Archive for March, 2009

IRS TAX FORM FOR EXTENSION

Tuesday, March 31st, 2009

Extension of Time to File Your Tax Return

If you need an extension to file your 2008 tax return you can use Form 4868 to gain an additional six months. Just click the form link below, and mail before April 15^th.

Form 4868, Application for Automatic Extension of Time To File U.S. Income Tax Return

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Need more time to prepare your federal tax return? This page provides information on how to apply for an extension of time to file.
Please be aware that an extension of time to file your return does not grant you any extension of time to pay your tax liability.

Extensions for Individuals
If you are not able to file your federal individual income tax return by the due date, you may be able to get an automatic 6-month extension of time to file. To do so, you must file Form 4868, Application for Automatic Extension of Time To File U.S. Income Tax Return by the due date for filing your calendar year return (usually April 15) or fiscal year return.
Special rules may apply if you are:

You can also go to Filing Information in Publication 17, Your Federal Income Tax (HTML page), for more information regarding the rules for automatic extensions and filing federal individual income tax returns.

Extensions for Corporations, Partnerships, REMICs, and Certain Trusts

Form 7004, Application for Automatic Extension of Time To File Certain Business Income Tax, Information, and Other Returns
Form 1138, Extension of Time for Payment of Taxes by a Corporation Expecting a Net Operating Loss Carryback

Other Extension Forms

Form 2350 Application for Extension of Time to File U.S. Individual Income Tax Return (For U.S. Citizens and Resident Aliens Abroad Who Expect To Qualify for Special Tax Treatment)
Form 4768 Application for Extension of Time to File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes
Form 5558 Application for Extension of Time to File Certain Employee Plan Returns
Form 8809 Application for Extension of Time to File Information Returns
Form 8868, Application for Extension of Time To File an Exempt Organization Return.
Form 8892, Application for Automatic Extension of Time to File Form 709 and/or Payment of Gift/Generation-Skipping Transfer Tax

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Tobacco Industry Disappointed as U.S. Supreme Court refuses chance to re-consider $79 million Dollar punitive damage award

Tuesday, March 31st, 2009

March 31 (Bloomberg) — The U.S. Supreme Court dismissed Philip Morris USA Inc.’s appeal of a $79.5 million smoker award, declining to rule in a case that business groups had hoped would lead to tougher restrictions on punitive damages.

The justices today issued a one-sentence order throwing out the Altria Group Inc. unit’s appeal of a case that was argued in December.

The rebuff leaves intact an award that has grown to more than $150 million with interest and, if paid in full, would set a record in an individual smoker case. Today’s action comes after a dozen years of litigation between Philip Morris, the largest U.S. cigarette maker, and Mayola Williams, whose husband died of lung cancer in 1997.

“Tobacco litigation has been a war of attrition,” said Robert Peck, a Washington lawyer who represented Williams at the Supreme Court. “This is a testament to sticking to principle and pursuing a case to its end.”

The company will still have a chance to argue at the lower court level that it shouldn’t have to pay the 60 percent of the award that under Oregon law goes to the state.

“If Philip Morris USA prevails, the company would be obligated to pay only the remaining 40 percent of the punitive damages award to the plaintiff in this case,” the company said in a statement. Altria is based in Richmond, Virginia.

‘Improvidently Granted’

The court dismissed the case as “improvidently granted.” The justices use that language when they discover problems with a case that prevent them from reaching the issue they planned to resolve.

Business groups had asked the court to insist on more vigilance from lower courts in policing punitive damages. Philip Morris and its corporate allies argued that some judges have ignored Supreme Court rulings restricting awards.

The Supreme Court had twice before set aside the Williams award and ordered reconsideration. In the latest case, Philip Morris was seeking a new trial or at least another hearing before the Oregon Supreme Court.

The case centers on Jesse Williams, a school janitor who smoked Marlboros for 42 years before dying of lung cancer in 1997 at age 67. Mayola Williams claimed in her lawsuit that her husband relied on the company’s fraudulent assurances that its products were safe.

Compensatory Damages

The jury’s 1999 punitive award — issued 10 years ago yesterday — came on top of $821,485 in compensatory damages, an amount later cut to $521,485 because of Oregon’s limits on awards. At the time, it was the largest individual verdict against the cigarette maker, and it sent company shares plummeting 8 percent that day.

The U.S. Supreme Court first ordered reconsideration of the Williams award in 2003, pointing to a punitive-damages ruling the high court had recently issued.

The Oregon Supreme Court upheld the award, and the U.S. Supreme Court agreed to hear arguments. The high court then used the Williams case to declare that, under the Constitution, juries can’t impose punishment for harm suffered by people who aren’t involved in the lawsuit. As part of that ruling, the justices set aside the award again and returned the case to the Oregon courts.

State Law

The Oregon Supreme Court then said it wouldn’t consider Philip Morris’s constitutional arguments because the jury instructions the company proposed for use at trial would have misstated state law. The court said that misstep violated a state law requirement that proposed jury instructions be “correct in all respects.”

In the latest U.S. Supreme Court round, Philip Morris argued that the Oregon court disobeyed the higher court. Williams’s lawyers contended that courts have discretion to decide which issues to resolve first in evaluating a case.

During arguments, Justice Stephen Breyer said his views had changed in the three months since the court agreed to take up the dispute. Originally, “I thought this is a runaround, and I’m not sure I think that now,” Breyer said.

Another justice, David Souter, said the company had a “steep hill” to climb to persuade the court to bar Williams from raising an argument based on state courtroom procedure. “What business do we have to do that?” Souter asked.

The case was one of two involving Philip Morris on the court’s 2008-09 calendar. In December, the justices ruled 5-4 that smokers can sue over the marketing of “light” cigarettes.

The case is Philip Morris v. Williams, 07-1216.

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The Kentucky Supreme Court Adopts Important New Criminal and Civil Rules

Tuesday, March 31st, 2009

March 31, 2009

Important topics affected by these rule changes include: use of subpoenas in civil cases, discovery, location of discovery, sentencing, probation, appeals, bail, conduct of a defendant at trial and a number of other topics.

A new rules designed to assure privacy of litigants in court filings has been adopted by the court.

A new appellate rule concerning reconsideration of motions has been adopted.

New wording is required in subpoenas, including a requirement that the party seeking issuance of a subpoena must include new information including his/her e-mail address.

LawReader subscribers can view the new Criminal and Civil Rules with a commentary written by LawReader Senior Editor Stan Billingsley pointing out what changes have been made.

LawReader subscribers can read this report at: NEW CIVIL AND CRIMINAL RULES FOR APRIL 1, 2009

Non-subscribers can sign up for only $34.95 a month, at: SIGN UP – PRICING .

These new rules are effective as of April 1, 2009. LawReader has updated its annotated Civil and Criminal Rules to reflect these important new changes.

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Court Facilities Standards Committee to review judicial center projects planned for Hopkins, Owen and Todd counties

Monday, March 30th, 2009

March 30, 2009
Frankfort, Ky. — The Court Facilities Standards Committee will meet to discuss judicial center projects planned for Hopkins, Owen and Todd counties at 10 a.m. Friday, April 3, at the Administrative Office of the Courts in Frankfort. The meeting is open to the public.
The AOC is located at 100 Millcreek Park in Frankfort. The meeting will take place in the AOC Building 12 conference room.
Who: The Court Facilities Standards Committee is a 10-member body comprised of representatives from the Kentucky Executive, Judicial and Legislative branches of government and a county official appointed by the governor. The committee reviews design plans, cost estimates and financing proposals for new court facilities statewide. Among the committee members are State Sen. Robert Stivers, State Rep. John Tilley, Chief Justice of Kentucky John D. Minton Jr. and Administrative Office of the Courts Director Jason Nemes.
The Court Facilities Standards Committee operates under the auspices of the AOC in Frankfort, which is the operational arm of the Kentucky Court of Justice. The AOC Department of Facilities oversees court facility construction, renovation and maintenance throughout the commonwealth.
What: The committee will be discussing new judicial center projects for Hopkins, Owen and Todd counties, which were among the 17 judicial center projects authorized by the 2006 General Assembly and funded by the 2008 General Assembly.
Original project plans:
Hopkins County – 64,300-square-foot judicial center with an estimated total project cost of $20.5 million
Owen County – 33,000-square-foot judicial center with an estimated total project cost of $11.5 million
Todd County – 27,200-square-foot judicial center with an estimated total project cost of $9.5 million

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When a child’s tax deduction is claimed by both parents who wins?

Sunday, March 29th, 2009

State law grants a great deal of discretion to the Circuit Court (or Family Court) to make this call. However, Federal law in the tax code conflicts with the case law of Kentucky on this issue. In cases where there has never been a ruling by the Circuit Court, then Federal law which provides a test to determine which child gets the tax deduction will be applied.

LawReader has added a topic and a form for dealing with the issue of which parent can claim a child’s tax deduction.

LawReader subscribers can view this article and form at:

TAX DEDUCTION FOR MINOR CHILD Which party can claim the federal tax deduction for a dependent child. Form to submit with tax return.

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Important topics discussed by Ct. of Appeals this week

Saturday, March 28th, 2009

topics for march 27, 2009
arbitration- claim of fraud-jurisdiction court to review arbitration award appeal
SOVEREIGN IMMUNITY OF OFFICIALS WHO COLLECT TAXES-WAIVER –PERFORMANCE BOND
standing of rejected bidder to contest issuance of contract
polling of jury-altering verdict form in courtroom- mistrial
prejudgment interest-award of attorney fees-division of pension on dissolution distribution
maintenance award past the age of sixty-five
contract for sale of realty- option – death of grantor- real property goes directly to heirs and not through estate
gratuitous agent – respondeat superior –summary judgment- master and agent
civil rights administrative hearing – finality of judgment – settlement of hate crime complaint with administrative body does not require agreement or presence of complainant
child custody-attorney fees-pro se litigant
duties of partners in a limited liability company – business opportunity doctrine adopted in Kentucky in this ruling- fidicuiary responsibility- damages for breach
court erred in reopening property settlement
notice requirement for lien holder - KRS 382.365 provides penalty of up to $500 a day for lien holder failure to release lien – rubber stamp is a signature –fax was proper notice – no retroactive change in notice requirement
interpretation of lease on attempt to terminate oil and gas lease – treaspass – duty to bury pipeline –royalties
summary judgment re: home insurance policy – findings of fact
legislative act unconstitutional when it contains multiple subjects – cigarette paper tax held invalid
slip and fall – summary judgment upheld –open and obvious condition
jury may not ignore undenied evidence of damages – new trial granted due to inadequate damage award by jury
slip and fall – summary judgment –duty to warn
class action qualification-member of class-summary judgment
prison good time for educational attainment – due process liberty interest
court improperly modified custody decree
de facto custodian time limit
wrongful use of civil process – summary judgment error
worker’s compensation-going and coming rule applies to pilots
termination of parental rights- right to counsel exception for parent
parent’s incarceration does not suspend visitation rights
child visitation appeal untimely
worker’s compensation
60.02 motion denied- guilty plea waives complaint against indictment
11.42 motion
11.42 motion based on alleged incorrect information about parole eligibility at plea
60.02 motion – RCr 10.26 has no application in review of 60.02 motion
capital offense enhancement by pfo-separate charges
prison inmate – chain of custody of drug test sample –due process
plea bargain not conditional-no new evidence presented
recusal of judge-criminal contempt of court
speedy trial proceedings and standards –procedure for appearing pro se
prosecutor may make a “send a message” argument to defendant but not to community
choice of evils defense- separate instruction vs. lesser included offense instruction
revocation of probation-acts occurring before probation-business records exception to hearsay rule

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Court Adopts New Law Concerning Duties of Partners in Limited Liability companies

Saturday, March 28th, 2009

The Court of Appeals this week adopted new law relating to Limited Liability companies.
This important appellate ruling can be found by LawReader subscribers in the Weekly Decisions of the Ct. of Appeal ruling for March 27, 2009.
To read the complete synopsis and to find the complete text of this important decision go to: COURT OF APPEALS DECISIONS FOR MARCH 27, 2009 . See LawReader Case No. 11 –Court of Appeals – March 27, 2009

The court issued a total of 42 cases this week. All of them can be reviewed by LawReader subscribers. Nine of these cases were ordered to be published.
If you are not a subscriber you may sign up online at: SIGN UP – PRICING

The following comments were made by the court.

TO BE PUBLISHED

duties of partners in a limited liability company – business opportunity doctrine adopted in Kentucky in this ruling- fidicuiary responsibility- damages for breach

the parties present this Court with an issue of first impression: whether under KRS 275.170 or by common law, Hobbs owed a fiduciary duty to American Leasing and Patmon.

we adopt the doctrine of corporate opportunity, under which one entrusted with active corporate management, such as officer or director or manager-member, occupies fiduciary relationship and may not exploit this position by appropriating a business opportunity properly belonging to the corporation.

even in the absence of a statutorily imposed duty, an officer or director of a company owes a fiduciary duty to the company

…a “partner has a duty to share with the partnership those business opportunities clearly related to the subject of its operations.”

members of a limited liability company are agents for the purpose of its business or affairs. KRS 275.135(1). But where the articles vest authority in a manager or managers, every manager is an agent of the limited liability company for the purpose of its business or affairs.

profits realized by an agent in the execution of his agency belong to the other members in the absence of an agreement to the contrary

we see no difference between the fiduciary duties a director owes a corporation with shareholders or a member owes to a limited liability corporation

the measure of damages in a similar case where company opportunity was misappropriated was the gross profit a company would have earned on the contracts.

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Incorrect representations of parole eligibility repeatedly claimed on appeal. How Hard would it be for the courts, the AOC or Dept. of Corrections to solve this problem?

Saturday, March 28th, 2009

By Judge Stan Billingsley (Ret.)

We see a continuing problem raised on appeal regarding plea bargaining procedures. Defendants repeatedly raise the issue that they enter guilty pleas but claim they were misinformed concerning their eligibility for parole consideration and that after the plea they learned from the Dept. of Corrections that due to enhancement rules inherent in mandatory sentencing laws they would not be eligible for parole consideration after serving 20% of their sentence, but must serve 85%.

The prosecutors and defense lawyers seem as confused on this topic as the Judges. It is not uncommon to see a case where a defendant’s claim is credible but he doesn’t learn that he is not entitled for consideration of parole after serving 20% of his sentence, and parole consideration is denied by the Dept. of Corrections. This sets off a chain of appeals and claims of ineffective assistance of counsel.

The courts have adopted a rule that basically says, there is no duty on the court to advise the defendant on his parole eligibility. The courts have side stepped this problem. However, we suggest that there really is no good reason that parole eligibility conditions shouldn’t be made a mandatory part of the plea colloquy required in the sentencing process.

At the very least the Administrative Office of the Courts in conjunction with the Dept. of Corrections, could prepare a pocket card spelling out the conditions under which parole eligibility is delayed or denied to an inmate. The courts should add this topic to their educational calendar at the judicial colleges they conduct annually.

A basic sense of fair play would seem to indicate that the court should be sure that a defendant knows what his sentence under the plea agreement is going to be before the plea is accepted. This problem results merely from a lack of knowledge about parole conditions on the part of the court, the prosecutor and defense counsel.

I will be the first to admit that even after 24 years on the bench I never understood all the parole conditions. This problem is a very easy one to solve, and the benefits of finding a solution are justified.

Those chared with implementing parole, should publicize the conditions under which parole is denied, and share this information with the courts and the bar. The courts in sentencing could ask the defendant if he has read the parole conditions, and if not they should be explained to him.

The following decision issued on March 27, 2009 is only the latest example of this problem.

“Moore argues that he is entitled to have his criminal judgment reversed and remanded because his counsel incorrectly advised him that he would have to serve only 20% of a sentence set out in a plea agreement, and because the judgment does not accurately reflect the terms of the plea. For the reasons stated below, we affirm the order on appeal….a knowing, voluntary and intelligent waiver does not necessarily include a requirement that the defendant be informed of every possible consequence and aspect of the guilty plea.

A guilty plea that is brought about by a person’s own free will is not less valid because he did not know all possible consequences of the plea and all possible alternative courses of action. To require such would lead to the absurd result that a person pleading guilty would need a course in criminal law and penology.” 2008-CA-000894 Moore v. Commonwealth March 27, 2009

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Missouri Implements New Model for Juvenile Justice Program

Friday, March 27th, 2009

By SOLOMON MOORE New York Times March 26, 2009

ST. LOUIS, Mo. — VonErrick celebrated his 14th birthday last year by committing a daylight carjacking, beating the driver to the ground. With a long record of truancy, assault, and breaking and entering, he was sent to a state group home — the same home that his two older brothers passed through after their own scrapes with the law.

Rules are posted at the Hogan Street Youth Center in St. Louis.

Both of those brothers are out now. Tory, 16, has A grades and plans to attend college. Terry, 20, has a job and has had a clean record for four years. VonErrick was recently released and immediately started high school.

The brothers say they benefited from confinement in the Missouri juvenile system, which emphasizes rehabilitation in small groups, constant therapeutic interventions and minimal force.

Juvenile justice experts across the nation say that the approach, known as the Missouri Model, is one of several promising reform movements that strapped states are trying to reduce the costly confinement of youths. California, which spends more than $200,000 a year on each incarcerated juvenile, reallocated $93 million in prison expenses by reducing state confinement.

There is no barbed wire around facilities like Missouri Hills, on the outskirts of St. Louis. No more than 10 youths and 2 adults called facilitators live in cottage-style dormitories in a wooded setting, a far cry from the quasi penitentiaries in other states. When someone becomes unruly, the other youths are trained to talk him down. Perhaps most impressive, Missouri has one of the lowest recidivism rates in the country.

Other states, including Florida, Illinois and Louisiana, have moved in a similar direction, focusing on improving conditions at state facilities to keep young offenders from returning.

Some states have worked at the county level to avoid confinement altogether, keeping youths in their communities while they receive rehabilitative services, which advocates say is a cheaper alternative to residential care.

The two largest state systems, Texas and California, cut long-term youth confinement by requiring counties to house low-level offenders in detention halls. Texas cut its 5,000-youth population by half within two years, while California reduced its population to 2,500, from more than 10,000 in 1997. But critics say that city and county detention programs are uneven and point out that states often do a poor job of monitoring them.

Missouri and other states are using new approaches in the juvenile justice system to try to stem the flow of adults behind bars. Missouri managed to cut its adult population from 2005 through the first half of 2007 by applying techniques from the Missouri Model.

The reforms have begun to have a national impact, with a 12 percent decrease in juvenile offenders from 1997 to 2006, from 105,000 youths to 93,000.

Most of the decline during that period was in state confinements, although some of the decrease is attributed to a 28 percent decline in youth arrests, which reform advocates say proves that there is no detriment associated with fewer incarcerated juveniles.

The Anne E. Casey Foundation of Baltimore has been a leading advocate for ending the confinement of low-risk offenders and placing them in community programs. Since trying the foundation’s approach in 2003, five counties in New Jersey have reduced juvenile detention by 42 percent, to 288 youths from 499.

Three years ago in California, Scott MacDonald, who is in charge of probation in Santa Cruz County, began asking courts to use Casey Foundation methods. Instead of confining every gang member accused of a crime, or every juvenile who failed a drug test, judges now look at a youth’s record and risk to determine whether he should remain free. A youth who fails a drug test, for example, might be ordered to attend substance abuse classes.

“Even if a kid doesn’t follow all of the rules — particularly rules that have nothing to do with crime — we won’t necessarily detain him,” Mr. MacDonald said.

the 1990s, the Santa Cruz juvenile hall averaged 50 to 60 youths. Now it averages about 20 detainees, most of them under community supervision. More than 90 percent of those in the community programs have not committed new crimes within three years, Mr. McDonald said.

“The question we’re always starting with is, How do we keep them home?” he said.

Isela Gutierrez, a juvenile justice expert with the Texas Criminal Justice Coalition, a nonprofit group, said one drawback to the Missouri state system was that too many low-level offenders there were being confined, while serious juvenile felons were being sent to adult prisons, where conditions are harsher.

Tim Decker, director of the Missouri Division of Youth Services, said judges preferred to send youths to state facilities — Missouri Hills or the Hogan Street Regional Youth Center, with dorms that have wooden beds, male health and wellness classes, group counseling and game rooms — rather than dismal county lockups or to backlogged community programs.

“Judges have more faith in us,” Mr. Decker said. “So far we’re O.K., but you can’t do what we do with 25 kids in a group.”

Missouri Hills is clean and homey, with plush couches, stuffed animals on the bunks, and a dog rescued from the pound. The violence that plagues many juvenile prisons is also absent.

In a typical juvenile corrections environment, Mr. Decker said, if a youth becomes aggressive “you would have guards drag him into isolation” for three days.

“But,” he added, “the problem is that a young person doesn’t learn how to avoid that aggressive behavior and it will get worse.”

In Missouri Hills, isolation rooms were used only about a dozen times last year, Mr. Decker said, and never for more than a few hours. Pepper spray is banned, and youths are taught to de-escalate fights or apply grappling holds, a form of restraint.

Victoria, 16, who stole her grandmother’s car, her second offense, explained how her housing unit does a “circle-up,” or ad hoc counseling session, several times a day, whenever there is a conflict, like cursing.

“There’s drama all the time,” she said. “It’s like having a bunch of sisters.”

The Missouri system provided triage for an imploding system in Washington, where the juvenile corrections agency was plagued by vermin-infested buildings, overcrowding and chronic violence.

“The kids were stuffing their shirts with paper before they went to sleep to keep the roaches and rats from biting them,” said Vincent Schiraldi, head of the city’s Division of Rehabilitative Services.

With advice from experts in Missouri, Mr. Schiraldi divided platoons of youths into small groups. By October, the number of juveniles reconvicted within a year of release dropped to 25 percent, from 31 percent four years earlier. However, as conditions improved, confinements have risen, even as juvenile crime has declined.

Mr. Decker said that upgrading facilities and training new staff cost more initially, but that the reforms would reduce recidivism, which would result in long-term savings.

VonErrick has been home for a few weeks, and his 18-year-old sister said he seemed calmer and less interested in running with the wrong crowd. Their mother, Rosie Williams, said all three of her sons seemed more focused, and she attributed the changes to the counselors at the state group home.

Ms. Williams, whose husband is in prison, occasionally attended family counseling sessions where she said she learned important lessons as a parent. “Instead of just hollering at them and trying to keep them out of trouble,” she said, “I try to do things with them one on one, to get to know what’s on their mind and what’s going on in their lives.

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General Assembly’s 2009 session ends- See important bills passed

Friday, March 27th, 2009

March 27, 2009

FRANKFORT — The Kentucky General Assembly’s 2009 session gaveled to an end today, capping 29 days of legislative activity that included the passage of bills on school testing reform, drug screening and treatment for felony offenders, and tracking for payday lenders.

More than 700 bills were introduced in the two legislative chambers this year, including legislation to plug shortfalls in the state budget. Measures sent to the governor to be signed into law include the following:

CATS testing. Senate Bill 1 overhauls the state’s end-of-year school accountability exams, eliminating writing portfolios as well as arts and practical living exams. Those elements would be retained as school programs, however.

Drug diversion. SB 4 directs jail officials to screen certain drug abuse offenders as soon as they are booked. Judges can then order outpatient drug counseling, while serious addicts can volunteer for inpatient treatment. Those who complete a follow-up program and stay clean can have the felony wiped from their record.

Penal code. Senate Joint Resolution 12 continues a study of the state’s criminal laws, putting it under the jurisdiction of the legislature’s Interim Joint Committee on Judiciary.

Personal services. SB 22 requires home health agencies and other personal service businesses to conduct criminal background checks on their employees and bans anyone convicted of abuse, drug crimes, or sex crimes from being hired.

Flags. SB 33 requires all U.S. and Kentucky flags purchased by state and local governments to be made in the U.S.

ATVs. House Bill 53 requires all-terrain vehicles to be titled, just as motor vehicles are.

Oil and gas. SJR 67 directs a study of potential benefits from oil and gas exploration on state lands.

Local government pensions. HB 117 allows employers in the County Employees Retirement System to phase in their health care payments over 10 years, just as the state government does.

Budget revisions. HB 143 deals with state budget shortfalls with 4 percent cuts for most state agencies. The Medicaid program, corrections and SEEK funds for schools were protected from the cuts. Higher education received 2 percent cuts. The budget revision plan also uses some of the state’s “Rainy Day” funds to close the budget gap.

Revenue. HB 144 will generate additional revenue for the state by doubling the state’s tobacco tax, increasing the tax on cigarettes to 60 cents a pack, and extending the state’s 6 percent sales tax to retail alcohol sales.

Sex offenders. HB 315 bans convicted sex offenders from MySpace, Facebook, and other social networking sites where minors are allowed. It also requires them to register their e-mail addresses, screen names, and other online IDs with state authorities.

School days. HB 322 allows school districts to ask the Education Commissioner to waive 10 school days from the school calendar due to school closings caused by the winter ice storm and the windstorms caused by last fall’s Tropical Storm Ike.

Gasoline tax. HB 374 sets the current gas tax of 22.5 cents per gallon as the new base, rather than allowing it to fall with gas prices on April 1.

School athletes. HB 383 requires high school coaches to become certified in student safety. Beginning next school year, one certified coach must be present at every practice and game.

Payday lending. HB 444 sets up a database to enforce the state’s two loan/$500 maximum on payday loans. The bill also puts a 10-year moratorium on new payday lending stores.

Student loans. HB 480 mandates that when money is tight, the state restricts access to new loans by the Best in Class program, which forgives loans for teachers who enter the fields of math, science, and special education. Current teachers whose loans need forgiveness would have priority in the program, which will also add nurses and public-service attorneys to the program.

–END–

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House Leaders conclude legislative session without considering pending bills changed by Senate

Thursday, March 26th, 2009

Press release issued by Ky. House of Representative leaders:

Frankfort – The Kentucky House of Representatives ended today what has widely been called one of the most successful legislative sessions in recent memory.

“This has been a highly productive time for all of Kentucky, from resolving the current budget crisis to enacting a multi-billion dollar road plan and greatly improving school testing,” House Speaker Greg Stumbo (D-Prestonsburg) said. “We have done our work efficiently, and transparently.”

The House voted today in accordance with its rules to consider only vetoes issued by Governor Steve Beshear and potentially enroll any bills that the Senate may send. Since only one veto was issued and not overturned, and just a handful of bills were enrolled, the House ended the session a day early.

House Majority Caucus Chair Bob Damron (D-Nicholasville) addressed questions about why the House chose not to take last-minute votes on bills that were still outstanding. “Our caucus wanted to avoid the last-minute confusion that has taken place in recent sessions,” said Damron. “After noting how much had been accomplished, we decided that keeping veto days just for vetoes was the right course of action and it follows precedent set generations ago.”

“Our rules are designed to ensure thoughtful, deliberate decision-making in the public eye,” Stumbo added. “Last-minute decisions prohibit full debate and public comment. By drawing the line here, we can be sure that both houses will always conduct the people’s business in an open, timely and responsible manner.”

Speaker Stumbo pointed to several House bills that the Senate could consider. Among those are:

House Bill 229 (Governor Beshear’s incentives; House voted March 10^th; Senate, March 13^th)

The Senate’s version includes a brand new provision that would bail out homebuilders and chiefly benefit only those making more than $100,000. “This could cost us up to $25 million at a time when our schools and health and human services are in desperate need of money,” Speaker Stumbo said. “We believe the original package we passed helps working families and protects taxpayers.”

House Bill 521 (NASCAR incentives; House voted March 5^th; two readings in Senate; Senate included this in their version of HB 229)

The Senate’s version is the same as the House’s except for one key change: It does not tie incentives to hiring Kentucky workers. “We in the House want assurances that tax-payer dollars are going to help Kentucky workers,” Speaker Stumbo said. “We all want NASCAR to come to Kentucky and strongly believe that Kentucky workers should build the track.”

House Bill 102 (Mega projects; House voted March 9^th; Senate, March 13^th)

Speaker Pro Tem Larry Clark (D-Louisville) emphasized that the just-completed road plan includes every dollar needed to move the Louisville bridges project forward during this fiscal year and next. “Because of the funding, the timeline is unaffected by what we do during the veto days,” Clark said. “I would like to see this resolved soon, though, because we need to decide what agency will oversee projects like these. The House believes Kentucky would be better served by creating a new agency that can focus entirely on the mega projects.”

House Bill 433 (Budget modifications; House voted March 10^th; Senate, March 13^th)

This legislation from the House would give public defenders and prosecutors alike money to complete the fiscal year without adversely affecting their offices. It also would call on the Department of Education to begin replacing five schools in desperate need of new facilities. “These are appropriations that need attention now, and we hope the Senate will act promptly,” House Majority Whip John Will Stacy (D-West Liberty) said, noting that funding public defenders is a Necessary Government Expense that the governor has the authority to fund if the bill does not pass.

House Bill 537 (Governor Beshear’s energy plan; House voted March 2^nd; Senate, March 13^th)

The Senate has added legislation that would make it possible to bring nuclear plants to Kentucky and that would allow oil and natural gas exploration on state grounds. House Majority Leader Rocky Adkins (D-Sandy Hook) said, “Making it easier for nuclear plants to build in Kentucky needs far more discussion. Our chamber has not discussed this at all, and we believe more public input is needed.”

“There is a time and place for each of these proposals, all of which in their original form had strong support in the House when they were sent to the Senate,” Speaker Stumbo said. “I trust they will be addressed again in a timely manner when the legislature returns in session.”

-30-

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Chief Justice Minton releases Opinion Letter on Kentucky Court Facilities Construction Program

Wednesday, March 25th, 2009

Opinion Letter on Kentucky Court Facilities Construction Program
Read: Geisen Opinion Letter 3-19-09.pdf
Table of Bonding Status of Current Projects

Read Construction Project Table 3-24-09.pdf
FRANKFORT, Ky. — Chief Justice of Kentucky John D. Minton Jr. made public today a legal opinion regarding bonding requirements for Kentucky court facilities construction projects. The opinion is the result of the chief justice’s call for a comprehensive review of bonding requirements in light of recent questions about inadequate bonding practices.
Chief Justice Minton announced March 4, 2009, that he had retained construction law attorney William G. Geisen to determine whether current court facilities construction projects were appropriately bonded.
“Mr. Geisen conducted a thorough and unbiased review of current bonding practices on our courthouse projects and found that the Administrative Office of the Courts has allowed certain construction managers to furnish Performance and Payment Bonds that are legally insufficient,” Chief Justice Minton said. “Mr. Geisen’s opinion letter indicates that we must take immediate action to rectify inadequate compliance with our Administrative Procedures. I will be asking the county judge-executives to require the construction managers on their projects to immediately furnish a Performance and Payment Bond equivalent to 100 percent of the Contract Sum, with the Owner as Obligee.
“The AOC has determined that certain construction managers submitted inadequate bonding in an untimely fashion,” Chief Justice Minton said. “Many were submitted in the last two months and only after receiving public record requests regarding bonding information. I am deeply committed to restoring the integrity of our construction program. The next step is for Mr. Geisen to determine how this opinion will affect current and future court facilities construction projects and to provide legal advice on how to implement his findings.”
Mr. Geisen has been affiliated with Graydon Head & Ritchey LLP, based in Cincinnati, since 1995. He currently serves as chairperson of the firm’s Construction Industry Group. He works out of Graydon Head’s Fort Mitchell, Ky., office and is licensed in both Kentucky and Ohio. During his 26-year legal career, Mr. Geisen has represented contractors, subcontractors, bonding companies, owners and design professionals in litigation, arbitration, dispute resolution and contract negotiation. He is active in several construction industry organizations and is a frequent lecturer, both regionally and nationally, on construction law related topics. He is a graduate of the University of Kentucky College of Law.
As the administrative and fiscal agent for the Judicial Branch of state government, the AOC provides oversight and administration of court facilities in accordance with House Bill 734, which was passed by the 2000 General Assembly. The AOC also supports the activities of 4,000 court system employees, including the elected justices, judges and circuit court clerks.

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6th Circuit: Traffic stop violated Fourth Amendment

Tuesday, March 24th, 2009

March 19, 2009

The police couldn’t stop a vehicle that was involved in an apparent exchange of drugs with a pedestrian near a store with a reputation for selling drug paraphernalia, the 6th Circuit has ruled in reversing denial of the defendant’s motion to suppress.

Several police cars on patrol were parked across from a liquor store with a reputation for drug trafficking. The officers observed a man approach a car, talk with the driver, glance at the police and walk away. The car drove around the corner where the police couldn’t see, and the man followed.

The officers followed the car as it drove away and stopped it based on the suspicion that some kind of criminal activity had occurred. A search revealed drugs and a gun.

The driver of the car moved to suppress the evidence, arguing that the officers did not have a reasonable suspicion of criminal conduct.

The court agreed, vacating his conviction.

“Considering the totality of the circumstances, this sequence of events was insufficient to provide the officers with reasonable suspicion that a crime had been committed. Without more information, they were not justified in stopping [either man]. That the two men greeted each other in a ‘bad’ neighborhood late at night, glanced toward flashing police lights, and then spent several seconds, during which they may or may not have had any contact, in a parking area beside an open, operating liquor store – a parking area that the police, from their vantage point, could not see – was not enough, under the Fourth Amendment, to justify the intrusion of a police stop,” the court said.

U.S. Court of Appeals, 6th Circuit. U.S. v. Keith, No. 07-5202. March 18, 2009. Lawyers USA No. 993-567..

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0103p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JONATHAN KEITH,

Defendant-Appellant.

No. 07-5202

Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

No. 06-00038—David L. Bunning, District Judge.

Argued: January 16, 2009

Decided and Filed: March 18, 2009

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Robert

Kennedy McBride, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky,

for Appellee. ON BRIEF: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for

Appellant. Robert Kennedy McBride, Charles P. Wisdom, Jr., ASSISTANT UNITED

STATES ATTORNEYS, Lexington, Kentucky, for Appellee.

COLE, J., delivered the opinion of the court, in which GILMAN, J., joined.

KENNEDY, J. (pp. 11-17), delivered a separate dissenting opinion.

_________________

OPINION

_________________

COLE, Circuit Judge. Jonathan Keith pleaded guilty to several counts, including

possession of crack cocaine with intent to distribute and possession of a firearm in

furtherance of drug-trafficking. He reserved the right to appeal the district court’s denial of

his motion to suppress evidence obtained as a result of an investigatory Terry stop. He

No. 07-5202 United States v. Keith Page 2

claims that the officer who stopped him lacked the requisite reasonable suspicion of criminal

conduct. He also asserts that the district court committed errors at sentencing. For the

following reasons, we REVERSE the district court’s denial of Keith’s motion to suppress

evidence. This renders the sentencing issues moot.

I. BACKGROUND

At 1:45 a.m. on March 29, 2006, Newport, Kentucky police officers Gregory

Ripberger and Leonard Stephens were on patrol. They had just finished assisting with an

arrest (unrelated to this case) and were standing on a corner next to multiple marked police

cars with their lights flashing. On the opposite corner of the intersection, about fifty yards

away, was “Big Daddy’s” liquor store. The officers could see the two sides of the building

facing the intersecting streets: one side was the front of the store, and the other side

contained a drive-through window sheltered by an overhang. They were not surveilling Big

Daddy’s in particular, but the officers could see the store clearly. Their unit dealt frequently

with narcotics crimes, and the officers knew that, in addition to the standard liquor-store fare,

Big Daddy’s sold certain items that could be used to smoke crack cocaine, including filters

and glass vials. Officer Ripberger had effected narcotics arrests in the surrounding area

before, and, based on his “experience and training as a Newport police officer,” he

considered “Big Daddy’s and [its] parking lot to be a high drug trafficking crime area.”

(Joint Appendix “JA” 74.)

As they stood on the corner, the two officers observed a man on foot, later identified

as Brandon Crawford, approach a car that had pulled up to the Big Daddy’s drive-through

window. Another man, later identified as Keith, was in the driver’s seat of the car. Officer

Ripberger testified that Crawford “walked up to the vehicle and appeared to start talking to

the driver, stuck his head inside the [passenger-side window of] the vehicle, and at one point

in time he looked back at us and then removed himself from the vehicle that he was leaning

into.” (JA 77, 97.) His head was in the car “[j]ust a few brief seconds.” (JA 78.) The car

then pulled away from the drive-through window. The testimony of Officer Ripberger

suggests that Keith did not pull out of the drive-through line prior to reaching the drivethrough

window: “[Crawford] approached a silver Pontiac that was parked in the drivethrough

at the window.” (JA 77-78 (emphasis added).) Additionally, Officer Stephens

No. 07-5202 United States v. Keith Page 3

stated twice that he was uncertain whether Keith had purchased something in the drivethrough;

if Keith had pulled out of line prior to reaching the window, Officer Stephens

would have been certain that Keith had not purchased anything. Rather than leaving the

parking lot through an exit near the drive-through window, Keith turned and drove across

the parking lot in front of Big Daddy’s, turned again at the corner of the building, and

proceeded along the side of the store, which the officers could not see from their vantage

point. The officers were aware that there were parking places and a dumpster located on that

side of Big Daddy’s.

At the suppression hearing, the officers repeatedly spoke of Keith going “behind”

Big Daddy’s, but the south side of the building, which is where the officers lost sight of

Keith, is more accurately described as the “side” of the Big Daddy’s because the building’s

facade faces westward onto

Central Avenue

. Keith was only “behind” Big Daddy’s from

the perspective of the officers, who were looking at the store from the northwest. As Keith

was driving around the building, Crawford also walked across the front of Big Daddy’s

toward the south side of the building, and, while doing so, he looked in the officers’ direction

again. Officer Ripberger interpreted this as an attempt “to see what [the officers] were

doing.” (JA 78-79.) When Crawford reached the corner of the building he turned, and the

officers lost sight of him on the far side of the building. Officer Stephens testified that

Keith’s car was out of their sight for “a few seconds,” and Crawford was out of sight for

“[j]ust a few seconds.” (JA 123-24, 132.) In his incident report, Officer Ripberger stated

that Crawford was out of sight and then appeared again “within seconds.” (JA 102.)

Ripberger testified that Keith’s car was out of sight for approximately fifty seconds. (JA

102.) Both officers acknowledged that they did not know if the two men had any contact on

the far side of the building. Officer Ripberger testified that he and Officer Stephens

suspected that the two men had met on the side of the building to engage in a drug deal or

exchange alcohol that had been purchased for someone under age. Accordingly, the officers

entered their respective patrol cars intending to confront the two individuals.

When Keith’s car emerged from the far side of the building, it exited the parking lot

and drove into the street. Officer Ripberger followed Keith and stopped his car, based solely

on his suspicion that some kind of criminal activity had occurred in the few seconds that the

officers had lost sight of Keith and Crawford (Keith did not commit any kind of traffic

No. 07-5202 United States v. Keith Page 4

infraction). Officer Ripberger then ran a check on Keith’s driver’s license and learned that

it was suspended. He also viewed what appeared to be marijuana in plain sight in the car.

A subsequent search of Keith’s car revealed a gun, and a later body-cavity search revealed

approximately 19.8 grams of cocaine base hidden in Keith’s rectum. Officer Stephens

conducted a separate stop of Crawford, found nothing suspicious on him, and allowed him

to go.

Keith was charged in a five-count indictment with: 1) possession with intent to

distribute crack cocaine; 2) possession of a firearm by a convicted felon; 3) possession of a

firearm in furtherance of drug-trafficking; 4) forfeiture of firearm and currency; and

5) forfeiture of firearm. Claiming that Officer Ripberger did not have reasonable suspicion

to believe that he had engaged in criminal activity, Keith moved to suppress the fruits of the

initial stop of his car. He did not challenge any of the officers’ actions subsequent to the stop

and does not make any such challenge on appeal. A magistrate judge issued a Report and

Recommendation denying the motion to suppress, and the district judge adopted the Report

and Recommendation in full. Keith entered a conditional guilty plea, reserving the right to

appeal the denial of his suppression motion.

II. ANALYSIS

A. Standard of review

In reviewing a district court’s decision on a motion to suppress, we review factual

findings for clear error and the application of the law to those findings de novo. United

States v. Garcia, 496 F.3d 495, 502 (6th Cir. 2007). We “‘must consider evidence in the

light most likely to support the district court’s decision[.]’” Id. (quoting United States v.

Marxen, 410 F.3d 326, 328 (6th Cir. 2005)). Keith does not challenge the facts as stated by

the magistrate judge and the district court—the issue before us is the application of the law

to those facts.

B. Legal standard for existence of reasonable suspicion

A Terry stop is permissible only if law enforcement officers had a “particularized and

objective basis for suspecting the particular person stopped of criminal activity,” United

States v. Cortez, 449 U.S. 411, 417-18 (1981), and “were aware of specific and articulable

No. 07-5202 United States v. Keith Page 5

facts which gave rise to reasonable suspicion.” United States v. Davis, 514 F.3d 596, 608

(6th Cir. 2008) (internal quotation marks omitted). Reasonable suspicion does not

materialize merely because a person “looked suspicious” and was in a “high drug problem

area.” Brown v. Texas, 443 U.S. 47, 49, 52 (1979); see also Illinois v. Wardlow, 528 U.S.

119, 124 (2000) (“An individual’s presence in an area of expected criminal activity, standing

alone, is not enough to support a reasonable, particularized suspicion that the person is

committing a crime.”). “An officer must not act on an ‘inchoate and unparticularized

suspicion or ‘hunch,’ but [on] the specific reasonable inferences [] which he is entitled to

draw from the facts in light of his experience.’” United States v. Urrieta, 520 F.3d 569, 573

(6th Cir. 2008) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). We consider the totality of

the circumstances to determine the reasonableness of the stop. Id.

In United States v. Urrieta, we reversed a district court’s denial of a motion to

suppress evidence in the context of a stop and detention of a motorist suspected of drugtrafficking.

520 F.3d at 579. Urrieta was driving a sports utility vehicle (“SUV”) fully

packed with belongings and towing another car packed similarly. Id. at 575. He had a

Mexican driver’s license, the SUV had an expired registration tag, and the two passengers

in the SUV appeared nervous. Id. Urrieta misrepresented his immigration status to the

deputy sheriff conducting the stop and said he could not find his passport. Id. The deputy

sheriff claimed that these facts provided him with reasonable suspicion that Urrieta was

transporting drugs. Id. We disagreed and held that the circumstances did not support such

a finding. We noted that “[t]he Fourth Amendment simply does not allow a detention based

on an officer’s ‘gut feeling’ that a suspect is up to no good.” Id. at 578.

In United States v. Townsend, 305 F.3d 537, 545 (6th Cir. 2002), we affirmed the

district court’s suppression of evidence based on a finding that officers lacked reasonable

suspicion to detain a car for the arrival of drug-detection dogs after validly stopping the car

for speeding. The government offered ten reasons to support its claim that the officers had

reasonable suspicion that Townsend was transporting drugs, including that the stop occurred

at 3:00 a.m., the passengers were overly cooperative and appeared nervous, the driver was

not the owner of the car (although he was listed on the insurance), and the suspects’ travel

plans were slightly dubious. Id. at 542-45. We assessed the persuasiveness of each of the

asserted reasons and then considered all the reasons together to determine whether they

No. 07-5202 United States v. Keith Page 6

amounted to reasonable suspicion of criminal activity. Id. There, we held that they did not

because “[a]lthough the government has pointed to several factors . . . which we have

recognized as valid considerations in forming reasonable suspicion, they are all relatively

minor[,] and . . . this case lacks any of the stronger indicators of criminal conduct that have

accompanied these minor factors in other cases.” Id. at 545.

In Patterson v. City of Cleveland, which involved a 28 U.S.C. § 1983 claim rather

a suppression motion, an officer whose unit specialized in “high crime drug areas” was on

patrol around midnight when she saw two African-American men, about whom she had no

information, “involved in some type of exchange . . . huddled together on the sidewalk.”

1999 U.S. App. LEXIS 1203, at *2 (6th Cir. Jan. 21, 1999) (unpublished). The officer did

not see anything exchanged, although one of the men “had his hands in a ‘cup-like fashion.’”

Id. When the police arrived, the two men “pulled their hands apart” and walked quickly up

the street. Id. at *2-3. We held that “[t]hese facts, standing alone, would not allow a

reasonable police officer to conclude that illicit activity was in progress,” and we reversed

a grant of summary judgment that had been based on a finding of qualified immunity. Id.

at *19-20.

On the other hand, factors that appear innocent in isolation may combine to form

circumstances that, as a whole, support a finding of reasonable suspicion. United States v.

Arvizu, 534 U.S. 266, 273-75 (2002) (officers may “draw on their own experience and

specialized training to make inferences from and deductions about the cumulative

information available to them that ‘might well elude an untrained person’” (quoting Cortez,

449 U.S. at 418)); United States v. Sokolow, 490 U.S. 1, 9 (1989). In addition, evasive

behavior on the part of a suspect is a factor that may support a finding of reasonable

suspicion. See Wardlow, 528 U.S. at 124 (unprovoked flight upon noticing the police in an

area of heavy narcotics trafficking supports reasonable suspicion). While presence in a high

crime area does not, on its own, create reasonable suspicion, it is “among the relevant

contextual considerations.” Id.

We have found reasonable suspicion in several cases with facts that, at first blush,

seem somewhat similar to those at issue here. In United States v. Green, an unpublished

No. 07-5202 United States v. Keith Page 7

decision, we held that officers had reasonable suspicion to support an investigatory stop

because although

[a] solitary female might lawfully pause and lean toward the window of a

stopped vehicle at 2:45 a.m. in an area known for drug trafficking and

prostitution, and then decide to walk away as a squad car approached[,] . . .

that possibility is so slight that a reasonable police officer encountering that

situation can properly conclude that something illegal (most likely

solicitation for prostitution) is afoot.

157 F. App’x 853, 856 (6th Cir. 2005); see also United States v. Lewis, 2000 U.S. App.

LEXIS 3308, at *2-3 (6th Cir. Feb. 29, 2000) (finding reasonable suspicion where

undercover officers observed two juveniles acting as “decoys” and then noticed defendant

and others exiting a vehicle and “look[ing] nervous and frightened as if they desired to

flee”). Similarly, in United States v. Connally, 1993 U.S. App. LEXIS 1090, at *5 (6th Cir.

Jan. 15, 1993), we found that, although no single factor was sufficient, the following factors,

in combination, provided reasonable suspicion for a stop: “the officers knew this was a high

drug trafficking area; [] they had seen drug dealing taking place here before; [] the pedestrian

had thrown something in the van upon seeing the police; and [] the pedestrian quickly

walked away and the van quickly pulled away.” Although unpublished decisions do not

have precedential authority, see United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007),

they may be considered for their persuasive value in our analysis of “[t]he concept[] of

‘reasonable suspicion,’” which “do[es] not permit of precise judicial definition and [is]

dependent on circumstances.” Townsend, 305 F.3d at 542. With this in mind, we turn to

whether the facts known to Officer Ripberger at the time he stopped Keith were sufficient

to create reasonable suspicion that Keith had been engaged in criminal activity.

C. The officers did not have reasonable suspicion of criminal activity

In this case, although the officers were aware that Big Daddy’s sold items that can

be used in the consumption of crack cocaine, the suspects’ encounter took place outside an

open, operating business that sold a full range of legal products. Officer Ripberger agreed

that there was nothing unusual about Keith patronizing Big Daddy’s around 2:00 a.m. and

that it is, in fact, “kind of a popular place” at that time. (JA 96.) While Officer Ripberger

testified that, based on his experience and knowledge of the area, he considered the parking

lot of Big Daddy’s to be a location where drug-trafficking is likely to occur, he did not state

No. 07-5202 United States v. Keith Page 8

that he had actually made drug-related arrests in the parking lot or witnessed drug

transactions there in the past.

Initially, Officer Ripberger thought it was “out of the ordinary” for a pedestrian to

approach a car parked at the drive-through window and talk to the driver, although this

carries little weight, as it was based on Ripberger’s personal experience of having gone

“through the drive-through several times and never [having] had someone come up to [his]

window.” (JA 115.) The officers then thought it suspicious that Crawford looked in their

direction while talking to the man in the car and then looked toward them again while

walking across the front of the building. This contributed to the officers’ feeling that the two

men intended to re-join each other out the officers’ sight. However, it is entirely to be

expected that, out of curiosity, Crawford’s attention was drawn to the nearby police cars with

flashing lights at that time of the night. Counsel for the Government conceded at oral

argument that he, too, would likely have looked over toward the spectacle on the opposite

corner.

The main factor that Officers Ripberger and Stephens found suspicious was that after

Crawford had glanced in their direction, both Keith and Crawford moved to the far side of

Big Daddy’s. The officers interpreted this as evincing an intent to avoid police observation,

but Keith’s and Crawford’s actions were more ambiguous than the examples of “evasion”

that have contributed to findings of reasonable suspicion in other cases. See United States

v. Patterson, 340 F.3d 368, 372 (6th Cir. 2003) (finding that “walking away from the police

when they got out of their unmarked car constitutes a factor” so innocent as “to be outrightly

dismissed” in assessing whether police had reasonable suspicion); Patterson v. City of

Cleveland, 1999 U.S. App. LEXIS 1203, at *2-3 (finding no reasonable suspicion where,

when suspects saw police arrive, they pulled their hands apart and departed up the street);

cf. Wardlow, 528 U.S. at 124 (finding reasonable suspicion based on “headlong flight” from

officers); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (finding reasonable suspicion where

one suspect was overheard urging another to “get out of here” and suspect made movements

suggesting attempt to flee); United States v. Caruthers, 458 F.3d 459, 462 (6th Cir. 2006)

(finding reasonable suspicion where, after officer asked him to approach police car,

defendant “took off real quick . . . semi-running” and “hunched down” against a wall);

United States v. Helm, 85 F. App’x 475, 476 (6th Cir. 2004) (finding reasonable suspicion

No. 07-5202 United States v. Keith Page 9

where, in addition to other suspicious conduct, driver drove in an evasive manner); Lewis,

2000 U.S. App. LEXIS 3308, at *2-3 (finding reasonable suspicion where officers

recognized use of decoys and observed nervousness and an apparent desire to flee).

We are not convinced that the manner in which Keith and Crawford moved from one

side of Big Daddy’s to the other, combined with Crawford’s two glances in the direction of

the officers’ flashing police lights, created reasonable suspicion of criminal conduct. The

officers had no information about these two men nor any additional facts to support their

claim of reasonable suspicion, other than the late hour and the “bad” neighborhood in which

they were located. In United States v. Paulette, on which the dissent relies, the officers

actually “observed [the defendant] and another individual engage in a hand-to-hand

transaction.” 457 F.3d 601, 602 (6th Cir. 2006). Here, Keith and Crawford did not

exchange anything or attempt to hide any object from sight. See, e.g., Joshua v. DeWitt, 341

F.3d 430, 443-44 (6th Cir. 2003) (rejecting state court’s reliance on “furtive gestures” where

record did not indicate that suspects engaged in any specific furtive conduct, such as

“mov[ing] their bodies or arms to conceal anything”); cf. Connally, 1993 U.S. App. LEXIS

1090, at *5 (finding reasonable suspicion, in part because an object was thrown into a van

when police approached). Though their knowledge of the parking area on the far side of Big

Daddy’s led the officers to believe that Keith and Crawford would not have had any reason

to go there, it was possible that Keith was indecisive about which exit from the parking lot

to use or that one of the men wished to discard trash in the dumpster.

The Green case, in which a solitary woman leaned into a car at 2:45 a.m. in an area

known for prostitution and then walked away when the police appeared, is also

distinguishable. Although the officers’ observations there were similar to those in this case,

in Green the conversation itself constituted the suspected crime (soliciting prostitution), and

the officers observed that conduct directly. Here, by contrast, the officers did not witness

any act that arguably appeared to be illegal. Crawford and Keith could very well have been

neighborhood acquaintances rather than drug traffickers, and Crawford might well have

leaned into Keith’s car window to greet him or to ask if he knew why police cars with

flashing lights were gathered on the corner. The two men might have had no further contact

in the parking lot on the opposite side of Big Daddy’s, or they might have exchanged a few

innocuous words.

No. 07-5202 United States v. Keith Page 10

Considering the totality of the circumstances, this sequence of events was insufficient

to provide the officers with reasonable suspicion that a crime had been committed. Without

more information, they were not justified in stopping Keith or Crawford. That the two men

greeted each other in a “bad” neighborhood late at night, glanced toward flashing police

lights, and then spent several seconds, during which they may or may not have had any

contact, in a parking area beside an open, operating liquor store—a parking area that the

police, from their vantage point, could not see—was not enough, under the Fourth

Amendment, to justify the intrusion of a police stop. See Terry, 392 U.S. at 27 (an

“unparticularized suspicion or ‘hunch’” is not enough); Urrieta, 520 F.3d at 575 (“an

officer’s ‘gut feeling’ that a suspect is up to no good” is not enough).

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s denial of Keith’s

motion to suppress and REMAND for proceedings consistent with this opinion.

No. 07-5202 United States v. Keith Page 11

_______________

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6TH CIRCUIT: TRAFFIC STOP VIOLATED FOURTH AMENDMENT – two men talking to each other near store with reputation for selling drugs insufficient basis for traffic stop

Tuesday, March 24th, 2009

March 19, 2009

The Sixth Circuit Court of Appeals recently suppressed evidence obtained in a traffic stop based on insufficient probable cause.

The officers followed the car as it drove away and stopped it based on the suspicion that some kind of criminal activity had occurred. A search revealed drugs and a gun.

The driver of the car moved to suppress the evidence, arguing that the officers did not have a reasonable suspicion of criminal conduct.

The court vacated the conviction and said: