UNITED STATES COURT OF APPEALS

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0106p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

v. DANTE DEVON WHITLEY,

Plaintiff-Appellee,

>

Defendant-Appellant.

No. 20-1955

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:19-cr-00296-1--Paul Lewis Maloney, District Judge.

Argued: April 27, 2022

Decided and Filed: May 18, 2022

Before: SUTTON, Chief Judge; MOORE and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Matthew N. Ball, GIBSON DUNN & CRUTCHER, LLP, Denver, Colorado, for Appellant. Jennifer Lee McManus, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Matthew N. Ball, GIBSON DUNN & CRUTCHER, LLP, Denver, Colorado, for Appellant. Kristin M. Pinkston, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Dante Devon Whitley was the subject of a traffic stop for failing to come to a standstill before exiting a private drive onto a public street.

No. 20-1955

United States v. Whitley

Page 2

Prior to pulling Whitley over, law-enforcement officers had been surveilling Whitley for suspected drug trafficking. During the stop, the officers noticed a digital scale sitting on Whitley's lap. They asked Whitley to exit the vehicle so that they could further investigate the scale. Whitley initially refused, but he eventually complied after his mother arrived. At that point, a drug-detection dog was brought on the scene and alerted to the presence of narcotics in Whitley's vehicle. The officers then conducted a warrantless search. In the vehicle, they found a Glock 19mm handgun with an extended magazine, ammunition, over $7,600 in cash, a digital scale, and a pound and a half of marijuana.

Whitley moved to suppress this evidence, as well as several post-Miranda statements that he made, as fruits of an unlawful stop and search. The district court denied the motion. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

On September 25, 2019, Detective Jeffrey Woollam set up surveillance of a residence located at 5828 Ridgebrook Avenue in Kentwood, Michigan after receiving a tip from a confidential informant about activity concerning the sale of heroin from that location. Detective Woollam saw Whitley leave the surveilled residence and walk to a red car. According to Detective Woollam, Whitley was "looking at a large bundle or sum of cash in his hand as if he was counting it as he walked out to the vehicle."

Whitley then embarked on a trip that included multiple stops. He drove away from the residence, and Detective Woollam followed in an unmarked car. Detective Woollam saw Whitley pull into a driveway of a house down the street and meet with another man for 20 to 25 seconds. After the brief meeting, Whitley traveled to a nearby Family Dollar. Detective Woollam's partner in the Special Investigations Unit, Detective Scott Drumm, met Detective Woollam at the Family Dollar to assist with the surveillance. Whitley exited the Family Dollar without any purchases, took a black bag out of the passenger side of the vehicle, and placed it in the trunk. As Whitley drove out of the parking lot and pulled onto the street, he failed to stop in accordance with the state traffic laws.

No. 20-1955

United States v. Whitley

Page 3

Whitley proceeded to a Mother Hubbard Liquor Store. Detectives Drumm and Woollam followed. Whitley walked into the store briefly and left without any packages. When Whitley exited the private drive of the Mother Hubbard, he again failed to stop.

Detective Woollam then called Officer Turmell, a patrol officer in the area. He communicated to Officer Turmell that there was probable cause for a traffic stop based on Whitley's traffic violations, and that he suspected Whitley of being engaged in a narcoticsrelated offense. Detective Woollam also requested the presence of a drug-detection dog because of the suspected drug trafficking.

Officer Turmell pulled Whitley over at 7:44 p.m. Detective Woollam was driving behind Officer Turmell when the stop occurred. As Officer Turmell made contact with Whitley, Detective Woollam parked and stood behind Officer Turmell's patrol vehicle so that Whitley would not see his plainclothes presence.

Officer Turmell explained to Whitley that he had stopped Whitley because Whitley had failed to make a complete stop when exiting two private drives. He asked Whitley to produce his identification, automobile registration, and proof of insurance. While waiting for the documents, Officer Turmell asked whether Whitley had anything illegal in the vehicle. Whitley stated that he did not. After Whitley handed the requested documents to Officer Turmell, the officer noticed a scale in Whitley's lap and asked why it was there. Whitley stated that he smokes weed, did not have any, and was on his way to get some.

Officer Turmell told Whitley that he would be right back. He proceeded to tell Detective Woollam that Whitley had a scale "right there" on his lap. This prompted Detective Woollam to say that they should pull Whitley out of the vehicle. Officer Turmell returned to the vehicle and asked Whitley to step out for him. Whitley responded by saying "what?" Officer Turmell replied that they wanted to "investigate the scale real quick." He further explained that Whitley was not presently under arrest, but that they needed "to have a conversation." When Whitley did not exit the vehicle, Detective Woollam approached the passenger side window and told Whitley that he was now under arrest.

No. 20-1955

United States v. Whitley

Page 4

Whitley continued to refuse to get out of the vehicle. He stated that he needed to call his lawyer and that he had not done anything illegal. When Whitley stated that he would call his lawyer, Detective Woollam asked if he needed to make this call because he had "something." Officer Turmell then noted that Whitley had marijuana "shake" (residue) in the vehicle. Whitley pointed out that marijuana is legal in Michigan. Officer Turmell responded that Whitley was "also hindering [his] investigation by not coming out" of the vehicle and that Whitley "would be under arrest for that too."

As the officers were ordering Whitley to exit the vehicle, Detective Woollam explained to Whitley that they "stopped [him] for a valid reason and then [they] saw drug paraphernalia in [his] lap," so he was "not free to leave." When Whitley continued to refuse to get out, Detective Woollam repeated that he was being told to exit the vehicle because he had "digital scales in [his] lap," which constitutes "possession of drug paraphernalia." Detective Woollam also proclaimed that Whitley could not be smoking weed and driving his vehicle, to which Whitley asked: "When was I smoking?" Whitley insisted that he had not been smoking in his vehicle.

Over the next seven minutes, Whitley continued to refuse to get out of the vehicle, explaining that he wanted to wait until his mother got there. Whitley finally exited the vehicle when his mother arrived, which was about twenty minutes after he was initially pulled over. He was arrested for "hindering" and "opposing" the officers' investigation.

After Whitley was taken into custody, the canine unit was deployed. The "K-9 narcotics sniff" revealed a "large[,] sealed baggy that had marijuana residue in it," which prompted the officers to conduct a search. In the car, the officers uncovered a handgun with an extended magazine underneath the driver's seat and a handgun magazine, digital scale, and $6,784 in cash in the center console. They also found an additional $912 in cash on Whitley's person and 692.5 grams (approximately a pound and a half) of marijuana in a black bag in the trunk of the vehicle.

Whitley told the police that he knew the gun was under the seat and that, if tested, his fingerprints would be on the gun and the ammunition. He also stated that he takes "donations" in exchange for marijuana.

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United States v. Whitley

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B. Procedural background

Following the September 25, 2019 search of his vehicle, Whitley was indicted on the following three counts: (1) being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. ?? 922(g)(1), 921(a), 924(a)(2) (Count 1); (2) possessing with the intent to distribute a controlled substance, in violation of 21 U.S.C. ? 841(a)(1), (b)(1)(D) (Count 2); and (3) possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. ? 924(c)(1)(A)(i) (Count 3). The charges were largely based on the evidence that was discovered during the search of Whitley's vehicle, evidence that Whitley unsuccessfully moved to suppress as the fruits of an unlawful search.

After the district court denied the motion to suppress, Whitley entered into a conditional plea agreement with the government, pleading guilty to Counts 2 and 3 of the indictment. Whitley reserved his right, "on appeal from the [district court's] judgment, to seek review of the adverse determination of the Defendant's Motion to Suppress Evidence." The court entered judgment against Whitley on Counts 2 and 3 of the indictment and sentenced him to 60 months' imprisonment followed by four years of supervised release. Whitley timely appealed the court's judgment, challenging the court's denial of his motion to suppress.

II. ANALYSIS

A. Standard of review

When reviewing a district court's decision concerning a motion to suppress, we review findings of fact under the clear-error standard and review conclusions of law de novo. United States v. Lott, 954 F.3d 919, 922 (6th Cir. 2020). We must give "due weight to the factual inferences and credibility determinations" of the district court. United States v. Moon, 513 F.3d 527, 536 (6th Cir. 2008). "[A] denial of a motion to suppress will be affirmed on appeal if the district court's conclusion can be justified for any reason." United States v. Trice, 966 F.3d 506, 512 (6th Cir. 2020) (alteration in original) (quoting United States v. Moorehead, 912 F.3d 963, 966 (6th Cir. 2019)), cert. denied, 141 S. Ct. 1395 (2021).

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