of Michigan v. Long as an established exception to the Four th Am en d m en t warrant require ment. Gant , 129 S. Ct. at 1721. I n a case very simil ar to this one, we relied on Michigan v.United States v. W are No. 09-4419 Pag e 13 Long to hold that a Terry frisk and a vehicle sear ch based on a tip and the furtive movements of the

car ’s occupa

nts did not violate the Four th Amendment. See United States v. Graham , 483 F.3d 431, 438-41 (6th Cir. 2007). Gant itself supports the sear ch at issue here beca use police may sear ch a vehicle incident to a rec ent occupa nt’s arr est if “the arr es t ee is unsecur ed and within rea ching distance of

the passeng er c ompartment at the time of the sear ch.” Id. at 1719. Finally , we conclude that Sgt. Shoulder s did not violate the Four th Amendment when he

rea ched into the center console, picked up the R ed Bull can, and p u l l ed it apar t to disclose a false compar tment containing cra ck coca ine. By the time Sgt. Shoulders rea ched for the can, ever y other aspec t of the known informant’s tip had been corr oborate d by the police. Be cause the tip proved to be reliable, S g t. Shoulders had probable cause to believe that the automobi le would contain crac k

coca ine, just as the informant repor ted. See Maryland v. Dyson , 52 7 U. S

. 4 6 5 , 4 67 (1999) (per curia m) (upholding automobile sear ch for drug s based on a confide ntial i n fo rmant’s reliable and

corr oborate d tip that “a rente d red Toy ota” with a particula r license p late number would contain drug s); United States v. Davis , 430 F.3d 345, 364 (6th Cir. 2005) (and case s ci ted there in). There fore , his sear ch of the Red Bull can found in the cente r co n s o l e d i d not violate the Four th Amendment. S

ee United States v. Perez , 440 F.3d 363, 375 (6th Cir. 2006) (“a n office r with probable cause to sear ch a vehicle for drug s may inspect any item in that vehicle that could contain drug s, whether or not the item belong ed to the driver, a passenge r, or someone else claiming an expectation of privac y in its contents.”) Be cause the sear ch was constitutional, it logic ally follows that any inculpatory statements Ware may have made to law enfor ceme nt office rs could not be excluded under the “fr

uit of the poisonous tre e” doctrine. See United States v. W illiams , 615 F.3dUnited States v. W are No. 09-4419 Pag e 14 657, 668 (6th Cir. 2010) (obser ving the doctrine preclude s admissibili ty of evidence which police deriva tively

obtain from an unconstitutional sear ch or se izure). IV. CONCLUSION For all of the rea sons stated, the traff ic stop and the sear ch of Ware’s vehicle did not violate the Four th Amendment. We AF F IRM the district court’s de nial of the motion to suppress.