USA v. Kevin Price

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Eugene E. Siler, Jr., Julia Smith Gibbons, and Raymond M. Kethledge (AUTHORING), Circuit Judges. [15-2041, 16-1163]

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0271p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,

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v.
KEVIN PRICE,
Defendant-Appellant.

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Nos. 15-2041/16-1163

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:14-cr-00026—Robert J. Jonker, Chief District Judge.
Argued: July 27, 2016
Decided and Filed: November 14, 2016
Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Jeffrey P. Nunnari, Toledo, Ohio, for Appellant. Sally J. Berens, UNITED STATES
ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Jeffrey P.
Nunnari, Toledo, Ohio, for Appellant. Mark V. Courtade, UNITED STATES ATTORNEY’S
OFFICE, Grand Rapids, Michigan, for Appellee.
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OPINION
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KETHLEDGE, Circuit Judge. Kevin Price argues that the police arrested him without
probable cause and that the district court therefore should have suppressed the guns and drugs
they seized three hours after his arrest. By the time of his arrest, however, the police had

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information that Price was the supplier for another heroin dealer whom the police had arrested
two weeks before; and immediately before Price’s arrest, the police saw (or at least could
reasonably believe they had seen) Price engage in an apparent hand-to-hand drug deal and then
flee after realizing that the police were present. We reject Price’s argument and affirm.
I.
At dusk on February 4, 2014, seven members of the Kent Area Narcotics Team set out to
execute a search warrant at the home of Kevin Price, at 1116 Fuller Avenue SE in Grand Rapids.
The weather was cold and in some places the neighborhood roads were reduced to a single lane
from the snowbanks on each side. The officers suspected that Price was a heroin dealer: per the
warrant affidavit of Detective Nick Schwein, multiple informants—including another dealer who
had recently identified Price as his source of supply—had reported that Price was “dealing large
quantities of heroin” from his home. The officers also had a description of Price’s vehicles and
knew that he was a six-time narcotics felon.
Given Price’s criminal history, the team wanted to know his whereabouts before trying to
enter his house. Their plan was to detain Price outside before searching inside. Price’s house sat
near the southeast corner of the intersection of Fuller Avenue, which runs north-south, and Fisk
Road, which runs east-west. Schwein and two other officers sat in a police-surveillance van on
Fuller, just south of Price’s house; two more officers sat in an unmarked Crown Victoria on Fisk,
just west of the house. Soon Price’s truck, with a snowmobile trailer in tow, drove north on
Fuller past the surveillance van. The truck passed Price’s house and made a left onto Fisk,
heading west toward the Crown Vic. Before reaching those officers, however, the truck and
trailer came to a halt in the snowbound street, partially blocking it. One of the officers in the
Crown Vic, Sheriff’s deputy Patrick Frederick, then saw Price exit the truck and walk over to an
idling Chevrolet Tahoe, whose driver lowered his window. Price spoke briefly with the driver
and then leaned his head, hands, arms, and shoulders into the vehicle—a motion that Frederick
had seen many times before, and that in his experience was indicative of a drug transaction.
Then the conversation ended and the Tahoe drove off.

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Frederick radioed the other officers to ask whether he should follow the Tahoe. They
said he should stay put to watch Price, who began walking east on Fisk and then turned south,
into an alley behind his house. There, Price was spotted by Detective Tiffany MacKellar, a late
arrival who had parked in that same alley, but north of Fisk Street, looking south. She positively
identified Price as he paced back and forth near a truck parked in the alley behind his house.
Then Price got into that truck and drove north out of the alley, turning west onto Fisk and then
north onto Fuller.
MacKellar called out over the radio that the officers should move quickly to seize Price.
The snowbanks and Price’s trailer briefly delayed Frederick in the Crown Vic, but he soon
followed Price north on Fuller, with MacKellar looping around the block to intercept Price headon. The officers stopped Price at the intersection of Fuller and Alexander Street, a block north of
his house. There they ordered him out of his truck and onto the ground at gunpoint before
placing him in handcuffs. Then they took Price back to his house and brought him inside while
they searched the premises.
In the house, the police found drug-dealing paraphernalia—scales, presses, chemical
cutting agents—but no illegal drugs. They also found documents showing that Price rented two
units at a nearby storage facility.

Schwein read Price his Miranda rights and asked for

permission to search the storage units; Price told him to get a warrant. Schwein left to prepare a
warrant application and Deputy Frederick went to the storage facility so that he could describe
the premises for a warrant affidavit. There, he learned that Price’s storage units consisted of a
mailbox and a parking place occupied by a large van. Frederick called the officers at Price’s
house to tell them about the van; they in turn questioned Price about it. At that point, three hours
after his arrest, Price admitted that the van was his and that he kept guns inside it. Price
consented to a search of the van, in which Frederick then found an AK-47, three Taurus
handguns, and 200 grams of cocaine.
A federal grand jury thereafter indicted Price on a single count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Before trial, Price
moved to suppress the government’s evidence on the grounds that his seizure and detention were
unlawful, and that, but for his detention, he would not have consented to a search of his van. The

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district court denied the motion after hearing testimony from Schwein, Frederick, MacKellar,
and other officers present during the search of Price’s home. A jury later convicted Price and the
district court sentenced him to 324 months’ imprisonment, which was the bottom of his
Guidelines range.
Price thereafter moved pro se for the return of certain property seized by police during
the search of his home. The district court denied the motion. These appeals followed.
II.
A.
Price argues that the police arrested him without probable cause when they took him into
custody at gunpoint at the intersection of Fuller and Alexander Street, and that his consent to
search his van, given three hours later, was therefore invalid. Thus he says the district court
should have granted his motion to suppress. Our standard of review is deferential: although we
review the district court’s legal conclusions de novo, we review its factual findings for clear error
and consider the evidence in the light most favorable to affirmance. See United States v.
Winters, 782 F.3d 289, 294-95 (6th Cir. 2015).
To have probable cause for an arrest, the police must be aware of “facts and
circumstances” sufficient to allow a prudent person to think the arrestee has committed or is
about to commit a crime. Radvansky v. City of Olmstead Falls, 496 F.3d 609, 614 (6th Cir.
2007). When the police already have reasonable suspicion that a person has committed a crime,
and the suspect later flees from the police, they have probable cause to arrest him. See Weaver v.
Shadoan, 340 F.3d 398, 409-10 (6th Cir. 2003).
Here, the police arrived at Price’s house with at least reasonable suspicion—that is,
“a particularized and objective basis,” id. at 407—to believe that Price was dealing drugs. As
Detective Schwein attested in his search-warrant affidavit, the police had received information
from multiple sources that Price was “dealing large quantities of heroin.” That information
included that, only two weeks before, the police had arrested another heroin dealer, Larry
Vaughn, who identified Price as his supplier and said that Price dealt large quantities of heroin

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out of his house. In addition, after the police arrived, Deputy Frederick observed Price engage in
conduct that, in Frederick’s experience, was indicative of a hand-to-hand drug sale. That Price
himself was a six-time narcotics felon only reinforced that belief. See United States v. Stepp,
680 F.3d 651, 667 (6th Cir. 2012).
Moreover, by the time Price walked down the alley behind his house, Price had walked or
driven past three police vehicles: the surveillance van on Fuller, the Crown Vic on Fisk, and
MacKellar’s vehicle in that same alley, facing him on the other side of Fisk. True, the vehicles
were unmarked; but unmarked does not mean unrecognizable, particularly since, as the district
court correctly observed, a Crown Victoria is “easily associated with police even when
unmarked.” Op. at 10. And then Price engaged in conduct that, given the circumstances, the
officers could regard as flight: he abandoned his truck and trailer in the street, thereby partially
blocking it; he paced around in the alley behind his house, as if figuring out what to do; and then
he took off in a truck different from the one in which he had arrived. By this point, if not earlier,
the police had probable cause to think that Price was a heroin dealer.
At oral argument, Price’s counsel responded, not unreasonably, that the police could not
infer both that Price knew they were there (the premise of the inference about flight) and that he
sold drugs to the Tahoe driver in plain view of those same officers. But Price might not have
realized until after his encounter with the Tahoe driver that the two police vehicles he had
already seen, and McKellar’s vehicle—which he saw after he walked away from the Tahoe—
were in fact police vehicles. It remains possible of course, that Price was not engaging in a drug
deal when he put his upper body inside the driver’s window of an idling vehicle on a snowy
night in February, and that Price was merely going about his regular business when he left his
truck and trailer partially blocking the street and then drove off in another vehicle. But the police
deal in probabilities, not certainties. Here, viewing the record in the light most favorable to
affirmance, the police could reasonably infer that Price’s behavior was not merely a series of
remarkable coincidences—and that instead he was likely dealing drugs. Probable cause requires
no more than that.
Price’s arrest was lawful, and thus did not vitiate his later consent to search his van. The
district court therefore properly denied Price’s suppression motion.

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B.
Price also argues in a separate, pro se appeal that the district court erred when it denied
his Rule 41(g) motion for the return of his property. We review the district court’s decision for
an abuse of discretion. See Savoy v. United States, 604 F.3d 929, 932 (6th Cir. 2010).
Rule 41 permits federal criminal defendants to move for the return of unlawfully seized
property “in the district where the property was seized.” Fed. R. Crim. P. 41(g). For the district
court to grant the motion, however, the federal government must have itself possessed the
property at some point. See Okoro v. Callaghan, 324 F.3d 488, 491-92 (7th Cir. 2003). Here,
the district court concluded, based on undisputed testimony, that “state and local officers” had
seized and disposed of the property—cars, jewelry, electronics, and cash—that Price sought to
have returned. Hence the federal government never possessed the property at issue, and the
district court was correct to deny the motion.
The district court’s judgment is affirmed.