United States v. Jamil Hardy , 596 F. App'x 396 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0024n.06
No. 13-4343
FILED
Jan 07, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
JAMIL HARDY, )
NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
)
)
BEFORE: DAUGHTREY, McKEAGUE, and WHITE, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. After a loaded firearm fell from
defendant Jamil Hardy’s waistband while he was being questioned by police on a city street
regarding his involvement in a nearby disturbance, Hardy was arrested and charged with being a
felon in possession of a firearm. Given the circumstances surrounding the arrest, Hardy chose
not to contest the fact that he possessed the weapon and, instead, pleaded guilty to the charged
offense. In his plea agreement with the government, however, Hardy specifically reserved the
right to challenge on appeal any suppression-hearing determination made by the district court.
Hardy now insists that evidence of his possession of the weapon should have been suppressed
because the police did not have a reasonable and articulable suspicion that he had been engaged
in criminal activity at the time they confronted him. We disagree and thus affirm the judgment
of the district court.
No. 13-4343
United States v. Hardy
FACTUAL AND PROCEDURAL BACKGROUND
Shortly after 1:30 a.m. on March 28, 2013, the Maple Heights (Ohio) Police Department
received “a call about a disturbance at a house on Theodore [Street].” According to the report, a
“short black female with glasses” had been knocking loudly on the door of a residence on that
street for 15-20 minutes. By the time police arrived at the residence, the woman had left, so
police began searching the area to find her. Approximately eight or nine minutes after receiving
the report of the call, Sergeant Joseph Mocsiran observed an individual meeting the description
of the woman they were seeking no more than two-tenths of one mile from the site of the
disturbance. The woman, later identified as Fatima Reed, was accompanied by Hardy when
Mocsiran pulled his police cruiser, which was being operated at the time without sirens or
emergency lights, alongside the two individuals “to find out if they were the ones involved.”
Within seconds, Investigator Thomas Halley also drove up in his marked car, also without the
emergency lights or siren activated, but with his vehicle’s dash camera recording the incident.
Both officers got out and approached Reed, who, when asked, stated that she had indeed
been knocking on the door of the residence on Theodore Street and identified Hardy as her “little
cousin.” She then addressed Hardy as “Jamil” and directed him to “pick my magazines up,
baby,” and to “just stand right there; they’re not going to do nothing to you.” During this
questioning of Reed, police did not also question Hardy.
As Hardy attempted to leave, an officer instructed Hardy to “hold on.” Although Reed
had referred to Hardy by his first name, called him “baby,” and stated that he was her “little
cousin,” Hardy told Halley that he did not know the woman with whom he was standing.
Consequently, Halley then requested identification from Hardy. Hardy maintained that he did
not have any identification with him, and he then announced, “I’m gone,” and started to leave.
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Halley told him to come back and asked for his name and Social Security number. As Halley
transmitted the information Hardy provided in an effort to verify his identification, Hardy
reached behind his back, and a gun fell to the ground on the grass between the sidewalk and the
street. The officers then arrested Hardy.
Hardy was eventually indicted for being a felon in possession of a firearm after the
prosecutor ascertained that he previously had been convicted both of burglary and of assaulting a
peace officer. Hardy moved, however, to suppress the evidence seized at the stop, arguing that
“the police lacked reasonable suspicion to believe [he] was engaged in criminal activity.” The
district court conducted an evidentiary hearing on the motion, at which both Mocsiran and
Halley testified.
At the conclusion of the hearing, the district court denied the motion to suppress on two
alternative bases. First, the district court held that Mocsiran and Halley had reasonable suspicion
“to stop the woman who’s been identified as Fatima” and “to briefly detain Mr. Hardy. . . . It
was 1:45 [a.m.], there weren’t a lot of other people around on the street. I find that it was
reasonable for the officers to believe that Mr. Hardy was somehow connected to that offense.”
Alternatively, the district court stated that “even if the officers didn’t have a reasonable basis to
make a brief stop to find out who Mr. Hardy was, the purposes underlying the exclusionary rule
would not apply here to suppress this gun, because the gun was clearly not the product of any
search, no frisk.”
In light of the district court’s ruling that the weapon was admissible into evidence and the
uncontroverted evidence of Hardy’s prior criminal record, the defendant pleaded guilty to the
single felon-in-possession charge in the indictment. Hardy now exercises the right he explicitly
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United States v. Hardy
reserved in his plea agreement and challenges the district court’s adverse ruling on the
suppression motion.
DISCUSSION
When reviewing a district court’s ruling on a motion to suppress evidence, we examine
the court’s legal conclusions de novo and its factual findings for clear error. See, e.g., United
States v. Fisher, 745 F.3d 200, 202 (6th Cir.) (citation omitted), cert. denied, 135 S. Ct. 676
(2014). In this matter, Hardy and the government do not dispute the relevant facts before the
court. Instead, their disagreement focuses solely upon the propriety of the district court’s legal
conclusion that Mocsiran and Halley had a reasonable and articulable suspicion to detain Hardy
for questioning, during which the firearm in Hardy’s possession fell to the ground and became
plainly visible.
As we have recognized:
Typically, three levels of encounters between police and citizens are challenged in
the courts: (1) the consensual encounter, which may be initiated without any
objective level of suspicion; (2) the investigative detention, which, if non-
consensual, must be supported by a reasonable, articulable suspicion of criminal
activity; and (3) the arrest, valid only if supported by probable cause.
United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997) (citations omitted).
In this case, Hardy does not dispute the fact that his interaction with police began as a
“consensual encounter.” Instead, he contends that when he made “polite efforts to go about his
business” but was stopped from leaving the scene, the officers did not have a “reasonable,
articulable suspicion” to detain him further. In this regard, he points out that: (1) the disturbance
call made to the police mentioned only a woman, not a man and a woman; (2) the lateness of the
hour alone cannot be relied upon to establish grounds for his detention; (3) Hardy’s proximity to
Reed at the time the officers arrived at the scene of the stop was not sufficient to justify the
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No. 13-4343
United States v. Hardy
resulting detention; (4) Hardy was entitled to leave the area, and his attempt to do so cannot
provide justification for a stop; and (5) contrary to Halley’s testimony at the suppression hearing,
the video did not establish that Hardy appeared nervous or antsy. The district court nevertheless
found that the officers could reasonably conclude that Hardy was connected to the disturbance
under investigation.
We agree. When viewed in their totality, the circumstances of this case establish that
Mocsiran and Halley were justified in detaining both Reed and Hardy in order to gather
information from them. Although it is true that the initial police report stated that only a woman
was involved in the disturbance, the officers observed Reed, who met the description of the
suspect, walking less than one-quarter mile from the residence of the complainant only minutes
after the initial call to the police. The police properly effected a limited detention of Reed to
question her about the incident being investigated.
When Mocsiran questioned Reed, she voluntarily admitted that she indeed was the
individual who had been banging on the door of the nearby residence. She then referred to
Hardy, standing beside her, by name and announced that he was her “little cousin.” At that
point, Mocsiran and Halley had reason to suspect that Hardy, too, might have been involved in
the disturbance. After all, Hardy and Reed were the only two individuals observed on the street
at that time, they apparently were acquainted with each other, and they were in close proximity
to the scene of the “crime.” Thus, because Reed already had admitted that she had been at the
site of the disturbance that prompted the call to the police, the officers had reason to question
Hardy directly about his identity and his potential involvement. Their suspicion must have
increased when Hardy denied that he knew who Reed was and attempted to walk away.
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Indisputably, this court and the United States Supreme Court have held that the mere
lateness of the hour, the fact that an individual is in the company of another person, or that a
person approached by the police attempts to walk away from the encounter cannot, alone, serve
as bases for reasonable suspicion that a defendant is, or has been, engaged in criminal activity.
See, e.g., United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (fact that encounter took
place at 1:20 a.m., without more, cannot give rise to reasonable suspicion); United States v. Bell,
762 F.2d 495, 499 n.4 (6th Cir. 1985) (“proximity cannot be the sole legitimizing factor” in
determining the legality of an investigative stop); United States v. Beauchamp, 659 F.3d 560,
570 (6th Cir. 2011) (“talking to someone else, without more, is innocent activity”); Florida v.
Royer, 460 U.S. 491, 498 (1983) (walking away from the police does not create reasonable
suspicion). However, as we held in Beauchamp, “Certainly there are situations in which
innocent acts, taken together, can amount to reasonable suspicion.” Beauchamp, 659 F.3d at 571
(citing United States v. Sokolow, 490 U.S. 1, 9-10 (1989)).
This case involves just such a “totality” situation. Hardy was detained and questioned by
the police in this case not only because he was outside after 1:30 a.m., not only because he was
in the presence of another person, and not only because he sought to walk away from Halley.
Furthermore, the record in this matter makes clear that the police initially were not interested in
finding and questioning Hardy. They had been informed that a short, African-American woman
with glasses had been disturbing another citizen by persistently pounding on the door of a
residence at 1:30 in the morning. Seeing a woman fitting that description on an otherwise-semi-
deserted street only minutes later and about two-tenths of a mile away, the officers were justified
in seeking information from Fatima Reed. When Reed made it clear to the police that she knew
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the person with her and that the person was her cousin, but Hardy denied knowing Reed, the
police properly were reasonably suspicious of the second individual as well.
Moreover, we have no problem in concluding that the degree of the pre-arrest intrusion
on Hardy’s liberty in this case was reasonable. In determining such reasonableness, we first
examine whether the detention was “sufficiently limited in time,” and then, whether “the
investigative means used [were] the least intrusive means reasonably available.” Caruthers,
458 F.3d at 468 (internal quotation marks and citations omitted). As indicated in the video
recording of the encounter between Hardy and the police, neither factor should result in a
conclusion that the stop was unreasonable or unconstitutional. The total time elapsed between
the officers’ exits from their vehicles to speak with Reed and Hardy to the recognition that Hardy
had dropped a firearm onto the ground was less than three minutes. Furthermore, at no time
before the gun was revealed did Mocsiran or Halley make physical contact with Hardy, confine
him, handcuff him, or raise their voices to him. Under such circumstances, the district court did
not err in concluding that the degree of intrusion also was reasonable.
CONCLUSION
An examination of the totality of the circumstances in this matter reveals that the police
officers had reasonable and articulable suspicion to detain Hardy briefly to question him about a
disturbance that had just occurred at a nearby location. Additionally, the restriction on Hardy’s
liberty was sufficiently limited in scope and duration. We therefore AFFIRM the judgment of
the district court in this matter.
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