NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0446n.06 No. 12-5844 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintif f-Appellee ,

v. UNDRA WI L L I AMS, Defendant-

Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE O P I N I O N

BEF ORE: MARTI

N, SUHRHEI

NRI CH, and COL E, Circuit J udg es. COL E, Circuit J udg e. Undr a Willi ams moved t o suppress the handg un eventua lly used to convict him of being a felon in possession of a firea rm, claiming it was obtained as the result of an unlawful seizure by the police. The district court denied his motion afte r finding that the encounte r in question was consensua l. Although we ag ree with Wil liams that he was subject to an investigative detention requiring rea sonable suspicion, we do not ag ree that it was unlawful. Ac co rding ly , we aff irm the denial of his motion to suppress on other g rounds supported by the re cord. I

. Serg eant J oseph J ohnson of the Memphis Police Depa rt m ent (“MPD”) was patrolling the p ar k i n g l o t o f a nightc lub in his squad car during the ear ly morning hours of May 23, 2009, i n response to a number of rec ently repor ted vehicle brea

k-ins. He was joined by Offic er Fr ank Amato, also of the MPD, who wa s driving his own squa d car

.No. 12-5844

USA v. W illiams Whil e on patrol, Serg eant J ohnson spotted a vehicle backe d into a parking space some distance from the nightc lub’s entra nce—a pproxi mately one hundred y ards—with its headlig hts on and the eng in e ru n n i ng . Two m ales, later i dentified as Walter Chalmers and Undra Wil liams, sat in the driver’s s eat and the front passeng er’ s seat, re spectively . I ntere st piqued, Serg eant Johnson approa ched perpe ndicular to the parke d vehicle, which was hemmed in by a dumpster on one side,

an unoccupie d vehicle on the other, and a chain- link fenc e in the rea r. He pulled his squad car just past the front of the parke d vehicle befor e coming to a stop. We note here that the parties disag ree whether Serg eant J ohnson left enoug h room for Chalmers to maneuv er out of the space . As the g overnme nt tells it, and the district court found, the two vehicles formed an L -shape with a possible eg ress. As Wil liams tells it, t h e v eh i cl es formed a T-shape that blocked the parke d vehicle. The p ar ties ag ree , howeve r, that Serg eant J ohnson kept his alley lights—the squad car ’s top-mounted

sear ch l ights used for sideway s illumi nation—shining in the direc tion of the parke d vehicle as he exit ed his own. He then walked around the back of his squad car , in front of the parke d vehicle, and eventua lly

to the driver’ s side door with his flashlight dr awn. Serg eant J ohnson at this point noticed both occupa nts “shuff lin g around” and appar ently “moving stuff” on the front floorboa rd. He also noticed that both a ppear ed “unkempt” in c ontrast to aver ag e club patrons. Once at the driver’ s side door, Serg eant J ohnson asked Chalmers what the two men wer e doing and simult aneously used his flashlig ht to probe the vehicle’ s interior. He immediately caught sight of DVD monitors and stereo equipment—wire s exposed and box es nowher e to be seen—a

t Wil l i am s ’s fee t. The encounte r esca lated from there

. Subsequent questioning reve aled that Chalmers had a suspended dri v er ’s l icense , expired plates taken from - 2 -No. 12-5844

USA v. W illiams another vehicle, and a number of common automobile “b u rgl ary tools”—g loves, a flashlight, and

a scr ewdr iver—in plain view ne ar his seat. S er gea n t J ohnson then called for back- up. Offic er Amato arr ived and Chalmers an d Wil liams wer e remove d from the parke d vehicle and detained in sep arate squad car s while the office rs sear ched the lot for evidenc e of fre sh brea k-ins. Once Offic er Amato returne d, he observe d Wil liams “making a lar g e amount of movement in the back seat” of his squa d car . Offic er A mato opened the door to discover a handgun ly ing on the floorboar d beneath Wi lliams. A searc h of his person f ollowed and turne d up sever al rounds of a mmuniti on. A fede ral g rand jury indicted Wil liams for being a convicted felon in possession of a firea rm, 18 U.S.C. § 922(g ), and later added a count for willfully failing to appea r after he skipped a court date and fled the district for six months, 18 U.S.C. § 3146(a) (1). Wil liams filed a motion to suppress the handg un and associate d contra band, argui n g t h at the office rs initially seized him without “suff icient proba

ble ca use, or r easona

ble, ar ticulable and individualized suspicion” in violation of the Four th Amendment. The district court denied his motion afte r concluding that the encounte r in question was conse nsual based on the g overnme nt’s version of the events. Wil liams the n pleade d g uilty to both counts but reserv ed t h e ri g ht to appea l the denial of his motion to suppress. The district court sentenc ed him to 76 months i n prison and 3 y ear s of supervise d rele ase. I I

. T h is a p p e a l raises two Four

th Amendment questions. First, was the initial encounte r b e tw e e n Serg eant J ohnson and the occupa nts of the parke d vehicle consensua l and there fore not a seizure?

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USA v. W illiams Second, assuming it was a seizure, did Serg eant J ohnson have a rea sonable, articula ble suspicion of criminal ac tivity

at the time to justify

it? A. Wil liams contends that the encounte r was not consensua l from the outset. We revie w de

novo the district court’s leg al conclusion to the contra ry de novo. United States v. Moon , 513 F.3d 527, 536 (6th Cir. 2008). We revie w for clea r err or the district co u rt ’s fac tual finding that the g overnme nt’s version of the events was more cre dible than Wil liams’s version, and we construe all fac tual infere nces in the g overnme nt’s favor

. Id. at 536-37. The Four th Amendment protec ts “the ri gh t of the people” to be fre e from “unre asonable

sear ches and seizures.” U.S. Const. amend. I V. Consist ent with this lang uag e, we have descr ibed three cate g ories of police-citizen encounte rs that impose incre asing ly stringe nt standards: “(1) the

co n s ensual encounte r, which may be initiated without any objective level of suspicion; (2) t h e investigative detention, which

. . . must be su p p o rt ed b y a rea sonable, articula ble suspicion of

cr i minal activity ; and (3) the arr est, valid only if supported by probable cause .” United States v. W aldon , 206 F.3d 597, 602 (6th Cir. 2000) (quoting United States v. Ave ry , 137 F.3d 343, 352 (6th Cir. 1997)). The encounte r here conce rns the line betwee n the first two cat ego ri es. That line is

crosse d—in other words, a consensua l encounte r become s a seizure—when “in view of all of the circ umstances surrounding the i ncident, a reasonable person would have believed he was not fre e to leave .” United States v. Mende nhall , 446 U.S. 544, 554 (1980) (footnote omitted); United States

v. Gr o s s , 662 F.3d 393, 399 (6th Cir. 2011); see also W aldon , 206 F.3d at 603 (noting that the associate d inquiry

is an objective one ). - 4 -No. 12-5844

USA v. W illiams Ours is not the first case to raise this particula r issue. A trio of rec ent case s— United States

v. See , 574 F.3d 309 (6th Cir. 2009), United States v. Gross , 662 F.3d 393 (6th Cir. 2011), and United States v. Carr , 674 F.3d 570 (6th Cir. 2012)—addr essed simil ar circ umsta n ce s i n wh i ch police office rs positioned their squad car s to curta il a suspect’s ability to leave the scene . I n See , we held t hat an investig ative dete ntion occurr ed whe n an off icer “pulled his patrol ca

r in front of [t he defe ndant’s] car and parke d the patrol car in front of [t he defe ndant’s] car so that [t he defe ndant] could not move his vehicle.” 574 F.3d at 312-13. I n Gross , we held that an investigative detention also occur

red when an office r “par ked his police vehicle direc tly behind” the defe ndant’ s ca r, eff ectively blocking the defe ndant in his parking space . 662 F. 3 d at 3 9 9

. I n Carr , howeve r, we distinguish ed b o t h case s and held that a consensua l encounte r occur red when three office rs in an unmarke d police vehicle spotted the defe ndant’s car parke d in one stall of a coin-ope rate d car wash, flashed their blue lights once upon arr iving, and stopped at an ang le in f ront of the defe ndant’s car befor e approa ching on foot. 674 F.3d at 573. We found it espec ially signific ant that the office rs left the defe ndant “suff

icient room to drive either forwa rd [wit h some maneuve ring ] or backw ard out of the [stall] .” Id. Our case falls somewher e in the middle. On the one hand, we acc ept t h e d i s t ri ct court’s fac tual finding that Serg eant J ohnson pulled his squad car far enough pas t t h e defe ndant’s parked vehicle to allow it to maneuve r out of the space , unlike the office rs in See and Gross

. On the other hand, maneuve ring around Serg eant J ohnson’s close-in squad car was the only way to l ea v e the

scene . Unlike the defe ndant in Carr , Chalmers and Wil liams did not hav e the option of simply backingawa

y or taking some other less confr ontational route. These f acts do not lend themselve s - 5 -No. 12-5844

USA v. W illiams t o an ea s y re s olution. I t is clea r that Wil liams would be out of luck if the rela tive position of th e squad car was the only rele vant fac tor; the availability of a hy pothetical eg ress would doom his case . Howeve r, that fac tor is not dispositi ve under the rele vant prec edent, see Mende nhall , 446 U.S. at 554 (direc ting courts to consider “all of the circ umstances surrounding the incident”) , and we decline to

announce a rule today that would seem to reduc e our Four th Amendment analy sis to counting inches

on a y ardstick. Such a mecha nical approa ch would not serve us well. The ultimate question rema ins whether t h e d ef

endant “believe d he was . . . fre e to leave ,” see id. , not whether it was mere ly phy sically possible. To answe r we must consider the totality of the surrounding circ umstances. Id. Severa l are rele vant here —and they co n v i n ce us that the encounte r was more akin to an investigativ e d e te n ti o n th a n a r u n - o f-the- mill conver sation on a public street. First, Serg eant J ohnson did not switch off the alley lights on his squad car when he stopped and g ot out, instead leaving them poi n t i n g i n t h e g ener al direc tion of Chalmers and Wil liams throug hout the episode. I n addition, S erg eant J ohnson approa ched the driver’ s side door by walking direc tly in front of the parked vehicle, eff

ectively blocking the only available eg ress in the proce ss. Finally , once Serg eant J ohnson

arr ived at the driver’ s side door, he used his flashlig ht to probe the vehicle’ s interior and beg an

conver sing with Chalmers. These details taken toge ther i n d i ca t e that Serg eant J ohnson was no longe r simply “putting questions to” Chalmers and Wil liams. See United States v. W illi a ms , 615 F.3d 657, 663 (6th Cir. 2010). Although no one detail is sufficie nt on its own here to transfor m the initial encounte r into a compulsory stop, see Carr , 674 F.3d at 572-74, it is unlikely that a rea sonable person fac ing a panoply of probing lights and awa re that the inquiring office r has further interest in

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USA v. W illiams the interior of his vehicle would believe that he is fre e to maneuve r out of his parking space past the squad ca r that had bloc ked the e g ress a moment ear lier. Thus, at this point, we think a rea sonable person in the defe ndant’s shoes, alre ady hemmed into a parking space with a single n ar ro w egr ess, would no longe r fee l fre e to terminate such an encounte r. The ag g reg ate eff ect of S er gea nt J ohnson’s “objec tive behavior ” cre ated a coer cive situation in which he clea rly communicated to the vehicle’ s occupa nts that they wer e under investigation. See W

aldon , 206 F.3d at 603. The district court wa s wrong to conclude othe rwise. The g overnme nt resists this conclusion based on its asser tion that Serg eant J ohnson did not undertake sufficient l y co er ci v e actions. I t is true that we have previously articula ted a number of para digmatic examples of coer cive actions, see United States v. Peters , 194 F.3d 692, 697 (6th Cir. 1999) (noting that fac tors to consider in deter mining whether an encounte r is consensua l include the threatening prese nce of sever al office rs, the display of a wea pon, some phy sical touching on one’s person, or the use of lang uag e or tone of voice indicating compliance with the office r’s reque st will be compelled) , and that none are prese nt he re. But the list is hardly exhaustive—it is not me ant to

cover the full rang e of circ umstances that might indicate a seizure has occur red. See id. (introducing the list as “[e]x amples of circ u m s t an ce s that might indicate a seizure”)

. Moreove r, the rele vant inquiry cannot be reduc ed to a chec klist that trea ts eac h potentially rele vant action in isolation. We must instead consider the totality of the c ircumstance s surrounding the incident. See M endenhall , 446 U.S. at 544. And doing so leads us to conclude t h at S er gea n t J ohnson seized Wil liams by a “show of authority ” when he beg an asking questions of the occupa nts in an alre ady -coerc i v e environment. See id. at 553. - 7 -No. 12-5844

USA v. W illiams B. Having conclude d that the initial encounte r betwee n Serg eant J ohnson and the occupa nts of the vehicle ripene d into an investigative detention befor e Serg eant J ohnson order ed the defe ndants out, we must now deter

mine whether it was constitutionally permissible. This inquiry turns on the

answe rs to two questions. Did Serg eant J ohnson have a “re asonable suspicion” of criminal activity based on “spec ific and articula ble fac ts” known to him when he first beg an asking questions of the occupa nts? Terry v. Ohio , 392 U.S. 1, 21-22 (1968). Was the leng th of the encounte r and the extent of intrusion “re asonably

related in scope to the circ umstances which justified the interfe renc e[? ]” Id. at 29. We answe r both questions in the aff irmative and there fore decline to suppress the eventua l fruits of the se izure. Serg eant J ohnson had ample rea son for suspicion based on a number of conver g ing fac tors. W h en he came acr oss Chalmers and Wil liams, they wer e sitti ng in a vehicle, headlig hts o n an d eng ine running , backe d into a parking space far awa y from the entra

nce to the nightc lub. The time

was approximately 1:00 a.m. and Serg eant J ohnson was alre ad y o n t h e lookout for individuals responsible for a rash of rec ent vehicle brea k-ins. The unusual behavior of Chalmers and Wil liams predic tably piqued his inter est. I t is true enoug h that such fac tors are “conte x t-based” and “would have pertaine d to an y o n e i n the parking lot at t hat t ime,” See , 574 F.3d at 314, and without more, likely fall short of g iving rise to a rea sonable suspicion of criminal activity

. But Serg eant J ohnson al s o observe d Chalmers and Wil liams beg in “shuff ling around” and “moving stuff” on t h e fr o n t floorboar d as he approa ched on foot. Ag ain, while it is true enoug h that furtive movements do not

on their own justify an investigative detention, see United States v. Caruthers , 458 F.3d 459, 466-67 - 8 -No. 12-5844

USA v. W illiams (6th Cir. 2006), they did “contr ibute” to a lr e a d y - heig htened suspicions in this instance, see id. at 466. Serg eant J ohnson further observe d that the “unkempt” occupa nts of the vehicle did n o t have the appea ranc e of aver ag e club patrons. Upon finally arr iving at the driver’ s side door, Serg eant J ohnson

m ad e p er haps his most signific ant observation of all: DVD monitors and stereo equipment at W illiams’s fee t that matched the g ener al descr iption of g oods stolen on previous occa sions. I mportantly , we a ssume that he made this observation befor e using the full “show of authority ” to seize the occupa

nts beca use the rec ord is less than clea r on timing, and we must brea k any ties in favor of the g overnme nt. Moon , 513 F.3d at 536-37. A fa ct o r as s p ec ific as this one cannot be dismiss ed as contextual beca use it ties Chalmers and Wil liams to the particula r crimes that Serg eant J ohnson was on detail to deter , and it sug g ests th e o cc up an t s may have been g uilty of something

more than parking in a high- crime are a late at night. Cf. See , 574 F.3d at 314 (hold i n g t hat

rea sonable suspicion did not exis t wher e the office r “did not suspect the [defendant] of a specific crime” ). On this rec ord, it was rea sonable for Serg eant J ohnson to suspect that something was amiss. The scope of the ensuing investigation also was rea sonably rela ted to the circ umstances that justified the detention. See Terry , 392 U.S. at 29. Using a flashlig ht to probe the parke d vehicle’ s interior was not an excessive intrusion g iven Serg eant J ohnson’s numerous observations and his exis ting knowledg e that cer tain g oods had been reported st olen from vehic l es in the l ot. Nor was it excessive to ask Chalmers for his driver’ s license, to order him out of the vehicle afte r discovering that the license was su s p en d ed , an d eventua lly to detain both occupa nts in the backs of separ ate squad car s upon finding common burg lary tools in plain view. During t h e b ri ef detention, the responding office rs s howed no lack of diligence in try ing to confirm their suspicions by promptly - 9 -No. 12-5844

USA v. W illiams survey ing the lot and talking to aff ecte d patrons. Nothing about an investigation conducte d in such

a manne r sug g ests to us that it was improper or dr awn- out bey ond rea son. Thus, even thou gh we find that Wil liams was subject to an investigative detention, that detention came afte r a rea sonable suspicion of criminal activity arose and was no more intrusive than

nece ssary to confirm or dispel suc h suspicion. There is no Fourth Amendme nt violation here. I I I

. For these re asons, we a ffirm the district c ourt’s denia l of the motion to suppress.

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