Nor is it compelling that the marijuana odor could have been a legal substance, like hemp, instead of illegal marijuana. Reasonable suspicion, remember, does not require proof that the suspect committed a crime.
United States v. McCallister
No. 21 – 4011
Sixth Circuit Appellate Court
July 7, 2022
Talbot Whitney Park is a small rectangular park “tucked away in a residential neighborhood” in Akron, Ohio. The Akron Police Department [APD] officers consider the park “a high- crime area” due to the frequent presence of firearms, drugs, and violent crime there. For example, the day before the events at issue here, an officer recovered a gun and drugs from the park. Days earlier, the Department received a video depicting several men in the park brandishing assault rifles and pistols. In a brief filed by the US Attorney, the following information was submitted; From March 1, 2020, to July 28, 2020, APD responded to the following calls for service at Talbot Whitney Park, which is 0.8 acre in size:
Twenty – three calls for shots fired.
Twenty – two calls for suspicious persons.
Nine calls for discharging firearms
Six calls for suspicious vehicles.
Four calls for felonious assaults.
Three calls for possession of firearms.
One call for aggravated robbery.
With this history, I would not label Talbot Whitney Park as a high crime area, rather, I would classify it as a VERY high crime area.
A screen shot from the body camera of a responding officer on July 28, 2020 at Talbot Whitney Park in Akron, Ohio. Mr. Dazhan McCallister was presently armed, was arrested, convicted and appealed. Was the investigative detention and pat down objectively reasonable? The Sixth Circuit Appellate Court provides the analysis and answer.
On Tuesday July 28, 2020, the Akron Police Department received an anonymous call that a group of men was smoking marijuana in the park. Marijuana is an illegal drug under both federal and, save for stringently regulated medical usage, Ohio law. See 21 U.S.C. § 812(b)(1); Ohio Rev. Code Ann. §§ 2925.11, 3796.01–.31; Ohio Admin. Code § 4729:9-1-01(D)(23). An officer drove by and observed a group in the park. Several hours later, an undercover officer confirmed that a group of at least ten people was still there. Neither officer, however, got close enough to determine if the group was smoking marijuana.
Back at the Akron Police Department, Detective Magaw organized several officers, including Detective Elam, to investigate the happenings at the park. Officers arrived at the park in the early evening. Consistent with previous reports, the officers observed a group of ten to fifteen men, including a male later identified as Mr. Dazhan McCallister, gathered together. According to the officers, many of the men were in close proximity of each other, congregating as a group. As the officers approached the group, they detected the odor of marijuana. So the officers began stopping people. Four men, including Mr. McCallister, tried to walk away. An officer pointed at Mr. McCallister and the three other men, instructing them to stop moving and place their hands on their heads. Mr. McCallister did so.
Immediately after Mr. McCallister was stopped, Det. Elam saw him “huddled in the group” with a “little bump out on his shirt” on his right side, which the detective concluded was a gun. In addition, Det. Elam observed Mr. McCallister “turn his body in towards the huddle so no one would see what’s in front of him or see anything on the sides of him.” Elam asked Mr. McCallister if he was carrying any weapons; Mr. McCallister did not respond. As Mr. McCallister raised his hands, his shirt lifted, and Det. Elam saw a firearm magazine tucked into Mr. McCallister’s waistband. Det. Elam retrieved the gun—a Glock 9mm pistol with an installed conversion device—making it an illegal machinegun.
Mr. McCallister was indicted on one count of illegal possession of a machinegun, 18 U.S.C. § 922(o), and one count of possessing an unregistered firearm, 26 U.S.C. § 5861(d). At his initial appearance, Mr. McCallister pleaded not guilty. He filed a motion to suppress the Glock, which the district court denied. Mr. McCallister then pleaded guilty to both counts, preserving his right to appeal the suppression ruling. After the district court entered final judgment, Mr. McCallister timely appealed the denial of his suppression motion.
Reasonable suspicion mandates more than “a mere hunch or intuition,” Jones v. City of Elyria, 947 F.3d 905, 913 (6th Cir. 2020), in other words, more than a “gut feeling,” United States v. Keith, 559 F.3d 499, 503 (6th Cir. 2009).
Here the court reviewed many cases that make many attempts at defining Reasonable Suspicion. I have redacted those cases and analysis.
Long story short, we view the totality of the circumstances through an objective lens, asking whether there was a moderate chance, arising from articulable facts and inferences, that the person stopped was engaged in criminal activity (Terry stop) and was armed and dangerous (Terry frisk).
Was there a moderate chance that Mr. McCallister had smoked marijuana? Looking at the totality of the circumstances, we conclude that the answer is yes.
Two Akron officers drove by the park and confirmed that a group of people was there. Aware of this tip and those officers’ observations, another set of officers arrived at the park and smelled marijuana as they approached Mr. McCallister’s location. That observation could lead one reasonably to suspect that Mr. McCallister had smoked marijuana. See United States v. Brooks, 987 F.3d 593, 599–600 (6th Cir. 2021); United States v. Freeman, 412 F. App’x 735, 743–44 (6th Cir. 2010); United States v. Simpson, 520 F.3d 531, 543, 545 (6th Cir. 2008); United States v. Foster, 376 F.3d 577, 586 (6th Cir. 2004).
In addition, the officers knew that the park was a high crime area where drug crimes had occurred as recently as the day before. And after the officers arrived and began stopping members of the group, Mr. McCallister tried to walk away, a fair signal that Mr. McCallister had something to hide. See Wardlow, 528 U.S. at 124; United States v. Luqman, 522 F.3d 613, 617 (6th Cir. 2008); United States v. Paulette, 457 F.3d 601, 602, 606 (6th Cir. 2006). All things considered, there was at least a moderate chance that Mr. McCallister had smoked marijuana.
None of Mr. McCallister’s arguments undermine this conclusion. It may be, as Mr. McCallister suggests, that no fact, standing alone, is sufficient to support a finding of reasonable suspicion. But that possibility has no bearing on an inquiry that considers the “totality of the circumstances.” Bey v. Falk, 946 F.3d 304, 313 (6th Cir. 2019) (citation omitted). Nor is it compelling that the marijuana odor could have been a legal substance, like hemp, instead of illegal marijuana. Reasonable suspicion, remember, does not require proof that the suspect committed a crime. Embody v. Ward, 695 F.3d 577, 581 (6th Cir. 2012). And as Mr. McCallister concedes the odors of hemp (legal) and marijuana (illegal) are indistinguishable, the odor suggested at least a moderate chance that Mr. McCallister smoked marijuana. Equally unavailing is the assertion that Mr. McCallister was merely standing near other wrongdoers; officers reasonably suspected that Mr. McCallister himself had smoked marijuana, not merely that he stood near others who had done so. See United States v. Garza, 10 F.3d 1241, 1245–46 (6th Cir. 1993) (rejecting a defendant’s guilt-by-proximity argument because the officers reasonably suspected that the defendant himself was engaged in criminal activity); see also United States v. Belakhdhar, 924 F.3d 925, 927–28 (6th Cir. 2019).
That leaves Mr. McCallister’s contention that because he was in a group, the degree of suspicion that he—as opposed to another in the group—had smoked marijuana was too low to support reasonable suspicion. To our minds, however, the officers had more than a mere hunch that Mr. McCallister himself had smoked marijuana. The officers could reasonably suspect that all of the men, not just one, were smoking marijuana together, as they gathered in the park on a warm summer evening. That Mr. McCallister (along with three other men) attempted to walk away from the officers after they began to stop members of the group bolstered the officers’ reasonable suspicion as to Mr. McCallister in particular. Here, we see wisdom in the Eleventh Circuit’s decision in United States v. Roberts, 849 F. App’x 863 (11th Cir. 2021) (per curiam). Officers conducted a Terry stop of Roberts after they smelled marijuana emanating from a group of four or five men, including Roberts. Id. at 864. Roberts asserted that the officers lacked individualized reasonable suspicion to justify the stop because the odor of marijuana “emanat[ed] from the group as a whole and not him specifically.” Id. at 866. Yet the Eleventh Circuit rejected that argument. Id. at 867. Because officers “suspected that Roberts himself, and the others in the group, were engaged in a crime,” the officers could detain Roberts even though “they could not point to any particular person [in that group] with certainty and say the smell emanated from [him].” Id. That reasoning is equally apt here.
Mr. McCallister also challenges the search that led to the seizure of his Glock. Elam saw both a “bump out” from Mr. McCallister’s shirt and a firearm magazine in his waistband, leaving “little question [that] the officer was justified” in frisking Mr. McCallister. Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977); see also United States v. Smith, 594 F.3d 530, 542 (6th Cir. 2010). Cementing that conclusion is the fact that Det. Elam observed Mr. McCallister attempt to hide the weapon by turning his body away from the officers and by not disclosing that he was armed when asked.
Finally, Elam knew that there were frequent shootings in the park and that, days earlier, several men had brought firearms into the park. See United States v. Pearce, 531 F.3d 374, 382 (6th Cir. 2008). Collectively, Det. Elam’s observations and inferences amounted to reasonable suspicion that Mr. McCallister was armed and dangerous. Terry, 392 U.S. at 28.
Mr. McCallister’s arguments to the contrary miss the mark. For one, he is wrong about the relevant standard: Terry requires only reasonable suspicion (not probable cause) to justify a frisk. See Terry, 392 U.S. at 30. For another, it makes no difference here that firearms may lawfully be carried openly in Ohio. Under Terry, after all, officers may frisk a suspect who legally carries a firearm under state law if they reasonably suspect that he is armed and dangerous. See Adams v. Williams, 407 U.S. 143, 146 (1972); United States v. Lambert, 770 F. App’x 737, 741 (6th Cir. 2019). In any event, Mr. McCallister did not openly carry the Glock, so we fail to see how Ohio’s open carry laws are relevant here. Nor did he legally carry the concealed weapon under then-current Ohio law, as he failed to disclose it to Det. Elam when stopped. Ohio Rev. Code Ann. § 2923.12(B)(1) (2017).
For the foregoing reasons, we affirm.
Information for this article was obtained from United States v. McCallister, No. 21 – 4011 and the Government’s response in opposition to defendant’s motion to suppress evidence on Fourth Amendment grounds.
This case was issued by the Sixth Circuit Appellate Court and is binding in Kentucky, Michigan, Tennessee and Ohio.
- Investigative Detention: This case should be contrasted to State v. Mosby, 2021 – Ohio – 2255. In that case officers all smelled burning marijuana in a large group of people. However, the officers detained a total of twenty-five people all at once, to include Mr. Timothy Mosby, who is seated in a parked car. There the Sixth District Court held that detaining twenty-five people where marijuana smoke was wafting through the air was unreasonable. Here, the group was much smaller and the Akron officers were able to discern that the weed smoke originated from only four men in a group. Here, the Sixth Circuit Court held that Mr. McCallister’s detainment was objectively reasonable. Why? The court contrasted legal hemp with illegal marijuana consumption when it opined “Nor is it compelling that the marijuana odor could have been a legal substance, like hemp, instead of illegal marijuana. Reasonable suspicion, remember, does not require proof that the suspect committed a crime.”. For more on the Mosby case see Can Law Enforcement Detain Twenty-Five People All at Once in a Very High Crime Gang-Infested Parking Lot?. Additionally, both the officers and the court took issue with Mr. McCallister walking away from the group upon arrival of the officers. The court stated in pertinent part “And after the officers arrived and began stopping members of the group, Mr. McCallister tried to walk away, a fair signal that Mr. McCallister had something to hide. See Wardlow, 528 U.S. 119, 124 (2000).” For more on the Wardlow case see Why Did Sam Run Like a Felon in Possession of a Firearm?.
- Frisk: Because Mr. McCallister walked away, turned his body away from Det. Elam [often called blading] and the detective saw an unnatural bulge on his right hip, provided enough reasonable suspicion to conduct a pat down. In an incident, with eerily similar facts on walking away, blading and seeing an unnatural bulge in the waist band followed by a pat down that was challenged in federal court see What Does it Mean When a Suspect Pats Himself Down?.
- This case is reflective of the dangers of law enforcement. Talbot Whitney Park is less than one acre and is the location of more firearms than many local gun stores. Yet, the officers pressed forward, knowing they were walking toward recidivists who were presently armed and dangerous, in a VERY high crime area. Interestingly, there were no community activists or politicians to intervene in this armed encounter prior to the officers’ arrival. Det. Magaw, Det. Elam and all the officers who responded to this call for service should not only be commended for this Fourth Amendment symphony they participated but also their bravery. No reasonable citizen would walk toward Talbot Whitney Park, but EVERY officer did. Thank you, Akron Police!
Does your agency train on Investigative Detention?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!