NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0421n.06 No. 11-5999 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. RAULPEREZ, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE O P I N I O N

Before: SUHRHEINRICH, MOORE, and CLAY, Circ uit Jud ges. KA REN NELSO N MOORE, Ci rc u i t Judge. Def endant- Appellant Raul Perez was convicted of being a felon i n p o s s ession of a firea rm in violation of 18 U.S.C. § 922(g )(1)

. On appea l, he challeng es the district court’s denial of his motion to suppress and the court’s application of the statutory arme d car eer criminal sentenc ing enhanc ement pursuant to 18 U.S.C. § 924(e) (1). Be cause t h e office r who conducte d the i nitial traff ic s top had reasonable suspicion to believe that additional criminal activity was afoot, the extended duration of the stop did not rende r it an unlawful seizure. In addition, the district court corr ectly ap p lied the arme d car eer criminal sentenc ing enhanc ement on the basis of Perez’s three prior ag g ravated-robbe ry convictions. Acc ording ly , we AFF I RM the judgment of the district court.No. 11-5999

United States v. Pe rez

I. BACKG ROUND L ate in the evening of September 4, 2 0 0 8 , Of fi cer David Mundt of the Nashville Metropolitan Police Depa rtment observe d Perez’s vehicle cross the cente r line and initiated a traff ic stop. W hen Mundt ac tivated his blue lights, he obse rved a previously unseen passeng er, who had been leaning over to the driver’ s seat, sit up. Mundt approa ched the vehicle and noticed that Perez’s pants zipper was down and his belt was loose. Mundt asked for a driver’ s license, explained that he had stopped Perez for crossing the cente r line, and asked what had been g oing on with the passeng er; despit e his initial thought that the driver might have been drunk, Mundt noted that Perez did not appea r i ntox icated. Fr om t h e en s u i n g conver sation, Mundt lear ned that Perez had been receiving oral sex from the passe ng er while he wa s driving. Ba sed on this information, Mundt suspected prostitution activity

. He spoke to Perez in an attempt to deter

mine how well he knew the passeng er and, unsatisfied with Perez’s answe rs, asked the passeng er to exit the vehicle and spoke with her while Perez rema ined inside. Mundt rema ined suspicious and returne d to the vehicle to speak with Perez. By this point, other office rs had arr ived. Mundt asked if Perez had any weapons or contra band, which Perez denied, and asked if he could

s ea rc h t h e vehicle. Perez consente d to the sear ch and, voluntarily exit ing the vehicle, said t h at Mundt could sear ch him as well. Mundt beg an to sear ch Perez, who then stated that he was nervous being sear ched. Mundt informed Perez that he did not have to consent to the sear ch, but Perez stated that the sear ch could continue. Mundt did not find any thing illega l on Perez’s person. Mundt ag ain asked for permission to s ea rch the vehicle, which P ere z ag ain gave

. Under neath the driver’ s-side

2No. 11-5999

United States v. Pe rez floormat, Mundt found a nine-millimeter handgun with one round of ammunition in the chambe r. P er ez was arr ested and char g ed with being a felon in possession of a firea rm in viola t i o n o f 1 8 U.S.C. § 922(g) (1). The stop lasted approximately twenty minutes. Prior to trial, Perez filed a motion to suppress the handgun as evidenc e obtained throug h an unconstitutional sea

rch and seizure. Perez contende d that the initial stop was invalid and that, if it

was valid, the detention and the reque st to sear ch the vehicle wer e unrelated to the purposes of the initial stop; he further arg ued that the illeg al stop and dete ntion render ed his consent to the s ear ch ineffe ctive. The district court denied the motion, concluding that p ro b ab l e cause exis ted for the i nitial stop, that the questioning of Perez and the passeng er was justified to deter m i n e wh y t h e vehicle ha d crosse d the ce nter line, a nd that Perez had c onsented to the sea rch of the vehicle

. Following the denial of his motion to suppress, Perez pleade d g uilty

. Over Perez’s objection, the district court deter

mined that Perez qualified for the arme d caree r cr iminal sentenc ing enhanc ement under

18 U.S.C. § 924(e)(1) beca use of thre e prior ag g ravated-robbe ry convictions. Applying the enhanc ement, the dis t ri ct co urt sentenc ed Perez to the mandatory minimum of 180 months of i mprisonment and five y ear s of supervise d rele ase. Per ez timely appea led t he sentence and the de nial of his motion to s uppress. II. ANALYSIS A. Mot ion to Su ppress We revie w the district court’s ruling on a motion to suppress under a mix ed standard: “‘w e revie w the district court’s finding s of fac t for clea r err or and its conclusions of law de novo . ’”

3No. 11-5999

United States v. Pe rez
United States v. Be ll , 555 F.3d 535, 539 ( 6th Cir. 2009) (quoting United States v. Gross , 550 F.3d 578, 582 (6th Cir. 2008)). When, as here , the district court denied the motion to suppress, we revie w the evidenc e “‘in the light most favor able to the g overnme nt.’” Id. (quoting United States v. Pearce , 531 F.3d 374, 379 (6th Cir. 2008)). The rea sonablene ss of a seizure under the Four th Amendment “‘is a question of law that we revie w de novo.’” United States v. Eve rett , 601 F.3d 484, 488 (6th Cir. 2010) (quoting United States v. Ev ans , 581 F.3d 333, 340 ( 6th Cir. 2009)). We analy ze the rea sonablene ss of a traff ic stop under the standards set forth in Terry v. Ohio and its prog eny . Eve rett , 601 F.3d at 488. The Four th Amendment require s that a traff ic stop, like

a Terry stop, must be based o n reasonable suspicion. See United States v. Davis , 430 F.3d 345, 353–54 (6th Cir. 2005). I n addition, “‘the degree of intrusion [m ust be] rea sonably related in scope to the situation at ha

nd, which is judg ed by examining the rea sonablene ss of the officia ls’ conduct g iven their suspicions and the surrounding circ umstances.’ ” Id. at 354 (quot i n g Un i t ed States v. Garza , 10 F.3d 1241, 1245 ( 6th Cir. 1993)). Acc ording ly , the police cannot unrea sonably extend the scope and duration of an otherwise lawful traff

ic stop. See Eve rett , 601 F.3d at 488-89; see also Illinois v. Caballes , 543 U.S. 405, 407 (2005) (“[A] seizure that is la wful at its ince ption can violate the Four th Amendment if its manner of execution unrea sonably infring es interests protec ted by the Constit ution.”). An office r’s inquiry into matters unrelat ed t o t he initial stop does not unlawfully prolong the encounte r so long as the questioning does not “mea surably extend the duration of t he stop.” Arizona v. Johnson , 555 U.S. 323, 333 (2009); see also E vere tt , 601 F.3d at 491–96. In addition, an office r may extend a stop

4No. 11-5999

United States v. Pe rez beyond what was orig inally permissible if “something happene d during the stop to cause the office r to have a rea sonable and articula ble suspicion that criminal activity is afoot.” Davis , 430 F.3d at 353 (interna l quotation marks and alter ations omitt ed). On appea l, Perez conce des the leg ality of the ini t i al stop. He argues only that Mundt unlawfully

prolong ed the stop; afte r Mundt deter mined that Perez had a valid driver’ s license and

was not impaired , P er ez co n t ends that Mundt should have issued a citation and allowed Perez to leave

. The g overnme nt counter s that all of Mundt’s questions wer e rea sonably related to the initial purpose o f t h e st op and, alternatively , that Mundt lawfully extended the s top based on rea sonable suspicion acquire d duringthe cour se of the stop that a dditional criminal activity was a foot. 1. Mundt’s Qu estions Were Unrelate d to the Initial S top Mundt’s questions about prostitution wer e unrelated to the orig inal purpose of the traff ic stop. By Mundt’s own acc ount, he deter mined fairly quickly upon first s p ea k i n g with Perez that Perez had crosse d the cente r line while “re ceiving oral sex from the passeng er when he was driving .” R.79 at 6 (Suppression Hr’g Tr.). At this point, Mundt “starte d to invest i gat e the stop as a prostitution stop,” id. ; his subsequent questions to Perez and the passeng er r elated to prostitution. The district court’s conclusion that Mundt’s entire investigatio n wa s justified by the need “to deter mine the exact cause of why the vehicle had cr ossed the line,” id. at 22, is thus not supported by the rec ord. The stop was valid beca use Perez had crosse d the ce n t er l i n e. Once Mundt deter mined the rea son that Perez crosse d the line and Mundt’s investigation turne d to pr ostitut ion,

5No. 11-5999

United States v. Pe rez
the co ntinued duration of the stop must have been justified by rea sonable suspicion of additional criminal ac tivity

. 1 2. Reasonable Su spicion of Ad dition al Crim inal Activity The g overnme nt contends that, during the course of t h e t raf fic stop, Mundt acquir ed

rea sonable suspicion that ad d i t i o n al criminal activity was afoot. To extend a stop based on

r e a s o n a b le s u spicion of additional criminal activity , the office r must point to “spec ific and a r ti c u la b le fa ct s ” supporting hi s suspicion; he cannot rely solely on an “an i ll-defined hunch.” United St a t es v. Richardson , 385 F.3d 625, 630 (6th Cir

. 2 0 0 4 ) (interna l quotation marks omi tted). We look to the totality of the circ umstances when deter mining whether an office r had rea sonable suspicion. Id. Even with rea sonable suspicion, h o wever, the stop “may continue only for so long as it takes the office r to prove or

disprove those suspicions.” Davis , 430 F.3d at 356. Mundt’s initial suspicions of criminal activity wer e based on the fac t th at P erez and the passeng er wer e eng ag ed in a sex act in a moving vehicle at 11:00 at night. Mundt believed that these circ umstances indicated an act of prostitution. Many of our case s in which a stop was justified based

on rea sonable suspicion of prostitution activity involved office rs observing the driver conver se with

or pick up a known or suspected prostitute; these en co u n t er s t en d to occur late at night in are as known for prostitution. See United States v. Luqman , 522 F.3d 613, 615, 617 (6th Cir. 2008); United

The g overnme nt does not argue that Mundt’s questions d i d not “mea surably extend” the 1 duration of the s top under the principles articulated in Eve rett
. See 601 F.3d at 4 9 1–96. Be cause we c o n cl u d e that rea sonable suspi cion of additional criminal activity justified extending the stop, we do not addr ess this possibi lity

. 6No. 11-5999

United States v. Pe rez
States v. Gree n , 157 F. App’x 853, 855–56 (6th Cir. 2005) (unpublished opinion); United States v. Martin , 289 F.3d 392, 395, 399 (6th Cir. 2002). The office rs in Luqman , Gree n , and Martin did not observe any actua l sexual conduct. Al t h o u gh Mundt’s suspicions wer e not based on any prior knowledg e of the passe n ger ’s identity , he did witness a sex act perf ormed under unusual circ umstances. The g ov ernment does not sug g est that North Nashville is an are a known for prostitution activity , but the incident did occur at a late hour. Rather than dispel his suspicions of criminal activity , Mundt’s conver sations with Perez and the passenge r onl y heig htened his suspicions. At the s uppression hea ring , Mundt testified t hat he usually asks a suspected pro s t i t u t e an d a suspected customer questions that would enable him to deter mine how well they knew eac h o t h er ; h ere, afte r the passeng er left the car , Mundt asked her “basic ally . . . the normal questions that y ou would ask t o investigate prosti tution.” R.79 at 9. At the hear ing, Mundt could not reme mber the specific questions he asked Perez or the passeng er or the response s they g ave but t es tified that “something that was said led me to the belief that she was—that it was a prostitution act.” Id. at 15. Mundt only reme mb er ed as k i n g h er the kinds of questions he would normally ask in the course of a prostitution investiga tion and not being satisfied with the answers. This lack of particula rity g ives us some pause; a fter a ll, an office r m ust be able to specify the articula

ble fac ts that support his suspicion of criminal activity in order for us to deter mine whether that suspicion was rea sonable. Combined with the fac t that Mundt witn es s ed what he believed was (a

nd what wa s later c onfirmed by Perez to be) a

sex act and t he fact t hat we revie w the evidenc e in the light most favor able to the g overnme nt, howeve r, we conclude that Mundt

7No. 11-5999

United States v. Pe rez
had rea sonable suspicion to extend the traff ic stop by ask i n g a series of questions related to prostitution but unrela

ted to the initial stop for crossingthe ce nter line. Mundt’s sole other question prior to asking for permission to sear ch the vehicle that was not direc tly rela

ted to either the i n i t i al stop or the alleg ed prostitution was whether Perez had any

wea pons or any

thing illega l in the car . An offi ce r wi t h rea sonable suspicion of criminal activity “may inquire about dang erous wea pons” to ensure h is safe ty , Eve rett , 601 F.3d at 495, espec ially when, as here , “the office r’s suspicions about what he had seen befor e approa ching the car had incre ased, r ather

than diminished,” Gree n , 157 F. App’ x at 856. 2 Aside from challeng ing the preceding stop as an unlawful seiz ure, Perez does not contend that the sear ch of h is person and vehicle was invalid. Be cause the stop was lawful, and Perez consente d to the sear ch, the sear ch was valid. The district court proper ly d en i ed t h e m o t i on to suppress. B. Arm ed Care er C rim inal S entencing Enh ancem ent Perez challeng es the applicability of the statutory arme d car eer criminal enhanc ement to his sentenc e. Although he admits to having three prior convictions for ag g ravated robber y , he contends that two of those convictions should be counted as one predic ate offen s e beca use they wer e committed on the same day

. We revie w de novo the district court’s ruling that Perez’s offe nses wer e committed on differ ent occ asions. United States v. Hill , 440 F.3d 292, 295 ( 6th Cir. 2006).

Asking about “any

thing illega l” in addition to wea pons did not “m ea s urably extend” the 2 duration of the stop. See E vere tt , 601 F.3d at 495–96.

8No. 11-5999

United States v. Pe rez
The Armed Caree r Criminal Act provides that “a person who violates section 922(g ) of this title and has three previous co n v i cti ons . . . for a violent felony or a serious drug offense , or bot h, committed on occa sions differe nt from one a nother” shall fac e a ma

ndatory minimum sentenc e of fiftee n y ear s of imprisonment. 18 U.S.C. § 924(e) (1). Two offe nses are “committed on occa sions differ ent from one another ,” id. , if “(1) ‘it is possible to disc ern the point at which the first offe nse is completed, and the subsequent point at which the second offe nse beg ins’; (2) ‘it would have been possible for the offe nder to cea se his criminal conduct afte r the first offe nse, and withdraw without committing the second offe nse’; or (3) ‘the offe nses ar e co m m i t t ed in differ ent residenc es or business locations.’” United States v. Paige , 634 F.3d 871, 873 (6th Cir. 2011) (quoting Hill , 440 F.3d at 297–98). Two offenses are counted s epar ately if any of t hese tests are met. United States v. Jone s , —F.3d—, No. 09- 6549, 2012 WL 716450, at *4 (6th Cir. Mar. 7, 2012)

. The Presentenc e Investig ation Report (“PSR”) descr ibes Perez’s three ag g rava ted robber ies

as occur ring on J anuar

y 13, 2003; J anuar

y 15, 2003 at 2:40 p.m.; and J anuar y 15, 2003 at 6:40 p.m. The two J anuar

y 15 robber ies involved differ ent victims and occur red at differ ent locations. At the sentenc ing hear ing, the g overnme nt prese nted court documents from eac h of the convictions and a map showingthat the locations of the two January 15 robber ies wer e one- and-a -half miles a part.

9No. 11-5999

United States v. Pe rez Although Perez objected to the application of the sentenc ing enhanc ement, he did not object to the underlying fac ts reg arding the convictions that wer e prese nted in the PSR

. Nor does he contest these fa cts on appe al. 3 The two J anuar

y 15 robber ies wer e “committed on occa sions differ ent from one an other” beca use they occur

red at differ ent locations. Moreove r, the first robber y was completed well befor e the second robber

y commence d four hours later. Cf. United States v. Brady , 988 F.2d 664, 665 (6th Cir. 1993) (en banc) (holding that two robber ies committed thirty minutes apar t wer e committed on differ ent occa sions for § 924(e) (1) purposes). For the same rea son, Perez could have decide d to end the day ’s criminal activity afte r the first robber y ; he does not argue th at doing so would not have been possible. Acc ording ly , the district court proper ly applied the arme d car eer criminal sentenc ing enhanc ement base d on Perez’s three ag g ravated-robbe ry convictions. III. CONCLUSION Although for differ ent rea sons, we agree with the district court that the traff ic stop that ultimately uncover ed the firea rm that was the basis for Perez’s felon-in- possession char g e was not

an unlawful seizure under the Four th Amendment. Mundt’s rea sonable suspicion that Perez was eng ag ing in c riminal activity apar t from the tra ffic violation enable d him to extend the duration of

In his appellate brief, Perez ref ers to a repor

t from the probation office r detailing the times 3 and locations of the robber ies, which he claims is not proper ly in evidenc e. I t is unclea r what repor

t Perez is ref

ere ncing

. I f he means the court documents and the map that the g overnme nt introduced at the sentenc ing hear ing, these documents wer e admitted as exhibi ts without objection from Perez. The probation office r filed an addendum to the PSR sever al months befor e the sentenc ing hear ing, but this addendum does not contain any information on Perez’s ag g ravated-robbe ry convictions that was not alre ady

included in the PSR. 10No. 11-5999

United States v. Pe rez
the stop by askingquestions unr elated to the stop’s orig inal purpose. Be cause the stop w as lawful and Perez consente d to the sear ch, the district court was corr ect to deny the motion to suppress. In addition, the district court proper ly conclude d that Perez ’ s th r e e p r io r a g gr a

v a te d

- r o b b e r

y c o nv ic ti o n s had occur red on differ ent occa sions for purposes of applying the arme d car eer criminal sentenc ing enhanc ement. We thus AFF I RM the judgment of the district court.

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