They knew a silver sedan that, in an observer’s words, “look[ed] like a Chevy Malibu,” was involved in D.B.’s shooting.  They discovered a silver sedan was on the same road as D.B. around the time of the shooting—Mr. Smith’s Chevy Malibu.  When the officers showed D.B. a photographic lineup, D.B. identified Mr. Smith as someone with whom he once feuded.  What is more, D.B. added that he saw Sharon, his passenger at the time of the shooting, in a shouting match with Mr. Smith’s girlfriend earlier that night.  By any measure, the information available to the officers gave them “an objective basis for suspecting legal wrongdoing” involving Mr. Smith’s car, clearing the low bar the officers faced.

 

United States v. Smith

No. 22-1055 (2023)

U.S. Court of Appeals for the Sixth Circuit

July 24, 2023

 

Victim Leaves a Detroit Bar and is Shot

Early one morning on Monday December 1, 2020 a man named D.B. and a woman named Sharon left a Detroit bar together.  D.B., the driver, believed they were being followed by a silver sedan.  At 1:41:01 a.m., a nearby traffic camera captured D.B. driving through an intersection, followed by the silver sedan less than a minute later.  Roughly three minutes later, about two and a half miles from the intersection, an individual in a silver sedan shot D.B. in the stomach.  D.B. drove off, chased by the silver sedan.  Eventually, D.B. crashed and sustained non-fatal injuries.

Sharon’s Disputed Dispute and Will’s Chevy Malibu

A Detroit Police investigation ensued.  Surveillance video from the place of the shooting captured muzzle flashes coming from a silver sedan one witness described as “look[ing] like a Chevy Malibu.”  The only silver sedan that could be placed in D.B.’s proximity around the time of the shooting was Wilbert Smith’s Chevy Malibu.  D.B. later picked Mr. Smith out of a photographic lineup as someone he had previously “hanged with” and had a “beef [with] in the past.”  D.B. also had a vivid memory of seeing Sharon arguing with the mother of Mr. Smith’s child at a bar.  (Sharon, Mr. Smith reminds us, denied getting into any altercations that night).

BOLO for Will Smith’s Malibu

Mr. Smith’s car was consequently tagged in Michigan’s Law Enforcement Information Network by Detroit Police.  The grounds for doing so were twofold.  One, the police “wanted [Smith’s] side of the story.”  Two, they wanted to confirm that Mr. Smith’s vehicle was involved in a shooting.  The tag told law enforcement statewide to be on the lookout for Mr. Smith’s car.  It warned that the car’s occupants were armed, dangerous and asked any officer who came upon the vehicle to “hold [it] & arrest all occupants.”

Mr. Smith Goes to Jail for Possession of a Gun, Heroin and Fetanyl

On Friday December 4, 2020, an officer pulled Mr. Smith’s car over in western Michigan, near the Indiana border.  The officer asked Mr. Smith to exit the car.  When he did, the officer frisked Mr. Smith for weapons. Mr. Smith told the trooper there was a gun in a case in the car.  The trooper performed a “protective sweep” of the areas within a driver’s reach.  The sweep turned up a Glock 19, 9mm handgun with a chambered bullet and a twenty-four-round magazine.   Also, discovered was plastic grocery bag which contained an oval shaped package wrapped in green plastic wrap, which weighed approximately 445.16 grams. A smaller package wrapped in the same type of green plastic wrap, which weighed approximately 5.58 grams, was also discovered in the grocery bag. The Glock handgun and the two packages of suspected controlled substance were all located next to each other under the driver’s seat of the Malibu.  The trooper then arrested Mr. Smith.  All of the substances would later test positive for heroin.

Motion to Suppress is Denied, Guilty Plea and Appeal

Following his indictment by a federal grand jury, Mr. Smith moved to have the gun-and-drug-related evidence suppressed as fruits of an unreasonable search.  The district court denied the motion on the grounds that the police had reasonable suspicion to stop Mr. Smith and perform a limited search.  Mr. Smith pleaded guilty but preserved his right to challenge the suppression ruling on appeal.  We turn to that issue now.

Was the BOLO Issuance Reasonable?

In the spotlight here is the Law Enforcement Information Network bulletin issued by state officials.  If the bulletin was “issued on the basis of articulable facts supporting a reasonable suspicion that [Smith] has committed an offense,” all seem to agree that the stop and search of Mr. Smith’s car was “reasonable,” and thus lawfulUnited States v. Hensley, 469 U.S. 221, 232 (1985).

What is Reasonable Suspicion?

Reasonable suspicion is not particularly difficult to establish.  United States v. McAllister, 39 F.4th 368, 373 (6th Cir. 2022). In a nutshell, there is reasonable suspicion to stop a car where officers, taking the totality of the circumstances, put forward “a particularized and objective basis for suspecting legal wrongdoing.”  U.S. v. Arvizu, 534 U.S. 266, 273 (2002).  In doing so, officers cannot rely on “a mere hunch.”  Id. at 274.   But they can draw on their own experience and specialized training to make inferences and deductions.”  Id. at 273–74.

Mr. Smith was Rolling Reasonable Suspicion

Given the facts known to the officers at the time Mr. Smith’s car was tagged in the Law Enforcement Information Network, the reasonable suspicion standard was satisfied here.  They knew a silver sedan that, in an observer’s words, “look[ed] like a Chevy Malibu,” was involved in D.B.’s shooting.  They discovered a silver sedan was on the same road as D.B. around the time of the shooting—Mr. Smith’s Chevy Malibu.  When the officers showed D.B. a photographic lineup, D.B. identified Mr. Smith as someone with whom he once feuded.  What is more, D.B. added that he saw Sharon, his passenger at the time of the shooting, in a shouting match with Mr. Smith’s girlfriend earlier that night.  By any measure, the information available to the officers gave them “an objective basis for suspecting legal wrongdoing” involving Mr. Smith’s car, clearing the low bar the officers faced.

Mr. Smith’s Analysis of Reasonable Suspicion is Distinguishable from Established Case Law

Mr. Smith would have us hold otherwise.  He begins by highlighting United States v. Jackson, 188 F. App’x 403 (6th Cir. 2006).  But the facts there are not the facts here.  In Jackson, “the officers . . . stopped a car that was a different make and model from that being sought, traveling in the wrong direction, and driven by an individual who did not match the physical description of the suspect.”  Jackson, 188 F. App’x at 409.  Finding reasonable suspicion in that circumstance would have blessed officers “stop[ping] every small green car driving up and down [the street], in an effort to find the suspect, completely ignoring the specific information that” they were given.  Id. at 410.  Mr. Smith’s case is much simpler.  His car matched the suspect car’s description, the car at issue was traveling toward the place where the shooting took place, and there was evidence of a contentious history between Mr. Smith and the victim.

Mr. Smith Legal Argument was Tardy

Moving from legal arguments to factual ones, Mr. Smith estimates that—by his calculations—his vehicle would have needed to travel from the intersection at which it was initially spotted at nearly fifty miles per hour on streets with speed limits far lower to intersect D.B.’s vehicle at the place of the shooting.  As the government notes, however, this point was not drawn to the district court’s attention, a step Mr. Smith was required to take.  See United States v. Husein, 478 F.3d 318, 335 (6th Cir. 2007) (“A party may not by-pass the fact-finding process of the lower court and introduce new facts in its brief on appeal.”)

How is Crime Time Calculated? 

Nor, in any event, are Mr. Smith’s calculations beyond reproach.  Using the intersection where his vehicle was first captured by traffic cameras as a starting point, Mr. Smith simply takes the distance his car purportedly traveled to the scene of the shooting and divides that figure by the time it took to get from place to place.  He then compares that average speed to the speed limit on the roads he could have traveled.  Mr. Smith does not consider any of the many complicating factors.  For instance, Mr. Smith may have been travelling at a faster rate.  After all, someone capable of attempted murder is likely also capable of speeding or running a stop sign.  Likewise, Mr. Smith may be using the wrong duration between events.  All we know about the shooting is that it happened at “approximately 1:45 am.”  That approximation does not rule out Mr. Smith having an extra minute to arrive for a 1:46:00 a.m. shooting.  If he did have an extra minute (or more), the speed necessary to get from place to place would be more in line with the speed limit.  All things considered; it was not clear error to rely on testimony that “it would be possible for a car to cover [the] distances” Mr. Smith’s car was suspected to have traveled.

Holding 

Because we conclude that the district court did not err in finding there was reasonable suspicion, we conclude that the stop was lawful.

Mr. Smith’s conviction of two counts were upheld:

21 U.S.C. § 841(a)(1), (b)(1)(B)(vi), and (b)(1)(C) Possession with Intent to Distribute Heroin and Fentanyl

18 U.S.C. § 924(c)(1)(A)(i) Possession of a Firearm in Furtherance of a Drug Trafficking Crime

The court sentenced Mr. Smith: The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of SIXTY (60) MONTHS as to Count One and SIXTY (60) MONTHSas to Count Two, to run consecutively [ten years].

Information for this article was obtained from United States v. Smith, No. 22-1055 and the court files obtained through PACER.

United States v. Smith, No. 22-1055 was issued on July 24, 2023, by the Sixth Circuit Court of Appeals and is binding in Kentucky, Michigan, Ohio and Tennessee.

Lessons Learned:

  1. Reasonable Suspicion? Smith made a feeble argument that there was not enough reasonable suspicion to create the BOLO.  Both the United States District Court for the Western District of Michigan the Sixth Circuit refuted that Detroit Police did not have enough reasonable suspicion to issue the BOLO.  Specifically, the Sixth Circuit opined “Given the facts known to the officers at the time Mr. Smith’s car was tagged in the Law Enforcement Information Network, the reasonable suspicion standard was satisfied here.”.
  2. How to Support a Finding of Reasonable Suspicion – Defendants will be quick to challenge the reasonable suspicion established by law enforcement as Mr. Smith’s legal team did here. Officers can best support the reasonable suspicion doctrine by describing the important facts that frame the suspicion activity by the suspect.
  3. Pre-Sent Arms! The unnamed Detroit Police Officer(s) and Michigan State Police Officer who worked in concert to investigate, charge and convict Mr. Smith should be highly commended. Well done!

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Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.