United States of America v. Donald E. Jones, Jr.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0265p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD E. JONES, JR.,
Defendant-Appellant.
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No. 21-3910
Appeal from the United States District Court for the Northern District of Ohio at Youngstown.
No. 4:19-cr-00204-1—Dan A. Polster, District Judge.
Decided and Filed: December 13, 2022
Before: MOORE, GIBBONS, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Terra L. Bay, Chattanooga, Tennessee, for Appellant. Daniel R. Ranke, UNITED
STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
LARSEN, Circuit Judge. Warren, Ohio, police officers responded to a call about an
unknown disturbance at a gas station in the early morning hours. They found Donald Jones
playing loud music from his SUV in the parking lot. Jones turned off the music, and, in the 30 to
40 seconds it took the officers to drive around the store to investigate the original disturbance,
Jones drove away. The officers followed Jones, pulled him over, and told him that they had
stopped him for a noise ordinance violation. The officers then smelled marijuana and searched
the car, finding hidden compartments containing two firearms, drugs, and drug paraphernalia.
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No. 21-3910 United States v. Jones Page 2
The district court denied Jones’s challenge to the admission of this evidence, and Jones was
ultimately convicted on four gun-and-drug-related counts. For the reasons stated, we AFFIRM.
I.
Around 3:00 a.m. on November 11, 2018, two Warren police officers arrived at a Sunoco
gas station in response to a call about an unknown disturbance, which was a “spillover” from a
nearby bar. The officers, Michael Edwards and Donald Shipman, observed a few people milling
about the parking lot and multiple parked cars; they also heard loud music coming from a parked
black GMC Yukon SUV that was registered to Donald Jones. Officers testified that the music
was so loud they could feel the vibrations coming from the car. A man outside the SUV made a
slashing motion to indicate to turn the music down, and Jones, sitting in the driver’s seat of the
SUV, turned the music off. The officers then circled around the building in response to their
initial disturbance call and, finding nothing out of the ordinary, returned to the front of the gas
station 30 to 40 seconds later. In that time, Jones had driven out of the parking lot.
The officers followed Jones for approximately a mile before pulling him over. Edwards
approached Jones, told him that he was being stopped for a noise ordinance violation, and, “at
some point” during the stop issued Jones a citation for violating the Warren City noise ordinance.
See Warren, Ohio, Ordinances ch. 509.09(a)(3) (2022). Edwards testified that he smelled burnt
marijuana coming from inside the car, asked Jones to step out of the car, and patted him down.
The pat down revealed no weapons, but Edwards removed Jones’s bulky wallet from Jones’s
pocket and noticed a large amount of cash in the wallet.
Edwards searched the SUV. Edwards testified that he noticed a loose access panel near
the driver’s side floorboards on the transmission hump, so he pulled off the panel and found
plastic baggies and a digital scale. Edwards then lifted the armrest of the center console and
found a container with marijuana residue in it. Seeing that the cupholders were also loose,
Edwards lifted the cupholders and found two loaded firearms and a glass jar with narcotics
inside; the parties stipulated that the narcotics were 53 Tramadol pills and 18.03 grams of a
heroin and fentanyl mixture. A third officer, William Fowler, who arrived to assist with Jones’s
arrest, seized $9,050 from Jones; Jones had cash in his wallet, pocket, and shoe.

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No. 21-3910 United States v. Jones Page 3
A federal grand jury indicted Jones on four counts: felon in possession of firearms and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession with intent to
distribute heroin and fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); possession
with intent to distribute Tramadol, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(E)(2) and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A).
Jones moved to suppress the evidence recovered from the stop as the fruit of an illegal
seizure, claiming that the Fourth Amendment does not authorize stops based on a completed
non-traffic misdemeanor offense.1 The district court denied the suppression motion. The court
found that the officers had probable cause, based on their own “firsthand” observations, that
Jones had violated the noise ordinance; accordingly, they had a basis to stop and cite Jones.2
Jones went to trial. Edwards, Shipman, Fowler, and an additional officer, John Dina,
testified. Edwards, Shipman, and Fowler testified about the events on the night of Jones’s arrest
while Dina testified about drug trafficking generally. At the close of the government’s case,
Jones moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal
Procedure; the district court denied the motion. Jones testified as part of his defense. Jones did
not renew his Rule 29 motion for acquittal at the close of evidence.
A jury found Jones guilty on all four counts. The district court sentenced Jones to 124
months’ imprisonment. Jones timely appealed.
II.
A.
Jones appeals the district court’s denial of his suppression motion. The Fourth
Amendment protects “[t]he right of the people” to be free from “unreasonable searches and
seizures.” U.S. Const. Amend. IV. A vehicle stop is a seizure. Whren v. United States, 517 U.S.
806, 809–10 (1996). “Whether a seizure was reasonable under the Fourth Amendment is a
1Neither party disputes that violating the noise ordinance constitutes a misdemeanor offense.
2The district court also found that the search of Jones’s car was justified because Edwards smelled
marijuana; Jones does not challenge that search on appeal.

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No. 21-3910 United States v. Jones Page 4
question of law,” so we review the reasonableness of Jones’s stop de novo. United States v.
Jones, 562 F.3d 768, 772 (6th Cir. 2009).
The stop of Jones’s car was reasonable under the Fourth Amendment. The Supreme
Court has repeatedly held that the Fourth Amendment permits officers to warrantlessly arrest—
that is, to seize—a person if the officer has probable cause to believe that the suspect has
committed a misdemeanor in his presence. See Virginia v. Moore, 553 U.S. 164, 171 (2008) (“In
a long line of cases, we have said that when an officer has probable cause to believe a person
committed even a minor crime in his presence, the balancing of private and public interests is not
in doubt. The arrest is constitutionally reasonable.”); Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001) (holding a warrantless arrest based on probable cause for a fine-only
misdemeanor offense was constitutional); id. at 340 n.11 (reserving question “whether the Fourth
Amendment entails an ‘in the presence’ requirement for purposes of misdemeanor arrests”).
And our court has held that the offense need not even have been committed in the officer’s
presence to satisfy the Fourth Amendment—probable cause alone is sufficient to seize a person
suspected of a misdemeanor. Graves v. Mahoning Cnty., 821 F.3d 772, 778 (6th Cir. 2016);
United States v. Smith, 73 F.3d 1414, 1416 (6th Cir. 1996) (The in-the-presence requirement “is
not mandated by the Fourth Amendment; it is merely a rule of the common law.”).
The district court here determined that the officers had probable cause to believe that
Jones had committed a misdemeanor in their presence. We agree. Probable cause is a
“reasonable ground[] for belief, supported by less than prima facie proof but more than mere
suspicion.” United States v. Ray, 803 F.3d 244, 275 (6th Cir. 2015) (citation omitted). The
Warren City ordinance prohibits noise that “annoys, disturbs, offends, injures or endangers the
repose, health, safety, peace, quiet or comfort of any reasonable person of normal sensitivity.”
Warren, Ohio, Ordinances ch. 509.09(a)(3) (2022). Based on the officers’ testimony, Edwards
and Shipman had “more than [a] mere suspicion” that Jones had violated the ordinance because
they saw that Jones’s SUV was the only running car in the parking lot, and they heard the
extremely loud music, and felt the vibrations, coming from his vehicle. See Ray, 803 F.3d at
275. Having established grounds sufficient to arrest Jones, it follows a fortiori, that the officers
had sufficient cause to stop him to issue a citation.

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No. 21-3910 United States v. Jones Page 5
Jones’s arguments to the contrary are unavailing. First, it does not matter, as Jones
argued in the district court, that there was a slight delay between the completion of the
misdemeanor and the stop. The district court correctly found that just because the officers had
probable cause, they did not “have to drop everything and . . . stop someone immediately.”
Jones does not get to benefit from the “good fortune” of being “able to conclude his offenses and
elude the police.” See Smith, 73 F.3d at 1417.3
Jones next relies on the balancing of factors set forth in a case decided after his
suppression hearing—coincidentally named United States v. Jones, 953 F.3d 433 (6th Cir. 2020).
But Jones does not help Jones. The Jones decision considered when a person may be subjected
to a Terry stop to investigate a completed misdemeanor based on less than probable cause. See,
e.g., id. at 437–38 (asking whether “‘restraining police action until after probable cause is
obtained’” would “unnecessarily hinder the investigation or allow a suspect to ‘flee in the
interim’” (emphasis added) (citation and alteration omitted)). Nothing in Jones purported to (or
could have) disturbed this court’s caselaw holding that probable cause is sufficient to effect a
misdemeanor arrest under the Fourth Amendment. See, e.g., Graves, 821 F.3d at 776; Smith,
73 F.3d at 1416. Nor could it have disturbed the Supreme Court’s repeated holdings that
probable cause suffices, at least when, as here, the misdemeanor offense was committed in the
officers’ presence. See, e.g., Moore, 553 U.S. at 171; Atwater, 532 U.S. at 354; Whren, 517 U.S.
at 818. Whren explained that a “‘balancing’ analysis” may be required in cases, like Jones, that
“involve[] seizures without probable cause.” 517 U.S. at 818. Such an analysis may also be
appropriate in cases “involv[ing] searches or seizures conducted in an extraordinary manner,
unusually harmful to an individual’s privacy or even physical interests.” Id. But Jones’s case—
a vehicular stop to issue a citation for a misdemeanor offense committed in the officers’
presence—does not fit either category. Jones’s case is “governed by the usual rule that probable
3The common law “in-the-presence” requirement seems to carry with it a rule that “a warrantless arrest
must be made promptly, that is, at the time of the offense or as soon thereafter as circumstances permit.” Wayne R.
LaFave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 5.1(c) (Oct. 2022 Update). But even if
this were the constitutional rule, we would not think the delay in this case unreasonable. As the district court
explained, the officers here “did the right thing. They responded to some concern about an incident at the bar, and
they went around and made sure no one seemed to be hurt and then they immediately turned their attention back to
Mr. Jones, and they would have stopped—they would have gone right up to him, except he had moved.”

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No. 21-3910 United States v. Jones Page 6
cause to believe the law has been broken ‘outbalances’ private interest in avoiding police
contact.” Id. The district court did not err in denying Jones’s motion to suppress.
B.
Jones also challenges his conviction for possessing a firearm in furtherance of drug
trafficking, asserting that there was insufficient evidence to support his conviction. Jones did not
renew his motion for acquittal at the conclusion of his case, so we review his claim under a
“manifest miscarriage of justice” standard. United States v. Kuehne, 547 F.3d 667, 697 (6th Cir.
2008) (quoting United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002)). We may reverse
Jones’s conviction only if “the record is devoid of evidence pointing to guilt.” Id. (quoting
Carnes, 309 F.3d at 956).
The search of Jones’s SUV revealed two loaded firearms in close proximity to drugs,
plastic baggies, and a digital scale. And Jones was carrying a large amount of cash. Dina
testified that he saw guns, drugs, money, and digital scales together “all the time” in drug
trafficking operations. Under the stringent “manifest miscarriage of justice” standard, sufficient
evidence supports the conviction for possessing the firearms in furtherance of drug trafficking.
See United States v. Penney, 576 F.3d 297, 315 (6th Cir. 2009); United States v. Ham, 628 F.3d
801, 808–09 (6th Cir. 2011). Because the record is not devoid of evidence pointing to guilt,
Jones’s insufficiency argument fails.
C.
Finally, Jones alleges that nine comments made by the prosecutor in his closing argument
amount to prosecutorial misconduct and require reversal. Jones did not object to these alleged
misstatements during trial, so we review for plain error. United States v. Hall, 979 F.3d 1107,
1119 (6th Cir. 2020) (citation omitted). “Plain error is ‘(1) error (2) that was obvious or clear,
(3) that affected [the] defendant’s substantial rights and (4) that affected the fairness, integrity, or
public reputation of the judicial proceedings.’” United States v. Wells, 623 F.3d 332, 337 (6th
Cir. 2010) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).

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We afford the prosecution “wide latitude” during its closing argument and analyze the
“disputed comments in the context of the trial as a whole and recogniz[e] that inappropriate
comments alone do not justify reversal where the proceedings were ‘otherwise fair.’” United
States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008) (quoting United States v. Young, 470 U.S. 1,
11 (1985)).
Jones has not shown that the prosecutor’s remarks rise to the level of plain error. Five of
the contested remarks were statements suggesting that only the SUV’s owner could have known
about the guns and drugs in the vehicle. Jones argues that these statements imply that “as the
owner of the vehicle, Mr. Jones was per se guilty of possessing whatever was found inside.” But
the prosecutor was responding to Jones’s testimony that he was not the only person to use his
car: Jones had explained that he lent the car to his children’s mother, his brother, and his
brother’s friend and had left the car at a repair shop for months. Jones said he did not know how
the drugs, drug paraphernalia, and guns ended up in the car, did not know they were there, and
did not know about the hidden compartments. The prosecutor was free to respond to a defense
theory and testimony.
Jones also takes issue with the prosecutor’s remark that “it is also, I think, ridiculous to
suggest that these guns were placed there by somebody else because think about your own
experiences.” Jones argues that by saying the defense theory was “ridiculous,” the prosecutor
implied that he knew something the jurors did not, and implied that the jury should trust the
government’s judgment. See United States v. Dalton, 574 F. App’x 639, 645 (6th Cir. 2014).
But this wasn’t a case where the prosecutor told the jury to trust him over evidence presented in
court. It is not plain error for a prosecutor to tell jurors to use their own backgrounds and
experiences to think about the evidence they had heard. And unlike Dalton, which Jones cites,
the prosecutor did not inject his own “personal integrity” into the argument with this remark.
Next, Jones challenges the prosecutor’s description of the pills found in the car as “a
substantial amount of prescription drugs, far more than anybody would need for their personal
use.” But Dina testified that Tramadol pills are used to “cut” heroin and fentanyl to increase the
drugs’ potency and that a “user” amount of heroin or fentanyl is around one-tenth of a gram.

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A prosecutor may “summarize the evidence and comment on its quantitative and qualitative
significance.” United States v. Gonzalez, 512 F.3d 285, 292 (6th Cir. 2008) (citation omitted).
Next, Jones challenges the prosecutor’s statement that the firearms found in the car were
meant “for two different purposes. . . . The big gun was being used to protect himself when he
had his drugs and his money in the car, and the smaller gun was clearly designed to be carried on
him in a concealed manner to protect himself when he was engaged in this drug trafficking
outside of the car.” The guns were in evidence; Jones himself testified that he had carried guns
for protection in the past; and Dina testified that police often discover drugs, scales, currency,
and firearms near each other in drug trafficking investigations. While the prosecutor could have
refrained from editorializing on the use of the guns, Jones hasn’t shown that the remark amounts
to plain error given the evidence and testimony already before the jury.
Lastly, Jones challenges the prosecutor saying: “When you add all this up, what this
shows is that Mr. Jones was out on the streets of Warren on November 11th, 2018; that he was
offering both heroin and Tramadol for sale; that he had been actively selling these drugs. He
needed these guns to protect himself, to protect his cash, to protect his equipment, and to protect
his product.” This was not error. Jones was charged with possession with intent to distribute
heroin and fentanyl on November 11, 2018. The government presented evidence that Jones had
drugs, drug paraphernalia, guns, and cash with him that night. So the prosecutor was merely
summarizing the charges and evidence against Jones.
Because none of the statements Jones identifies amount to plain error, his prosecutorial
misconduct claim fails.
* * *
We AFFIRM.

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