UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 19-20518
District Judge Victoria A. Roberts
Mag. Judge R. Steven Whalen

v.

ANTONIO LAMONT ARRINGTON,
Defendant.
________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO SUPPRESS
EVIDENCE SEIZED IN VIOLATION OF HIS FOURTH AMENDMENT
RIGHTS [ECF No. 24] AND GRANTING DEFENDANT’S MOTION TO
SUPPRESS POST-ARREST STATEMENTS [ECF No. 25]
I.

INTRODUCTION
On May 7, 2019, Blackman-Leoni Township officers (“officers”)

arrested Antonio Arrington (“Arrington”) after a search in connection with a
traffic stop revealed crack cocaine and a weapon in Arrington’s possession.
The United States charged Arrington with: (i) possession with intent to
distribute a controlled substance (cocaine base), in violation of 18 U.S.C. §
841(a)(1); (ii) felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1); and (iii) possession of a firearm in furtherance of a drug trafficking
scheme, in violation of 18 U.S.C. § 924(c)(1)(A).
1 

 

 Before the Court are Arrington’s Motions to Suppress: (1) Evidence
Based on Illegal Search and Seizure [ECF No. 24]; and (2) Post Arrest
Statements [ECF No. 25].
Based upon the testimony and evidence presented at the evidentiary
hearing held on January 31, 2020, the Court finds the unconstitutional
detention of Arrington tainted the search, making the evidence seized in the
search inadmissible.
The Court GRANTS Arrington’s Motions.
II.

BACKGROUND
On May 7, 2019, Officers Chandler Fryt (“Fryt”) and Alec Norris

(“Norris”) were in marked cars and on routine traffic duty. They staked out a
hotel in a high crime area in Jackson, Michigan. Fryt testified that officers
would often investigate cars driving up Andrew Street, which bordered the
hotel, because the area is plagued by drugs, assaults, and human trafficking
from the hotel. While Fryt and Norris were parked in their patrol cars window
to window, they observed a Windstar van on Andrew Street at 3:00 a.m. The
Windstar did not come from the hotel parking lot.
Fryt followed the Windstar and attempted to verify its license plate. The
law enforcement database showed that the plate was registered to a different
2 

 

 vehicle – a Chevy Silverado. Fryt testified that – in his experience – an
improper plate is often indicative of another traffic infraction or other criminal
activity. Fryt prepared to stop the Windstar. Before he activated his lights to
initiate the stop, the Windstar reached its destination – a house on Dewey
Street. After the van pulled into the driveway and stopped, Arrington exited
the front passenger seat and walked to the front door of the house.
After Arrington exited the Windstar, Fryt pulled his car into the driveway
behind the Windstar and initiated a traffic stop. The driver exited the van and
approached the patrol car. Fryt spoke with the driver in the driveway. The
driver told Fryt that Arrington called him for a ride because Arrington said he
was intoxicated.
Fryt says that Arrington’s exit from the vehicle was suspicious to him;
he felt that “something else may be going on” because most people stay in
the car when officers initiate a traffic stop. Importantly, the home where the
van stopped was the location that Arrington intended to go that evening, and
Arrington exited before Fryt initiated the traffic stop.
Fryt spoke with the driver. He gave Fryt his license and car title. In the
meantime, Arrington knocked on the front door of the house. Fryt then
approached Arrington and asked for identification. Arrington stated that he

3 

 

 did not have identification, but said his name was “Tony Smith.” Fryt asked
Arrington for his middle name; Arrington gave two different spellings
(“Lomant” and “Lamont”), but immediately corrected his spelling error. Fryt
said this was suspicious as well. Arrington stated that he was nervous. Fyrt
wrote down the name and date of birth Arrington gave him. While Fryt spoke
with Arrington, Norris arrived. Arrington was on the porch when Norris
arrived.
Fryt returned to his patrol car to verify the information he received and
to search for any outstanding warrants. Meanwhile, Norris began to question
Arrington to “make conversation.” The police encounter which has the most
significance for purposes of this Court’s ruling was between Norris and
Arrington. The Court discusses that below.
III.

ANALYSIS
The Fourth Amendment protects against unreasonable searches and

seizures. U.S. Const. amend. IV (“The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”).

4 

 

 Arrington argues officers violated his Fourth Amendment rights when
they arrested and subsequently searched him because they did not have
“probable cause or articulable suspicion that he was engaged in criminal
activity at the time of his arrest.” He says the Court must suppress all
evidence obtained as fruit of an illegal search and seizure.
The Government says officers developed reasonable suspicion that
Arrington was engaged in criminal activity during the traffic stop, which
justified continued questioning.
A. Evaluating a Fourth Amendment Challenge in the Context of a
Traffic Stop
The stop and detention of a motorist is a seizure under the Fourth
Amendment. United States v. Waldon, 206 F.3d 597, 602 (6th Cir. 2000);
United States v. Arvizu, 534 U.S. 266, 273 (2002). A routine traffic stop is
more analogous to a so-called Terry stop than to a formal arrest. Knowles v.
Iowa, 525 U.S. 113, 117 (1998); Arizona v. Johnson, 555 U.S. 323, 330
(2009); Unites States v. Noble, 762 F.3d 509, 519 (6th Cir. 2014).
Passengers are considered seized during a traffic stop and have all the rights
that are extended to the driver to challenge that seizure and evidence

5 

 

 obtained. Brendlin v. California, 551 U.S. 249, 263 (2007); United States v.
Stepp, 680 F.3d 651, 661 (6th Cir. 2012).
For a seizure to withstand Fourth Amendment scrutiny, the Court must
determine “whether there was a proper basis for the stop, which is judged by
examining whether the law enforcement officials were aware of specific and
articulable facts which gave rise to a reasonable suspicion.” United States v.
Hardnett, 804 F.2d 353, 356 (6th Cir. 1986), cert. denied, 479 U.S. 1097
(1987).
If the traffic stop is properly based, the Court must next assess
“whether the degree of intrusion into the suspect's personal security was
reasonably related in scope to the situation at hand, which is judged by
examining the reasonableness of the officials' conduct given their suspicions
and the surrounding circumstances.” Id.
B. Arrington Does Not Challenge the Legality of the Initial Stop
But Contests the Investigation of Him
At the outset of the hearing, counsel for Arrington stated that his client
did not challenge the lawfulness of the initial traffic stop. Based on the
testimony given by Fryt, it appears there would be no basis for such a
challenge.
6 

 

 When officers stop a vehicle – regardless of the duration and purpose
of the stop – it must comport with the Fourth Amendment requirement of
reasonableness. Whren v. United States, 517 U.S. 806, 810 (1996). “An
automobile stop is considered reasonable where the police have probable
cause to believe that a traffic violation has occurred.” United States v.
Copeland, 321 F.3d 582, 592 (6th Cir. 2003). Probable cause is defined as
“reasonable grounds for belief, supported by less than prima facie proof but
more than mere suspicion.” United States v. Ferguson, 8 F.3d 385, 392 (6th
Cir. 1993). The subjective motives or intentions of a police officer are not
relevant. Whren, 517 U.S. at 813.
Fryt had every right to put the license plate into the data system, and
the discovery of an invalid license plate constituted probable cause to stop
the driver for a traffic violation. Under Michigan law, “a person shall not
operate . . . a vehicle . . . unless there is attached to and displayed on the
vehicle, as required by this chapter, a valid registration plate issued for the
vehicle by the department for the current registration year.” M.C.L. §
257.255(1). The circumstances here gave Fryt probable cause to stop the
Windstar.
However, Arrington contends that the decision to stop the Windstar for
an improper plate did not justify an investigation of him. And, he argues that
7 

 

 nothing about his exit from the van and walk to the front porch of the home
gave rise to any reasonable suspicion of criminal activity. He says the almost
immediate attention that officers focused on him was a violation of his Fourth
Amendment rights.
The Court agrees and makes two critical findings: (1) by the time Fryt
initiated the traffic stop, Arrington was no longer a passenger in the van, was
on private property doing nothing suspicious, and should never have been
subject to an investigation in connection with the traffic stop; and (2) even if
Arrington was still a passenger when the traffic stop was initiated, Norris
admitted the only focus of his investigation was to investigate Arrington for
other criminal activity. For this, he did not have the reasonable, articulable
suspicion necessary for a continued investigatory detention. Under either
scenario, Arrington was unreasonably seized in violation of the Fourth
Amendment and is entitled to suppression of evidence.
C. Arrington Was Not a Passenger in the Van at the Time of the
Traffic Stop
The law is clear that passengers are considered seized during a traffic
stop. Brendlin, 551 U.S. at 263. Typically, officers may check the
passenger’s license, determine whether there are any outstanding warrants
against the driver, and inspect the automobile’s registration and proof of
8 

 

 insurance. Delaware v. Prouse, 440 U.S. 648, 658-59 (1979); Smith, 601
F.3d at 542.
However, Fryt testified that he did not stop the Windstar on the street.
He followed it into a driveway. He did not turn on his lights until the Windstar
was in the driveway and Arrington was out of the car, headed to the front
porch of the Dewey Street house.
Based on the testimony of Fryt, the Court finds that Arrington was not
a passenger when the traffic stop was initiated, and he was on the porch
when Fryt spoke to the driver. Accordingly, Fryt had no basis to seize
Arrington for purposes of investigating the traffic stop.
With this finding, it is not even necessary to discuss the scope of the
intrusion, whether the traffic stop was unreasonably extended, or whether
officers had reasonable suspicion that Arrington was otherwise engaged in
criminal activity. Arrington’s initial seizure in connection with the traffic stop
was unlawful.
D. Unreasonable Extension of Time for Traffic Stop
Even if Arrington was a passenger when Fryt initiated the traffic stop,
Norris admitted the primary focus of his investigation was not to complete
the mission of the stop, but rather to assist in anything Fryt may need in
9 

 

 providing officer safety. His purpose and focus then shifted to Arrington for
unrelated criminal activity.
When he arrived at the scene, Norris asked Arrington who lived at the
residence. Arrington said it was his “girl’s uncle (sic) dad” house; then – when
Norris said it did not make sense – Arrington said it was his “girl’s dad (sic)
uncle” house. Norris did not believe this to be suspicious – only an “odd way”
to describe who lived at the house. Arrington said he was nervous and did
not want to speak with officers.
Norris ignored Arrington’s request; he continued his questioning and
moved closer and closer to Arrington by approaching the front porch. When
Arrington turned to the door, Norris observed a bulge in Arrington’s
sweatshirt pocket. He could not tell what it was. Norris said he was
concerned it might be a weapon. So, he asked Arrington. In response,
Arrington lifted his sweatshirt to the waistband. No weapon was in his
waistband. Arrington did not show what was in his pocket. Norris then shined
his flashlight and he could see a bag in Arrington’s pocket. Norris could not
tell what it was initially, but came to believe it was marijuana. Fryt even
testified that Arrington told them he had marijuana, and also it was legal for
him to have it. All of this happened while Norris was about 10-12 feet from
Arrington on a well-lit porch.
10 

 

 By then, Fryt had finished searching the name “Tony Smith,” and found
no results. Fryt returned to the front lawn and asked Arrington if he had ever
had a driver license. Arrington said “no.”
Norris was now standing within arm’s reach of Arrington on the porch.
Arrington became irritated and said the officers should only be questioning
the driver, and that he understood his rights. He could be heard on the video
talking to someone to come and open the front door.
Norris testified that after he saw marijuana in one pocket and asked
Arrington about it; Arrington reached into the other pocket – Norris says this
was to divert Norris’ attention from the pocket Norris was interested in. From
the pocket Norris was interested in, Arrington pulled out a candy or granola
bar.
Arrington was still trying to knock on the front door. When he turned,
Norris says he observed what appeared to be two baggies in Arrington’s
pocket. Norris continued to question Arrington, who reached into his pockets.
Norris told him not to do that. When Arrington pulled his hands from his
pockets, Norris stated he saw what looked like an “8-ball.” Norris attempted
to arrest him, but Arrington pulled away and jumped off the porch. Fryt
immediately tackled him and made the arrest.

11 

 

 After securing Arrington, Norris asked him if he had any dangerous
items that officers would find during a pat down search. Arrington said he
had a pistol in his pocket. Fryt removed a Smith and Wesson 9mm pistol,
loaded with 8 rounds of ammunition. Officers later discovered the pistol had
been reported stolen. Officers also found $895, 19.2 grams of crack cocaine,
and 6.2 grams of marijuana in Arrington’s pockets. They recovered a bottle
of promethazine on the sidewalk near where Fryt tackled Arrington.
Officers took Arrington to a patrol car and informed him of his Miranda
rights. Arrington said he understood his rights and that he would talk to
Norris. Norris says he did not observe anything that would lead him to
conclude that Arrington was intoxicated. Arrington told Norris: (1) his ‘girl’s
uncle” lived at the home; (2) the substance in the bag was crack cocaine;
and (3) he found the crack cocaine on the street.
Officers booked Arrington in the Jackson County jail. As part of the
intake process, Norris administered a breathalyzer test to Arrington. The test
indicated no alcohol in Arrington’s system. On cross examination, Norris
acknowledged that the test would not detect marijuana or the promethazine
(cough syrup) that Arrington says he took.

12 

 

 Case law that has developed in this area does not address the situation
at hand: where two officers, in essence, conduct parallel investigations
during a traffic stop. While Fryt gathered information to investigate the reason
for his traffic stop, Norris began a criminal investigation of Arrington.
The focus of courts has been on whether the stop was extended and
whether there are articulable suspicions to do that. That law is clear: to detain
a motorist any longer than is reasonably necessary to issue a citation, the
officer must have reasonable suspicion that the individual has engaged in
more extensive criminal conduct ; without that, all of the officers’ actions must
be “reasonably related in scope to circumstances justifying the original
interference.” United States v. Hill, 195 F. 3d 258, 264 (6th Cir. 1999);
Townsend, 305 F. 3d at 541.
It cannot be said that the driver and Arrington were detained any longer
than was reasonably necessary for Fryt to issue a citation. Fryt was still
involved in investigating the traffic stop when Norris questioned Arrington.
Fryt had not yet returned the driver’s license and registration when the
situation developed on the porch involving Arrington and Norris.
But, the tolerable duration of police inquiries in the traffic stop context
is determined by the seizure’s mission – which should be to address the

13 

 

 traffic violation that warranted the stop and to attend to safety related
concerns. Illinois v. Caballes, 543 U.S. 405, 407 (2005); United States v.
Sharpe, 470 U.S. 675, 682 (1985); Johnson, 555 U.S. at 331. The traffic stop
can be unlawfully extended beyond its original purpose, even if the officer
never formally completes the citation. United States v. Blair, 524 F. 3d 740,
752 (6th Cir. 2008); United States v. Urrieta, 520 F. 3d 569, 572 (6th Cir.
2008).
In both Caballes and Johnson, the Supreme Court held that the Fourth
Amendment tolerated certain, unrelated investigations that did not lengthen
the roadside detention. Caballes, 543 U.S. at 407; Johnson, 555 U.S. at 330.
In Mimms, the Court stated that the officer safety interest stemmed from the
danger to the officer associated with the traffic stop itself. Pennsylvania v.
Mimms, 434 U.S. 106, 110–11 (1977). In Rodriguez, the Supreme Court
seemed to distinguish between on scene investigations for the purpose of
officer and highway safety, and gave its imprimatur to extensions of time for
those purposes. Rodriguez v. United States, 575 U.S. 348, 357 (2015)
(“[h]ighway and officer safety are interests different in kind from the
government’s endeavor to detect crime in general or drug trafficking in
particular.”). Rodriguez also debunked the Government’s argument that, if
officers complete all traffic related tasks expeditiously, “bonus time” can be
14 

 

 earned to pursue an unrelated investigation. Id. at 357. The critical question
is whether the officer’s action prolongs – i.e., adds time to – the stop. Id.
(citing Caballes, 543 U.S. at 407).
In Stepp, the court held a traffic stop is not “measurably” extended by
extraneous questions, even when such questioning undeniably prolongs the
stop to a minimal degree. Stepp, 680 F.3d at 662 (citing United States v.
Everett, 601 F.3d 484, 490 (6th Cir.2010)). To evaluate the reasonableness
of prolonging a stop, the Court must consider the totality of the
circumstances, which requires considering both the duration of the
extraneous questions and its subject matter. Everett, 601 F.3d at 494.
Norris questioned Arrington for around five minutes. None of these
questions pertained to anything necessary to complete the traffic citation.
This Court relies on the reasoning in Stepp to conclude that five minutes of
questioning measurably prolonged the traffic stop beyond its original
purpose because Norris’ extraneous questions lasted a substantial amount
of time. See Stepp, 680 F.3d at 663. Norris testified that he did no
investigation of Arrington related to the traffic stop. Based on Stepp and
Norris’ testimony, none of the questions had to do with the mission of the
traffic stop; all were directed to other criminal conduct that Norris suspected.

15 

 

 Even if five minutes of extraneous questioning alone did not
unreasonably prolong the search – because Norris questioned Arrington
simultaneously while Fryt conducted a proper investigation – Norris’
subsequent actions undeniably did. In Stepp, the district court concluded that
the backup officer was reasonably investigating the license-plate mismatch
during the downtime. The Sixth Circuit concluded that there was no evidence
of the investigation the district court spoke of. It held that there was an
unreasonable expansion of the investigation time. Stepp, 680 F.3d at 663.
In sharp contrast to Stepp, this Court knows exactly what Norris – the
backup officer – was doing: he admittedly did not ask any questions about
the traffic investigation. While not prolonged by the addition of time, the
original traffic investigation was certainly unreasonably expanded. Rodriguez
cautions that the reasonableness of the stop depends on what the police
officer in fact does. Rodriguez, 575 U.S. at 357 (citing Knowles, 525 U.S. at
115-17). Norris – in fact – engaged in an investigation unrelated to the traffic
stop.
Thus, unless an independent reasonable suspicion of criminal activity
arose during Norris’ conversation with Arrington, continuing to detain
Arrington amounted to a Fourth Amendment violation.

16 

 

 1. The Duration and Scope of Norris’ Questions
In concluding that Arrington was engaged in criminal activity, Norris
testified that he relied upon only three things: (1) Arrington attempted to
divert attention from himself by speaking loudly; (2) Arrington would not tell
Norris what was in his pockets; and (3) Norris noticed an “irregular bulge” in
Arrington’s pocket.
In deciding whether an officer conducting a traffic stop has developed
a reasonable suspicion of criminal activity, the court must consider the totality
of the circumstances. United States v Richardson, 385 F.3d 625, 630 (6th
Cir. 2004). The officer must point to “specific and articulable facts” that are
more than an ill-defined hunch. Id. The court examines each of the factors
Norris testified to at the suppression hearing that he relied upon to develop
reasonable suspicion.
a. Attempting

To

Distract

Norris

by

Speaking Loudly
According to Norris, Arrington stated he was nervous, “started to
become extremely agitated,” and began yelling that he knows the rights
afforded to him when Norris began to question him.

17 

 

 An officer may reasonably conclude that such behavior goes beyond
the ordinary nervousness one might expect from interacting with an authority
figure. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[N]ervous,
evasive behavior is a pertinent factor in determining reasonable suspicion.”).
But

nervousness

“is

an

unreliable

indicator”

of

someone's

dangerousness, “especially in the context of a traffic stop.” Richardson, 385
F.3d at 630; see, e.g., United States v. Wilson, 506 F.3d 488, 495-96 (6th
Cir.2007) (“Nervous behavior, standing alone, is not enough to justify
a Terry search.”); United States v. Henry, 429 F.3d 603, 613 (6th Cir.
2005) (“[W]e have repeatedly discounted the value of nervousness in
the reasonable suspicion calculus.”).
Officer Norris did not testify that Arrington became noticeably more
nervous as time progressed. In fact, Arrington’s agitation with officers
seemed to result from his repeated requests that they terminate his
encounter when he informed them that he understood his legal rights.
Just as numerous courts have stated nervousness cannot be a reliable
indicator of criminal activity, loudly asserting one’s right to terminate an
encounter with officers does not provide reasonable suspicion for continued
investigation of suspected criminal activity.

18 

 

 b. Diverting Attention From His Pockets By
Not Following Simple Commands
The Court outlined above what Norris says Arrington did to divert his
attention: when he asked Arrington about what was in one pocket, Norris
went into another pocket and pulled out a granola or candy bar. Although the
Supreme Court held that a person's outward, ostensibly evasive behavior
may be relevant to a reasonable suspicion inquiry, it is only one factor to be
considered by the court. See Wardlow, 528 U.S. at 124.
Norris testified that Arrington’s “inability to follow simple commands”
and “hand movements” formed a basis for reasonable suspicion. Yet, where
a defendant placed his hands in his pockets and walked away from police –
without furtive movements or “digging” in his pockets – the court found it was
not reasonable for police to believe the defendant presented a threat. See
Unites States v. Patterson, 340 F.3d 368, 371 (6th Cir. 2003). Similarly, there
was no reasonable belief of a threat where a defendant placed his hands in
his pocket and continued to walk away after an officer requested that he stop.
United States v. Davis, 94 F.3d 1465, 1468-69 (10th Cir. 1996). Here,
Arrington did not make any furtive movements; nor did he attempt to dig into
his pockets when officers asked him not to do so.

19 

 

 While Officer Norris testified that Arrington failed to comply with his
commands, body camera video indicates otherwise. Arrington adhered to
officers’ requests: (1) for his name; (2) for his relation to the property owner;
(3) to see items in his pocket; and (4) to lift up his sweatshirt so officers could
see that he did not have a weapon concealed in his waistband. This
sequence of events substantially discounts the assertion that Arrington failed
to follow basic commands or attempted to divert Norris’ attention from his
pockets. Accordingly, the Court gives little weight to this in the reasonablesuspicion calculus.
c. Observing a Bulge in Arrington’s Pocket
The Government argues that, when combined with the other facts,
Arrington’s “irregular bulge” established reasonable suspicion of unlawful
activity. The Court disagrees.
An inquiry into reasonable suspicion looks for objective and
particularized indicia of criminal activity. United States v. Beauchamp, 659
F.3d 560, 571 (6th Cir. 2011). Looking at the totality of the circumstances,
Norris did not have reasonable suspicion when he saw a bulge in Arrington’s
pocket that would lead him to be immediately concerned that the bulge was
a weapon. In fact, Norris testified that he could not tell what it was and

20 

 

 allowed Arrington to remove the marijuana from his pocket. United States v.
Delano, 543 F. Supp. 2d 791, 801 (N.D. Ohio 2008) (officer did not have
reasonable suspicion to frisk for safety related reasons upon observing bulge
in defendant’s pocket because officer allowed defendant to remove drugs
from her own pocket); But see United States v. Stennis, 457 F. App'x 494,
499 (6th Cir. 2012) (“The officer's perception of a bulge suspected to be a
weapon provides reasonable suspicion that the individual may be armed and
dangerous.”)
The Government relies on United States v. Smith, 574 F.2d 882, 885
(6th Cir. 1978), in support of the contention that Norris had reasonable
suspicion to further investigate Arrington upon observing a bulge in his
pocket. In Smith, the appellant voluntarily consented to a search of her purse
after being escorted to a DEA office in an airport, and the Government did
not argue that “the search of the Appellant was justified by a reasonable fear
that Appellant was armed.” Id. at 887.
Here, Norris testified that his role was to assist “Officer Fryt in anything
he may need in providing officer safety.” Upon initially observing the bulge,
Norris stated that he had a safety concern. However, Norris never asked
Arrington if he had a weapon on him after Arrington complied with Norris’
request to lift his sweatshirt and did not observe any weapons in Arrington’s
21 

 

 waistband. Norris also did not testify that he observed a gun-shaped bulge.
Norris’ questions focused solely on the contents of the baggies sticking out
of Arrington’s pocket; he testified that he “clearly saw a bag” of marijuana
when he shined his flashlight to Arrington’s pocket. Norris lacked reasonable
suspicion to believe that Arrington posed a threat to officers’ safety because
an unidentified bulge is insufficient to indicate the presence of a weapon, and
the officers were not responding to a crime involving a weapon. See Harris
v. City of New York, 2017 WL 59081, at *2 (E.D.N.Y. Jan. 4, 2017) (citation
omitted).
Norris did not have a subjective belief that the bulge in Arrington’s
sweatshirt pocket constituted a serious threat to him, nor did he have
reasonable suspicion based on articulable facts that the bulge might be a
weapon which could threaten his safety. The presence of a bulge in
Arrington’s pocket – without additional factors to justify reasonable suspicion
– did not provide Norris with reasonable suspicion to further investigate.
The three claimed reasons for suspecting Arrington of criminal activity
are not sufficiently significant as a matter of law. They are not inherently
suspicious. They all are subject to significant qualification. Importantly, Norris
did not testify that, in his experience, any of the three factors he relied upon
are linked to more extensive criminal activity. That means these factors are
22 

 

 unrevealing of reasonable suspicion in the absence of testimony about the
activity’s linkage to criminal conduct. See Townsend, 305 F.3d at 542.
Norris testified to observing other things, such as that occupants of the
Windstar were outside the vehicle, apparent confusion about who lived at the
Dewey Street address, and whether Arrington went to 7/11 or Steak ‘n
Shake. However, when the Court specifically questioned him about what he
relied upon to find reasonable suspicion, Norris did not mention these
suspicions. Therefore, the Government cannot assert, nor may the Court
consider, Norris’ own observations as the basis for reasonable suspicion
outside his testimony. United States v. Craig, 306 F. App'x 256, 260 (6th Cir.
2009)(“[r]easonable suspicion can be gleaned from the investigating officer’s
own direct observations.”).
Finally, none of the factors Norris relied upon is accompanied by more
suspicious factors that Norris pointed to. The totality of the circumstances
demonstrates that Norris did not have a reasonable suspicion that Arrington
was engaged in criminal activity or that criminal activity was afoot.

23 

 

 E. Arrington’s “Flight” Did Not Purge the Taint From Any Unlawful
Seizure
The Government argues that – even if the initial seizure was unlawful
– police had probable cause to arrest Arrington for his flight, purging the taint
from any unlawful seizure. This argument is meritless.
“The ‘fruit of the poisonous tree’ doctrine ... bars the admissibility of
evidence which police derivatively obtain from an unconstitutional search or
seizure.” United States v. Pearce, 531 F.3d 374, 381 (6th Cir. 2008).
To assess whether evidence is fruit of the poisonous tree, a court must
consider whether “the unlawful conduct has become so attenuated or has
been interrupted by some intervening circumstances so as to remove the
‘taint’ imposed upon the evidence by the original illegality.” United States v.
Crews, 445 U.S. 463, 471 (1980).
The Supreme Court identified three factors to guide this inquiry: (1) the
amount of time between the illegality and the discovery of the evidence; (2)
the presence of intervening circumstances; and (3) the purpose and
flagrancy of the illegal conduct. See Brown v. Illinois, 422 U.S. 590, 603–04
(1975). “No single factor in this analysis is dispositive of attenuation.”
Beauchamp, 659 F.3d at 573.

24 

 

 For the reasons discussed below, the evidence that the officers seized
from Arrington is the fruit of the poisonous tree.
1. Amount of Time Between the Illegality and the
Discovery of Evidence
“There is no ‘bright line’ test for temporal proximity.” United States v.
Wolfe, 166 Fed. Appx. 228, 234 (6th Cir. 2006) (quoting United States v.
Reed, 349 F.3d 457, 463 (7th Cir. 2003)). However, the Sixth Circuit held
that the discovery of evidence was not attenuated from unlawful police
conduct where only a few minutes passed between the conduct and the
discovery. See, e.g., United States v. Lopez–Arias, 344 F.3d 623, 630 (6th
Cir. 2003) (taint of illegal conduct not attenuated by lapse of 30 minutes);
United States v. Richardson, 949 F.2d 851, 859 (6th Cir. 1991) (taint of illegal
conduct not attenuated by lapse of 20 minutes).
The record is clear that Arrington’s encounter with officers – i.e., the
time between his unlawful detention and discovery of the evidence – was a
matter of minutes. This insignificant lapse of time is insufficient to attenuate
the taint of unlawful conduct.
2. Presence of Intervening Circumstances
“[T]he type of intervening events that serve to attenuate police
misconduct are those that sever the causal connection between the illegal
25 

 

 [seizure] and the discovery of the evidence.” United States v. Shaw, 464
F.3d 615, 628–29 (6th Cir. 2006). The Government contends that Arrington’s
flight from the officers was an intervening circumstance that severed the
causal connection between officers’ conduct and the discovery of the
evidence. The Court disagrees.
The Government cites United States v. Allen, 619 F.3d 518 (6th Cir.
2010), in support of its argument. In Allen, the Sixth Circuit said that “if a
suspect's response to an illegal stop is itself a new, distinct crime, then the
police constitutionally may arrest the suspect for that crime.” Id. at 525
(internal citation omitted). The Government also cites unpublished Sixth
Circuit cases. See United States v. King, 466 Fed. Appx. 484 (6th Cir.
2012) (declining to suppress evidence where defendant's high-speed
vehicular flight from an allegedly illegal stop gave officers probable cause to
arrest him for a new, independent crime); United States v. Castillo, 238 F.3d
424,

2000

WL

1800481

(6th

Cir.

Nov.

28,

2000) (unpublished)

(same); United States v. Jefferson, 182 F.3d 919, 1999 WL 519298 (6th Cir.
July 15, 1999) (unpublished) (declining to suppress evidence where
defendant used force against officer while fleeing from allegedly unlawful
stop).

26 

 

 The Government says Arrington committed a new crime when he fled
from the officers. Specifically, the Government argues that Arrington violated
Mich. Comp. Laws § 750.81d(1), which prohibits an individual from
“resist[ing], obstruct[ing], oppos[ing], or endanger[ing] a person who the
individual knows or has reason to know is performing his or her duties.” The
Government argues, even if officers’ continued detention of Arrington was
unlawful, Arrington’s flight violated M.C.L. § 750.81d(1) and therefore purged
the taint of officers’ conduct.
The Government's argument is without merit; Arrington did not violate
M.C.L. § 750.81d(1). That provision prohibits an individual from resisting or
obstructing only lawful police conduct. See, e.g., M.C.L. § 750.81d(7)(a)
(“As used in this section ... ‘[o]bstruct’ includes the use or threatened use of
physical interference or force or a knowing failure to comply with
a lawful command”) (emphasis added); People v. Moreno, 491 Mich. 38, 814
N.W.2d 624, 629 (Mich.2012) (holding that M.C.L. § 750.81d(1) “did not
abrogate the [common-law] right to resist unlawful police conduct”). Thus,
Arrington

did

not

violate

M.C.L.

§

750.81d(1)

when

he

resisted unlawful police conduct. And, Arrington’s flight from unlawful
detention was not a violation of M.C.L. § 750.81d(1).

27 

 

 This case is also distinguishable from Allen, King, Castillo, and
Jefferson. In those cases, the Sixth Circuit held that the defendant's flight
following an unlawful initial seizure did constitute an intervening act. But, the
defendants fled the allegedly unlawful stop in a manner that gave the officers
probable cause to believe that the suspect committed a new, distinct
crime. See Allen, 619 F.3d at 526 (defendant “attempt[ed] to escape from
police by leading the officers on a high-speed chase,” which “constituted a
new,

distinct

crime”); King, 466 Fed.

Appx. at 486 (officer

observed

defendant commit numerous violations during a high-speed vehicular
flight); Castillo, 2000 WL 1800481, at *6 (defendant used a motor vehicle to
“recklessly” flee in apparent violation of traffic laws); Jefferson, 1999 WL
519298, at *4 (defendant used force against officer while fleeing). Those
cases are distinguishable because Arrington’s flight did not constitute a new
crime.
Norris’ discovery of the evidence flowed directly from his unlawful
detention of Arrington. Arrington’s flight was not a new, distinct crime. Under
these circumstances, the taint of the unlawful detention was not purged by
Arrington’s flight.

28 

 

 3. Purpose and Flagrancy of the Illegal Conduct
The purposefulness and flagrancy of an officer’s conduct is important
to the fruit of the poisonous tree analysis. “[T]he purposefulness factor is met
when the unlawful action is investigatory, that is, when officers unlawfully
seize a defendant ‘in the hope that something might turn up.’” Williams, 615
F.3d at 670 (quoting Brown, 422 U.S. at 605). An officer's conduct is flagrant
if it violates well-established legal rules. See, e.g., Gross, 662 F.3d at 405–
06. However, a finding of “purposeful and flagrant misconduct is not limited
to situations where the police act in an outright threatening or coercive
manner.” Shaw, 464 F.3d at 630 (internal punctuation omitted).
Norris’ continued detention of Arrington was investigatory; at no point
did Norris attempt to ask any questions regarding the traffic stop. He
continued to question and eventually detained Arrington on the porch to
investigate if criminal activity was afoot. Norris’ testimony makes clear that
he continued to detain Arrington in hopes that something would turn up.
Brown, 422 U.S. at 605. His conduct was purposeful.
Further, Noriss’ continued detention of Arrington was unlawful. A police
officer must end a Terry stop as soon as his reasonable suspicion
evaporates. See Davis, 430 F.3d at 357. As the Court previously discussed,
Norris did not have reasonable suspicion to detain Arrington.
29 

 

 For all of these reasons, the evidence that the officers seized from
Arrington is the fruit of the poisonous tree.
IV.

CONCLUSION
Norris detained Arrington in violation of the Fourth Amendment. This

invalid detention tainted the search. All the evidence seized in the search
from Arrington is inadmissible.
The Court GRANTS Arrington’s Motions to Suppress: (1) Evidence
Based on Illegal Search and Seizure [ECF No. 24]; and (2) Post Arrest
Statements [ECF No. 25].
IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: February 19, 2020
 

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