United States v. McMullen, 2024 WL 2873779 (6th Cir. 2024)
Dorian McMullen was hanging out (literally!), lounging in his car in a high-crime neighborhood with his legs hanging out the open door. Two gang detectives were patrolling the area in an unmarked truck. They saw a second car belonging to a known gang member, idling at the curb. As they drove toward that car, they noticed McMullen’s vehicle parked right behind it. McMullen caught their attention as his legs were extended out from his open car door. The detectives saw McMullen look up at their truck and then observed him “reaching pretty hard” for something on his car’s floorboard. They suspected McMullen was likely reaching for a gun.
The detective in the passenger side of the truck got out as McMullin stood and closed the car door behind him. The detective said, “You were reaching pretty hard.” McMullen, who later claimed he didn’t feel free to leave at that point, told the detectives he had been shot a few weeks earlier. A detective frisked McMullen for weapons and asked him if he carried a firearm for protection. “Yeah, I do,” McMullen replied. “It’s in the vehicle.” The detectives reported McMullen also volunteered that he had crack cocaine in the car. Shining a flashlight into the car, a detective saw the gun. A search also revealed narcotics in the passenger compartment.
The detectives arrested McMullen on state drug and firearms charges. He was later charged federally with being a felon in possession of a firearm. McMullen asked the trial court to suppress the gun recovered from his car, asserting the detectives had no reasonable suspicion to justify their initial encounter with him. He further argued the detectives had no constitutional basis for searching his car.
The trial court disagreed and rejected his suppression motion. The court ruled the detectives had reasonable suspicion to temporarily stop and question McMullen, based on seeing him late at night in a high-crime neighborhood known for gun violence, his proximity to a known gang member’s car, and his reaching motion as if to retrieve a weapon. The trial judge also found the detectives had a lawful basis to frisk McMullen and to search his car due to officer safety concerns. McMullen appealed.
The appellate court agreed with the trial court that there was a basis to conduct an investigatory, or Terry, detention of McMullen considering the totality of the circumstances. In addition to the factors cited by the trial court, the appellate court noted McMullen was “seated in a peculiar manner” before reaching toward the floorboard. McMullen offered various innocent explanations that might have explained his reaching movement. Acknowledging there may be alternative reasonable explanations for his actions, the court noted that “the same thing could be said for just about any suspicious behavior.” The court credited the detectives’ testimony about their training and experience to infer that McMullen was lunging for a weapon.
Next the court held officers may take reasonable steps to protect themselves and others from physical harm during an investigatory detention. An officer performing a Terry stop may not automatically frisk the individual subject to the stop; to do so, the officer must have some articulable suspicion that the subject is “armed and dangerous” (Arizona v. Johnson, 555 U.S. 323 (2009)). Officers may also make a quick, cursory inspection of a vehicle for weapons, often called a “vehicle frisk,” when there is reasonable suspicion that weapons may be in the vehicle (Michigan v. Long, 463 U.S. 1032 (1983)). Such a “frisk” may include closed containers accessible to the driver or passengers.
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McMullen argued that because the gun was behind a closed car door not immediately accessible to him at the time of the search, the detectives’ search was unlawful. (Note: neither the trial court nor the appellate court discussed the applicability of the plain view doctrine.) The court held that searching McMullen’s car was a reasonable protective measure and rejected his claim that the gun was not immediately accessible to him at the time of the search, stating that a weapon is not necessarily inaccessible just because it is temporarily behind a closed door.
One judge dissented, opining that, at most, McMullen made a “single innocent movement” reaching toward the floorboard and that the officers “subjected him to a great indignity based on nothing more than a hunch.”
