United States of America v. Terrance Pettis

NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0875n.06
No. 14-3341
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRANCE PETTIS,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO
BEFORE: BATCHELDER and ROGERS, Circuit Judges; and BECKWITH, Senior District
Judge.*
ROGERS, Circuit Judge. The defendant, Terrance Pettis, appeals his conviction and
sentence on the ground that the district court erred in denying his motion to suppress evidence.
Pettis contends that the district court, in conducting its Fourth Amendment analysis, incorrectly
determined the point at which he was seized. Pettis argues that as a result, the court, in deciding
whether the officers had reasonable articulable suspicion to justify a Terry stop, relied on facts
that arose after he had been seized, facts that should not have been considered. Because the
record indicates that Pettis had not been seized until the point at which Officer Zielinski asked
* The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.

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him to exit the vehicle, and Pettis does not challenge the court’s determination that the frisk was
justified, the district court correctly denied Pettis’s motion to suppress.
On November 14, 2011, around 3:17 a.m., police dispatch reported a burglary at a trailer
park in Toledo, Ohio. The dispatcher stated that a man named “Drift”—a man known to the
police for his past exploits—had broken into a home in the trailer park and was beating a woman
inside.
No more than one minute before this broadcast, Toledo Police Officer Lawrence Emery
had seen a gray Dodge Intrepid sitting idle with its lights on, near the entrance of the trailer park.
As Emery drove by, the car pulled into the trailer park. Since he did not notice anything
particularly suspicious about the car or its occupants, he continued on his patrol. During the
suppression hearing, however, Emery noted that there was “hardly anybody on the road, if
anybody at all” at that time of night.
After hearing the dispatch, Emery broadcast a description of the gray Dodge Intrepid over
the radio because he thought that the vehicle might have “something to do with” the burglary.
Emery and Officer Espinoza then went to the trailer park to investigate. The female victim
informed the officers that the suspect, “Drift,” a black man, drove a 1997 Ford F-150 pick-up
truck and lived in the Lagrange and Austin area of Toledo, information subsequently broadcast
over the police radio. The victim later admitted, however, that she had not seen Drift leave in his
truck. Emery and Espinoza accordingly decided to refocus their attention on the gray Dodge
Intrepid, the one vehicle they had seen at the trailer park, and the officers announced over police
radio that the car had been last seen heading south.

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Officers Zielinski and Holmes heard the radio traffic regarding the burglary and, after
learning that “Drift” lived in the Lagrange and Austin area, drove to the corner of Austin and
Lagrange. Shortly after, Zielinksi saw a silver Chrysler Concorde driving south on Lagrange,
approximately five miles from the site of the burglary/assault. The officers followed the sedan
until it parked on Noble. The parties dispute whether the officers initiated a traffic stop as
suggested by Zielinski’s report,1 or whether the car pulled over on its own accord upon reaching
its destination. They agree, however, that the officers did not activate their police lights or siren,
or take any other action to initiate a stop.
After the officers pulled in behind the Chrysler, Zielinski and Holmes approached the
passenger’s side and the driver’s side, respectively. Zielinski questioned the front-seat
passenger, Terrance Pettis, who gave a vague response when asked where he was coming from.
Pettis also failed to provide either his social security number or identification. Holmes then
informed Zielinski that the driver had a concealed carry weapon permit and that there was a gun
behind the passenger’s seat. At that time, Zielinski asked Pettis to step out of the vehicle for a
frisk. After Zielinski discovered a handgun in Pettis’s waistband, Zielinski placed Pettis under
arrest.
On March 7, 2012, a Toledo grand jury indicted Pettis for violating 18 U.S.C.
§ 922(g)(1)—Possession of a Firearm by a Convicted Felon. Pettis subsequently moved to
suppress evidence of the gun, contending that it was the fruit of an unlawful search. Pettis
argued that the Toledo police officers violated his Fourth Amendment rights when they stopped,
seized and searched him without reasonable suspicion, probable cause, or voluntary consent.
1 During the suppression hearing, Zielinski testified that he only wrote “initiated a traffic stop”
because it involved a “car’s traffic.” The district court credited Zielinski’s explanation.

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The district court denied his motion to suppress, finding: (1) that Pettis was seized only after
Zielinski asked him to exit the vehicle; (2) that the totality of the circumstances—including
information about the burglary/assault and facts acquired during questioning—provided
reasonable suspicion to detain; and (3) that Zielinski reasonably believed Pettis could be armed
and dangerous. Pettis then pled guilty on the condition that he reserved the right to appeal the
district court’s denial of his motion. Because Pettis qualified for armed career criminal status,
the district court sentenced him to a mandatory minimum 180 months in prison, followed by
three years of supervised release.
This appeal followed. Pettis argues that the district court erred when it credited
Zielinski’s “unreliable, two-year-old memories” to find that the officers had not initiated a traffic
stop. In the alternative, Pettis contends that the district court erred in finding that he was seized
only after Zielinski ordered him from the car, rather than at the point the officers approached the
vehicle. Because both arguments lack merit, the district court correctly dismissed Pettis’s
motion to suppress.
To begin, the district court did not clearly err when it credited Zielinksi’s testimony and
found that the officers had not initiated a traffic stop. “Factual findings supporting a district
court’s ruling on a motion to suppress are upheld unless clearly erroneous.” United States v.
Yoon, 398 F.3d 802, 805 (6th Cir. 2005). Pettis points to Zielinksi’s faulty memory2 and the
2 Pettis explains,
[D]uring his testimony Zielinski failed to recall key aspects of the stop, see R. 18:
Tr. Suppression Hr’g (#130–31) (forgetting police discussion of the suspect’s
truck); R. 18 Tr. Suppression Hr’g (#131) (failing to recall whether he removed
other passengers from the sedan), which had occurred almost two years before his
testimony. Indeed, Zielinski admitted on the stand that he “wouldn’t recall”

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inconsistencies between his contemporaneous police report and his testimony at the suppression
hearing to show that the district court clearly erred in finding that the officers had not initiated a
traffic stop. However, Pettis overlooks two crucial pieces of evidence. First, both parties agree
that the officers did not activate their police lights or sirens, or take any other action to initiate a
stop. Second, the record supports a finding that the vehicle stopped on its own upon reaching its
destination.3 In light of the “great deference” accorded to the credibility determinations of the
district court, United States v. Foster, 376 F.3d 577, 584 (6th Cir. 2004), and the need to consider
the record on appeal “in the light most favorable to the government,” United States v. Erwin,
155 F.3d 818, 822 (6th Cir. 1998), the district court did not clearly err, in view of the evidence
presented.
The district court also correctly determined that, until Zielinski ordered Pettis out of the
vehicle, the encounter was consensual. A consensual encounter occurs when “a reasonable
person would feel free to terminate the encounter.” United States v. Drayton, 536 U.S. 194, 201
(2002). Pettis contends that in view of the following circumstances, however, no reasonable
person would have believed that he was free to leave after the officers approached the vehicle:
(1) the police car followed the sedan for several blocks, at a distance close enough to obtain the
sedan’s license plate information; (2) the roads were effectively empty during this period; (3) the
police immediately pulled in directly behind the sedan when it pulled over; (4) the officers
several details in his testimony had he not reviewed official records just before
testifying. R. 18: Tr. Suppression Hr’g (#131).
3 Officer Zielinski testified,
They had stopped right there on the corner because they were going to a house
directly across the street from where they parked. And I know that they were
there for some time because after we had left with Mr. Pettis, we booked him,
finished our paperwork. During that time I had realized that I still had the
female’s ID in my pocket. So we drove back to that location, and I pushed the ID
through the crack in the door into the vehicle.

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approached the vehicle from two sides; and (5) neither Pettis nor any other individuals in the car
exited the sedan, “notwithstanding the fact that Zielinski testified that the passengers had
supposedly arrived at their destination.” However, a review of the record and our circuit
precedent indicates that the circumstances listed above did not turn an otherwise consensual
encounter into a seizure prior to Zielinski’s request that Pettis exit the vehicle.
As a preliminary matter, because the officers did not block the sedan’s only means of
egress, the encounter was consensual when the officers parked the cruiser curbside, behind the
Concorde. “[U]nless there is other coercive behavior, a police officer can initiate a consensual
encounter by parking his police vehicle in a manner that allows the defendant to leave.” United
States v. Carr, 674 F.3d 570, 573 (6th Cir. 2012) (citing United States v. See, 574 F.3d 309, 315
(6th Cir. 2009) (Gilman, J., concurring)). This case differs from one in which an officer uses his
cruiser to physically obstruct an individual’s ability to depart the scene of the encounter by car.
For instance, in United States v. Gross, 662 F.3d 393 (6th Cir. 2011), we held that when the
officer “blocked” the car in the parking space by parking directly behind the defendant’s car, he
began an investigatory Terry stop. Id. at 399. Similarly, in See, we held that the officer initiated
a Terry stop “when he parked his patrol car in front of See’s car,” such that See could not depart.
574 F.3d at 311−12. And in United States v. Jones, 562 F.3d 768 (6th Cir. 2009), we reasoned
that a “‘seizure’ had occurred at the time the Nissan was hemmed in by the unmarked police
vehicles.” Id. at 772−73. Because the gray Concorde was not “hemmed in,” blocked, or
otherwise obstructed by the police cruiser, the mere fact that the officers parked behind the sedan
did not, without more, indicate that Pettis had been seized. As this court explained in Carr, “[t]o
conclude otherwise would be an endorsement of a ‘simplistic, bright-line rule’ that a detention

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occurs ‘any time the police approach a vehicle and park in a way that allows the driver to merely
drive straight ahead in order to leave.’” Carr, 674 F.3d at 573.
The encounter remained consensual as the officers approached the Chrysler Concorde on
foot. Upon exiting the police vehicle, Officer Holmes approached the driver’s door while
Officer Zielinski approached the passenger’s door. “[A]pproaching the vehicle in this manner
[with one officer on each side of the car], by itself, does not make the encounter non-
consensual.” Carr, 674 F.3d at 573; see also United States v. Dingess, 411 F.App’x 853, 854,
856 (6th Cir. 2011).
Lastly, the officers did not engage in any coercive or intimidating behavior that would
make the encounter non-consensual. “[S]o long as the officers do not convey a message that
compliance with their requests is required,” Florida v. Bostick, 501 U.S. 429, 437 (1991), or
“induce cooperation by coercive means,” officers may approach an individual and “pose
questions, ask for identification, and request consent to search luggage” even when they lack any
basis for suspecting a particular individual is engaged in criminal activity. United States v.
Drayton, 536 U.S. 194, 201 (2002). Examples of intimidating or coercive means indicative of a
seizure include “the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer’s request might be compelled.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
None of these coercive tactics is present in Pettis’s case. Here, the officers did not draw
their weapons, nor is there any evidence of physical touching or threatening language or tone.
Pettis does imply that when the officers closely followed their vehicle, around 3:00 a.m. on an all

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but deserted street, they engaged in conduct that would have led a reasonable person to believe
that they were being stopped by the police. However, the fact remains that during this same time
period, the officers chose not to activate their lights or siren, or otherwise signal their intent to
stop the car. Ultimately, because no indicator of coercion or intimidation was present, the
encounter remained consensual. As the district court correctly concluded, it was only when
Zielinski asked Pettis to exit the vehicle that the encounter transformed from voluntary to
compulsory.
Pettis does not challenge the district court’s determination that the officers had reasonable
suspicion to detain him at the point Zielinski asked him to exit the car. Nor does he contest the
court’s finding that the officers had sufficient reason to believe that he was armed and dangerous
when they conducted the protective frisk. Consequently, we do not address these issues.
The judgment of the district court is affirmed.

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