United States v. Ernest Canipe ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0222p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-5534
v.
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Defendant-Appellant. -
ERNEST W. CANIPE,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 07-00064-001—J. Ronnie Greer, District Judge.
Submitted: June 11, 2009
Decided and Filed: June 30, 2009
*
Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.
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COUNSEL
ON BRIEF: Clifton L. Corker, Johnson City, Tennessee, for Appellant. Robert M.
Reeves, ASSISTANT UNITED STATES ATTORNEY, Greeneville, Tennessee, for
Appellee.
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OPINION
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GRIFFIN, Circuit Judge. Defendant Ernest Canipe appeals the district court’s
denial of his motion to suppress firearm and ammunition evidence seized from his
vehicle and his resulting inculpatory statement. He contends that the evidence, which
led to his conditional guilty plea and 192-month prison sentence for felon in possession
*
The Honorable Sara Lioi, United States District Judge for the Northern District of Ohio, sitting
by designation.
1
No. 08-5534 United States v. Canipe Page 2
of a firearm and ammunition contrary to 18 U.S.C. § 922(g)(1), was obtained in violation
of his Fourth Amendment rights against unreasonable searches and seizures because his
detention was unreasonable, he did not consent to the search of his vehicle, the search
exceeded the scope of his alleged consent, and his subsequent statement was tainted by
these unconstitutional acts. We disagree and affirm.
I.
Herman Hagie, an investigator with the Washington County (Tennessee)
Sheriff’s Department, was the sole witness at the evidentiary hearing before a magistrate
judge on Canipe’s motion to suppress. Hagie testified that on June 25, 2007, his
supervisor told him that Canipe might be in possession of a firearm.1 Hagie knew
Canipe, having previously met him when Canipe was in prison and having later arrested
him in an unrelated incident. Hagie was also aware that Canipe had been previously
convicted of arson and of attempting to stab a law enforcement officer.
Upon learning that Canipe was expected to check in that day at the probation
office in Johnson City but had not yet done so, Hagie attempted to intercept him at the
office. Arriving in his unmarked police vehicle, Hagie saw Canipe in the parking lot and
called for backup. After observing Canipe leave the parking lot without wearing his
seatbelt, a violation of Tennessee law, Hagie performed a traffic stop. The government
concedes that Hagie’s motive for the traffic stop was to assess whether Canipe possessed
a firearm.
Hagie cited Canipe for failing to wear a seatbelt. The time it took Hagie to write
the citation and present it to Canipe was normal, which for that time of day was
“[m]aybe even longer” than ten to fifteen minutes. Sometime during this time, Officer
Bevins arrived. Shortly thereafter, two other officers arrived, totaling four officers at the
scene of the traffic stop.
1
Hagie’s supervisor apparently learned this information from Canipe’s half sister.
No. 08-5534 United States v. Canipe Page 3
After Canipe signed the citation, Hagie returned his driver’s license, registration,
and proof of insurance. Immediately thereafter, Hagie asked Canipe whether he had
“anything” in his vehicle that might be unlawful or about which Hagie needed to know.
Canipe responded, “No, he didn’t think so.” Hagie then inquired whether “it would be
all right if I looked in” the vehicle or “[y]ou care if I look?” to which Canipe answered
that it “wouldn’t be a problem.” After performing a consented frisk, Hagie told Canipe
“again that we were going to look through your vehicle, we’re going to go through your
vehicle, and [Canipe] never commented.”
While an officer stood with Canipe between the rear of the truck and the front of
Hagie’s cruiser – a “short distance” of about ten feet between the two vehicles – Hagie
and Officer Bevins searched the truck. Hagie found a closed metal box resembling a
tackle box on the front floor of the passenger seat and observed the corner of a second
plastic box protruding from beneath the seat. When he moved the seat forward, Hagie
discovered that the top of the second box was inscribed with the word “Ruger,” which
he knew was a company that manufactured firearms. Hagie opened the Ruger box,
observed a handgun inside of it, and placed Canipe under arrest.2
At the detention center, Canipe was read his Miranda warnings, signed a waiver
of his rights, and gave an incriminating statement. He timely appeals the district court’s
order adopting the magistrate judge’s recommendation to deny his motion to suppress
the evidence seized from his truck, as well as his subsequent inculpatory statement.
II.
We review the district court’s factual findings on a motion to suppress for clear
error and its legal conclusions de novo. United States v. Sanford, 476 F.3d 391, 394 (6th
Cir. 2007). A factual finding is clearly erroneous when, although there may be evidence
to support it, we are left with the definite and firm conviction that a mistake has been
committed. United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007) (citation and
2
The metal tackle box contained ammunition, although it is unclear whether the ammunition was
discovered before or after the firearm.
No. 08-5534 United States v. Canipe Page 4
quotation marks omitted). We view the evidence in the light most likely to support the
district court’s decision. Id. (citations omitted).
A.
First, Canipe challenges the reasonableness of his continued detention and
Investigator Hagie’s request for consent to search his vehicle following the issuance of
the citation. He contends that Hagie’s conduct, unaccompanied by evidence of any other
criminal act, exceeded what was reasonably related to the circumstances justifying a
typical stop for failure to wear a seatbelt. We disagree.
We begin by noting that Canipe does not dispute the lawfulness of the initial
stop. Indeed, because Investigator Hagie possessed probable cause to believe that a
traffic violation occurred when he observed Canipe not wearing a seatbelt, Hagie’s
motivation for making the stop (suspicion of unlawful possession of a firearm) did not
undermine its constitutionality. See Whren v. United States, 517 U.S. 806, 813-19
(1996) (holding that officers’ temporary detention of defendants in a “high drug area”
under the pretext that defendants were violating traffic laws was not unreasonable where
officers had probable cause to believe that defendants committed traffic infractions);
Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004) (“[P]olice may make a
stop when they have probable cause to believe a civil traffic violation has occurred, even
if the defendant raises a claim that the stop was pretextual.”).
Nevertheless, “a seizure that is lawful at its inception can violate the Fourth
Amendment if its manner of execution unreasonably infringes interests protected by the
Constitution.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). In particular, “[a] lawful
traffic stop may become an impermissible seizure if it occurs over an unreasonable
period of time or under unreasonable circumstances.” Ellis, 497 F.3d at 612 (citations
and internal quotation marks omitted). Whether the continued detention was
unreasonable is not subject to a “bright-line rule,” id. at 612; rather, the focus is on the
“‘totality of the circumstances’ of each case to see whether the detaining officer has a
‘particularized and objective basis’ for suspecting legal wrongdoing.” Id. at 613
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). “The totality of the
No. 08-5534 United States v. Canipe Page 5
circumstances analysis permits police officers ‘to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that might well elude an untrained person.’” Ellis, 497
F.3d at 613 (quoting United States v. Martin, 289 F.3d 392, 398 (6th Cir. 2002)).
Guiding this inquiry is our en banc holding in United States v. Erwin, 155 F.3d
818 (6th Cir. 1998) (en banc) that “the Constitution does not mandate that a driver, after
being lawfully detained, must be released and sent on his way without further
questioning” once the detaining officer has concluded the original purpose of the stop.
Id. at 820, 823 (holding that officers’ continued detention of defendant and request to
search defendant’s vehicle after determining that he was not an impaired driver did not
violate defendant’s Fourth Amendment rights). Erwin’s ruling comports with well-
established precedent that “[a] law enforcement officer does not violate the Fourth
Amendment merely by approaching an individual, even when there is no reasonable
suspicion that a crime has been committed, and asking him whether he is willing to
answer some questions,” id. at 823 (citing Florida v. Royer, 460 U.S. 491, 497 (1983)),
or requests the individual’s consent to search his vehicle, Erwin, 155 F.3d at 823 (citing
United States v. Dunson, 940 F.2d 989, 994 (6th Cir. 1991)), and “this consent is not
vitiated merely because the valid suspicion of wrongdoing for which an individual has
been stopped proves to be unfounded or does not result in prosecution and the individual
is free to go before being asked,” Erwin, 155 F.3d at 823 (citing Ohio v. Robinette, 519
U.S. 33, 38 (1996)). However, absent reasonable suspicion of criminal activity, a law
enforcement officer must allow an individual to leave if he so requests, and any consent
obtained by the officer’s refusal to permit him to do so is invalid. Erwin, 155 F.3d at
823. See also Florida v. Bostick, 501 U.S. 429, 434 (1991) (“So long as a reasonable
person would feel free to disregard the police and go about his business, the encounter
is consensual and no reasonable suspicion is required. The encounter will not trigger
Fourth Amendment scrutiny unless it loses its consensual nature.”) (internal citations and
quotation marks omitted).
No. 08-5534 United States v. Canipe Page 6
Investigator Hagie’s continued detention and questioning of Canipe after issuing
him the traffic citation were reasonable. Hagie knew Canipe and received reliable
information from his sister – through his supervisor – that Canipe was unlawfully
possessing a firearm. The stop was not prolonged, Hagie testifying that it was of
“normal” duration for a traffic violation at that time of day and much of it was consumed
by the purpose of the initial stop, including the need for Hagie to complete the citation
and retrieve information from the records dispatch. See Ellis, 497 F.3d at 613 (holding
that the detention prior to defendant’s consent to search was reasonable, in part, because
it “was necessitated by the purpose of the initial stop and the need for the trooper to
identify the occupants of the vehicle and determine the driver’s ability to safely operate
the vehicle.”). When Canipe signed the citation and Hagie returned his information,
thereby concluding the initial purpose of the stop, Canipe neither refused Hagie’s
immediate request for permission to search the truck nor asked to leave. In fact, Hagie
obtained Canipe’s consent to search by asking two simple questions: whether Canipe
had anything unlawful in his truck and whether Hagie could look. To the first question,
Canipe responded that “he didn’t think so,” from which a fair inference of uncertainty
or hesitation may be drawn. In light of Canipe’s lukewarm response and the reliable
information Hagie had already acquired, it was reasonable that Hagie request permission
to verify. See Erwin, 155 F.3d at 820, 822-23 (holding officers were “entitled to ask []
for permission to search” using a similar two-step questioning technique at the
conclusion of a traffic stop).
For these reasons, we hold that Investigator Hagie’s brief detention and request
for consent to search the truck following the initial stop were reasonable and did not
transform the legal traffic stop into an unconstitutional seizure.
B.
Next, Canipe argues that his purported consent to search was invalid. He
characterizes his alleged consent as a “mere expression of approval” or “acquiescence”
and not the unequivocal, specific, and intelligent consent required to authorize Hagie and
Officer Bevins to search his entire vehicle and its contents.
No. 08-5534 United States v. Canipe Page 7
The government bears the burden of demonstrating by a preponderance of the
evidence, through “clear and positive testimony,” United States v. Worley, 193 F.3d 380,
385 (6th Cir. 1999) (citations and internal quotation marks omitted), that the consent was
voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or
coercion. Id.; see also United States v. Hudson, 405 F.3d 425, 443 (6th Cir. 2005).
Whether these requirements were met “is a question of fact to be determined from the
totality of all the circumstances,” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973),
and the district court’s findings will not be reversed unless clearly erroneous. United
States v. Calhoun, 49 F.3d 231, 234 (6th Cir. 1995).
Canipe relies upon authority that “mere acquiescence does not suffice to establish
free and voluntary consent.” United States v. Moon, 513 F.3d 527, 538 (6th Cir. 2008)
(citing Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)). In urging us to
construe his conduct as acquiescing to Investigator Hagie’s demands, he emphasizes
Hagie’s affirmative responses to defense counsel’s questions at the evidentiary hearing
asking whether Canipe “acquiesced.” Canipe also compares his case to Worley, where
we interpreted the defendant’s statement – “You’ve got the badge, I guess you can” –
in response to law enforcement’s request to search a bag containing illegal drugs as “an
expression of futility in resistance to authority or acquiesc[ence] in the officers’ request.”
193 F.3d at 386 (citing United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981) (“[A]
search based on consent requires more than mere expression of approval to the
search.”)). Further, Canipe asserts that the presence of multiple armed officers and his
ignorance about his right to refuse consent undermined its voluntariness.
Canipe’s contentions lack merit. While defense counsel’s use of the word
“acquiesced” in his questioning of Investigator Hagie was an attempt to force a fact
witness to adopt counsel’s legal conclusion, such testimony was both incompetent and
unpersuasive. See FED. R. EVID. 701 (limiting lay witness opinions and inferences to
those based upon the witness’s perception and helpful to a clear understanding of his
testimony or a fact in issue, not based upon technical or other specialized knowledge
within the scope of expert testimony); Torres v. County of Oakland, 758 F.2d 147, 150
No. 08-5534 United States v. Canipe Page 8
(6th Cir. 1985) (“The problem with [lay witness] testimony containing a legal conclusion
is in conveying the witness’ unexpressed, and perhaps erroneous, legal standards . . . .
This invade[s] the province of the court to determine the applicable law . . . .”)
(quotation marks omitted). We agree with the district court’s characterization of defense
counsel’s line of questioning on this issue as “a semantic trap.”
Moreover, Canipe’s comparison of his case with Worley is unpersuasive. Worley
testified that when law enforcement asked to search his bag, “[he] didn’t feel like [he]
could do much of anything,” “[he] couldn’t just walk away,” he did not think that he
could just “blow a police officer off,” and he could not say “no” to a police officer.
Worley, 193 F.3d at 383. In addition to this testimony, we deemed it significant that
Worley did not make any affirmative statements indicating free and voluntary consent
and that the stop was at an airport, an environment which may have pressured Worley
into acquiescing to the demands of law enforcement. Id. at 387 (citing United States v.
Berry, 670 F.2d 583, 596 (5th Cir. 1982) (en banc)). Bound by the deferential clear error
standard of review, we therefore affirmed the district court’s grant of Worley’s motion
to suppress. Worley, 193 F.3d at 387.
Here, as in Worley, the clear error standard requires affirming the district court
but, unlike in Worley, that outcome is unfavorable to Canipe. In determining whether
consent was voluntary, the Supreme Court has deemed relevant both the accused’s
characteristics and the details of the interrogation, including the youth of the accused,
his lack of education, his low intelligence, the lack of any advice to the accused of his
constitutional rights, the length of the detention, the repeated and prolonged nature of
the questioning, and the use of physical punishment such as the deprivation of food or
sleep. Schneckloth, 412 U.S. at 226. Contrary to Canipe’s contention, the Court has
held that “[w]hile knowledge of the right to refuse consent is one factor to be taken into
account [in determining whether consent was voluntary], the government need not
establish such knowledge as the sine qua non of an effective consent.” Id. at 227.
The district court did not clearly err in ruling that Canipe’s consent was
voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or
No. 08-5534 United States v. Canipe Page 9
coercion. The duration of the detention and questioning were reasonable. There was no
evidence of coercion. Canipe never asked to leave. He responded positively and
unambiguously that it “wouldn’t be a problem” for Hagie to search his truck. When
Hagie informed Canipe a second time of his intent to search the vehicle, Canipe made
no objection. The district court astutely observed that the “[d]efendant has prior criminal
convictions, and therefore he is no stranger to the police or the criminal justice system.
It defies common sense that he meekly ‘acquiesced’ because he was intimidated by
Investigator Hagie.”
We agree and find no clear error in the district court’s ruling that Canipe’s
consent was valid.
C.
Finally, Canipe asserts that even if his consent was valid, Investigator Hagie and
Officer Bevins unlawfully exceeded its scope. He complains that he was unable to
observe the search and only authorized the officers to “look in” his truck, not to move
seats or open containers.
“The district court’s determination of whether a search exceeded the scope of
consent is a question of fact that we review for clear error.” United States v. Garrido-
Santana, 360 F.3d 565, 570 (6th Cir. 2004). “The standard for measuring the scope of
a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness
– what would the typical reasonable person have understood by the exchange between
the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).
The district court did not clearly err in ruling that Canipe’s consent to let the
officers “[l]ook in” his truck “would be understood by most people to involve a search”
of the vehicle, not merely permission to peer through its windows. See United States v.
Gant, 112 F.3d 239, 242 (6th Cir. 1997) (holding that “the use of the term ‘look’ placed
no particular limitations on the scope of the search” and that “a reasonable person would
understand that a request by a police officer to ‘look’ in a bag seeks consent to search
the bag for evidence of illegal activity.”). In addition to his initial consent, Canipe
No. 08-5534 United States v. Canipe Page 10
neither objected nor attempted to limit the scope of the search when Hagie informed him
a second time (after frisking him) that he was going to “look through” or “go through”
the vehicle. Indeed, if “look[ing] in” the vehicle was even colorably ambiguous, looking
or going “through” it surely was not.
The evidence also does not support Canipe’s contention that he was unable to
observe the search. According to Investigator Hagie’s testimony, a third officer stood
with Canipe between the rear of the truck and the front of Hagie’s cruiser – a “short
distance” of about ten feet between the two vehicles – while Hagie and Officer Bevins
searched the truck.
Additionally, Canipe contends that the officers exceeded the scope of his consent
when they opened the two closed containers in his truck which stored the handgun and
ammunition. The merits of this argument fall between two genre of cases exemplified
by Jimeno and State v. Wells, 539 So. 2d 464 (Fla. 1989). In Jimeno, the Supreme Court
held that a suspect’s general consent to search a vehicle also authorized police to search
closed containers found inside the vehicle, including paper bags. Jimeno, 500 U.S. at
250-51. However, prior to obtaining the defendant’s consent to search, the officer in
Jimeno expressly informed defendant that he suspected him of harboring illegal drugs.
Id. at 251. The Court ruled that a reasonable person would know that narcotics are
usually carried in a container and that the defendant’s general consent to search for
narcotics implicitly authorized the search of containers which might store them. Id.
The Jimeno Court distinguished Wells, in which the Supreme Court of Florida
“held that consent to search the trunk of a car did not include authorization to pry open
a locked briefcase found inside the trunk.” Jimeno, 500 U.S. at 251 (discussing Wells).
The Court commented that “[i]t is very likely unreasonable to think that a suspect, by
consenting to the search of his trunk, has agreed to the breaking open of a locked
briefcase within the trunk, but it is otherwise with respect to a closed paper bag.” Id. at
251-52.
While the officers did not convey to Canipe the object of their search
(distinguishing this case from the permissible consent search in Jimeno), they also did
No. 08-5534 United States v. Canipe Page 11
not break or pry open locked containers (distinguishing this case from the impermissible
consent search in Wells). Within this area, we have remarked that it is “ordinarily” true
that “general consent [to a search] permits the opening of closed but unlocked containers
found in the place as to which consent was given” even “where officers did not tell the
suspect the object of their search.” Gant, 112 F.3d at 243 (citing Wayne R. LaFave,
SEARCH AND SEIZURE, § 8.1(c) & n.75 (1986) and United States v. Crain, 33 F.3d 480
(5th Cir. 1994)). See also United States v. Fowler, No. 93-6483, 1994 U.S. App. LEXIS
34525, at *19-*20 (6th Cir. Dec. 7, 1994) (unpublished) (“Although a suspect may limit
the area subject to a consensual search, a general consent to search a vehicle includes
any compartment or containers within the vehicle.”).
In United States v. Snow, 44 F.3d 133 (2d Cir. 1995), the Second Circuit aptly
explained:
[U]nder either the King’s or the Colonists’ English, the term “search”
implies something more than a superficial, external examination. It
entails “looking through,” “rummaging,” “probing,” “scrutiny,” and
“examining internally.” . . . [A]n individual who consents to a search of
his car should reasonably expect that readily-opened, closed containers
discovered inside the car will be opened and examined.
That the defendant did not – and probably could not – know what the
officer was looking for does not change our view of his consent. It is
self-evident that a police officer seeking general permission to search a
vehicle is looking for evidence of illegal activity. It is just as obvious
that such evidence might be hidden in closed containers. If the consent
to search is entirely open-ended, a reasonable person would have no
cause to believe that the search will be limited in some way.
Id. at 135 (rejecting the defendant’s argument that officers exceeded the scope of his
consent when they searched closed bags in his vehicle without first informing him of the
purpose of the search). See also Crain, 33 F.3d at 484 (holding that consent to search
a car extended to a closed paper bag lodged beneath the driver’s seat notwithstanding
absence of communication about the object of the search because “[t]his Circuit, relying
on Jimeno, . . . has held that an individual’s consent to an officer’s request to ‘look
inside’ his vehicle is equivalent to general consent to search the vehicle and its contents,
including containers such as luggage.”) (citation omitted).
No. 08-5534 United States v. Canipe Page 12
When Investigator Hagie asked Canipe whether he had anything in his vehicle
that might be unlawful or about which he should know, his questioning placed Canipe
on notice that any unlawful item would be the subject of his search. Thereafter, Canipe’s
general consent to search the vehicle reasonably included permission to search any
container that might have held illegal objects. Significantly, the unlocked box which
stored the handgun was inscribed, in plain view, with the name of a familiar firearms
manufacturer, thereby rendering its incriminating contents immediately apparent, see
United States v. Campbell, 549 F.3d 364, 373 (6th Cir. 2008) (discussing the plain-view
doctrine), and further justifying Hagie’s decision to open the box. During the search,
Canipe made no attempt to revoke or delimit the scope of his omnibus consent, although
he was at or near the scene of the search. See Garrido-Santana, 360 F.3d at 576
(holding that defendant’s general consent to search the vehicle encompassed consent to
search the vehicle’s gas tank where “although defendant had the opportunity to do so,
he never objected to the officers’ search of the gas tank and, thus, neither clarified that
the scope of his sweeping consent excluded such a search nor revoked his consent.”).
For these reasons, the district court did not clearly err in ruling that the search
was within the scope of Canipe’s consent.
III.
We affirm the district court’s denial of Canipe’s motion to suppress.3
3
Our ruling affirming the district court’s denial of Canipe’s motion to suppress the firearm and
ammunition evidence renders his appeal of the district court’s denial of his subsequent incriminating
statement as “fruit of the poisonous tree” moot.