                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0542n.06

                                            Case No. 14-4059                                    FILED
                                                                                          Jul 30, 2015
                             UNITED STATES COURT OF APPEALS                          DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
        Plaintiff-Appellee,                               )
                                                          )       ON APPEAL FROM THE UNITED
v.                                                        )       STATES DISTRICT COURT FOR
                                                          )       THE NORTHERN DISTRICT OF
ERIK LAMONT THORNTON,                                     )       OHIO
                                                          )
        Defendant-Appellant.                              )
                                                          )
                                                          )       OPINION



BEFORE: BOGGS and DONALD, Circuit Judges; QUIST, District Judge.

        BERNICE BOUIE DONALD, Circuit Judge.                         Defendant-Appellant Erik Lamont

Thornton (“Thornton”) appeals his conviction and 46-month prison sentence for being a felon in

possession of a firearm. Thornton raises two issues on appeal. First, he argues that the district

court should have suppressed evidence obtained as a result of an illegal stop and frisk by the

police. Second, he argues that the district court erroneously applied a two-level sentencing

enhancement for possession of a stolen firearm pursuant to § 2K2.1(b)(4)(A) of the United States

Sentencing Guidelines (“U.S.S.G.”). Finding neither argument persuasive, we AFFIRM the

judgment of the district court in all respects.



  The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by
designation.
Case No. 14-4059, United States v. Thornton


                                               I.

                                               A.

       On October 23, 2013, Akron Police Department Officers Drew Reed (“Reed”) and

James Hadbavny (“Hadbavny”) were assisting other officers with a traffic stop at the intersection

of Copley Road and Seward Avenue in Akron, Ohio.            During the traffic stop, Reed and

Hadbavny heard a loud gunshot nearby and northeast of their location. The officers returned to

their cruiser, made a U-turn, drove eastbound on Copley Road, and made a northbound turn onto

Nome Avenue.     The officers then rolled the cruiser’s windows down and turned off its

headlights. As the officers traveled northbound on Nome Avenue, they heard a second, louder

gunshot. Reed testified that the second gunshot “sounded almost like it was right beside us, just

to the east of us.” The officers determined that the gunshots were coming from east of their

location, “towards [South] Hawkins Avenue.” Hadbavny testified that the source of the gunfire

was approximately three houses down on South Hawkins Avenue.

       After hearing the second gunshot, the officers continued northbound on Nome Avenue

until they reached Orrin Street, on which they made an eastbound turn. The officers then

proceeded eastbound to the intersection of Orrin Street and South Hawkins Avenue. When they

looked southbound on South Hawkins Avenue, the officers spotted a black male standing in the

front yard of the house at 908 South Hawkins Avenue, on the west side of the street. Both

officers identified the man as Thornton. The officers did not see anybody else—pedestrian or

motorist—on South Hawkins Avenue.

       After   spotting    Thornton,    the   officers   made     a   southbound     turn   onto

South Hawkins Avenue.     Although the cruiser’s headlights were off, the car had reflective

“Akron Police” markings on its side, which the streetlights and moonlight illuminated. Thornton



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Case No. 14-4059, United States v. Thornton


looked in the direction of the officers’ vehicle, “quickly” walked toward a 2011 Toyota Corolla

parked in the driveway, opened the passenger door, threw an object inside, and closed the door.

Thornton then “briskly walked away.” Both officers testified that they believed Thornton had

thrown a gun into the parked vehicle.

       When the officers pulled up to Thornton, Hadbavny shined the cruiser’s spotlight on him.

The officers then exited their vehicle and approached Thornton. Both officers agreed that they

had detained Thornton for an investigative stop at the time Hadbavny spotlighted him.

Hadbavny asked Thornton what was going on and whether he had heard any gunshots.

Hadbavny then patted Thornton down to check for weapons.              Both officers testified that

Thornton appeared “sweaty and jittery,” made quick, nervous motions, and was “visibly

shaking.”   According to Hadbavny, Thornton “wasn’t really paying attention” to any of

Hadbavny’s requests for information—such as name and date of birth—and would not make eye

contact.

       Once Hadbavny had completed his frisk of Thornton and confirmed that he had no

weapons on his person, Reed walked over to the passenger side of the Toyota Corolla and shined

a flashlight inside the car. Without opening the door of the vehicle, Reed observed a gun sitting

in plain view on the driver’s-side seat. Reed then told Hadbavny, who was still questioning

Thornton, to place Thornton under arrest. At that point, Thornton bent down as if to adjust his

shoe, which both officers testified is a typical maneuver of a person on the verge of attempting to

flee. When Thornton bent down, Hadbavny told him to put his hands behind his back. Then,

Thornton stood up and lunged into Hadbavny.

       Reed attempted to push Thornton onto the trunk of the car, but Thornton spun around and

ran into Hadbavny. Hadbavny then tackled Thornton’s legs, and Thornton dragged Hadbavny



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Case No. 14-4059, United States v. Thornton


into the neighboring yard. After a “pretty long fight,” the officers were able to subdue Thornton

into a “stalemate” until additional officers responded with assistance. The officers then placed

Thornton in handcuffs and escorted him to the cruiser.

          Thornton made several statements while in the back of the police cruiser. First, Thornton

spontaneously shouted to a nearby family member that “[he] took Daddy’s gun because [he]

wanted to kill [himself].”       Then, in response to questioning about the gunshots, Thornton

admitted     to   Reed    that    he   fired    the    gun   in   the    backyard     of    the   house     at

908 South Hawkins Avenue.          However, the government conceded that this statement was

inadmissible because Reed did not read Thornton his Miranda1 rights. Finally, as Hadbavny sat

silently in the front seat of the police cruiser, Thornton struck up a conversation with him.

Specifically, Thornton asked Hadbavny, “So why is my car being towed?” Hadbavny replied,

“It’s part of the incident.” Thornton then stated, “Oh, ‘cause I threw it in there?” The officers

then transported Thornton back to the police station.              Reed testified that, during the ride,

Thornton seemed “cheerful” and apologetic, and that he pointed out for the officers where he

lived.2

                                                      B.

          On November 20, 2013, a grand jury in the Northern District of Ohio returned a one-

count indictment against Thornton, charging him with being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The firearm in question was a Sig Sauer,

Model P250, 9mm pistol that Thornton obtained by prying open a lockbox in his father’s home.

On February 20, 2014, Thornton filed a motion to suppress (1) “all evidence confiscated by the

Akron Police Department officers who stopped, seized, and searched Mr. Thornton and his

1
  See Miranda v. Arizona, 384 U.S. 436 (1966). At no point during the encounter with Thornton did the officers
administer a Miranda warning.
2
  The home at 908 South Hawkins Avenue belonged to Thornton’s father.

                                                      -4-
Case No. 14-4059, United States v. Thornton


vehicle without reasonable suspicion, without probable cause, and without a search warrant”; and

(2) “all statements made by Mr. Thornton to Akron Police Department officers.” The district

court held a hearing on Thornton’s suppression motion on April 1, 2014, at which Reed,

Hadbavny, and Thornton all testified.3

        On April 17, 2014, the district court granted in part and denied in part Thornton’s

suppression motion. As relevant to this appeal, the court held that the officers had reasonable,

articulable suspicion to stop and frisk Thornton, and that, in any event, the gun in Thornton’s car

was independently admissible under the plain-view doctrine. Accordingly, the court did not

suppress “[e]vidence, including the gun, seized as a result of [Thornton’s] stop . . . .”

        Thornton signed a conditional plea agreement on April 28, 2014, which the district court

approved on July 23, 2014. The agreement preserved Thornton’s right to appeal the district

court’s suppression order.

        The district court held a sentencing hearing on October 10, 2014. The presentence

investigation report (“PSR”) recommended a base offense level of 20, a two-level enhancement

for possession of a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(4)(A), and a three-level

reduction for acceptance of responsibility.               The district court agreed with the PSR’s

recommendations, finding that Thornton stole the firearm by prying open his father’s lockbox to

obtain access to it. With a base offense level of 19 and a criminal-history category of IV,

Thornton’s advisory guidelines range was 46-57 months. The court sentenced Thornton to serve

46 months—the low end of the range. This timely appeal followed.




3
  Thornton disputed several portions of the officers’ testimony. Most significantly, Thornton testified that Reed
unlocked the door of his car and rummaged around inside to find a gun under the seat. However, the district court
found Reed’s testimony regarding how he found the gun credible.

                                                      -5-
Case No. 14-4059, United States v. Thornton


                                                 II.

         Thornton argues (1) that the district court’s refusal to suppress evidence obtained as a

result of the officers’ illegal stop and frisk was erroneous and (2) that the district court

erroneously applied a stolen-firearm enhancement to his sentence. We address each argument in

turn.

                                                 A.

         Thornton’s first contention on appeal is that the district court should have suppressed

evidence—including the firearm—obtained as a result of an illegal stop and frisk by the police.

The argument fails.

                                                 1.

         We apply a mixed standard of review to a district court’s decision on a motion to

suppress, examining “the district court’s findings of fact for clear error and its conclusions of law

de novo.” United States v. Winters, 782 F.3d 289, 294-95 (6th Cir. 2015) (quoting United States

v. Johnson, 656 F.3d 375, 377 (6th Cir. 2011)) (internal quotation marks omitted). Upon review

of the denial of a motion to suppress, we must “view the evidence in the light most favorable to

the government.” United States v. Lee, --- F.3d ----, 2015 WL 4254012, at *3 (6th Cir. July 15,

2015).     Thus, we must accept the district court’s factual findings—including credibility

determinations—unless they are “clearly erroneous.” Id. (citing United States v. Lyons, 687 F.3d

754, 762 (6th Cir. 2012)). “[A] denial of a motion to suppress will be affirmed on appeal if the

district court’s conclusion can be justified for any reason.” United States v. Higgins, 557 F.3d

381, 389 (6th Cir. 2009) (alteration in original) (quoting United States v. Hardin, 539 F.3d 404,

417 (6th Cir. 2008)) (internal quotation marks omitted).




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Case No. 14-4059, United States v. Thornton


                                                 2.

       A police officer may conduct a brief investigatory stop of a person, consistent with the

Fourth Amendment, if the officer has “a reasonable, articulable suspicion that [the] person may

be involved in criminal activity.” Loza v. Mitchell, 766 F.3d 466, 476 (6th Cir. 2014) (citing

Terry v. Ohio, 392 U.S. 1, 30-31 (1968)); see also Arizona v. Johnson, 555 U.S. 323, 326 (2009)

(holding that a Terry stop is justified “when [a] police officer reasonably suspects that the person

apprehended is committing or has committed a criminal offense”).               The stop must be

(1) “justified at its inception” and (2) “reasonably related in scope to the circumstances which

justified the interference in the first place.” Loza, 766 F.3d at 476 (quoting Terry, 392 U.S. at

20) (internal quotation marks omitted). During such a stop, the police “may make ‘reasonable

inquiries’ of the person and conduct a pat-down search to check for weapons,” id. (quoting

Terry, 392 U.S. at 20), as long as the police “reasonably suspect that the person stopped is armed

and dangerous.” Johnson, 555 U.S. at 326-27.

       In determining whether the police had reasonable suspicion to conduct an investigatory

stop, we employ a totality-of-the-circumstances inquiry. Hoover v. Walsh, 682 F.3d 481, 494

(6th Cir. 2012).   “Reasonable suspicion requires more than a ‘mere hunch,’ but ‘less than

probable cause, and falls considerably short of satisfying a preponderance of the evidence

standard.’” Id. (quoting United States v. Campbell, 549 F.3d 364, 370-71 (6th Cir. 2008)). A

stop and frisk must be justified by “specific and articulable facts” suggesting that the searched

person is engaged in criminal activity.     Id. (quoting Smoak v. Hall, 460 F.3d 768, 778-79

(6th Cir. 2006)) (internal quotation marks omitted). Pertinent factors to consider “include the

officer’s own direct observations, dispatch information, directions from other officers, and the




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Case No. 14-4059, United States v. Thornton


nature of the area and time of day during which the suspicious activity occurred.” Id. (quoting

Campbell, 549 F.3d at 371) (internal quotation marks omitted).

         In this case, the district court cited the following factors in support of its holding that

Reed and Hadbavny had reasonable, articulable suspicion to stop Thornton: (1) they observed

Thornton as the only person in the vicinity of shots fired moments earlier; (2) the stop took place

in a high-crime area; and (3) when Thornton spotted the officers, he quickly walked over to a

vehicle parked in the driveway, opened the door, and hurriedly tossed an item inside. Thornton

argues that “[t]he individual elements do not arise to reasonable suspicion, and the sum of the

parts fails to establish reasonable suspicion.” We disagree.

         First, we have repeatedly held that a person’s proximity to the location of a crime is a

relevant factor in a Terry analysis.4 See, e.g., United States v. Atkins, 513 F. App’x 577, 580

(6th Cir. 2013) (noting that a person’s physical and temporal proximity to the scene of a crime

are appropriate factors in the reasonable-suspicion inquiry); United States v. Johnson,

246 F. App’x 982, 987 (6th Cir. 2007) (holding that the officers’ reasonable suspicion to conduct

a Terry stop was supported by “the fact that the officers found the defendant at 2:00 a.m., in a

high crime neighborhood, in close proximity in time and location to . . . shots-fired allegations”).

Here, the officers encountered Thornton (and only Thornton) in close proximity to the location

that they suspected was the origin of the gunshots—approximately three houses down on

South Hawkins Avenue. And the officers heard the gunshots, which Reed testified sounded as if

they were “right beside” them, just moments before spotting Thornton. Cf. United States v.

McMullin, 739 F.3d 943, 947 (6th Cir. 2014) (finding reasonable suspicion where officers

“responded to a reported breaking-and-entering at a residence to find [the defendant] standing in


4
 It is undisputed that firing a gunshot within the Akron city limits is a criminal violation. See Akron Municipal
Code § 137.08(a) (“No person shall discharge a cannon, rifle, gun revolver, pistol or other firearm within the city.”).

                                                        -8-
Case No. 14-4059, United States v. Thornton


front of the same window that had reportedly attempted to be broken into only a few minutes

prior”). Although Thornton impugns the district court’s determination that the officers were able

to pinpoint the location of the gunshots in a dense neighborhood, there is nothing in the record to

suggest that the court committed clear error by finding the officers’ testimony credible on this

point. See Lee, 2015 WL 4254012, at *3. Thus, this factor weighs in favor of reasonable

suspicion. Cf. United States v. Edwards, 761 F.3d 977, 982 (9th Cir. 2014) (emphasizing that the

defendant “was the only person in the vicinity . . . who fairly matched the description of a man

who reportedly had been shooting at passing cars just minutes before police arrived”); United

States v. Moore, 817 F.2d 1105, 1107 (4th Cir. 1987) (holding that the officers’ reasonable

suspicion to conduct a Terry stop was supported by the fact that the defendant “was the only

person in the vicinity” of a recently committed crime).

       Second, although Thornton is correct that a person’s mere presence in a high-crime area

“may not, without more, give rise to reasonable suspicion,” it is nevertheless “relevant to the

reasonable suspicion calculus.” United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006)

(collecting cases). Here, the government produced unrefuted evidence that the area in which the

officers encountered Thornton had experienced a significant number of violent crimes over the

previous year. Thus, the officers’ reasonable suspicion was bolstered not only by the fact that

they encountered Thornton in close proximity to recently fired gunshots, but also by credible

evidence that they were responding to a “specific, circumscribed location[ ] where [violent]

crimes occur with unusual regularity.” Id. at 468 (quoting United States v. Montero-Camargo,

208 F.3d 1122, 1138 (9th Cir. 2000) (en banc)).

       Finally, before the officers turned on their cruiser’s spotlight, Thornton quickly walked

over to a car parked in the driveway, opened the passenger door, and tossed an object inside. He



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Case No. 14-4059, United States v. Thornton


then “briskly” walked away. Thornton argues that this conduct is just as easily attributable to

innocent conduct as it is to criminal activity. While this may be true, we have recently stressed

that our review of the denial of a motion to suppress should not resemble “a ‘divide-and-conquer

analysis’ that examines the factors supporting reasonable suspicion ‘in isolation from each

other.’” Winters, 782 F.3d at 301 (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)).

Rather, “we must determine whether the individual factors, taken as a whole, give rise to

reasonable suspicion, even if each individual factor is entirely consistent with innocent behavior

when examined separately.” Id. (quoting United States v. Smith, 263 F.3d 571, 588 (6th Cir.

2001)) (internal quotation marks omitted). In this case, the officers heard a nearby gunshot,

encountered Thornton (and only Thornton) moments later in the vicinity of the area they believed

was the source of the gunshot, and saw Thornton quickly dispose of an item in a parked car after

spotting the officers’ cruiser.        These “[f]urtive movements made in response to a police

presence” are yet another relevant factor that may “properly contribute to an officer’s

suspicions.” Caruthers, 458 F.3d at 466 (collecting cases).

        In sum, we hold that the officers had reasonable, articulable suspicion to stop and frisk

Thornton based on his geographic and temporal proximity to recently fired gunshots, the fact that

he was the only person in the area, and his furtive movements in response to noticing the

officers’ squad car. Viewing the evidence, as we must, “in the light most likely to support the

district court’s decision,” Winters, 782 F.3d at 301 (quoting United States v. Braggs, 23 F.3d

1047, 1049 (6th Cir. 1994)) (internal quotation marks omitted), this conclusion inexorably

follows. Accordingly the district court’s refusal to suppress evidence obtained as a result of the

police’s stop and frisk of Thornton was not erroneous.5


5
  Because we hold that the officers’ stop and frisk was justified, we need not delve into the parties’ alternative
arguments regarding the admissibility of the firearm under the plain-view doctrine.

                                                     - 10 -
Case No. 14-4059, United States v. Thornton


                                                 B.

       Next, Thornton argues that the district court erroneously applied a two-level enhancement

to his base offense level for possession of a stolen firearm pursuant to U.S.S.G.

§ 2K2.1(b)(4)(A). Specifically, Thornton argues that he could not “steal” a gun over which he

had “constructive possession”—i.e., that because the gun was stored in his parents’ home and he

“knew the gun was present and within his immediate control,” he constructively possessed it and

could not steal it. This argument also fails.

                                                 1.

       “We review the district court’s legal interpretation of the Guidelines de novo, but accept

factual findings made by the district court at sentencing unless they are clearly erroneous.”

United States v. Pirosko, 787 F.3d 358, 372 (6th Cir. 2015) (citation omitted) (quoting United

States v. Phillips, 516 F.3d 479, 483 (6th Cir. 2008)) (internal quotation marks omitted). We

must “give due deference to the district court’s application of the Guidelines to the facts.”

United States v. Galaviz, 645 F.3d 347, 358 (6th Cir. 2011) (quoting United States v. Moon,

513 F.3d 527, 539-40 (6th Cir. 2008)) (internal quotation marks omitted). The government bears

the burden of establishing by a preponderance of the evidence that a sentencing enhancement

applies. United States v. Byrd, 689 F.3d 636, 640 (6th Cir. 2012).

                                                 2.

       Section 2K2.1(b)(4)(A) of the Sentencing Guidelines permits a district court to enhance a

defendant’s base offense level by two levels “[i]f any firearm . . . was stolen . . . .” Although the

Guidelines do not define the word “stolen,” for purposes of § 2K2.1(b)(4)(A), we have

interpreted the word to mean, “‘[t]o take dishonestly or secretly.’” United States v. Jackson,

401 F.3d 747, 750 (6th Cir. 2005) (quoting the Oxford English Dictionary).             An intent to



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Case No. 14-4059, United States v. Thornton


permanently deprive a person of property is not required in order to conclude that property is

“stolen” for purposes of the stolen-firearm enhancement. Id.

        In this case, the PSR recommended a two-level stolen-firearm enhancement because

Thornton “stole the firearm from his father by prying open his father’s gun box.” Thornton

objected, as he does now, on the basis that “he had constructive possession of the firearm located

in his house, and [could not] steal something within his own possession.” The objection is

creative insofar as it has not appeared with any regularity in case law. 6 In overruling the

objection, however, the district court stated:

        The constructive possession argument fails. The gun was not in the constructive
        possession of Mr. Thornton. In fact, it was locked away in a place that was hoped
        to be a situation that would have prevented anyone from opening it without
        certain tools and permission to do so. Mr. Thornton didn’t have permission to
        open that box. He did that without his dad’s permission. That’s been clear. And
        he was not in constructive possession of that firearm.

        The district court’s analysis was correct. “A weapon is ‘constructively’ possessed if . . .

the defendant ‘knowingly has the power and the intention at a given time to exercise dominion

and control over an object, either directly or through others.” United States v. Walker, 734 F.3d

451, 455 (6th Cir. 2013) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973)).

There must be evidence that the defendant “had knowledge of, access to, and an intent to

exercise control over the gun.” United States v. Bailey, 553 F.3d 940, 946 (6th Cir. 2009). Here,

the uncontroverted record evidence indicates that Thornton’s father had deliberately cut off all

access to the gun by securing it in a lockbox. Thornton then stole the gun by prying open his

father’s lockbox. In that vein, Thornton’s conduct is exactly analogous to the conduct of other

defendants for which we have upheld stolen-firearm enhancements. E.g., Jackson, 401 F.3d at

6
  In United States v. Pazour, 609 F.3d 950, 952-53 (8th Cir. 2010) (per curiam), the Eighth Circuit encountered an
argument by the government that a defendant constructively possessed a stolen firearm for purposes of a
§ 2K2.1(b)(4)(A) enhancement. However, on plain-error review, the court avoided deciding the question directly.
Id. at 953-54.

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Case No. 14-4059, United States v. Thornton


748, 750 (upholding application of the stolen-firearm enhancement to a defendant who had taken

his father’s gun “without permission”). There is no dispute that Thornton “deprived [his father]

of possession of the gun without his consent.” United States v. Herrman, No. 96-3076, 1996 WL

621028, at *1 (10th Cir. Oct. 28, 1996), cited with approval in Jackson, 401 F.3d at 750. That

factual circumstance also distinguishes Thornton’s case from the other cases involving

constructive possession, in all of which there was no impediment to the defendant’s access to a

gun and in none of which there were affirmative acts such as prying open an intentionally locked

gun box. See United States v. Guadarrama, 591 F. App’x 347, 355 (6th Cir. 2014) (finding that

a defendant constructively possessed a shotgun located in the closet of a locked room to which

the defendant had access and in which he stored some of his personal items); United States v.

Braswell, 516 F. App’x 572, 573, 575 (6th Cir. 2013) (finding that a defendant constructively

possessed a handgun that he knew was located “in the house” and that officers found “under the

cushion of a chair in the living room”); United States v. Morrison, 594 F.3d 543, 545-46 (6th Cir.

2010) (finding the evidence sufficient to support a felon-in-possession charge where the firearm

in question was in plain view of the defendant and “probably was rubbing his side”); United

States v. Kincaide, 145 F.3d 771, 776, 782 (6th Cir. 1998) (finding the evidence sufficient to

support a felon-in-possession charge where officers located the firearms in question strewn

loosely throughout a shared apartment—“adjacent to [a] couch; . . . in plain view on the floor of

the kitchen; . . . in a living room closet; . . . [and] in a bedroom closet”).

        Put simply, Thornton did not have access to his father’s gun, absent engaging in conduct

tantamount to taking it “dishonestly or secretly.” Jackson, 401 F.3d at 750 (internal quotation

marks omitted). Mindful that “the sentencing guidelines require[ ] a broad meaning of ‘stolen’




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Case No. 14-4059, United States v. Thornton


for firearm charges,” United States v. Tyerman, 701 F.3d 552, 565 (8th Cir. 2012), we uphold the

district court’s determination that Thornton did not constructively possess the firearm.

                                                III.

       For the foregoing reasons, we AFFIRM the judgment of the district court in all respects.




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