*

This decision was originally issued as an “unpublished decision” filed on December 20, 2012.

The court has now designated the opinion as one recommended for full-text publication.

**The Honorable George C. Steeh, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0034p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL DANOTUS YOUNG,

 Defendant-Appellant.

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No. 11-2296

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:07-cr-102-1—Paul Lewis Maloney, Chief District Judge.

Argued: October 5, 2012

Decided and Filed: December 20, 2012*

Before: SILER and COOK, Circuit Judges; STEEH, District Judge.**

_________________

COUNSEL

ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand

Rapids, Michigan, for Appellant. Mark A. Totten, UNITED STATES ATTORNEY’S

OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson,

FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant.

Mark A. Totten, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan,

for Appellee.

_________________

OPINION

_________________

1
No. 11-2296 United States v. Young Page 2

1

Young previously appealed the district court’s denial of his motion to suppress evidence. United

States v. Young, 580 F.3d 373 (6th Cir. 2009), rehearing and hearing en banc denied (Oct. 26, 2009). This

court affirmed because Young had not properly preserved the issue in the district court. Id. at 376. Young

returned to district court and filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255 on the grounds that his counsel was ineffective for assuring him that his right to appeal would be

preserved upon a guilty plea. The district court vacated the original guilty plea and accepted an amended

conditional plea that preserved Young’s right to appeal the denial of the suppression motion.

STEEH, District Judge. Michael Danotus Young pled guilty to being a felon in

possession of a firearm under 18 U.S.C. § 922(g)(1). He now challenges the district

court’s denial of his motion to suppress the firearm as the fruit of an illegal seizure.1 For

the following reasons, we affirm. 

I. BACKGROUND

On December 15, 2006, at about 1:15 am, Young was sitting in a reclined

position in the passenger seat of a car in a city-owned parking lot outside of Julian’s Bar

& Restaurant (“Julian’s”) in Grand Rapids, Michigan. The lot was regularly used for

parking by patrons of Julian’s, but the area also had a recent history of violent crime,

including assaults and shootings. Officers testified that a person who waits outside is

more likely to have a gun because Julian’s regularly conducts pat-downs of its patrons;

they also testified that officers look for people loitering because “that’s usually how

problems start.” Given the city’s loitering and trespassing ordinances, it would have

been a crime for someone to be in the parking lot without having business at the adjacent

establishments. See City of Grand Rapids Code of Ordinances § 9.133.

Police Officers Fannon and Johnson described pulling into the parking lot and

parking their patrol car behind the car in which Young sat. The officers observed Young

for approximately a minute and a half and then approached the car as they were joined

by Officer Loeb and began looking through the windows with flashlights. Officer

Fannon hit the passenger side window with a flashlight. After a fifteen second pause,

Young rolled down the window and Officer Fannon asked Young for identification.

Officer Fannon then asked Young, “You just chillin’ out here in the lot or what?”

Young responded, “I fell asleep and he ran in.” Officer Fannon asked Young where he

lived, Young answered, and then Officer Fannon asked, “What brings you here tonight?”
No. 11-2296 United States v. Young Page 3

Young responded that he was “gonna go get something to eat” with a friend named Eric.

As Young explained during the suppression hearing, his friend had gone in to Julian’s

to inquire about whether they could get a table or take-out. A few seconds later, he

identified his friend, Eric, who was approaching the vehicle. Officers told Eric to go

back into the restaurant and told Young to “sit tight.” Around this time, Officer Fannon

passed Young’s license to Officer Johnson, who took it back to the police car to run a

warrant check.

Shortly thereafter, Officer Fannon told Young that the reason they made contact

is because he was not allowed to sit in a vehicle in this city-owned lot, that “ you gotta

do business at the store, whatever, you gotta go in, can’t, can’t be out here sitting,” and

“we’re just going to sit tight for a second and we’ll get you on your way.” Officer

Fannon then asked about past arrests, and Young told him about a 1994 drug-related

arrest.

Officer Fannon testified that around this time he noticed that Young moved his

left hand a few times, briefly touching the area near his pocket and that this made him

suspicious that Young might have a weapon or contraband. He told Young to keep his

hands where he could see them and asked whether he had any weapons; Young

responded “no.” Officer Fannon testified that the gestures continued, so he reached for

his weapon. He then asked Young to step out of the car.

Once Young was out of the car, Officer Fannon told him to turn around. Young

then disclosed that he had a gun in his pocket. The officers immobilized Young,

searched his person, retrieved the gun, and placed him in handcuffs. Around this time,

Officer Johnson returned with Young’s license and notified the others that Young had

an outstanding arrest warrant. The entire incident lasted less than four minutes.

Young was charged with being a felon in possession of a firearm. He filed a

motion to suppress the gun on Fourth Amendment grounds, arguing that the officers had

no reasonable basis to approach a legally parked car in a public parking lot and that Mr.

Young did nothing during the encounter to suggest he had done anything illegal. The

district court denied the motion, reasoning that there was no seizure―and thus Fourth
No. 11-2296 United States v. Young Page 4

Amendment considerations did not apply―until Young was ordered out of the car, by

which time the officers had the justification of “furtive gestures.” Even if Young was

seized earlier, the court found that the parking lot’s recent history of shootings, the fact

that Julian’s conducts pat-downs of patrons, a possible trespassing violation, and the fact

that Young was “dozing” gave the officers the authority to at least approach the vehicle

and request identification to check for warrants. The court held that officers had

authority to detain Young while checking for warrants and to arrest him for the

outstanding warrant, and that this would have led to discovery of the gun absent

anything else that occurred. Young pled guilty and was sentenced to 180 months in

prison.

II. ANALYSIS

An appeal of a district court’s denial of a motion to suppress presents a mixed

question of fact and law. United Stated v. Howard, 621 F.3d 433, 450 (6th Cir. 2010).

We consider the evidence in the light most favorable to the party that prevailed at the

district court and review factual findings for clear error. Id.; United States v. Smith,

594 F.3d 530, 535 (6th Cir. 2010). “A factual finding will only be clearly erroneous

when, although there may be evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed.”

Smith, 594 F.3d at 535 (internal quotation marks omitted). The ultimate finding of

reasonable suspicion, however, is a legal conclusion that we review de novo. See United

States v. Gross, 662 F.3d 393, 398 (6th Cir. 2011); United States v. See, 574 F.3d 309,

311 (6th Cir. 2009).

Young first argues that he was seized when the officers parked behind him or,

at least, when the officers told him to “sit tight.” He further argues that the officers had

no reasonable suspicion to seize him because he was engaged in lawful activity and

because suspicion of “mere trespassing” is not sufficient to support a seizure. Finally,

he argues that even if the officers had reasonable suspicion of trespass initially, the

seizure exceeded permissible scope once Young explained his purpose for being in the

parking lot.
No. 11-2296 United States v. Young Page 5

2

Gross and See arguably created new rules, but they nonetheless apply to Young because new

rules of constitutional law apply to criminal cases pending on direct review. See Teague v. Lane, 489 U.S.

288, 304 (1989). While the district court denial of Young’s motion occurred in 2007, the present appeal

is on direct review.

A. Seizure

Fourth Amendment considerations governing unreasonable seizures are not

triggered unless and until a person in question is actually “seized.” See U.S. Const.

amend. IV; Terry v. Ohio, 392 U.S. 1, 16 (1968). “Seizure” extends to any circumstance

in which a police officer, “by means of physical force or show of authority, has in some

way restrained the liberty of a citizen.” Terry, 392 U.S. at 20 n.16. Minor seizures,

sometimes referred to as “Terry stops,” occur when, in light of all the circumstances, “a

reasonable person would have believed that he was not free to leave.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980).

This court has issued two opinions―both since the district court’s denial of

Young’s motion to suppress―that address the question of whether a person was seized

in circumstances similar to the present facts. In United States v. See, 574 F.3d 309, 311

(6th Cir. 2009), an officer parked a police cruiser in front of a parked car in which the

defendant and two companions sat so that the defendant could not drive away. We held

that under such circumstances, a reasonable person would not have felt free to leave and

that the incident was a Terry stop. Id. at 313. In United States v. Gross, 662 F.3d 393,

396 (6th Cir. 2011), a police cruiser parked directly behind a legally parked car in which

the defendant sat slumped down in the passenger seat, and the police officer approached

the passenger-side window on foot. The officer’s actions were markedly similar to the

officer’s actions in See, and we held that the incident was also a Terry stop. Id. at 400.2

While the record is unclear as to whether the police cruiser in the present case

actually blocked the parked car, we assume that it did because the Video shows another

car directly in front of the parked car. In this case, Young’s position and activity was

identical to that of the defendant in Gross. The presence of three officers shining

flashlights into the car and authoritative instructions from Officer Fannon also suggest

that a reasonable person would not have felt free to leave anytime thereafter. See
No. 11-2296 United States v. Young Page 6

Mendenhall, 446 U.S. at 554 (listing “the threatening presence of several officers, . . . or

the use of language or tone of voice indicating that compliance with the officer’s request

might be compelled” as indications of a seizure). Thus, we find that Young was subject

to a Terry stop at the time the police cruiser parked behind the car in which he sat.

B. Reasonable Suspicion

In a Terry stop, officers may briefly detain a person for investigative purposes

so long as it is “reasonable.” Terry, 392 U.S. at 20-22. This is an exception to the

general rule that seizures are per se unreasonable when conducted without a warrant.

Id.; see also Katz v. United States, 389 U.S. 347, 357 (1967). We determine whether a

Terry stop is reasonable under the Fourth Amendment by using a two-part analysis.

United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005). We first ask whether there

was reasonable suspicion to initiate the stop, and we next ask whether the stop was

reasonable in scope. Id.

a. The officers had reasonable suspicion to initiate a Terry stop

To test an officer’s right to initiate a Terry stop, we ask “whether there was a

proper basis for the stop, which is judged by examining whether the law enforcement

officials were aware of specific and articulable facts which gave rise to reasonable

suspicion” of criminal activity. Davis, 430 F.3d at 354 (internal quotation marks

omitted). To this end, we look to the totality of the circumstances when the Terry stop

commenced. Id. The officer must have a “particularized and objective basis for

suspecting the particular person stopped of criminal activity.” United States v.

Caruthers, 458 F.3d 459, 464 (6th Cir. 2006) (internal quotation marks and citations

omitted). Ambiguous behavior does not give rise to reasonable suspicion because

“reasonable suspicion looks for the exact opposite of ambiguity.” United States v.

Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011).

The only pertinent inquiry is the factual basis for the officer’s suspicion of

trespass at the time the police cruiser parked behind Young. At this time, the police
No. 11-2296 United States v. Young Page 7

officers had only three justifications: the recent high-crime history of this lot, pat-downs

of Julian’s patrons, and Young’s reclined position in the passenger seat of a parked car.

The high-crime history of the parking lot and the fact that Julian’s conducts patdowns are contextual factors, not specific to Young. We have warned that contextual

factors, such as high-crime, should not be given too much weight because they raise

concerns of racial, ethnic, and socioeconomic profiling. Caruthers, 458 F.3d at 467. At

minimum, an individual being in a high-crime area does not alone give rise to reasonable

suspicion. Id. But this does not mean contextual factors are not relevant to our totality

of the circumstances analysis. In Caruthers, for example, we considered the high-crime

context because the specific criminal history of the intersection was the same crime for

which the citizen was stopped. Id. at 468. In Young’s case, the high-crime factor is

somewhat muddled because Young was stopped on suspicion of trespassing, but the

specific crime history in the lot was violent crime. However, according to the testimony

of the officers, the trespassing and gun crimes are inter-related. Because Julian’s

conducts pat-downs, a person in possession of a gun is more likely to remain outside in

the parking lot. Further, and contrary to Young’s argument, this case is not like See and

Gross where the high-crime area did not provide reasonable suspicion to suspect the

citizens of criminal activity merely because they were loitering, because the crime of

loitering was not at issue those cases. See, 574 F.3d at 311-12, 314; Gross, 662 F.3d at

396-97, 400. Here, trespassing itself was a crime. Thus, we consider these contextual

factors, giving them an appropriately small amount of weight because they are not

particularized to Young.

Young’s reclined position in the passenger seat of a parked car outside of an open

restaurant at 1:15 am was a fact particularized and specific to him, and thus, is entitled

to more weight. The officers also watched Young for a minute and a half, and observed

that he appeared to be going nowhere. At this time, they did not have Young’s

explanation that he was waiting for a friend to see if they could be served. While it is

possible to view these circumstances as ambiguous, it looked like Young had no
No. 11-2296 United States v. Young Page 8

business at Julian’s from the officers’ perspective, and, thus, it looked like he was

trespassing.

Considering the three factors together in the totality of the circumstances, they

were sufficient and reasonably support a brief Terry stop to investigate initial suspicions

of trespassing. As the Supreme Court has noted, while the officers must be able to

articulate something more specific and particularized than a “hunch,” the amount of

proof required to support reasonable suspicion is “considerably less than proof of

wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490 U.S.

1, 7 (1989).

Young raises a novel argument that suspicion of a mere trespassing violation is

not sufficient to support a Terry stop under a “reasonableness” inquiry because such

offenses do not pose a danger to the public. Relying on United States v. Place, 462 U.S.

696, 703 (1983), and United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), Young

argues that Fourth Amendment reasonableness is determined by balancing the public

interest that justifies intrusion against the individual’s right to be free from arbitrary

interference. See also Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth

Amendment § 9.2 (4th ed. 2004, Supp. 2011) (suggesting that Terry stops can never be

used for minor offenses that do not pose a danger to the public). However, Young’s use

of the balancing test is misplaced because the Supreme Court uses it to carve out

exceptions to the warrant requirement, not to define what is “reasonable” within the

Terry stop exception. See Place, 463 U.S. at 704 (listing three categories of warrant

requirement exceptions that are justified by the government interest at stake); BrignoniPonce, 422 U.S. at 877-79 (using the balancing test to carve out an administrative

exception for stopping cars on the border to check citizenship status).

Even if we applied a balancing test here, the public interest in increasing safety

in high-crime areas justifies brief, relatively unintrusive contact by police officers. Such

interaction, when conducted in a professional, non-threatening manner, fulfills the

officers’ duty to protect and serve. Terry itself only requires reasonable suspicion that

some “criminal activity may be afoot.” Terry, 392 U.S. at 30. As we have previously
No. 11-2296 United States v. Young Page 9

suggested, suspicion of trespassing is alone sufficient to support a Terry stop. United

States v. Thomas, 77 F. App’x 862, 865 (6th Cir. 2003) (noting that even if the

circumstance in question was a Terry stop, it would have been justified because the

officer had a reasonable suspicion of trespass); United States v. Simmons, 174 F. App’x

913, 915-17 (6th Cir. 2006) (finding that there was reasonable suspicion of a trespassing

violation, thus supporting a Terry stop).

Accordingly, the district court did not err in finding that the officers had

reasonable suspicion to initiate a Terry stop.

b. The warrant check and initial questioning were within the permissible

scope of the Terry stop.

We now ask whether the scope of the Terry stop was reasonable. To test the

scope, we must determine whether the stop was reasonable both in time and investigative

techniques, given the officers’ suspicions and surrounding circumstances. Davis,

430 F.3d at 354. The means of investigation must have been likely to confirm or dispel

the officers’ suspicions quickly. Id. A Terry stop should be limited in time and the

techniques used should be “the least intrusive means reasonably available.” Caruthers,

458 F.3d at 468.

Officer Fannon first asked Young for his identification and gave Young’s license

to Officer Johnson to run a warrant check. He then asked Young about his purpose for

being in the lot. (E.g. “You just chillin’ out here in the lot or what?”) This appears

designed to determine whether Young was loitering or trespassing. The parties disagree

about whether the police were obligated to give credit to Young’s explanation that his

friend ran in to see if they could get food, and about whether the “furtive gesture” was

sufficient to give rise to suspicion of an additional crime. However, it is not necessary

to reach these questions because Officer Johnson had already begun the warrant check

before either of these events occurred. Regardless of the other events during the stop,

the warrant check would have produced the outstanding warrant, the officers could have

arrested Young, and the gun would have been discovered. The relevant question, then,
No. 11-2296 United States v. Young Page 10

is whether the officers had a right to run a warrant check unrelated to the suspected

crime before ascertaining whether Young was trespassing.

The Sixth Circuit has not yet answered this question. On the one hand, running

a warrant check is not the quickest way to “confirm or dispel suspicion” of trespass, nor

is it the “least intrusive means” of investigation. See Caruthers, 458 F.3d at 468; Davis,

430 F.3d at 354. We have stated before that we do “not wish to create a system of posthoc rationalization through which the Fourth Amendment’s prohibition against illegal

searches and seizures can be nullified” by outstanding warrants. Gross, 662 F.3d at

405. On the other hand, the Supreme Court has noted that “questions concerning a

suspect’s identity are a routine and accepted part of many Terry stops . . . . Knowledge

of identity may inform an officer that a suspect is wanted for another offense.” Hiibel

v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 186 (2004); see also Adams v. Williams, 407

U.S. 143, 146 (1972) (“A brief stop . . . in order to determine his identity or to maintain

the status quo momentarily while obtaining more information, may be most reasonable

in light of the facts known to the officer at the time.”).

While Supreme Court precedent does not say that “obtaining more information”

is always appropriate, some of our sister circuits have expressly held that officers do not

exceed the permissible scope of a Terry stop by running a warrant check, even when the

warrant check is unrelated to the crime suspected. Klaucke v. Daly, 595 F.3d 20, 26

(1st Cir. 2010) (citing United States v. Kirksey, 485 F.3d 955, 957 (7th Cir. 2007));

United States v. Long, 532 F.3d 791, 795 (8th Cir. 2008). This procedure may help clear

a person’s name or may give the officers important information about the suspect.

United States v. Villagrana-Flores, 467 F.3d 1269, 1275 (10th Cir. 2006). We find this

persuasive and, accordingly, hold that the officers here did not exceed the reasonable

scope of a Terry stop by running a warrant check.

Because the officers were reasonable in conducting a warrant check, the

inevitable product of that check, the gun, is the fruit of a legal seizure. While it is

possible to argue that it was excessive for three officers with flashlights to surround the

car of a sleeping individual, the discovery of the gun arose from other actions that we
No. 11-2296 United States v. Young Page 11

find were reasonable. The Terry stop lasted only four minutes, no longer than it took

Officer Johnson to conduct the warrant check. The officers were reasonable in

maintaining the status quo by telling Young to “sit tight” while they completed the

check. The district court did not err in finding the Terry stop reasonable in scope.

The exclusionary rule prohibits using the fruits of an unlawful search or seizure

as tangible evidence in a criminal case. See New York v. Harris, 495 U.S. 14, 19 (1990);

Murray v. United States, 487 U.S. 533, 536 (1988); Wong Sun v. United States, 371 U.S.

471, 484-86 (1963). It is used to deter unlawful government behavior. Gross, 662 F.3d

at 401. However, the use of the rule assumes an underlying illegal search or seizure.

See id. at 402. There is no illegal seizure here. Even if later police actions, such as

questioning about past crimes and weapons or ordering Young out of the car, were not

reasonable, the evidence would have been discovered inevitably through lawful means.

See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (holding that it is permissible for an

officer to retrieve evidence as incident to lawful arrest). Exclusion of the gun is not

warranted.

III. CONCLUSION

We do not attempt to minimize the dangers of oppressive police practices or

Terry stop abuses. See, e.g., David A. Harris, Factors for Reasonable Suspicion: When

Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 660 (1994). Surely, a

citizen should not be harassed by police while engaging in lawful activity, even if the

lawful activity occurs at night and in a high-crime area. However, police officers must

be able to investigate actual crimes, including “mere” trespassing violations. When a

lawful stop occurs, identification and warrant checks are basic police practices. For this

and the above reasons, we affirm the district court’s denial of Young’s motion to

suppress.