NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 08a0602n.06 F iled: October 6, 2008 No. 07-5880 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
UNITED STAT ES O F AMERICA, P laintif f-App ellee,
v. LARRY BOYETT, JR., Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EA L F RO M THE UNITED STAT ES DIS TRICT COURT F OR

THE WE STE RN DI STR IC T OF TEN NE SSEE O P I N I O N

BEFORE: GU Y, BATCHELDE R, Mc KEAG UE , Circuit Judges McK EAGU E, Circuit Judge
. L arr y Boy ett, J r., appea ls the district court’s de nial of his moti on to suppr ess the firea rm found in his car on May 31, 2006. After the district c ourt denied his mot ion , B oy e tt e nte re d a c on dit ion a l g uil ty

ple a to b e inga

fe lon in p os se ssi on

of a fi re a rm in vio la tio n o f 1 8 U .S. C. § 92 2( g )( 1) . F ind ingno e rr or in t he dis tr ic t c ourt ’s de c isi on , w e a ff ir m. I
. Th e c ha in o f e ve nts that le d to Bo y e tt’ s ar re st be g a n on May

29 , 2 00 6. Pol ic e re sp on de d to
a re port of ag g ravated ar med robbe ry

called in by

Ashley J o n es and Charle s Br own. J ones and B ro wn re po rt e d th a t a man th e y kn e w b y the name of

“ Juve nil e ,” wh os e fi rs t na me wa s p ro ba

bly L arr y , had robbe d them at g unpoint in Free man Park. Jones and Br own sai d t h ey h ad b een in aNo. 07-5880

US v . B oy e tt

J ones and Br own explained that the cell phone had been dropped when it was ha nded to the 1 a ssa ila nt. - 2 - verba l a lt e r c a ti o n w it

h th e ma n th e y kn e w a s Ju v e n il e e a r li e r in th e e v e n in g , b u t t

h a t Jo n e s a nd Br own had late r dec ided to say g ood-by e to J uvenile bef ore B rown lef

t town. J ones and B rown said they made plans to me et J uvenile at Fr eema n Park on the eve ning of May 29, 2006. J ones and Br own waited in Jones’s car . They further related that, when the man they kn e w a s J u v e n i l e a r

r i v e d , h e a p p r o a c h e d

t h e c a r , p u l l e d

a g u n , a n d

d e m a n d e d

t h e i r m o n e y. Acc ording to J ones and B rown, he took the key s and their cell phone, thr owing J ones’s ke y s awa y from the car. He then left i n a vehicle t hey descr ibed as a si lver and maroon F ord B ronco I I4x 4. J ones an d Br o wn we n t to a near by Ex x on station and ca lled the police. Of fice r Care y F a ulk ne r a rr ive d a nd too k th e re po rt . Sh e ha d s ome qu e sti on s abou t th e ir re a so ns fo r o ri g ina lly coming to the park, but found the ir repor t of the cr ime to be cre dible. J ones and B rown de scribed their assa ilant as a twe nty -five y ear old white male fro m Be n t o n C o u nty with a pre vious criminal his tor y , an d the y

a lso pr ov ide d a

de sc ri pti on

of the B ro nc o. Of

fi c e r F a ulk ne r n ote d th a t bo th v ic tim s appea red “ very shaken.” She also noted that there wer e palm prints on the passenge r si de door of J ones’s c ar, c onsistent with their story
. Howeve r, she saw their cell phone in the back se at of the c ar, wh ic h w a s in c on sis te nt w ith the ir sto ry . Jone s and B ro wn a lso de sc ri be d the g un dif fe re ntl y , w ith 1 J ones say ing it wa s black a

nd Br o wn s ay i n g it was silver. Off icer Fa ulkner filed a

repor t of the robber y noting the de scription of the a ssailant and his ca r. On May 3 1 , 2 0 0 6 , L ie u te n a n t Jo s e p h M a s s e y r e v ie w e d O f f ic e r F a u lk n e r ’ s r e p o rt b e f

o re beg inning his shift. Whil e on patr ol, he saw a vehicle matching the description in the report “to aNo. 07-5880

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- 3 - T.” L ieutenant Ma ssey

also rec og nized the driver a s L arr y Boy ett, a m an he had inve stigated previously

in a roa d rage ac ci d en t in Ba rtlett, Tennesse e. That incident had involved a c ar that flipped and took out a lig ht pole. L i eutenant Massey found a .38 r evolver

in Boy ett’s ca

r whe n investigating that incide nt. He also found that Boy ett had an a g g ravated burg lary conviction and oth e r p e nd ingfe lony

c ha rg e s. After rec og nizi ng the vehicle , L ieutenant Ma ssey made a U-turn to follow B oy ett’s B ronco. He a lso requeste d assistance from other office rs. Afte r a shor

t time, Boy ett t u rn ed q uickly into a parkinglot. L ieutenant Ma ssey turned on the blue lights on his unmarke d car and initiated what L ieutenant Ma ssey

termed “ a hig h-risk stop.” L ieutenant Ma ss ey p u l l ed h is gun a nd demande d B oy e tt a nd his pa sse ng e r i mme diate ly e xit the ir ve hic le
. He ha d the m kne e l on the g ro un d w iththe ir hands behind their he ads and ke pt them at g unpoint until assistance arr ived. L ess than a minute late r, other of fice rs a rr i v ed
. L i eutena

nt Massey

and the other

office rs handcuf fed the two subjects, frisked them, and placed them in the bac kseats of two diff ere nt squad
car s. Offic ers then se arc hed the B ronco to e nsure there wer e no we apons pre sent. They sear ched

“ a ny a re a tha t c ou ld p ote nti a lly

ho ld a we a po n” a nd fo un d a .3 8 c a lib e r gun

wi th f ive liv e ro un ds in the ce ntral console. T he off icer who foun d t h e gu n reported that the ce ntral console “ had bee n tampe re d w ithfr e qu e ntl y ” a nd “ wa s v e ry

loo se .” Whe n h e pu lle d up on it, he fo un d the g un . B oy e tt
was a rre sted and late r indicted for being a fe lon in possession of a fire arm. Prior to trial, Boy ett moved to suppress the g un beca use the initial report of the robber y was not reliable. The district court found that the r eport “ was tende red to the inve stigative division” and so provided a ba sis for the stop. The district c ourt also held that the stop was not a n arr est and thatNo. 07-5880

US v . B oy e tt

- 4 - the scope of the sea

rch w as re asonable under the circ umstances. The court ther efor e denie d the motion to s uppress. B oy ett pleade d g uilty t o b eing a fe lon in possession and was sentenc ed to a pr iso n te rm

of 18 8 mo nth s. II. B oy e tt ra i s e s t w o i s s u e s o n a p p e a l
. H e a r g u e s t h a tt h e r e p o rtd i d n o tp r o v i d e r e a so nable suspicion for a stop be cause the repor t w as so outlandish. He then argues that his treatment during the stop elevated the stop to an ar rest and that the arr est was not supp o rt ed b y p robable cause
. Ne ith e r o f t

he se a rgume nts have me ri t. A. Standard of

Review We reviewa district cour

t’s leg al conclusions de novo a nd its factual f

indings for

clea r er ror. United States v. Branc h , 537 F.3d 582, 587 ( 6th Cir. 2008). I n de novo revie w of the justification for a Te rry

stop, the district court’s dec ision rece ives “due weig ht” bec ause the district court “is at an instituti onal adva

ntag e, havingobserve d the testimony of the witnesse s and understandinglocal conditions, in making this determination.” Id. (q u o t i n g United States v. Graham , 483 F.3d 431, 435 (6th Cir.2007). B. Justif ication for the Stop an d the Search First, the of

fice rs had rea sonable suspi cion t o stop Boy ett. I n assessing rea sonable suspicion, we look to t he “totality of circumstance s . . . to see whe ther the de taining of fice r has a particula rized and objective basis for suspecting leg al wrongdoing .” United States v. J acob , 3 77 F .3 d 5 73 , 5 77 (6 th Cir . 2 00 4) . “ I f p oli c e have a re a so na ble su sp ic ion , g ro un de d in sp e c if ic a nd a rt ic ula ble fa c ts, that a person they

encounte r was involved in or is w anted in c onnection with a completed felony , then aNo. 07-5880

US v . B oy e tt

J ones and B rown did g ive differ ent descr iptions of the g un used in the robber y . Howeve r, 2 Offic er F aulkner

testified that i t was “ very common” for

victims of violent crimes to g ive inconsistent descriptions of the we apon used. (J.A. at 59.) - 5 - Te rry stop may be made to investigate that suspicion.” United States v. He nsley , 469 U.S. 221, 229 (1 98 5)
. Th e c ir c ums tanc e s can inc lud e inf or ma tio n “d e ri ve d f

ro m su c h s ourc e s a s in fo rm a nt t ips , dispatch i nformation, and directions from other office rs.” Dorsey v . Barber , 5 17 F .3 d 3 89 , 3 95 (6 th C i r. 2 0 0 8 ). T h e r ep o rt i t s el f m u s th av e “ b ee n i s s u edo n t h e b as i s o f a rt i cu l ab l e f ac t s s u p p o rt i n g a
rea sonable suspicion that the wa nted per son has committed an offense.” Hensley , 469 U.S. at 232. Despite the unusua l nature of the repor ted robber y in the park, it led directly to a police r eport whose c hara cter istics pr ovided a ba sis for a Terry stop. A repor t should create re asonable suspicion wh e n “ the vic timof

a str e e t c ri me se e ks imm e diate po lic e a id and give s a de sc ri pti on

of his
a s s a il a n t.” See A dams v. W illiams , 407 U.S. 143, 147 (1972). The victims “came forwa rd pe rs on a l l y t o g i v e i n f

o r m a t i o n t h a t w a s i m m e d i a t e l y v e r i f i a b l e a t t h e s c e n e , ” a n d a f

a l s e r e po rtis punishable under

state law. See id. at 146-47. The office r on the sce ne found pa lm prints on the car
c on sis te nt w iththe ir sto ry . Th e re po rt c on ta ine d a de ta ile d d e sc ri pti on

of the c a r i nv olv e d, a s w e ll 2 as a de scription of the a ssailant, part of his name, and the wea pon he used. The re porting office r thus had a pa rticularized basis for

a re asonable suspicion sufficient to justify a Te rry stop of someone matching the desc ription give n by J ones and B rown. L ieutenant M as s ey

rea d the re sulting re port and, on May 31, he sawa silver a

nd maroon Br onco 4x4, which matched the vehicle describe d in the report, on the hi g hway
. He r ecog nized the driver a s L arr

y Boy ett, and re membere d that the re port indicated the suspect ’s fi rs t name may beNo. 07-5880

US v . B oy e tt

- 6 - L arr y . The B ronco a lso had a Be nton County sticker on its license plate, and the r eport stated that the suspect may

be fr om Be nton County
. Ad d i t i o n al ly , L ieutenant Ma ssey knew B oy ett had previously

bee n ch ar ged with agg ravated burg lary and had ke pt a .38 in his car–the same ty pe of
wea pon listed in the re port. These circ umstances, pa ired with the re port, g ener ated a particula rized and objec tive basis for r easona ble suspicion sufficie nt to just ify the stop. T h e s c o p e o f th e s e a r c h in c id e n t to th e s to p w a s a ls o ju s ti f ie d
. A n o f

f ic e r ma k ing a T e rry sto p ma y take “ pr e ve nti ve me a sure s to e ns ur e that the re we re no oth e r we a po ns wi thi n [the su

bje c t’ s] immediate g rasp be fore permit ting him to ree nter his automobile.” Michigan v. Long , 4 63 U. S. 10 32 , ( 19 83 ). Th is i nc lud e s a “ se a rc h o f t

he pa sse ng e r c omp a rtment of a n a uto mob ile , li mit e d to th o s e a r e a s in w h ic h a w e a p o n ma y b e p la c e d o r h idde n.” Id. at 1049; see also United States v

. Graham , 48 3 F .3 d 43 1, 43 9- 44 0 (6 th Cir
. 20 07 ). Th e se a rc h may inc lud e c los e d c omp a rtme nts in the ca r. Long , 463 U.S. at 1049 (finding it rea sonable to sear ch a g love compar tment for a w eapon during a Terry sto p) ; see also United States v . Shank , F.3d , 07-3544, 2008 WL 4273129, at *4 (6th Cir. Sept. 19, 2008). Her e, the of

fice rs sea rche d the ca

r prior to allowing Boy ett and his passeng er to ree nter the
c a r. Th e se a rc h inclu ded th e cen tr a l c on so le , w hic h lo ok e d a s if “ it h a d b e e n ta

mpe re d w ith fre quently .” The officer s found t hat by “just basica lly pulling up on the top of [the console] there
was a revolve r located under

neath the c over.” Since Boy ett would have ha d acc ess to this weapon upon returningto his vehicle, the sea rch of the console w as per

missibl e under Michigan v. Long
. C. The St op D id N otBe c om e an A r r e stNo. 07-5880

US v . B oy e tt

- 7 - B oy e tt a lso a rgue s th a t hi s tr e a tme nt d ur ingthe sto p c on ve rt e d th e sto p in to a fu ll a rr e st, which wa s impermissible as the offic ers lac ked proba ble ca use. I n order to determine if the stop became an a rre st, we must determine w hether “the detention and investig ative methods used we re ‘ rea sonable unde r the c ircumstance s.’” United Sta te s v . H e ath , 2 5 9 F. 3 d

5 2 2 , 5 2 9 (6 t h C i r. 2 0 0 1 ) ( qu o t i n g United States v. W infrey , 915 F.2d 212, 216 (6th Cir. 1990)). Any forc e used must be “ rea sonably related in scope to the situation at hand.” Id. at 530. Holding subjects at g unpoint, handcuff ing the m, and placingthem in a squad
car does not turn a Te rry

stop into an arre st where the police of fice rs “r easona

bly fea r that suspects ar e ar

med and da

ng erous.” Houston v. Clark County Sheriff Deputy J ohn Does 1-5 , 174 F.3d 809, 815 ( 6th cir. 1999). In He ath , office rs who suspec ted a we apon may have be en involved in the crime w ere permitted to approa ch the c ar at gunpoint, for cibly pull the defe ndant from the c ar, a

nd handcuf

f him. Id. at 526, 530. Placing a subjec t in a squad ca r ca n be justified in order to se cure the sce ne, par ticularly when the police do not question the subject while in the squad ca r. See U nited States v. Jac ob , 3 77 F .3 d 5 73 , 5 80 (6 th C ir . 2 00 4) . Pl a c inga de fe nd a nt i n a squad c ar is also justified during a sea rch f or a w eapon. Un ite d S

tat es v . Ca ru the rs , 458 F.3d 459, 469 (6th Cir. 2006). Boy ett was stopped unde r suspicion for a g g ravated burg lary , and Of fice r Massey

had persona l knowledg e of B oy ett previously possessing a

wea pon in a vehicle . The c harg e thus involved a we apon, and O ffice r Massey had additional information that soli dified the objec tive basis for suspec ting B oy ett may have a wea pon in his car. The office rs did not question the suspects while they

wer e in the squad c ar, a

nd only a fe w minutes passed be tween w hen the stopNo. 07-5880

US v . B oy e tt

- 8 - was initiated and w hen the of fice rs discover ed the f

irea rm in the ca

r. Approa ching the ca

r at g unpoint, handcuff

ing B oy ett and his passeng er, a nd then placingthem in squad ca rs during the
sear ch wa s rea sonably

related to the situation at hand. Ther efor e, the stop did not ripen into an
arr est, so there is no need to examine whethe r the off icer s had proba

ble ca use to arr est Boy ett. III . For the fore g oing r easons, we AF F IRM the jud g me nt o f t he dis tr ic t c ourt
.