United States of America v. States District Court for the Southern District of Ohio Anthony Dixon

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 10a0764n.06
No. 09-3996
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
ANTHONY DIXON, )
)
Defendant-Appellant. )
BEFORE: KENNEDY, COLE, and ROGERS, Circuit Judges.
CORNELIA G. KENNEDY, Circuit Judge. Defendant Anthony Dixon was a passenger
in a car driven with only one working headlight. After Officer Joshua Frisby of the Dayton Police
Department stopped the car for this violation and removed Dixon from the vehicle, he observed a
part of Glock’s handgun in the car under a floor mat and arrested Dixon. Dixon sought to suppress
the Glock, but the district court held that the handgun was in plain view of the arresting officer and
was properly seized. Dixon pleaded guilty to one count of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g), preserving his right to appeal the denial of his motion to
suppress the search. On appeal, Dixon argues that his detention by Officer Frisby was
inappropriately prolonged beyond the scope of the traffic stop by an improper pat search in violation
of his Fourth Amendment rights, that the Glock was only observed because of this pat search, and
that it should have therefore been suppressed as fruit of the poisonous tree. For the reasons that
follow, we AFFIRM.

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FACTUAL AND PROCEDURAL BACKGROUND
At about 6:45 p.m. on November 16, 2008, Officer Frisby was on routine patrol traveling
westbound when he observed an automobile being driven eastbound with only one headlight
illuminated. This is a traffic violation in Ohio. See Ohio Revised Code § 4513.04(A). Officer
Frisby responded by turning around to initiate a traffic stop. Officer Frisby observed two occupants
in the vehicle, the driver, Letitia Rose, and, seated in the front passenger seat, defendant Dixon.
Officer Frisby approached the vehicle on the driver’s side, identified himself, explained to Rose why
he had stopped the vehicle, and asked her for identification and proof of insurance. Officer Frisby
also requested identification from Dixon.
Officer Frisby testified that he then returned to his cruiser to issue a citation and upon
entering his cruiser, inputted the information he had obtained from Rose and Dixon into the
computer in his cruiser, which provided their criminal histories and Bureau of Motor Vehicle
records. According to Officer Frisby, the computer reported that Dixon had recently been arrested
several times for carrying concealed weapons and trafficking in drugs. Officer Frisby testified that
this information made him uncomfortable, but that he did not call for backup because his cruiser
computer indicated that all of his colleagues were already occupied at other locations. While he was
in the cruiser obtaining the information regarding Rose and Dixon, Officer Dixon testified to
witnessing “a lot of movements” within the car, though he did not mention these movements in his
police report.
Officer Frisby returned to the vehicle and approached Dixon on the passenger’s side of the
vehicle. Officer Frisby testified that he asked Dixon to step out of the car so that he could talk to
him. Dixon complied, leaving the passenger door open. Officer Frisby asked Dixon to put his hands

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on the vehicle and began a pat search of Dixon to ensure that he did not have a weapon on his
person. While Officer Frisby was pat searching Dixon, he saw a pistol protruding from under the
floor mat on the passenger’s side of the vehicle. Officer Frisby testified that approximately
one-quarter of the butt of the pistol and its slide rail could be seen sticking out from under the floor
mat and that he was able to recognize the gun as a Glock because that is the model of firearm that
he had previously carried throughout his five years as a police officer. Officer Frisby did not
manipulate the floor mat or move anything to see the Glock. Officer Frisby then placed Dixon in
handcuffs and retrieved the handgun from the automobile.
On November 25, 2008, Dixon was indicted in the Southern District of Ohio on one count
of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Dixon filed
a motion to suppress the handgun. The district court held an evidentiary hearing on the motion and
subsequently denied it. Dixon entered a plea of guilty, preserving his right to appeal the district
court’s decision denying his motion to suppress. Dixon was sentenced to seventy-two months
incarceration. Dixon timely appealed the district court’s refusal to suppress the Glock.
STANDARD OF REVIEW
“We review the denial of a motion to suppress de novo, but will accept the district court’s
factual findings unless they are clearly erroneous.” United States v. Garrido, 467 F.3d 971, 977 (6th
Cir. 2006). “A factual finding ‘is clearly erroneous when the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.’” Id. (quoting Tran
v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006)). “‘The evidence must be considered in the light
most favorable to the party that prevailed in the court below—in this case, the government.’” United
States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010) (quoting Garrido, 467 F.3d at 977).

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DISCUSSION
Dixon argues on appeal that his detention by Officer Frisby was prolonged beyond the point
justified by the traffic stop in order to pat search him, that it was therefore illegal under the Fourth
Amendment, and that the evidence seized during this prolonged detention—the Glock found in the
vehicle—must be suppressed as fruit of the poisonous tree. Dixon further argues that the plain-view
doctrine does not apply because Officer Frisby’s observation of the handgun occurred during an
illegally prolonged detention.
We begin, as the district court did, by concluding that Officer Frisby unquestionably had the
authority to stop the vehicle Rose was driving. It is a traffic violation in Ohio to drive with only one
headlight. See Ohio Revised Code § 4513.04(A). As we recently held, “[w]hen law enforcement
officers witness a traffic violation, they may stop the driver and his car. . . . [T]here is nothing
‘unreasonable’ about stopping a vehicle whose driver has just committed a traffic violation.” United
States v. Street, 614 F.3d 228, 232 (6th Cir. 2010) (citations omitted).
It is established law that a traffic stop must “last no longer than is necessary to effectuate the
purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983); United States v. Perez, 440 F.3d
363, 370 (6th Cir. 2006) (“Once the purpose of an ordinary traffic stop is completed, the officer may
not ‘further detain the vehicle or its occupants unless something that occurred during the traffic stop
generated the necessary reasonable suspicion to justify a further detention.’” (quoting United States
v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995))). Here, however, Officer Frisby had not completed his
traffic stop when he requested that Dixon exit the vehicle because Officer Frisby had not yet
completed his actions in connection with the issuance or non-issuance of a citation to Rose for
driving a vehicle with only a single operative headlight. Therefore, our prior decisions discussing

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improper prolongations of traffic stops are not implicated; Officer Frisby was within his rights to
request that Dixon exit the car for safety reasons while in the course of issuing a citation, even if the
citation could have been issued with Dixon remaining within the car and even though removing
Dixon from the car prolonged the traffic stop by approximately thirty seconds, as timed by a video
recording of the encounter. “In the course of a stop premised on a traffic violation, police may
instruct the driver or occupant to exit the vehicle.” Street, 614 F.3d at 232. (citing Pennsylvania v.
Mimms, 434 U.S. 106, 111 n.6 (1977)). “In Mimms, the Court held that ‘once a motor vehicle has
been lawfully detained for a traffic violation, the police officers may order the driver to get out of
the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and
seizures.’” Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (quoting Mimms, 434 U.S. at 111 n.6).
This bright line rule exists because “[t]raffic stops are fraught with danger to police officers, and the
Fourth Amendment permits officers to conduct an otherwise-legitimate stop on their own
terms—whether by keeping the driver (and occupants) in the car or by asking them to exit the car,
depending on what they perceive as safer.” Street, 614 F.3d at 232 (internal quotation marks and
citations omitted). Here, while in the process of issuing a traffic citation to Rose, Officer Frisby
perceived it to be necessary for his safety to have Dixon exit the car. This decision was within his
discretion.
Because Officer Frisby ordered Dixon from the car and stood in close proximity to the
passenger side car door, he was able to see the Glock within the vehicle. This is quintessentially
what the plain-view doctrine permits. “Under ordinary circumstances, the plain view exception
permits the warrantless seizure of an object provided that (1) the officer is lawfully positioned in a
place from which the object can be plainly viewed; (2) the incriminating character of the object is

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immediately apparent; and, (3) the officer has a lawful right of access to the object itself.” United
States v. Bishop, 338 F.3d 623, 626 (6th Cir. 2003). All of the prongs of the plain-view test were
satisfied in this case. Officer Frisby was in a lawful position outside the open passenger door of the
vehicle. The firearm was immediately recognizable as contraband: under Ohio law, it is illegal to
store a firearm under the floor mat of a vehicle, see Ohio Rev. Code §§ 2923.12(A)(2); 2923.16(C).
“The final requirement, that the officer have a lawful right of access to the object, is meant to guard
against warrantless entry onto premises whenever contraband is viewed from off the premises in the
absence of exigent circumstances, but does not bar the seizure of evidence in a parked car. The
difference between ‘lawfully positioned’ and ‘lawful right of access’ is thus that the former refers
to where the officer stands when she sees the item, and the latter to where she must be to retrieve the
item.” Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir. 2004) (citations omitted). Therefore, Officer
Frisby properly seized the firearm pursuant to the plain-view doctrine.
We agree with the district court that the pat search was irrelevant to the seizure of the firearm.
We need not, therefore, consider the lawfulness of the pat search or whether, as the Government
asserts, the exclusionary rule is inapplicable to the Glock’s seizure because there was no causal, or
“but-for,” connection between the pat search and its discovery. See United States v. Pearce, 531
F.3d 374, 381 (6th Cir. 2008) (holding that the exclusionary rule is inapplicable where evidence has
been obtained by means sufficiently separate from the illegal activity to be free of any taint).
CONCLUSION
Because the district court did not err in denying Dixon’s motion to suppress, we AFFIRM.

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