NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0011n.06 No. 09-4530 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. PAULD. B ROWN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

Be fore : GI BB ONS, ROGERS, and COOK, Circuit J udg es. COOK, Circuit J udg e. I n this appea l of a district court’s denial of a motion to suppress, we must deter

mine whether an office r violated th e Four th Amendment by detaining defe ndant-a ppellant Paul Brow n and conf

iscating his gun. Concluding that the offic er did not, we aff irm.
I
. A g rand jury indicted Br own under 18 U.S.C. § 922(g )(1) with one count of being a felon in possession of a firea

rm. Br own moved to suppress the g un, and the district court denied the motion afte r hear ing testimony from the arr esting office r, Doug las Pesa, that reve aled the following fac ts. Ashton J ackson, a 17-y ear -old Young stown resident, was last seen alive in the ear ly -morning hours of May 25, 2009. When Ashton failed to come home later that ni gh t , h i s mother repor ted him missing. Offic er Pesa, who routinely patrolled Mrs. J ackson’ s high- crime neig hborhood, responde dNo. 09-4530

United States v. Brown

to the call. When he arr ived at around eleve n o’cloc k, he saw Mrs. J ackson standing outside, “a bit ag itated” a

nd “upset.”
Mrs. J ackson rela ted to Offic er Pesa what she hear d from Ashton’s cousin: that Ashton left the house at about eleve n o’cloc k the previous night with Br own and a friend, Ray mond Patterson, and that he returne d briefly around four thirty the next morning befor e leaving ag ain. The cousin’s story prompted Mrs. J ackson to call Br own, who, though initially hesitant, eventua lly “met up with her,” offe red “to t ak e h er p lace s,” and disclosed some additional details about the prior evening
. Offic er Pesa deter

mined that, in order to locate Ashton, he would need to spe ak with Br own, since Br own “wa s the last known per son to be with” Ashton.
As it happene d, while Offic er Pesa talked to Mrs. J ackson and Ashton’s cousin, a g old Chevy Bla zer drove by
. Mrs. J ackson and Ashton’s cousin identified the vehicle as Br own’s and identified Br own as the driver. As the car passed them, Offic er Pesa “holler[ed] for [Brown] to come here .” Br own pulled into a drivewa y , turned around, and heade d back toward the J ackson reside n ce . Offic er Pesa then y elled at Br own to stop, and he did. Approa ching Br own’s car , Offic er Pesa told Br own that he “nee ded to speak with hi m . ” During this exchang e, Br own appea red panicke d, confuse d, and about to cry . He repeatedly reque sted t o go to his g randmother ’s hous e, promisi ng to come rig ht back. And he repe atedly g lance d at Offic er Pesa’s g un and shifted nervously in the car . Offic er Pesa

ref used B rown’s r equest to leave.

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United States v. Brown
At some point during the conver sation with Offic er Pesa, Br own remove d his hands from the steering whee l, placing them out of Offic er Pesa’s view. Fe aring that Br own could acc ess a wea pon, Offic er Pesa asked Br own to g et out of his vehicle. Br own com p l i ed , but immediately beg an “looking from his left to his rig ht”—behavior that, in Offic er Pesa’s thirteen y ea rs o f experience , prec edes an attempt to e scape . At the same time, Of fice r Pesa noticed that eig ht to ten people had g ather ed behind him and Br own. To protec t his o wn s af ety as well as the crow d’s and Br own’s, Offic er Pesa “sec ure[d] [Brown ] ag ainst the car ,” intending to “g et him into a safe and secur e environment.” When Offic er Pesa presse d up ag ainst Br o wn , Of fi ce r Pesa felt a hard object in Br own’s waist are a that he immediately rec og nized as a firea rm. Offic er Pesa then instructed Br own to put his hands behind his back and handcuf fed him. Pesa took the firea rm from Br own and place d him in the cruiser
. Once in the cruiser , Br own told Offic er Pesa that Patterson g ave him the firea rm and that Ashton “wa s shot, [and] that he was dead behind a house on th e east side.” The police
rec overe d Ashton’s body

based on this tip.
The district cour

t denied B rown’s motion to suppress t he gun, concluding that, ag ainst the backdr op of Ashton’s disappe ara nce, O ffice r Pesa took a justifiable “ common sense a pproac h”: [H] e does what a g ood office r o f 1 3 y ea rs [ ’] experience
. . . would do in this
. . . situation. He flag s y o u d own, y ou stop. He observe s y ou . . . . And any normal office r being by himself in uniform, making the observati o n s t h at are rea lly uncontested here , t h at y ou wer e very ag itated and nervous, y ou moved y our hands from the whee l, y ou wer e ey eing his service wea pon, he has i n fo rm at i o n . . . that something ma

y be wrong with this y oung man [ who’s] missing, and then he see s a crow d approa ching , and as he corr ectly say s, he doesn’t know whether the crow d is
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United States v. Brown
either anti-him or anti-y ou, or neither or both. He’s not sur e. So the smart thing to do is to secure y ou and to sec ure himself to make sure both of y ou are safe
. Consist ent with these finding s, the court held Offic er Pesa’s stop t o b e re as o nable under Terry v. Ohio , 392 U.S. 1 (1968) and its prog eny b ecause “he did what he had to do and made a stop and made a n inquiry .”
I I
. A. Standard of

Review
When analy

zing a motion to suppress, we construe the evidenc e in the light most favor able to the g overnme nt, revie w the district court’s finding s of fac t for clear er ro r, an d apply de novo revie w to questions of law. United States v. Bl air , 524 F.3d 740, 747-48 (6th Cir. 2008). The
rea sonablene ss of a sear ch and seizure r aises a que stion of law under the Four th A mendment. Id. “A d i s t ri ct court’s ‘denia l of a motion to suppress will be aff irmed on appea l if proper for any
rea son[,] ’ even one not relied upon by that court.” United States v. Garza , 10 F.3d 1241, 1245 (6th Cir. 1993) (quoting United States v. Barrett , 890 F.2d 855, 860 ( 6th Cir. 1989)).
B. A naly sis
The parties contest wh et h er Offic er Pesa rea sonably seized and sear ched Br own. Since Offic er Pesa’s actions arose from “the on-the-spot observations of t he o ff i cer on the beat—which historically has not been, and as a prac tical matter could not be, subjected to the war rant proce dure,” - 4 -No. 09-4530

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we evaluate his actions under the Four th Amendment’s g ener al unrea sonable-se arc h-and- seizure proscr iption. See Terry , 392 U.S. at 20. This “re asonable ness” turns on whether “the circ umstances, viewed objectively , justify [t he challeng ed] action,” Scott v. United States , 436 U.S. 128, 138 (1978), “whatever the subjective intent” motivating the rele vant officia ls, W hren v. United States , 517 U.S. 806, 814 (1996) ( emphasis omitted).

1. Def endant Consents to Off

icer ’s Request to Stop
A Four th Amendment “seizure” occur s when, “in vi ew of all of the circ umstances surrounding the incident, a r easona ble per son would have be lieved that he w as not fre e to leave .” United States v. Mende nhall , 446 U.S. 544, 554 (1980). When Mrs. J ackson and Ashton’s cousin 1 first aler ted Off icer Pesa to Br own, Officer Pesa called out to Br own t o come over. At that point, Br own responde d by g oing two houses past, pulling his car into a drivewa y , backing out, and driving back toward Pesa. As we noted in United States v. Matthews , simply calling out to someone to come over to talk doe s not constitute a seizure. 278 F.3d 560, 562 (6th Cir. 2002) (de termining that the statement, “He y , buddy , come here ,” did not constitute a stop beca use th e ad d re ssee could have “politely declined to do so, and walked awa y ”); see also Florida v. B o s t i ck , 501 U.S. 429, 434 (1991) (“[M]ere police questioning does not constitute a seizure.”) ; Florida v. Rodriguez , 469 U.S. 1, 5-6 (1984) (“The initial contac t betwee n the office rs and responde nt, wher e they simply asked if
At o ra l arg

ument, defe nse counsel conce ded that no seizure occur red until the moment 1 Of fi ce r P es a denied Br own’s reque st to leave
. We addre ss this point in g reater detail, howeve r, beca use Br own’s brief contra

rily claims that seizure occur red when Offic er Pesa told Br own to stop. - 5 -No. 09-4530

United States v. Brown
he would step aside and talk with them, was clea rly the sort of consensua l encounte r that implicates
no Four th Amendment interest.”)
. We acknow ledg e that other case s hold that an office r’s order to stop constitutes a seizure, see United States v. Johnson , 620 F.3d 685, 691 (6th Cir. 2010) (“Stopping afte r being order ed to stop trig g ers the Four th Amendment.”) ; United States v. Richardson , 385 F.3d 625, 630 (6th Cir. 2004) (holding t hat s eizure o cc u rr ed when office r i nstructed defenda nt to “just hang out rig ht here for me, okay ? ”), but conclude that the circ umstances at play here distinguish this
case . See Bostick , 501 U.S. at 439 (r ej ec t i n g efforts to construct per se rules to deter mine lack of consent and emphasizing principle that, “in order to d et er m i n e whether a particula r encounte r constitutes a seizure, a cour t m u s t consider all the circ umstances surrounding the encounte r to deter mine wh et h er the police conduct would have communicated to a rea sonable person that the person wa s not free to decline the of fice rs’ re quests or otherw ise terminate the encounte r”)
. We may rea sonably infer from Br own’s decision t o turn his car around and drive toward Offic er Pesa that Br own consente d to stopping to oblige an office r’s reque st. See Immigration & Naturali zation Serv. v. Delgado , 466 U.S. 210, 216 (1984) (“While most citizens will respond to a police reque st, the fac t that people do so, and do so without being told they are fre e not to respond, hardly eliminates the consensua l nature of the response .”). Although Offic er Pesa followed up his reque st to “come here ” with a reque st to stop, nothing in the rec ord sug g est s that Br own stopped beca use of Offic er Pesa’s later instruction. Rather, Offic er Pesa’s reque st came afte r Br own alre ady turned his ca

r ar ound, evincing an int ent to stop. Office r Pesa’ s second r equest is best interpr eted
as a continuation or rene wal of the initial re quest, rathe r than as an esca lating, coer cive order
. See - 6 -No. 09-4530

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Florida v. Rodriguez , 469 U.S. 1, 4 (1984) (holding that consensua l interac t i o n o cc u rr ed when office r first asked defe ndant to talk with him, defe ndant consente d, and office r then asked defe ndant to step fiftee n fee t aside to talk). Br own’s b eh av i o r i n advanc e of Offic er Pesa’s reque st to stop sug g ests that Br own stopped and e ng ag ed in a c onversation with Officer Pesa voluntarily
. 2. Communi ty

Careta king I ntere st W ould J ustify

Nonconse nsual Stop
We further note that even if the stop wer e nonconsensua l, the community

- c a r e ta k in g function of l ocating missing minors would permit an off icer to stop a key ey ewitness when prompt inquiry may assist in finding the minor befor e he comes to harm. See Cady v. Dombrowski , 413 U.S. 433, 441, 446-48 (1973) (ac knowledg ing the rea sonablene ss of cer tain intrusions i n ci d en t to ever y day functions of local police, “totally d i vorce d from the detec tion, investigation, or acquisition of evidenc e relating to the violation of a criminal statute ” (e mphasis added) ).
Unlike t he age nts in Un i t ed S t ates v. W illiams , 354 F.3d 497, 500 (6th Cir. 2003), Officer Pesa was responding to a distress call ra t h er t h an i nvestig ating a crime complaint. By the time Offic er Pesa asked Br own to stop, a rea sonable office r in his position would have known enoug h to conclude t h at t h i s wa s not a “norma l missing person case ” and that Br own might have useful information as the person last seen with Ashton, but not enoug h to suspect Br own of foul play
. See Taylor v. Michigan Dep’ t of Natural Res. , 502 F.3d 452, 457 (6th Cir. 2007) (obser vin g t h at the community car etaking ra tionale for g overnme nt intrusion require s consideration of objective
rea sonablene ss, rathe r than subjective intent). Mrs. J ackson told Offic er Pesa that Ashton had been - 7 -No. 09-4530

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out with Br own; that Br own mentioned committing robber ies wi t h an o ther individual ear lier that day ; that Ashton might have left with the individual, who wished to commit more robber ies; and that Br own was the last person seen with A shton. Offic er Pesa saw Mrs. Jackson’s distress and, g iven her familiarity with her son’s habits, rea sonably cre dited her conce rn “that there was something else g oing on . . . , [and tha t] there was . . . something seriously wrong with her son.” Offic er Pesa also appre ciated that Ashton lived in a “high- crime area ,” known for “homicides, drug activit y , lots of g unfire, . . . [and] prostituti on,” and that Ashton had bee n missing for ma ny hours.
At the same time, O ffice r Pesa had no evidenc e that Br own harmed Ashton. He had y et to
see Br own’s extreme rea ction to Ashton’s mother, his panicke d demea nor, or his furtive behavior
. And he had no evidenc e of Br own’s p articipation in other criminal activity aside from Mrs. J ackson’ s uncorr oborate d story that Br own told her about committing some robber ies. I n s u ch ci rc u m stance s, a rea sonable office r would have stopped Br own for the sole purpose of locating Ashton, rather

than sidetrac king on a

specula tive robber

y , kidnapping , or murder

investigation.
No Fourth Amendment violation results when an immediate careta king interest j ustifiably compels an office r’s intrusions. Br own argues that we should not extend the community car etaking function to the context of police detention of a non-suspec t mere ly beca use he may offe r useful information. He urg es that we separ ate the car etaking rationale from the exigenc y rationale , lest the blurring be used to unduly expand g overnme ntal-seizure authority
. The reasonableness touchstone of Four th Amendment analy sis addre sses such conce rns. Brigham City v. Stuart , 547 U.S. 398, 403
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United States v. Brown (2006). Compare id. at 406 (ruling office rs’ intrusion into home plainly rea sonable, g iven role of peac e office r in preve nting violence and indications that a juvenile in the house fac ed phy sical dang er) , and United States v. Rohrig , 98 F.3d 1506, 1522 (6th Cir. 1996) (conc luding that of fice rs responding to neig hbors’ complaints rea sonably enter ed home blaring music in ear ly morning hours, afte r i n habitant’s nonresponsivene ss), with W illiams , 354 F.3d at 508-09 (ruling as unrea sonable drug enfor ceme nt ag ents’ entry into proper ty wher e p u rp o rt ed water leak posed no immediate dang er) , and United States v. Gross , 662 F.3d 393, 400-01 (6th Cir. J une 15, 2011) (conc luding that office r unrea sonably blocked leg ally parke d car with eng ine running but no dri v er , wh en he only wanted to chec k on the slumped passeng er’ s well-be ing)
. Although Br own corr ectly notes that this circ uit has y et t o ap p l y the car etaking rationale in the context of information seeking , no circ uit proscr ibes this application. We conclude that had this stop been non-conse nsu al , t h e ca retaking exception would have de feated B rown’s F ourth Amendment c halleng e.

3. Reasonable Suspicion J ustifies the Denia l of Request to L eave
When Offic er Pesa denied Br own’s reque st to leave , the encounte r chang ed from voluntary to compulsory
. We uphold t h e co n s t i t u tionality of this seizure beca use Br own’s actions in the office r’s p re sence following the voluntary stop support a rea sonable suspicion that Br own participa ted in criminal activity
. See Un i t ed States v. Davis , 430 F.3d 345, 354 (6th Cir. 2005) (explaining that brie f i nvestig atory stop passes constitutional muster if “law e nforc ement off icials
wer e awa re of specific and articula

ble fac ts which g ave rise to rea sonable suspicion” and “the deg ree

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United States v. Brown
of intrusion .
. . was rea sonably rela ted in sc ope to the situation at hand” (inter nal quotation ma

rks omitted)).
We examine the “totality o f t h e circumstances” to see whether the detaining office r has a “par ticularized and objective basis” for suspecting leg al wrong do i n g, t aking into acc ount the infere nces tha t office rs may drawfrom their e x perie nces a nd specia liz ed tra ining that “ might we ll elude an u n trained person.” See Arvizu , 534 U.S. at 273 (citing United St ates v. Cortez , 449 U.S. 411, 417-418 (1981))
. Offic er Pesa had rea son to believe that Ashton’s disappea ranc e was abnorma l, even for a missing persons case . See United States v. Caruthers , 458 F.3d 459, 466 (6th Cir. 2006) (conc luding that contextual considerations such as time o f night and high- crime surrounding s “ar e rele vant to the rea sonable suspicion c a lc u lu s , ” to g e the r with indicia). Once Br own approa ched Offic er Pesa and saw him with Asht o n ’s m o t h er , he “starte d to become extremely agi t at ed , ” ev en befor e Offic er Pesa had a chanc e to explain why he wanted to talk. Rather than addre ssing the office r, Br own immediately turned to the mother and beg an y elling repe atedly , “Why
are y ou g oing to do me like this? ” Offic er Pesa observe d Br own’s behavior approa ch panic, wher e he seeme d confuse d and “ver y worke d up, almost to the point of start[ing] to cry .” Offic er Pesa then
rea ssured Br own that he just wanted to talk with him about the missing minor, but this did not abate Br own’s ter

ror. An officer may

rea sonably

conclude that such beha

vior g oes bey ond the ordinar y
nervousne ss one might expect from interac ting with an authority fig ure. See Illinois v. W ardlow , 528 U.S. 119, 124 (2000) (“[N]ervous, evasive behavior is a pertinent fac tor in deter mining rea sonable suspicion.”). Offic er Pesa also noticed that Br o wn, in addition to working himself up to a “ver y - 10 -No. 09-4530

United States v. Brown panicke d ag itated state,” repe atedly g lan ced at Offic er Pesa’s g un during the conver sation that follow ed
. S

ee Caruthers , 458 F.3d at 466 (“F urtive movements made in response to a police prese nce may p ro p er l y contribute to an office r’s suspicions.”). By the time Offic er Pesa denied Br own’s reque st to g o to his g randmother ’s house, a rea sonably cautious office r in h i s p o sition would have known “spec ific and articula ble fac ts which [give] ri s e to rea sonable suspicion” of Br own’s involvement in cr iminal activity
. Since “the police can stop and brief ly detain a person for investigative purposes” when the office r rea sonably suspects cr i m i n al activity , United States v. Sokolow , 490 U.S. 1, 7 (1989), we conclude that Offic er Pesa’s ref usal of Br own’s reque st to leave “re asonably rela te[d] in sc ope” to the g overnme ntal interest in investig ating Br own’s involvement in Ashton’s disappea ranc e. 4. Safety Concerns Justi fy

L ater I ntrusions
Eventual ly , w h a

t b e g a n a s c o n s e n s u a l c o o p e r a

ti o n f o llowe d by an investigatory stop esca lated into a detention and arr est. L ike the district court, we discern no constitutional violation in Offic er Pesa’s fur ther a ctions.
Offic er Pesa’s concern for hi s safe ty j u s tified his asking Br own t o step out of hi s vehicle. As Offic er Pesa explained, “[L osing sight of a person’ s hands is] y our number one threa t. You know, when y ou lose sight of y our hands, someone’s h ands, it become s an extreme safe ty issue.” See Pennsylv ania v. Mimms , 434 U.S. 106, 110 (1977) (“[W] e hav e specific ally rec og nized the
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United States v. Brown
inordinate risk confr onting an office r as he approa ches a person seate d in an automobile.”). Weighing the office r’s safe ty ag ainst the de minimis intrusion of as k i n g an already leg itimately stopped indivi d u al t o s tep out of his vehicle, we conclude that Offic er Pesa acte d rea sonably in asking Br own to leave his vehicle. See id. (conc luding that wher e the “only question is whether [t he detained] shall spend that period sitti ng in the driver’ s seat of his car or standing along side it,” such “additional intrusion can only be desc ribed a s de minimis .”).
Br own’s conduct upon exit ing the vehicle justified Offic er Pesa’s move toward him to block any attempt to flee
. The crow d of uncer tain aff iliation g ather ing behind Pesa, the lone office r in the high- crime neig hborhood, justified Pesa’s moving in to block Br own’s esca pe and to place himself betwee n the potentially

hostile crowd a

nd Br own.
As Offic er Pesa bumped ag ainst Br own, he felt the distinctive bulge of a firea rm at Br own’s waist. Offic er Pesa could rea sonably conclude at that point that Br own posed a dang er: he now knew that Br own, in ad d i t i o n to showing signs of flig ht-or-f ight panic, had rea dy acc ess to a g un. See Terry , 392 U.S. at 24 (holding that office r may “take nece ssary measure s” to neutra liz e the threa t of phy sical harm). Offic er Pesa justifiably conclude d that Br own was arme d and dang erous, supporting handcuf fing Br own and c onfiscating the wea pon.

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I I I
. Be cause none of the intrusions in the chain of events leading to the g un’s seizure violated the Four th Amendment, we a ffirm the de nial of B rown’s motion to suppress.

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